[Federal Register Volume 89, Number 132 (Wednesday, July 10, 2024)]
[Proposed Rules]
[Pages 56680-56683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15114]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2024-0302; FRL-12064-01-R3]


Air Plan Approval; Pennsylvania; Adoption of Federal 
Implementation Plan Reasonably Available Control Technology 
Requirements for Keystone, Conemaugh, Homer City and Montour Generating 
Facilities for the 1997 and 2008 Ozone National Ambient Air Quality 
Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve part of State implementation plan (SIP) revisions submitted by 
the Commonwealth of Pennsylvania. The revisions being proposed for 
approval adopt nitrogen oxides (NOX) emission limits and 
requirements for the coal-fired electric generating units (EGUs) 
equipped with selective catalytic reduction (SCR) at the Keystone, 
Conemaugh, Homer City, and Montour facilities. The NOX 
limits address reasonably available control technology (RACT) 
requirements for these EGUs for the 1997 and 2008 ozone national 
ambient air quality standards (NAAQS) and are intended to address the 
deficiencies identified in EPA's August 16, 2022 disapproval of an 
earlier SIP submission. This action is being taken under the Clean Air 
Act (CAA).

DATES: Written comments must be received on or before August 9, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2024-0302 at www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sean Silverman, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1600 John F Kennedy 
Boulevard, Philadelphia, Pennsylvania 19103. The telephone number is 
(215) 814-5511. Mr. Silverman can also be reached via electronic mail 
at [email protected].

SUPPLEMENTARY INFORMATION: On April 10, 2024, the Pennsylvania 
Department of Environmental Protection (PADEP) submitted two new 
revisions to its SIP, and simultaneously withdrew its prior SIP 
submissions of May 26 and June 11, 2022. The new SIP revisions 
consisted of title V permits which adopted the NOX RACT 
limits and other requirements promulgated by EPA in the Federal 
Implementation Plan (FIP) published August 31, 2022 (87 FR53381), and 
codified at 40 CFR 52.2065. One SIP revision contained, among other 
things, title V permits setting RACT requirements for the large EGUs at 
Keystone, Conemaugh and Homer City, while the other SIP revision 
contained a title V permit adopting RACT limits and other requirements 
for the EGUs at the Montour facility.
    Elsewhere in this Federal Register, EPA is issuing an interim final 
determination (IFD) which proposes to find that Pennsylvania's April 
10, 2024 SIP revisions address the deficiencies cited by EPA as the 
basis of EPA's August 16, 2022 final disapproval of certain portions of 
Pennsylvania's RACT regulations. The effect of that IFD is to stay 
emission offset sanctions and defer the imposition of highway funding 
sanctions triggered by EPA's August 16, 2022 partial disapproval of a 
prior Pennsylvania SIP addressing RACT for these EGUs. Comments on the 
IFD should be submitted in accordance with the instructions in that 
action.
    EPA is not taking action at this time on the RACT limits for 
certain auxiliary boilers at the Keystone and Conemaugh facilities 
found in the title V permits for these sources which were included as 
part of the April 10, 2024 SIP submittal. Approval into the SIP of the 
RACT limits for these auxiliary boilers is not required to address the 
deficiencies cited in EPA's August 16, 2022 disapproval action. EPA is 
not proposing to withdraw the FIP in this action.

I. Background

    The RACT requirements in CAA section 182(b)(2) apply to all ozone 
nonattainment areas classified as Moderate or higher (i.e., Serious, 
Severe, or Extreme). Section 184(b)(1)(B) of the CAA also applies RACT 
to all areas located within ozone transport regions. The entire 
Commonwealth of Pennsylvania is part of the Ozone Transport Region 
(OTR) established by section 184 of the CAA and therefore subject 
statewide to RACT requirements.
    On May 16, 2016, Pennsylvania submitted a SIP revision intended to 
satisfy certain CAA RACT requirements for sections 182(b)(2)(C), 
182(f), and 184 for the 1997 and 2008 ozone NAAQS. The SIP addressed 
RACT for all major sources of NOX and volatile organic 
compounds (VOCs) in Pennsylvania that were not subject to control 
techniques guidelines (CTGs), with a few exceptions not relevant to 
this action (hereafter the ``RACT II rule''). On May 9, 2019, EPA 
published a final action fully approving certain provisions and 
conditionally approving other portions of Pennsylvania's RACT II rule. 
84 FR 20274 (May 9, 2019). Specifically, EPA's action fully approved 
sections 121.1, 129.96, 129.97, and 129.100 of Title 25 of the 
Pennsylvania Code (25 Pa. Code), and conditionally approved 25 Pa. Code 
sections 129.98 and 129.99 based upon Pennsylvania's commitment to 
submit additional SIP revisions addressing the deficiencies in the RACT 
II rule identified by EPA. Id. at 20290.
    Following EPA's approval, the Sierra Club filed a challenge to 
certain parts of EPA's approval of Pennsylvania's RACT II SIP in the 
U.S. Court of Appeals for the Third Circuit. Sierra Club v. EPA, 972 
F.3d 290 (3rd Cir. 2020) (``Sierra Club''). The appeal challenged EPA's 
approval of only that portion of the RACT II rule applicable to coal-
fired EGUs equipped with SCR for control of NOX. 
Specifically, the appeal challenged EPA's approval of the presumptive 
RACT NOX limit for these EGUs of 0.12 pounds of 
NOX per Million British Thermal Units (MMBtu) of heat input 
(lbs/MMBtu) when the inlet temperature to the SCR was 600 degrees 
Fahrenheit or above, found at 25 Pa. Code 129.97(g)(1)(viii); the 
application of the less stringent NOX limits of 25 Pa. Code 
129.97(g)(1)(vi) to EGUs with SCR when the inlet temperature to the SCR 
was below 600

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degrees Fahrenheit; and the failure of the RACT II rule at 25 Pa. Code 
129.100(d) to specifically require these EGUs to keep temperature data 
for the inlet temperature to the SCRs and report that data to PADEP.
    On August 27, 2020, the Third Circuit held unlawful and vacated 
EPA's approval as challenged by the Sierra Club. First, the Court found 
that EPA's record did not sufficiently explain why the EGUs equipped 
with SCR could not achieve a lower NOX emission standard 
than the presumptive limits EPA approved into the SIP. Sierra Club, 972 
F.3d at 299-303. Second, the Court held that Pennsylvania's standard 
acted as a loophole because it permitted unlimited operations without 
the use of SCR controls if exhaust gas temperature was kept below what 
the Court considered an arbitrary temperature threshold of 600 degrees 
Fahrenheit. Id. at 303-07. Third, the Court held that Pennsylvania's 
reporting requirements were not enforceable. Id. at 307-09. As a 
result, the Court vacated EPA's approval of this portion of the 2016 
SIP and ordered EPA either to approve a revised, compliant SIP or 
promulgate a FIP within two years (i.e., by August 27, 2022). Id. at 
309.
    Following the Court's decision, PADEP worked to develop a SIP to 
address the deficiencies identified by the court within the specified 
time frame. EPA simultaneously worked on a FIP so that EPA could meet 
the Court's deadline to issue a FIP should it be necessary to do so. 
EPA published its proposed FIP on May 25, 2022 in order to be in a 
position to finalize a FIP by the Court's deadline. 87 FR 31798 at 
31801. On May 26, 2022, PADEP submitted to EPA new SIP revisions 
containing title V permits setting case-by-case RACT limits and 
monitoring, recordkeeping and reporting requirements for Keystone, 
Conemaugh, and Homer City. Similarly, on June 9, 2022, PADEP submitted 
a new SIP revision containing a title V permit setting case-by-case 
RACT limits and monitoring, recordkeeping and reporting requirements 
for Montour as a SIP revision. In order to assure its authority to 
issue a FIP, on August 16, 2022, EPA also took final action to 
disapprove the vacated portions of the previously submitted RACT II SIP 
revision. 87 FR 50257. EPA's final FIP published on August 31, 2022. 87 
FR 53381.
    EPA's August 16, 2022 final disapproval started a sanctions clock 
under CAA section 179 and 40 CFR 52.31. The two-to-one new source 
emissions offset sanction took effect on March 15, 2024 (18 months 
following the September 15, 2022 effective date of the August 16, 2022 
partial disapproval), while highway funding sanctions will take effect 
September 15, 2024 unless the state submits, and EPA approves, SIP 
revisions that correct the deficiencies identified in the August 16, 
2022 disapproval action. However, in a separate action concurrent with 
this proposed approval, EPA has issued an IFD that Pennsylvania's 
adoption of the emission limits and recordkeeping and reporting 
requirements of the FIP into title V permits for the four sources, and 
submission of the title V permits as SIP revisions, resolve the 
deficiencies which EPA cited in the August 16, 2022 disapproval action. 
The IFD stays the emission offset sanctions and defers the imposition 
of highway funding sanctions triggered by EPA's August 16, 2022, 
partial disapproval. Additionally, EPA intends to take action to 
withdraw the FIP at a later date, after the SIP revisions incorporating 
the FIP requirements have been approved into Pennsylvania's SIP.
    Following issuance of the final FIP, Keystone-Conemaugh Projects 
LLC, the operator of the Keystone and Conemaugh Generating Stations, 
and Homer City Generation LP, the operator of the Homer City Generating 
Station (hereafter ``Petitioners''), filed petitions for review with 
the U.S. Court of Appeals for the Third Circuit in October of 2022. 
PADEP intervened in support of Petitioners, and Sierra Club and 
Montour, LLC, the operator of the Montour Generating Station, 
intervened on behalf of Respondent, the EPA. In February 2023, 
Petitioners moved to stay their obligation to comply with the FIP 
pending the court's review, but the stay was denied. The litigation 
focused on two main issues: (1) whether EPA had proper authority to 
issue the FIP, and (2) whether EPA's record sufficiently supported that 
the NOX limits represented RACT (as well as many sub-
issues).
    While the Petitioners' appeal was pending before the Third Circuit, 
several other things happened that are relevant to this action. First, 
on February 21, 2024, EPA proposed disapproval of PADEP's May 2022 SIP 
Revision setting case-by-case RACT limits for Keystone, Conemaugh and 
Homer City (89 FR 13022).\1\ Subsequently, on April 10, 2024, PADEP 
submitted a letter withdrawing that May 2022 SIP revision. Because 
PADEP has withdrawn the May 2022 SIP revision setting the case-by-case 
RACT limits for Keystone, Conemaugh and Homer City, EPA will take no 
further action on the February 21, 2024 proposed disapproval of that 
SIP revision. Still pending before EPA is the submission proposed for 
approval in this notice--PADEP's April 10, 2024, SIP submission, which 
asks EPA to approve into the SIP newly-submitted title V permits 
containing the NOX RACT limits and other requirements 
identical to those in the final August 31, 2022 FIP for Keystone, 
Conemaugh, Homer City, and Montour.\2\
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    \1\ EPA's proposed disapproval did not include the case-by-case 
RACT limits for Montour submitted by PADEP on June 9, 2022 because 
PADEP withdrew that SIP submittal in October 2022 after the owners 
of Montour had indicated that they would accept the limits in EPA's 
FIP. See letter from PADEP Acting Secretary Ramez Ziadeh to EPA 
Regional Administrator Adam Ortiz, and EPA's acknowledgment letter 
dated October 26, 2022, Both documents are in the docket for this 
action.
    \2\ See document, dated April 9, 2024, From PADEP Interim Acting 
Secretary Jessica Shirley to EPA Region III in the docket for this 
action.
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    On May 2, 2024, the Third Circuit issued a decision upholding the 
RACT limits and other requirements in EPA's August 31, 2022 FIP. 
Keystone-Conemaugh Projects LLC v. EPA, et al., No. 22-3026. The court 
decided and resolved all issues raised by the Petitioners in EPA's 
favor.
    EPA is now proposing to approve the April 10, 2024 PADEP SIP 
revisions which consist of title V permits adopting the NOX 
RACT limits and other requirements set by the FIP for the EGUs at 
Keystone, Conemaugh, Homer City, and Montour.\3\ This SIP revision 
addresses the major NOX RACT requirements for the EGUs at 
these sources for both the 1997 and 2008 Ozone NAAQS. The incorporation 
of the title V permits containing the FIP requirements into 
Pennsylvania's SIP addresses the deficiencies identified in EPA's 
August 16, 2022 partial disapproval, which started the sanctions clock 
for offset and highway sanctions in Pennsylvania. EPA notes that the 
title V permits in the April 10, 2024 SIP revisions for Keystone and 
Conemaugh also contain case-by-case RACT limits for certain gas or oil-
fired auxiliary boilers at these facilities. However, EPA is not taking 
action at this time on the case-by-case RACT limits in these permits 
for two auxiliary boilers at Keystone (Source IDs 037 and 038) and two 
at Conemaugh (Source IDs 039 and 041). These auxiliary boilers were not 
subject to the presumptive RACT limit

[[Page 56682]]

in 25 Pa. Code 129.97(g)(1)(viii) for which EPA issued a final 
disapproval in August 2022.
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    \3\ The Homer City facility ceased all coal-burning operations 
on July 1, 2023 when Unit 3 stopped operating. However, because 
Homer City has not formally surrendered its CAA permits, which would 
demonstrate that the shutdown is permanent, SIP-approved 
NOX RACT limits are still necessary to address the 1997 
and 2008 Ozone RACT requirements for this facility. See www.pjm.com/planning/service-requests/gen-deactivations.
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II. Summary of Pennsylvania's SIP Revision and EPA's Analysis

    Pennsylvania's SIP revision, dated April 9, 2024, and received by 
EPA on April 10, 2024, included four redacted title V permits 
incorporating the FIP requirements for the EGUs equipped with SCR at 
Keystone, Conemaugh, Homer City, and Montour. EPA has reviewed these 
permits and determined that the permits incorporate the same emission 
limits, monitoring, testing, recordkeeping, reporting, work practices 
and other requirements for these EGUs found in EPA's FIP. The permits 
are listed in Table 1 in this document. These submissions and permits 
are part of the docket for this rule making and are available online at 
www.regulations.gov.

  Table 1--List of Title V Permits Incorporating the Requirements of the August 31, 2022 Federal Implementation
                                                      Plan
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           Source name             Title V permit No.          County               Permit effective date
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Conemaugh.......................               32-0059  Indiana............  March 14, 2024.
Homer City......................              32-00055  Indiana............  March 14, 2024.
Keystone........................              03-00027  Armstrong..........  March 14, 2024.
Montour.........................              47-00001  Montour............  March 14, 2024.
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    EPA's assessment regarding the approvability of the RACT limits and 
other requirements for these EGUs found in Pennsylvania's SIP 
submission is substantially the same as the justification and analysis 
in the record EPA created for its FIP.\4\ EPA provided an in-depth 
discussion of the methodology and reasoning for setting the FIP limits 
for each of these EGUs in EPA's proposed FIP (87 FR 31798), the 
associated technical support document supporting the proposed FIP, and 
in responses to comments received on the proposed FIP and published 
with the final FIP approval (87 FR 53381). EPA has put the technical 
support document for EPA's FIP into the docket for this action. The 
Federal Register notifications for the proposed and final FIP are 
available at www.regulations.gov under docket number EPA-R03-OAR-2022-
0347 and in the Federal Register at the citations provided in the prior 
sentence. EPA is not aware of any change in the facts since the FIP was 
finalized that would alter any of the limits or requirements or EPA's 
analysis supporting the FIP.
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    \4\ The docket number for the FIP is EPA-R03-OAR-2022-0347.
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III. Proposed Action

    EPA is proposing to approve Pennsylvania's April 10, 2024 SIP 
revisions, which consist of four revised title V permits containing 
RACT limits for NOX emissions from the coal-fired EGUs 
equipped with SCR, as well as associated recordkeeping, monitoring and 
reporting requirements for the four facilities listed in Table 1 of 
this document. If approved, the SIP revisions will incorporate by 
reference into the Pennsylvania SIP, via the redacted title V permits, 
those source specific NOX emission limits for the EGUs 
equipped with SCR at each facility and the associated monitoring, 
recordkeeping and reporting requirements for those limits that EPA set 
forth in the August 2022 FIP. If approved, these SIP revisions will 
address the RACT requirements for the 1997 and 2008 ozone NAAQS for 
NOX for these EGUs, and also address the deficiencies 
outlined in EPA's August 16, 2022 partial disapproval (87 FR 50257) of 
certain portions of Pennsylvania's RACT II regulations. That 
disapproval started a mandatory sanctions clock under CAA section 179 
and 40 CFR 52.31. EPA notes that the title V permits for Keystone and 
Conemaugh in the April 10, 2024 SIP revisions also contain case-by-case 
RACT limits for certain gas or oil-fired auxiliary boilers at these 
facilities. EPA is not taking action at this time on the RACT limits in 
these permits for two auxiliary boilers at Keystone (Source IDs 037 and 
038) and for two at Conemaugh (Source IDs 039 and 041). These auxiliary 
boilers were not subject to the presumptive RACT limit in 25 Pa. Code 
129.97(g)(1)(viii) for which EPA issued a final disapproval in August 
2022.
    EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action. 
As EPA views each facility as a severable SIP revision, EPA may take 
separate, final action regarding the requirements for each facility 
independently.

IV. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference source specific requirements via the title V permits as 
described in Section II of this preamble, excluding the auxiliary 
boiler limits for Keystone (all source group requirements in Section E 
for G11: alternative RACT II for Auxiliary Boilers) and Conemaugh (all 
source group requirements in Section E for G11: alternative RACT II for 
Auxiliary Boilers). 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).

V. Statutory and Executive Order Reviews

    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 proposed 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

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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.
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 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 Pennsylvania 
Department of Environmental Protection 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 action. Due to the nature of the action being taken here, 
this action is expected to have a neutral to positive impact on the air 
quality of the affected area. Consideration of EJ is not required as 
part of this 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.
    In addition, this proposed rulemaking addressing the NOX 
RACT requirements for EGUs equipped with SCR at the Keystone, 
Conemaugh, Homer City and Montour facilities for the 1997 and 2008 
Ozone NAAQS, does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
is not approved to apply in Indian country located in the State, and 
EPA notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law.

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.
[FR Doc. 2024-15114 Filed 7-9-24; 8:45 am]
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