[Federal Register Volume 87, Number 190 (Monday, October 3, 2022)]
[Rules and Regulations]
[Pages 59692-59695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21252]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2022-0121; FRL-9823-02-R3]


Air Plan Approval; Pennsylvania; 2015 Ozone National Ambient Air 
Quality Standards Nonattainment New Source Review Certification SIP

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the Commonwealth of 
Pennsylvania. The revision will fulfill Pennsylvania's nonattainment 
new source review (NNSR) SIP element requirement for the 2015 8-hour 
ozone national ambient air quality standard (NAAQS). EPA is approving 
these revisions to the Pennsylvania SIP in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on November 2, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2022-0121. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on

[[Page 59693]]

the internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available through 
www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Justin Leary, Permits Branch (3AD10), 
Air & Radiation Division, U.S. Environmental Protection Agency, Region 
III, Four Penn Center 1600 John F. Kennedy Boulevard, Philadelphia, 
Pennsylvania 19103, Philadelphia, Pennsylvania 19103. The telephone 
number is (215) 814-2189. Mr. Leary can also be reached via electronic 
mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On May 31, 2022 (87 FR 32379), EPA published a notice of proposed 
rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, 
EPA proposed approval of Pennsylvania's existing Federally-approved 
NNSR regulations for the 2015 8-hour ozone NAAQS. The formal SIP 
revision was submitted by Pennsylvania Department of Environmental 
Protection (PADEP) on behalf of the Commonwealth of Pennsylvania 
(Commonwealth or Pennsylvania) on January 8, 2021.
    Pennsylvania is certifying that the Commonwealth's federally 
approved nonattainment new source review regulation in 25 Pennsylvania 
Code of Regulations (Pa. Code) Chapter 127 applies statewide and covers 
the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment 
area for the 2015 ozone NAAQS. Pennsylvania asserts that its 
nonattainment new source review program is at least as stringent as the 
requirements at 40 Code of Federal Regulations (CFR) 51.165, as amended 
by the final rule titled ``Implementation of the 2015 National Ambient 
Air Quality Standards for Ozone: Nonattainment Area State 
Implementation Plan Requirements'' (SRR) for ozone and its precursors. 
See 83 FR 62998 (December 6, 2018).

II. Summary of SIP Revision and EPA Analysis

    This rulemaking action is specific to Pennsylvania's NNSR 
requirements. NNSR is a preconstruction review permit program that 
applies to new major stationary sources or major modifications at 
existing sources located in a nonattainment area. The specific NNSR 
requirements for the 2015 8-hour ozone NAAQS are located in 40 CFR 
51.160-165.
    The minimum SIP requirements for NNSR permitting programs for the 
2015 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR 
51.1314. Under the 2015 8-hour ozone NAAQS NNSR SIP requirements, the 
SIP for each ozone nonattainment area must contain NNSR provisions 
that: (1) set major source thresholds for oxides of nitrogen 
(NOX) and volatile organic compounds (VOCs) pursuant to 40 
CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv); (2) classify physical changes as a 
major source if the change would constitute a major source by itself 
pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); (3) consider any significant 
net emissions increase of NOX as a significant net emissions 
increase for ozone pursuant to 40 CFR 51.165(a)(1)(v)(E); (4) consider 
certain increases of VOC emissions in extreme ozone nonattainment areas 
as a significant net emissions increase and a major modification for 
ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); (5) set significant 
emissions rates for VOCs and NOX as ozone precursors 
pursuant to 40 CFR 51.165(a)(1)(x)(A)-(C) and (E); (6) contain 
provisions for emissions reductions credits pursuant to 40 CFR 
51.165(a)(3)(ii)(C)(1)-(2); (7) provide that the requirements 
applicable to VOC also apply to NOX pursuant to 40 CFR 
51.165(a)(8); and (8) set offset ratios for VOC and NOX 
pursuant to 40 CFR 51.165(a)(9)(i)-(iii) (renumbered as (a)(9)(ii)-(iv) 
under the SIP Requirements Rule for the 2008 8-hour ozone NAAQS).
    Pennsylvania's SIP approved NNSR program, established in the Pa. 
Code Rule 25 Pa. Code Chapter 127--Construction, Modification, 
Reactivation, and Operation of Sources, applies to the construction and 
modification of major stationary sources in nonattainment areas. In the 
October 30, 2017, SIP revision, Pennsylvania certifies that the version 
of 25 Pa. Code Chapter 127 in the SIP is at least as stringent as the 
Federal NNSR requirements for the Philadelphia-Wilmington-Atlantic 
City, PA-NJ-MD-DE nonattainment area. EPA last approved revisions to 
Pennsylvania's major NNSR SIP on February 22, 2019. In that action, EPA 
approved Pennsylvania's NNSR program under the 2008 8-hour ozone NAAQS 
and made PADEP's NNSR program consistent with Federal requirements. See 
84 FR 5598 (February 22, 2019). The version of 25 Pa. Code Chapter 127 
that is contained in the current SIP and covers the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area and is 
adequate to meet all applicable NNSR requirements for the 2015 8-hour 
ozone NAAQS found in 40 CFR 51.165, and the SRR.
    Other specific requirements of the SRR and the rationale for EPA's 
proposed action are explained in the NPRM and will not be restated 
here.

III. EPA's Response to Comments Received

    EPA received one comment on our proposed approval of Pennsylvania's 
2015 Ozone NNSR Certification SIP. A summary of the comment and EPA's 
response is provided herein. The comment received is included in the 
docket for this action.
    Comment: The commenter asserts that EPA failed to address the fact 
that Pennsylvania submitted a letter withdrawing specific portions of 
the January 8, 2021, SIP revision submittal related to inter-precursor 
trading (IPT) provisions. In doing so, EPA has proposed an approval 
without excluding the IPT provision that unlawfully allows IPT to 
satisfy the Clean Air Act's offset requirements for ozone precursors. 
The commentor asserts that EPA must state explicitly in its final 
action that it is not approving the IPT provisions of the January 8, 
2021, SIP and that it is approving, as a SIP commitment, Pennsylvania's 
promise not to issue any NNSR permits or plan approvals that rely on 
IPT. Finally, the commentor asserts that the approval should be 
conditional on Pennsylvania following through on their commitment to 
remove ozone related IPT provision from the commonwealth's regulations.
    Response: On January 29, 2021, the United States Court of Appeals 
for the D.C. Circuit concluded that ozone IPT trading is not 
permissible under the CAA and vacated ozone IPT trading, i.e., the IPT 
trading provision in the Federal NNSR regulations. Sierra Club v. EPA, 
985 F.3d 1055 (D.C. Cir. 2021). EPA removed the language allowing IPT 
trading for ozone from its NNSR regulations. 86 FR 37918 (July 19, 
2021). In response to that the July 19, 2021, rule, on August 23, 2021, 
PADEP sent a letter to EPA that withdrew from EPA's review the specific 
portions of PADEP's January 8, 2021, SIP revision submittal that 
related to inter-precursor trading (IPT).
    EPA agrees with comment to the extent that EPA should have 
affirmatively addressed the August 23, 2021, letter and the fact that 
PADEP had withdrawn from EPA review the (IPT) provisions submitted with 
the January 8, 2021, SIP revision. Pennsylvania clearly intends to not 
apply the IPT provisions to ozone as made evident by the August 23, 
2021, letter to the EPA.

[[Page 59694]]

Furthermore, we acknowledged in this action that the provisions for IPT 
for ozone had been withdrawn from our consideration, as reflected by 
our inclusion of the August 23, 2021, letter in the docket for the 
action. Therefore, EPA's proposed approval of Pennsylvania's 2015 ozone 
NNSR certification SIP did not at any time include a proposed approval 
of any provisions relating to IPT for ozone, consistent with the D.C. 
Circuit's decision. EPA affirms that, in light of the D.C. Circuit's 
decision (and consistent with Pennsylvania's explicitly stated intent 
in the withdrawal letter), it would be inappropriate for Pennsylvania 
to issue NNSR permits which relied on IPT for ozone precursors. 
Pennsylvania's regulations for the issuance of plan approvals provide 
for public notice and comment, in accordance with CAA requirements. EPA 
has the ability to review and comment on any deficiency in a draft plan 
approval, including an inappropriate use of IPT for ozone.
    However, EPA disagrees with the commentor's assertion that the 
approval must be conditional on Pennsylvania following through on its 
commitment to remove the IPT provisions in the commonwealth's 
regulations. This action only addresses the adequacy of Pennsylvania's 
SIP for purposes of implementing the 2015 ozone NAAQS. Because of the 
withdrawal reflected in the Commonwealth's August 23, 2021, letter, the 
IPT language in Pennsylvania's regulations is not before EPA for 
approval in this action. Since the Pennsylvania provisions included in 
this SIP submission are adequate for purposes of implementing the 2015 
ozone standard, Pennsylvania's 2015 Ozone NNSR Certification SIP is 
approvable without the condition requested by the commenter.

IV. Final Action

    EPA's review of this material indicates that Pennsylvania's 
submission fulfills the 40 CFR 51.1114 revision requirement, meets the 
requirements of CAA sections 110 and 172 and the minimum SIP 
requirements of 40 CFR 51.165. Therefore, we are finalizing our 
approval of Pennsylvania's NNSR SIP for 2015 8-hour ozone NAAQS.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 2, 2022. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.
    This action pertaining to Pennsylvania's 2015 Ozone NNSR 
Certification may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons set out in the preamble, 40 part 52 is amended as 
follows:

PART 52--APPROVAL PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart NN--Pennsylvania

0
2. In Sec.  52.2020, the table in paragraph (e)(1) is amended by adding 
an entry for

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``2015 8-Hour Ozone National Ambient Air Quality Standard Nonattainment 
New Source Review Requirements'' at the end of the table to read as 
follows:


Sec.  52.2020  Identification of plan.

* * * * *
    (e) * * *
    (1) * * *

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  Name of non-regulatory SIP       Applicable          State         EPA approval
           revision              geographic area  submittal  date        date           Additional explanation
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                                                  * * * * * * *
2015 8-Hour Ozone NAAQS         Pennsylvania's    1/8/21; 8/23/21  10/3/22, Insert
 Nonattainment New Source        portion of the                     Federal
 Review Requirements.            Philadelphia-                      Register
                                 Wilmington-                        citation].
                                 Atlantic City,
                                 PA-NJ-MD-DE
                                 area (includes
                                 Bucks, Chester,
                                 Delaware,
                                 Montgomery, and
                                 Philadelphia
                                 Counties).
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[FR Doc. 2022-21252 Filed 9-30-22; 8:45 am]
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