[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Rules and Regulations]
[Pages 66599-66603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18162]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0562; FRL-11960-02-R3]


Air Plan Approval and Disapproval; Pennsylvania; Reasonably 
Available Control Technology (RACT) for Volatile Organic Compounds 
(VOC) Under the 2008 Ozone National Ambient Air Quality Standards 
(NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is revising our 
December 14, 2020 action that fully approved two state implementation 
plan (SIP) revisions, both submitted to EPA on August 13, 2018 by the 
Commonwealth of Pennsylvania, through the Pennsylvania Department of 
Environmental Protection (PADEP). Those SIP revisions addressed 
reasonably available control technology (RACT) requirements for the 
2008 ozone national ambient air quality standards (NAAQS), including 
those related to control techniques guidelines (CTGs) for volatile 
organic compounds (VOC) and the addition of regulations controlling VOC 
emissions from industrial cleaning solvents. The SIP revisions also 
included certain clarifying amendments to Pennsylvania code related to 
major source RACT regulations. Upon reconsideration, EPA is revising 
our prior action to partially approve and partially disapprove the 
August 13, 2018 submittals. Specifically, EPA is approving certain 
clarifying amendments as well as a negative declaration submitted by 
PADEP. EPA is disapproving the remainder of both SIP submittals related 
to CTGs and control of VOC emissions from industrial cleaning solvents. 
This action is being taken under the Clean Air Act (CAA).

DATES: This final rule is effective on September 16, 2024.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2019-0562. 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: Ellen Schmitt, 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) 814-5787. Ms. Schmitt can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On August 13, 2018, PADEP submitted to EPA two SIP revisions to 
satisfy certain RACT requirements for sources of VOC emissions required 
by sections 182(b)(2) and 184(b)(l)(B) of the CAA and the implementing 
regulations for the 2008 8-hour ozone NAAQS (80 FR 12264, March 6, 
2015; 40 Code of Federal Regulations (CFR) part 51, subpart AA).
    On December 14, 2020 (85 FR 80616), EPA published a full approval 
of

[[Page 66600]]

PADEP's two August 13, 2018 SIP submittals. The approval was challenged 
in the U.S. Court of Appeals for the Third Circuit, and on September 3, 
2021, that court granted EPA's request for remand without vacatur of 
the Agency's final full approval.\1\ Subsequently, a petitioner filed 
litigation in the Eastern District of Pennsylvania on May 16, 2023, 
arguing that EPA had unreasonably delayed in our reconsideration of the 
final approval of the August 13, 2018 SIP submittals. On December 15, 
2023, the court filed a consent decree requiring that EPA complete our 
reconsideration of the December 14, 2020 final rule by November 15, 
2024.\2\
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    \1\ A copy of the court order is located in the docket for this 
action. Docket Id. EPA-R03-OAR-2019-0562 in regulations.gov.
    \2\ A copy of the court order is located in the docket for this 
action. Docket Id. EPA-R03-OAR-2019-0562 in regulations.gov.
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    After reconsidering this full approval, EPA proposed to revise our 
prior action and in a notice of proposed rulemaking (NPRM) (May 17, 
2024, 89 FR 43359), the Agency proposed to partially approve and 
partially disapprove parts of the August 13, 2018 SIP submittals. In 
the May 2024 NPRM, EPA proposed approval of certain clarifying 
amendments as well as a negative declaration submitted by PADEP. EPA 
proposed disapproval of the remainder of both SIP submittals related to 
CTGs and control of VOC emissions from industrial cleaning solvents.

II. Summary of SIP Revisions and EPA Analysis

    PADEP submitted two SIP submittals to EPA on August 13, 2018. The 
first of these submittals is entitled ``Certification of Reasonably 
Available Control Technology for Control Techniques Guidelines Under 
the 2008 Ozone National Ambient Air Quality Standards and Incorporation 
of 25 Pa Code Chapter 122 (Relating to National Standards of 
Performance for New Stationary Sources) into the Commonwealth's State 
Implementation Plan.'' PADEP submitted this SIP revision for the 
purposes of meeting the RACT requirements under CAA sections 182(b)(2) 
and 184(b)(1)(B) and implementing the regulations for the 2008 8-hour 
ozone NAAQS. Specifically, this submittal: (1) certifies that PADEP's 
adoption and implementation of regulations to control VOC emissions is 
consistent with EPA's CTGs and represents RACT for these covered CTG 
sources for the 2008 ozone standard; (2) incorporates 25 Pa. Code 
Chapter 122 (relating to national standards of performance for new 
stationary sources) into the Pennsylvania SIP and certifies that those 
provisions continue to represent RACT for facilities subject to such 
standards of performance; and (3) incorporates specific permit 
conditions from certain facilities for the purpose of establishing 
source-specific RACT-level controls for those facilities.
    The second August 13, 2018 SIP submittal, entitled ``Control of 
Volatile Organic Compound Emissions from Industrial Cleaning Solvents; 
General Provisions; Aerospace Manufacturing and Rework; Additional RACT 
Requirements for Major Sources of NOX and VOCs,'' includes: 
(1) the addition of 25 Pa. Code 129.63a (relating to the control of VOC 
from industrial cleaning solvents (ICS)); (2) amendments to 25 Pa. Code 
sections 121.1 and 129.51 (definitions and ``general'' provisions, 
respectively) in order to support the addition and implementation of 25 
Pa. Code section 129.63a; (3) an administrative numbering correction a 
number correction to the VOC emission limit table in 25 Pa. Code 
section 129.73 (relating to aerospace manufacturing and re-work); and 
(4) amendments to 25 Pa. Code sections 129.96, 129.97, 129.99, and 
129.100 to clarify certain requirements and to update the list of 
exemptions.
    After reconsideration, EPA, in our 89 FR 43359, May 17, 2024 NPRM, 
proposed a partial disapproval and partial approval of the August 13, 
2018 SIP submittals. In the NPRM associated with this action, EPA 
proposed to determine that the Agency erred in previously approving: 
the CTG portion of PADEP's RACT certification SIP, PADEP's 
determination that NSPS provisions meet CTG requirements and therefore 
are sufficient to implement RACT,\3\ PADEP's determination that 
particular emission limitations in certain permits constitute RACT, and 
PADEP's determination that the 2006 ICS CTG is equal to RACT for the 
2008 8-hour ozone NAAQs.\4\ As explained in greater detail in our May 
17, 2024 NPRM, PADEP failed in their August 13, 2018 SIP submittals to 
provide a sufficiently robust and well-developed record for their RACT 
determinations.
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    \3\ While EPA proposed to disapprove PADEP's determination that 
NSPS provisions meet RACT requirements, the Agency did not propose 
to disapprove PADEP's request to incorporate by reference the NSPS 
requirements on their own.
    \4\ EPA also proposed to disapprove PADEP's amendments to 25 Pa. 
Code sections 121.1 and 129.51 as they support the addition and 
implementation of section 129.63a, which EPA proposed to disapprove.
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    The May 2024 NPRM proposed to retain our approval of PADEP's 
negative declaration for one CTG source category, ``Control of Volatile 
Organic Compound Emissions from Large Petroleum Dry Cleaners,'' \5\ as 
there are no sources in Pennsylvania (excluding Philadelphia County and 
Allegheny County).\6\ In our May 17, 2024 NPRM, we also proposed to 
retain our approval of PADEP's amendments to 25 Pa. Code sections 
122.1, 122.2, 122.3, 129.73, 129.96, 129.97, 129.99, and 129.100, as 
these amendments do not impact how PADEP determined that RACT was met 
by certain sources.
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    \5\ EPA-450/3-82-009; September 1982.
    \6\ The record in our original action in support of this 
negative declaration, as discussed in that action (85 FR at 80617, 
December 14, 2020, and the associated technical support document 
(TSD)), was sufficiently robust and well-developed.
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III. EPA's Response to Comments Received

    Comments: EPA received comments from one commenter, PADEP. In their 
comments, PADEP states that the Department ``continues to certify that 
their current VOC CTG based rules continue to represent RACT in 
Pennsylvania.'' PADEP asserts that the ``control measures, rules, and 
regulations'' that they have in place have been sufficient to reach 
``monitored attainment of the 2008 ozone NAAQS across the Commonwealth 
of Pennsylvania.'' PADEP requests that EPA consider that the control 
measures in place in 2017 were sufficient for Pennsylvania to monitor 
compliance with the 2008 ozone NAAQS and therefore additional emissions 
reductions are unnecessary. To support its certification that 
Pennsylvania's existing CTG RACT rules meet RACT for the 2008 ozone 
NAAQS, PADEP also submitted, as part of their comments, additional 
documentation of their review of their CTG rules and regulations.
    Response: PADEP argues that additional emissions reductions are not 
needed through RACT because the control measures, rules, and 
regulations in place in the Commonwealth have been sufficient to reach 
monitored attainment of the 2008 ozone NAAQS across Pennsylvania. 
However, this fact does not change the standard by which EPA must 
review these SIPs. As explained in our May 2024 NPRM, Pennsylvania's 
RACT requirements stem from CAA section 184(b), which provides that 
states in Ozone Transport Region (OTR) must follow moderate 
nonattainment area RACT requirements of section 182(b)(2), regardless 
of the attainment status in the state. Therefore, PADEP's RACT 
responsibilities do not

[[Page 66601]]

change based on the attainment status or ozone monitor design values.
    In both the OTR and nonattainment areas, EPA disagrees that 
monitored air quality alters a state's obligation to assess and adopt 
RACT for CTG-covered sources and major sources of VOC and nitrogen 
oxides (NOX). EPA has defined RACT as the most stringent 
emission limitation that a particular source is capable of meeting by 
the application of control technology that is reasonably available 
considering technological and economic feasibility. EPA has long taken 
the position that the statutory requirement for states to assess and 
adopt RACT for sources exist independently from the attainment 
demonstration for such areas.\7\
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    \7\ See Memo from John Seitz, ``Reasonable Further Progress, 
Attainment Demonstration, and Related Requirements for Ozone 
Nonattainment Areas Meeting the Ozone National Ambient Air Quality 
Standard'' (1995), at 5 (explaining that Subpart 2 requirements 
linked to the attainment demonstration are suspended by a finding 
that a nonattainment area is attaining but that requirements such as 
RACT and vehicle inspection and maintenance must be met whether or 
not an area has attained the standard); see also 40 CFR 51.1318 
(suspending attainment demonstrations, reasonably available control 
measures, reasonable further progress, contingency measures, and 
other attainment planning SIPs with a finding of attainment).
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    PADEP submitted its comments and additional supporting 
documentation to establish that Pennsylvania's CTG based rules and 
controls meet RACT for the 2008 ozone NAAQS and should not be 
disapproved. PADEP requests that EPA approve Pennsylvania CTG RACT 
certification. EPA disagrees that PADEP's submitted comments and 
accompanying documentation constitute a part of the rulemaking record 
upon which EPA can now approve Pennsylvania's CTG RACT certification. 
As stated in EPA's implementation rules for the ozone NAAQS, an air 
agency choosing to provide a written certification in lieu of 
submitting a new or revised regulation must provide the certification 
to EPA qualifying as a SIP revision in accordance with CAA section 110 
and 40 CFR 51.102, 103 and part 51 appendix V.\8\ EPA made clear in the 
2015 ozone NAAQS implementation rule that ``(t)hese written statements 
must be treated in the same manner as any other SIP submission and must 
be provided to EPA in accordance with applicable SIP submission 
requirements and deadlines.'' \9\ A fundamental requirement of the SIP 
revision process is providing for public notice and comment, and 
opportunity for public hearing at the state level. PADEP did not 
satisfy this requirement with its comment submittal and would need to 
submit this kind of supporting documentation as part of a SIP revision 
following state level notice and comment. For this reason alone, 
PADEP's submitted comments and accompanying documentation do not 
comprise any part of the record for this rulemaking and so as such were 
not considered by EPA, and do not alter our proposed disapproval of 
Pennsylvania's CTG RACT certification.
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    \8\ See 83 FR 62998, 63002 (December 6, 2018).
    \9\ Id.
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IV. Final Action

    EPA is amending our prior full approval of PADEP's August 13, 2018 
SIP submittals to a partial approval and partial disapproval. 
Specifically:
     For the August 13, 2018 SIP submittal titled 
``Certification of Reasonably Available Control Technology for Control 
Techniques Guidelines Under the 2008 Ozone National Ambient Air Quality 
Standards and Incorporation of 25 Pa Code Chapter 122 (Relating to 
National Standards of Performance for New Stationary Sources) into the 
Commonwealth's State Implementation Plan.''
    [ssquf] EPA is disapproving the PADEP's certification that their 
adoption and implementation of regulations to control VOC emissions is 
consistent with EPA's CTGs and represents RACT for these covered CTG 
sources for the 2008 ozone standard;
    [ssquf] EPA is approving the incorporation of 25 Pa. Code Chapter 
122 (relating to national standards of performance for new stationary 
sources) into the Pennsylvania SIP;
    [ssquf] EPA is disapproving PADEP's certification that 25 Pa. Code 
Chapter 122 continues to represent RACT for facilities subject to such 
standards of performance; and
    [ssquf] EPA is disapproving PADEP's incorporation of specific 
permit conditions from certain facilities for the purpose of 
establishing source-specific RACT-level controls for those facilities.
     For the August 13, 2018 SIP submittal, titled ``Control of 
Volatile Organic Compound Emissions from Industrial Cleaning Solvents; 
General Provisions; Aerospace Manufacturing and Rework; Additional RACT 
Requirements for Major Sources of NOX and VOCs.''
    [ssquf] EPA is disapproving the addition of 25 Pa. Code 129.63a 
(relating to the control of VOC from industrial cleaning solvents 
(ICS)).
    [ssquf] EPA is disapproving the amendments to 25 Pa. Code sections 
121.1 and 129.51.
    [ssquf] EPA is approving an administrative numbering correction to 
the VOC emission limit table in 25 Pa. Code section 129.73; and
    [ssquf] EPA is approving the amendments to 25 Pa. Code sections 
129.96, 129.97, 129.99, and 129.100.
    In finalizing the disapproval, a sanctions clock under CAA section 
179 begins. If EPA has not fully approved a revised plan within 18 
months after this final disapproval, emission offset sanctions for new 
or modified sources will begin. If EPA has not approved a revised plan 
within six months thereafter, highway funding sanctions will apply in 
affected nonattainment areas.\10\ The sanctions clock can be stopped 
only if the conditions of EPA's regulations at 40 CFR 52.31 are met. 
Pursuant to CAA section 110(c)(1)(B), this final disapproval also 
initiates an obligation for EPA to promulgate a Federal implementation 
plan (FIP) within 24 months unless PADEP has submitted, and EPA has 
approved, a plan addressing the applicable RACT requirements.
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    \10\ For the OTR states, such highway sanctions would only apply 
in nonattainment areas. If the OTR state does not contain any 
nonattainment areas, then the highway sanctions would not apply in 
that state.
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V. 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, and as discussed in sections II and IV of the preamble, EPA is 
reaffirming our prior final action for the incorporation by reference 
of 25 Pa. Code sections 122.1, 122.2, 122.3, 129.73, 129.96, 129.97, 
129.99, and 129.100. These measures had been incorporated by reference 
into the SIP under a previous approval (85 FR 80625, December 14, 2020) 
and the Agency will retain them. EPA has made, and will continue to 
make, these materials generally available through www.regulations.gov 
and at 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

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,

[[Page 66602]]

provided that they meet the criteria of the CAA. Accordingly, this 
final action partially disapproves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law.
    Additional information about these statutes and Executive Orders 
can be found at www.epa.gov/laws-regulations/laws-and-executive-orders.

Executive Order 12898: Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Population

    Executive Order 12898 (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.'' PADEP did not evaluate environmental justice considerations 
as part of their SIP submittals; 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. 
Consideration of EJ is not required as part of this action, and there 
is no information in the record inconsistent with the stated goals of 
E.O. 12898 of achieving environmental justice for people of color, low-
income populations, and indigenous peoples.

Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

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 15, 2024. 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 partial approval and partial disapproval 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, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 
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:
0
a. The table in paragraph (c)(1) is amended:
0
i. Under ``Chapter 121--General Provisions'', by removing the third 
entry for ``Section 121.1'';
0
ii. Under ``Chapter 129--Standards for Sources'' by:
0
i. Revising the entry ``Section 129.51''; and
0
ii. Removing the entry ``Section 129.63a'';
0
b. The table in paragraph (d)(1) is amended by removing the entries for 
``Donjon Shipbuilding'', ``Heartland Fabrication, LLC'', and ``Geo 
Speciality Chem Trimet Div''; and
0
c. The table in paragraph (e)(1) is amended by revising the entry 
``Reasonably Available Control Technology (RACT) for the 2008 ozone 
national ambient air quality standard (NAAQS)''.
    The revisions read as follows:


Sec.  52.2020  Identification of plan.

* * * * *
    (c) * * *
    (1) * * *

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                                                               State                              Additional
         State citation                 Title/subject        effective    EPA approval date    explanation/Sec.
                                                                date                           52.20630 citation
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                                       Title 25--Environmental Protection
                                           Article III--Air Resources
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                                                  * * * * * * *
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                                       Chapter 129--Standards for Sources
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                                                  * * * * * * *
Section 129.51..................  General.................      8/11/18  8/16/2024, [INSERT   After
                                                                          FEDERAL REGISTER     reconsideration
                                                                          CITATION].           of previous
                                                                                               approval,
                                                                                               removing
                                                                                               references to
                                                                                               Section 129.63a.
 
                                                  * * * * * * *
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* * * * *
    (e) * * *
    (1) * * *

[[Page 66603]]



----------------------------------------------------------------------------------------------------------------
                                                               State
   Name of non-regulatory SIP       Applicable geographic    submittal    EPA approval date       Additional
            revision                        area                date                              explanation
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                                                  * * * * * * *
Reasonably Available Control      Statewide...............      8/13/18  8/16/2024, [INSERT   After
 Technology (RACT) for the 2008                                           FEDERAL REGISTER     reconsideration
 ozone national ambient air                                               CITATION].           of previous
 quality standard (NAAQS).                                                                     approval of CTG
                                                                                               portion, EPA is
                                                                                               now disapproving,
                                                                                               with the
                                                                                               exception of one
                                                                                               negative
                                                                                               declaration.
 
                                                  * * * * * * *
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[FR Doc. 2024-18162 Filed 8-15-24; 8:45 am]
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