[Federal Register Volume 88, Number 152 (Wednesday, August 9, 2023)]
[Rules and Regulations]
[Pages 53802-53806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16734]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52 and 70

[EPA-R03-OAR-2022-0166; FRL-10673-02-R3]


Air Plan Approval; Pennsylvania; Revisions To Plan Approval and 
Operating Permit Fees Rule and Title V Operating Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving both a 
State implementation plan (SIP) revision and Title V operating permits 
program revision submitted by the Pennsylvania Departmental of 
Environmental Protection (PADEP) on behalf of the Commonwealth of 
Pennsylvania. The SIP revision pertains to Pennsylvania's general 
provisions regarding air resources, operating permit requirements, and 
plan approval and operating permit fees. This includes increases to 
existing plan approval application and operating permit fees. The Title 
V operating permit program revision amends the Title V operating permit 
program fee schedules that fund the Pennsylvania Title V operating 
permit program. EPA is approving these revisions to the Pennsylvania 
SIP and Title V operating permit program in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on September 8, 2023.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2022-0166. All documents in the docket are listed on 
the https://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 the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available through 
https://www.regulations.gov, or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Yongtian He, Permits Branch (3AD10), 
Air & Radiation Division, U.S. Environmental Protection Agency, Region 
III, Four Penn Center, 1600 JFK Boulevard, Philadelphia, Pennsylvania 
19103. The telephone number is (215) 814-2339. Mr. He can also be 
reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On March 7, 2023 (88 FR 14104), EPA published a notice of proposed 
rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, 
EPA proposed approval of both a State implementation plan (SIP) 
revision and Title V operating permits program revision. EPA did not 
receive any comments.
    The formal SIP revision and Title V program revision was submitted 
by PADEP on July 20, 2021, with a clarification letter sent on January 
3, 2023. The revisions amend 25 Pennsylvania (PA) Code Chapters 121 
(relating to general provisions) and 127, Subchapters F and I (relating 
to operating permit requirements; and plan approval and operating 
permit fees). Pennsylvania indicates that these revisions are necessary 
to ensure that fees are sufficient to cover the costs of administering 
the plan approval application and operating permit process as required 
by section 502(b) of the Clean Air Act (42 U.S.C. 7661a(b)) and section 
6.3 of the Air Pollution Control Act (APCA) (35 P.S. section 4006.3).

A. SIP Revision

    Section 110(a)(2)(L) of the CAA mandates that SIPs require the 
owner or operator of each major stationary source to pay to the 
permitting authority a fee sufficient to cover (i) the reasonable costs 
of reviewing and acting upon any application for such a permit, and 
(ii) if the owner or operator receives a permit for such source, the 
reasonable costs of implementing and enforcing the terms and conditions 
of any such permit.
    The SIP revision approves into Pennsylvania's SIP amended versions 
of 25 PA Code Chapters 121 and 127, specifically sections 121.1, 
127.424, 127.702 and 127.703. This SIP revision also adds sections 
127.465, 127.709 and 127.710. EPA has previously approved Pennsylvania 
code Chapter 121 general provisions definitions at 25 PA code 121.1, 
Chapter 127 public notice requirement in section 127.424, and 
Pennsylvania's plan approval and operating permit fee regulations at 25 
PA Code 127.701, 127.702, 127.703 and 127.707, into the Pennsylvania 
SIP in accordance with section 110 of the CAA. See 61 FR 39597 (July 
30, 1996).

B. Title V Operating Permit Program Revision

    EPA granted full approval of the Pennsylvania Title V operating 
permits program on July 30, 1996. See 61 FR 39597. Under 40 CFR 70.9(a) 
and (b), an approved state Title V operating permit program must 
require that the owners or operators of part 70 sources pay annual 
fees, or the equivalent over some other period, that are sufficient to 
cover the permit program costs and ensure that any fee required under 
40 CFR 70.9 is used solely for permit program costs. The fee schedule 
must result in the collection and retention of revenues sufficient to 
cover the permit program implementation and oversight costs. CAA 
502(b)(3)(A).
    Pennsylvania's initial Title V operating permit emission fee was 
established in 1994 at 25 PA Code 127.705 and was last increased in 
2014. In a February 11, 2014 Title V operating permit program revision, 
Pennsylvania

[[Page 53803]]

revised 25 PA Code 127.705 to increase annual emission fees for Title V 
sources, noting that annual emissions fees were no longer sufficient to 
cover costs. See 80 FR 40922 (July 14, 2015).
    In the July 20, 2021 submission, PADEP indicated that the currently 
approved fee structure is insufficient to continue to support the Title 
V program, and as a result, PADEP has revised sections 127.704 and 
127.705, and has submitted these revisions for EPA action pursuant to 
CAA 502(d). EPA is approving these revisions into Pennsylvania's Title 
V operating permit program.

II. Summary of SIP Revision and EPA Analysis

A. SIP Revision

    PADEP added the definition of ``synthetic minor facility'' in the 
definition section 121.1 and corrected a cross-reference error in 
public notice section 127.424. PADEP amended section 127.702 that 
establishes plan approval fees, and section 127.703 that establishes 
operating permit fees under Subchapter F (State Operating Permit 
Requirements) for future years in details based on year and permit 
categories. The newly added section 127.465 establishes the procedures 
the owner or operator of a stationary air contamination source or 
facility shall follow to make a significant modification to an 
applicable operating permit. New section 127.709 establishes fees for 
requests for determination, for whether a plan approval, an operating 
permit, or both, are needed for the change to the facility. Section 
127.710 establishes application fees for the use of general plan 
approvals and general operating permits for stationary or portable 
sources.
    The revisions to Pennsylvania's SIP satisfy CAA section 
110(a)(2)(L), referenced above. The revisions update the Pennsylvania 
SIP with current fee schedules and meet the substantive SIP 
requirements of the CAA, including section 110 and implementing 
regulations.

B. Title V Operating Permit Program Revision

    The revision to Pennsylvania's Title V program approves PADEP's 
amendments to Chapter 127 sections 127.704 and 127.705. Section 127.704 
establishes Title V operating permit fees, and section 127.705 requires 
the owner or operator of a Title V facility to pay annual Title V 
emission fees.
    Pennsylvania indicates that these amendments to its Title V 
operating permit program ensure that fees will remain sufficient to 
cover the costs of administering the plan approval application and 
operating permit process as required by section 502(b) of the CAA and 
section 6.3 of the APCA.
    Based on the 40 CFR part 70 presumptive minimum fee rate from the 
October 3, 2022, EPA Office of Air Quality Planning and Standards 
memorandum,\1\ the requirements of 40 CFR 70.9(b)(2) and the economic 
analysis by PADEP, EPA finds that the July 20, 2021 PADEP submission 
has met the requirements of CAA section 502(b)(1)-(10), and is 
consistent with applicable EPA requirements in the Title V operating 
permit program of the CAA and 40 CFR part 70.
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    \1\ www.epa.gov/system/files/documents/2022-09/FEE70_2023.pdf.
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III. Final Action

    EPA is approving Pennsylvania's July 20, 2021 revision to both the 
Pennsylvania SIP and Pennsylvania's approved Title V operating permit 
program. The SIP revision is in accordance with requirements in section 
110(a)(2)(L) of the CAA and implementing regulations. The Title V 
submittal meets the requirements of CAA section 502(d) and implementing 
regulations.

IV. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the 
Pennsylvania Regulation described in the amendments to 25 PA Code 121 
and 127, as discussed in section II.A of this rulemaking. EPA has made, 
and will continue to make, these materials generally available through 
www.regulations.gov and at the EPA Region III Office (please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information). Therefore, these materials have 
been approved by EPA for inclusion in the SIP, have been incorporated 
by reference by EPA into that plan, are fully federally enforceable 
under sections 110 and 113 of the CAA as of the effective date of the 
final rulemaking of EPA's approval, and will be incorporated by 
reference in the next update to the SIP compilation.\2\
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    \2\ 62 FR 27968 (May 22, 1997).
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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). Under the CAA, 
the Administrator approves Title V operating permit program revisions 
that comply with the Act and applicable Federal Regulations. See 42 
U.S.C. 7661a(d). Thus, in reviewing SIP and Title V operating permit 
program submissions, EPA's role is to approve state choices, provided 
that they meet the criteria of the CAA. 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); and
     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 Clean Air Act.
    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

[[Page 53804]]

specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The air agency did not evaluate environmental justice 
considerations as part of its SIP submittal; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. EPA did not perform an EJ analysis and did not consider EJ 
in this SIP action. Consideration of EJ is not required as part of this 
SIP action, and there is no information in the record inconsistent with 
the stated goal of E.O. 12898 of achieving environmental justice for 
people of color, low-income populations, and Indigenous peoples.
    Additionally, Executive Order 12898 directs Federal agencies, to 
the greatest extent practicable and permitted by law, to make 
environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations (people of color and/or Indigenous 
peoples) and low-income populations.
    EPA believes that this Title V action does not concern human health 
or environmental conditions and therefore cannot be evaluated with 
respect to potentially disproportionate and adverse effects on people 
of color, low-income populations and/or Indigenous peoples. This Title 
V action merely approves into Pennsylvania's part 70 operating permit 
program the relevant Pennsylvania regulations for fees that are 
required to administer the Title V program in Pennsylvania. Those fees 
are already being collected by the State. This Title V action therefore 
does not directly address emission limits or otherwise directly affect 
any human health or environmental conditions in the commonwealth of 
Pennsylvania. In addition, EPA provided meaningful involvement on this 
rulemaking through the notice and comment process, which received no 
comments, and is in addition to the State-level notice and comment 
process held by Pennsylvania.

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 October 10, 2023. 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 approving Pennsylvania SIP and Title V permit program 
revisions may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Lead, Nitrogen 
dioxide, Operating permits, Ozone, Particulate Matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR parts 
52 and 70 as follows:

PART 52--APPROVAL AND 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 (c)(1) is amended by:
0
a. Revising the entries for ``Section 121.1'' and ``Section 127.424'';
0
b. Adding an entry for ``Section 127.465'' in numerical order;
0
c. Revising the entries for ``Section 127.702'' and ``Section 
127.703''; and
0
d. Adding entries for ``Section 127.709'' and ``Section 127.710'' in 
numerical order.
    The revisions and additions read as follows:


Sec.  52.2020   Identification of plan.

* * * * *
    (c) * * *

[[Page 53805]]



                             (1) EPA--Approved Pennsylvania Regulations and Statutes
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                                                                                                   Additional
                                                                  State                        explanation/ Sec.
           State citation                  Title/subject        effective   EPA approval date        52.2063
                                                                   date                             citation
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                          Title 25--Environmental Protection Article III--Air Resources
----------------------------------------------------------------------------------------------------------------
                                         Chapter 121--General Provisions
----------------------------------------------------------------------------------------------------------------
Section 121.1.......................  Definitions............    1/16/2021  8/9/2023, [INSERT  Added the
                                                                             FEDERAL REGISTER   definition of
                                                                             CITATION].         ``synthetic
                                                                                                minor facility''
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                 Chapter 127--Construction, Modification, Reactivation, and Operation of Sources
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                   Subchapter F--Operating Permit Requirements
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                             Review of Applications
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 127.424.....................  Public Notice..........    1/16/2021  8/9/2023, [INSERT  Corrected a cross-
                                                                             FEDERAL REGISTER   reference error
                                                                             CITATION].         in public notice
                                                                                                section
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                         Operating Permit Modifications
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 127.465.....................  Significant operating      1/16/2021  8/9/2023, [INSERT  Added section
                                       permit modification                   FEDERAL REGISTER   127.465 to
                                       procedures.                           CITATION].         establish the
                                                                                                procedures the
                                                                                                owner or
                                                                                                operator of a
                                                                                                stationary air
                                                                                                contamination
                                                                                                source or
                                                                                                facility shall
                                                                                                follow to make a
                                                                                                significant
                                                                                                modification to
                                                                                                an applicable
                                                                                                operating permit
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                              Subchapter I--Plan Approval and Operating Permit Fees
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 127.702.....................  Plan approval fees.....    1/16/2021  8/9/2023, [INSERT  Amended section
                                                                             FEDERAL REGISTER   127.702
                                                                             CITATION].
Section 127.703.....................  Operating permit fees      1/16/2021  8/9/2023, [INSERT  Amended section
                                       under subchapter F.                   FEDERAL REGISTER   127.703
                                                                             CITATION].
 
                                                  * * * * * * *
Section 127.709.....................  Fees for requests for      1/16/2021  8/9/2023, [INSERT  Added section
                                       determination.                        FEDERAL REGISTER   127.709 to
                                                                             CITATION].         establish fees
                                                                                                for requests for
                                                                                                determination

[[Page 53806]]

 
Section 127.710.....................  Fees for the use of        1/16/2021  8/9/2023, [INSERT  Added section
                                       general plan approvals                FEDERAL REGISTER   127.710 to
                                       and general operating                 CITATION].         establish
                                       permits under                                            application fees
                                       Subchapter H..                                           for the use of
                                                                                                general plan
                                                                                                approvals and
                                                                                                general
                                                                                                operating
                                                                                                permits for
                                                                                                stationary or
                                                                                                portable sources
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 70--STATE OPERATING PERMIT PROGRAMS

0
3. The authority citation for part 70 continues to read as follows:

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


0
4. Appendix A to part 70 is amended by adding paragraph (e) to the 
entry for Pennsylvania to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permit Programs

* * * * *
Pennsylvania
* * * * *
    (e) The Pennsylvania Department of Environmental Protection 
submitted a program revision to amends Chapter 127 sections 127.704 
and 127.705 on July 20, 2021; approval effective on August 9, 2023.
* * * * *
[FR Doc. 2023-16734 Filed 8-8-23; 8:45 am]
BILLING CODE 6560-50-P