[Federal Register Volume 89, Number 132 (Wednesday, July 10, 2024)]
[Rules and Regulations]
[Pages 56666-56668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15115]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2024-0302; FRL-12064-03-R3]


Air Plan Approval; Pennsylvania; Interim Final Determination To 
Stay and Defer Sanctions Related to 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: Interim final determination.

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SUMMARY: The Environmental Protection Agency (EPA) is making an interim 
final determination (IFD) that Pennsylvania has submitted revisions to 
the SIP that satisfy the requirements under the Clean Air Act (CAA) to 
implement RACT for these EGUs for the 1997 and 2008 ozone NAAQS. The 
effect of this IFD is to stay emission offset sanctions and defer the 
imposition of highway funding sanctions triggered by an August 2022 EPA 
partial disapproval of a prior

[[Page 56667]]

Pennsylvania SIP addressing RACT for these EGUs. Proposed elsewhere in 
this issue of the Federal Register, EPA is proposing approval of a 
revision to Pennsylvania's State implementation plan (SIP), as 
submitted April 10, 2024, to address reasonably available control 
technology (RACT) 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 for the 1997 and 2008 
ozone national ambient air quality standards (NAAQS).

DATES: This interim final determination is effective on July 10, 2024. 
However, comments will be accepted until 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. EPA has established a 
docket for this action under Docket ID Number EPA-R03-OAR-2024-0302. 
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 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: 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:

I. Background

    On August 16, 2022, EPA took final action to disapprove portions of 
a Pennsylvania SIP revision submitted May 16, 2016 that, among other 
things, established NOX emission limitations for the coal-
fired EGUs equipped with SCR at the Keystone, Conemaugh, Homer City, 
and Montour facilities, to satisfy RACT obligations for the 1997 and 
2008 ozone NAAQS. 87 FR 50257. 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 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.
    On August 31, 2022, EPA issued a Federal implementation plan (FIP) 
addressing these same RACT obligations. 87 FR 53381. 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.
    On April 10, 2024, PADEP submitted two SIP revisions which adopt 
the NOX limits and other requirements in EPA's final August 
31, 2022 FIP for Keystone, Conemaugh, Homer City, and Montour. Proposed 
elsewhere in this issue of the Federal Register, EPA has proposed to 
approve Pennsylvania's April 10, 2024 SIP revisions. There, EPA 
proposes to find that the incorporation of 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.

II. What action is EPA taking?

    We are making an interim final determination to stay the 
application of the offset sanction and defer the application of the 
highway sanction associated with our August 16, 2022 disapproval of 
certain RACT requirements for the 1997 and 2008 ozone NAAQS for 
Pennsylvania. This determination is based on our concurrent proposal to 
approve the Pennsylvania SIP revisions regarding RACT limits for the 
1997 and 2008 Ozone NAAQS for Keystone, Conemaugh, Homer City, and 
Montour generating facilities, which resolve the deficiencies that 
triggered sanctions under section 179 of the CAA.
    Because EPA has preliminarily determined that the submission of the 
Pennsylvania RACT SIP revisions address the deficiencies identified in 
the August 16, 2022 disapproval action and is likely approvable, relief 
from sanctions should be provided as quickly as possible. Therefore, 
EPA is invoking the good cause exception under the Administrative 
Procedure Act (APA) in not providing an opportunity for comment before 
this action takes effect (5 U.S.C. 553(b)(B)). However, by this action, 
EPA is providing the public with an opportunity to comment on the EPA's 
determination after the effective date, and EPA will consider any 
comments received in determining whether to reverse the interim final 
determination.
    Section 553(b)(B) of the APA provides that the notice and 
opportunity for comment requirements do not apply when the Agency finds 
that those procedures are ``impracticable, unnecessary, or contrary to 
the public interest.'' In this instance, EPA believes it would be both 
impracticable and contrary to the public interest to have to propose 
and provide an opportunity to comment before any relief is provided 
from the effect of sanctions. EPA has reviewed Pennsylvania's SIP 
submissions addressing the August 16, 2022 disapproval and, through its 
proposed action, is indicating that it is more likely than not that the 
SIP submissions correct the deficiency that was the basis for the 
disapproval action that started the sanctions clock. Therefore, it is 
not in the public interest to apply sanctions. EPA believes that it is 
necessary to use the interim final rulemaking process to stay the 
application of the offset sanction and defer the application of the 
highway

[[Page 56668]]

funding sanction while we complete our rulemaking process on the 
approvability of Pennsylvania's SIP revision intended to address the 
RACT requirements for the EGUs at the four sources for the 1997 and 
2008 ozone NAAQS.
    Consistent with 5 U.S.C. 553(d)(1) of the APA, EPA finds there is 
good cause for this action to become effective immediately upon 
publication. Section 553(d)(1) of the APA provides that final rules 
shall not become effective until 30 days after publication in the 
Federal Register ``except . . . a substantive rule which grants or 
recognizes an exemption or relieves a restriction.'' The purpose of 
this provision is to ``give affected parties a reasonable time to 
adjust their behavior before the final rule takes effect.'' Omnipoint 
Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see 
also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) 
(quoting legislative history). However, when the agency grants or 
recognizes an exemption or relieves a restriction, affected parties do 
not need a reasonable time to adjust because the effect is not adverse. 
Because this action relieves a restriction, EPA finds good cause under 
5 U.S.C. 553(d)(1) for this action to become effective on the date of 
publication of this action.
    As noted above, proposed elsewhere in this issue of the Federal 
Register, EPA has proposed to find that Pennsylvania's April 10, 2024 
SIP revisions address the deficiencies identified by EPA in our August 
16, 2022 final disapproval. In accordance with 40 CFR 52.31(d)(2)(ii), 
when a State has submitted a revised plan to correct the deficiency, 
and EPA proposes to approve the plan and issues an interim final 
determination that the revised plan corrects the deficiency, 
application of the new source emission offset sanction shall be stayed 
and application of the highway sanction shall be deferred. However, if 
issues are raised during the public comment period of the proposed plan 
approval which cannot be addressed and the revised plan is ultimately 
disapproved, the new source offset sanction shall reapply immediately 
and the highway sanction shall apply immediately on the date of the 
final disapproval if that date is more than six months after the date 
the offset sanctions became effective, which was March 15, 2024.

III. Statutory and Executive Order Reviews

    This action defers sanctions and imposes no additional 
requirements. 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 Clean Air Act; and
     Is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
action 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).
     Is subject to the Congressional Review Act (CRA),5 U.S.C. 
801 et seq., and the EPA will submit a rule report to each House of the 
Congress and to the Comptroller General of the United States. The CRA 
allows the issuing agency to make a rule effective sooner than 
otherwise provided by the CRA if the agency makes a good cause finding 
that notice and comment rulemaking procedures are impracticable, 
unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The 
EPA has made a good cause finding for this action as discussed in 
section II of this preamble, including the basis for that finding.
    Executive Order 12898 (59 FR 7629, February 16, 1994), 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.
    This interim final determination 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 action stays 
emission offset sanctions and defers the imposition of highway funding 
sanctions triggered by an August 2022 EPA partial disapproval of a 
prior Pennsylvania SIP addressing RACT for these EGUs. This action 
therefore does not directly address emission limits or otherwise 
directly affect any human health or environmental conditions in 
Pennsylvania. In addition, EPA is providing meaningful involvement on 
this rulemaking through the notice and comment process.
    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 September 9, 2024. Filing a petition for 
reconsideration by the EPA Administrator of this final determination 
does not affect the finality of this action for the purpose of judicial 
review nor does it extend the time within which petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
action. This action may not be challenged later in proceedings to 
enforce its requirements (see CAA 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.

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2024-15115 Filed 7-9-24; 8:45 am]
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