Proposed Rule2021-19818
Air Plan Partial Disapproval; Commonwealth of Pennsylvania; Reasonably Available Control Technology Regulations for the 1997 and 2008 Ozone National Ambient Air Quality Standards
Primary source
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Published
September 15, 2021
Issuing agencies
Environmental Protection Agency
Abstract
As a result of the Third Circuit Court of Appeals' decision, dated August 27, 2020, in Sierra Club v. U.S. EPA, No. 19-2562 (3rd Cir. 2020), the Environmental Protection Agency (EPA) is proposing to partially disapprove a specific part of a state implementation plan (SIP) revision that had been previously approved by EPA. On May 19, 2019, EPA fully approved certain parts of a SIP revision submitted by the Commonwealth of Pennsylvania to address reasonably available control technology (RACT) for the 1997 and 2008 ozone national ambient air quality standards (NAAQS), and conditionally approved other parts of that submission. The court vacated EPA's approval of a portion of the SIP revision, as discussed below, and ordered that EPA either approve a new SIP revision addressing the court's decision or promulgate a federal implementation plan (FIP) within two years. EPA is therefore proposing to disapprove the portion of the SIP submission addressed by the court's decision. This action is being taken under the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 86 Issue 176 (Wednesday, September 15, 2021)</title>
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[Federal Register Volume 86, Number 176 (Wednesday, September 15, 2021)]
[Proposed Rules]
[Pages 51315-51318]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-19818]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0290; FRL-8942-01-R3]
Air Plan Partial Disapproval; Commonwealth of Pennsylvania;
Reasonably Available Control Technology Regulations for the 1997 and
2008 Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: As a result of the Third Circuit Court of Appeals' decision,
dated August 27, 2020, in Sierra Club v. U.S. EPA, No. 19-2562 (3rd
Cir. 2020), the Environmental Protection Agency (EPA) is proposing to
partially disapprove a specific part of a state implementation plan
(SIP) revision that had been previously approved by EPA. On May 19,
2019, EPA fully approved certain parts of a SIP revision submitted by
the Commonwealth of Pennsylvania to address reasonably available
control technology (RACT) for the 1997 and 2008 ozone national ambient
air quality standards (NAAQS), and conditionally approved other parts
of that submission. The court vacated EPA's approval of a portion of
the SIP revision, as discussed below, and ordered that EPA either
approve a new SIP revision addressing the court's decision or
promulgate a federal implementation plan (FIP) within two years. EPA is
therefore proposing to disapprove the portion of the SIP submission
addressed by the court's decision. This action is being taken under the
Clean Air Act (CAA).
DATES: Written comments must be received on or before October 15, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0290 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or via email to
<a href="/cdn-cgi/l/email-protection#caada5b8aea5a4e4a7a3a1af8aafbaabe4ada5bc"><span class="__cf_email__" data-cfemail="24434b56404b4a0a494d4f41644154450a434b52">[email protected]</span></a>. For comments submitted at <a href="http://Regulations.gov">Regulations.gov</a>, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Dave Talley, Planning & Implementation
Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
The telephone number is (215) 814-2117. Mr. Talley can also be reached
via electronic mail at <a href="/cdn-cgi/l/email-protection#b8ccd9d4d4ddc196dcd9ced1dcf8ddc8d996dfd7ce"><span class="__cf_email__" data-cfemail="1266737e7e776b3c7673647b76527762733c757d64">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On May 16, 2016, the Pennsylvania Department
of Environmental Protection (PADEP) submitted a revision to its SIP for
RACT Regulations for the 1997 and 2008 ozone NAAQS.
I. Background
On May 9, 2019, EPA published a final action fully approving
certain
[[Page 51316]]
provisions of Pennsylvania's May 16, 2016 SIP revision submission to
implement RACT for both the 1997 and 2008 Ozone NAAQS (hereafter the
``RACT II rule''), and conditionally approving other provisions of the
SIP revision. 84 FR 20274 (May 9, 2019). Specifically, EPA's action
fully approved ``25 Pa. Code sections 121.1, 129.96, 129.97, and
129.100 as meeting certain aspects of major stationary source RACT in
CAA section 172, 182, and 184 for the 1997 and 2008 ozone NAAQS
submitted May 16, 2016'' and conditionally approved ``25 Pa. Code
sections 129.98 and 129.99 based on the commitment provided by
Pennsylvania to submit additional SIP revisions to address the
deficiencies identified by EPA in the May 16, 2016 SIP revision.'' Id.
at 20290. The RACT requirements in CAA section 182(b)(2) apply to all
ozone nonattainment areas classified as Moderate or higher (Serious,
Severe, or Extreme). Section 184(b)(1)(B) of the CAA also applies RACT
to all areas located within ozone transport regions established
pursuant to section 184 of the CAA. The entire Commonwealth of
Pennsylvania is part of the Ozone Transport Region (OTR) established
under section 184 of the CAA and therefore subject statewide to the
RACT requirements. The May 16, 2016 SIP submittal was intended to
satisfy CAA sections 182(b)(2)(C), 182(f), and 184 for the 1997 and
2008 8-hour ozone NAAQS for all major sources of nitrogen oxides
(NO<INF>X</INF>) and volatile organic compounds (VOCs) in Pennsylvania
not subject to control techniques guidelines (CTG), with a few
exceptions not relevant to this action.
The Sierra Club commented on EPA's proposed approval of the RACT II
rule, and following EPA's final approval, filed a petition for review
with the U.S. Third Circuit Court of Appeals. The petition challenged
EPA's approval of that portion of the RACT II rule applicable to coal-
fired electricity generating units (EGUs) equipped with selective
catalytic reduction (SCR) for control of NO<INF>X</INF>, which is a
precursor pollutant to ozone regulated under CAA section 182.
Specifically, the petition challenged EPA's approval of the presumptive
RACT NO<INF>X</INF> limit for these EGUs of 0.12 pounds of
NO<INF>X</INF> 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 NO<INF>X</INF> limits of 25 Pa Code
129.97(g)(1)(vi) to EGUs with SCR when the inlet temperature to the SCR
was below 600 degrees Fahrenheit; \1\ 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.
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\1\ 25 Pa Code 129.97(g)(1)(vi) applies to coal-fired combustion
units with a heat input greater than 250 million MMBtu/hr that do
not have SCR.
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On August 27, 2020, the Third Circuit found for the Sierra Club on
all three of these issues, vacated the Agency's approval of the SIP
submission on each of these three pieces of the Pennsylvania plan as it
pertained to coal-fired EGUs equipped with SCRs, and remanded to the
Agency. The court further stated that ``[o]n remand, the agency must
either approve a revised, compliant SIP within two years or formulate a
new federal implementation plan.'' Sierra Club, 972 F.3d 290, 309 (3d
Cir. 2020).
II. Summary of SIP Provisions Being Proposed for Disapproval
The purpose of this action is to propose a partial disapproval for
those portions of Pennsylvania's RACT II SIP for which the Third
Circuit vacated EPA's approval. In light of the court's order regarding
EPA actions on remand, EPA is proposing this action in part to ensure
that we have authority to promulgate a FIP if Pennsylvania does not
submit a timely or approvable SIP revision addressing the Third
Circuit's decision.
The specific section of Pennsylvania's regulation in the SIP that
is at issue here is 25 Pa. Code 129.97(g)(1)(viii), which sets a
``presumptive'' RACT limit for coal-fired combustion units equipped
with SCR. The court held that EPA's approval of 25 Pa. Code
129.97(g)(1)(viii) was arbitrary and capricious because the record did
not support EPA's finding that the emission limit of 0.12 lb
NO<INF>X</INF>/MMBtu of heat input was RACT for these EGU sources,
particularly in light of submitted evidence that EGUs in Pennsylvania
regulated by 25 Pa. Code 129.97(g)(1)(viii) had achieved much lower
emission rates for NO<INF>X</INF> in the past, and that other states
had adopted lower RACT NO<INF>X</INF> limits for coal-fired sources.
Sierra Club at 299-303. In addition, the court held that EPA's approval
of the 600 degree Fahrenheit temperature ``exemption'' to the 0.12 lb/
MMBtu limit for NO<INF>X</INF> in 25 Pa Code 129.97(g)(1)(viii) was
arbitrary and capricious because the record failed to support the need
for the 600 degree exemption or explain why 600 degrees was chosen as
the threshold for the exemption. Id. at 303-307. Thus, the court
vacated EPA's approval of these two provisions, both of which are only
found in 25 Pa. Code 129.97(g)(1)(viii). See Id. at 309.
Regarding the reporting and record keeping requirement of 25 Pa.
Code 129.100(d), the court also found EPA's approval of the specific
SIP revisions discussed above to be arbitrary and capricious based upon
the lack of a specific record keeping and reporting requirement for the
600 degree inlet temperature exemption to the SCR. See Id.
Specifically, the court held that ``[b]ecause the SIP's 600-degree
threshold necessarily depends upon accurate temperature reporting, the
EPA's approval of such inadequate requirements on this record was
arbitrary and capricious.'' Id. at 309. Lacking evidence in the record
that this language would require sources subject to 25 Pa. Code
129.97(g)(1)(viii) to keep specific SCR temperature inlet data, report
that data to PADEP, and make it available to the public, the court
agreed with the Sierra Club that in this scenario the terms are too
vague to be enforceable. Id. at 308. Further, the court explained that
``[t]he combination of this lack of mandatory reporting and the
temperature waiver created a potent loophole for polluters to walk
through.'' Id. at 297. For these reasons, EPA now finds that the
previously approved recordkeeping and reporting provisions are
inadequate in this specific context, which further supports this
proposed partial disapproval.
EPA has been and will continue to work with PADEP to address
revised RACT determinations during the state's development of the SIP
revision in response to the court decision.
III. Proposed Action
Consistent with the Third Circuit's decision, and based on the
reasoning contained therein, EPA is proposing under CAA section
110(k)(3) to revise its full approval of certain provisions of the
Pennsylvania RACT II rule that were vacated and remanded to EPA by the
Third Circuit Court of Appeals. EPA's proposed partial disapproval of
this previously-approved SIP revision is limited to the regulatory
provision related to presumptive RACT requirements for coal-fired
combustion units at EGUs equipped with SCR, specifically 25 Pa. Code
129.97(g)(1)(viii). Because we are now proposing to disapprove 25 Pa.
Code 129.97(g)(1)(viii), and the 600 degree temperature threshold along
with the 0.12 lbs/MMBtu limit is contained entirely within this
section, no additional federal regulatory revisions are necessary to
address the court's holding that EPA's approval of the
[[Page 51317]]
record-keeping requirement was arbitrary and capricious.
Section 110(c)(1) of the CAA requires the Administrator to
promulgate a FIP at any time within two years after the Administrator
finds that a state has failed to make a required SIP submission, finds
a SIP submission to be incomplete, or disapproves a SIP submission,
unless the state corrects the deficiency, and the Administrator
approves the SIP revision, before the Administrator promulgates a FIP.
Therefore, if EPA finalizes this proposed partial disapproval, EPA will
be obligated under CAA section 110(c)(1) to promulgate a FIP within two
years after the effective date of the partial disapproval, unless the
State submits and the EPA approves SIP revisions to correct the
identified deficiencies in the RACT II rule before EPA promulgates the
FIP. Notwithstanding this timeframe established under CAA section
110(c)(1) for EPA's promulgation of a FIP, the Third Circuit has
ordered the EPA to issue a FIP within two years of the date of its
decision in Sierra Club, 972 F.3d 290, 309 (3rd Cir., August 27, 2020),
if the Agency has not approved a SIP correcting the identified
deficiencies in the RACT II rule within this timeframe. In addition,
final partial disapproval would trigger mandatory sanctions under CAA
section 179 and 40 CFR 52.31 unless the State submits, and EPA
approves, SIP revisions that correct the identified deficiencies in the
RACT II rule within 18 months of the effective date of the final
partial disapproval action.
EPA is soliciting public comments on our proposed partial
disapproval as explained herein. We will accept comments from the
public on this proposal for the next 30 days.
IV. Statutory and Executive Order Reviews
Executive Orders 12866 and 13563: Regulatory Planning and Review
Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and
13563 (76 FR 3821, January 21, 2011), this action is not a
``significant regulatory action'' and, therefore, is not subject to
review by the Office of Management and Budget.
Executive Order 13771: Reducing Regulations and Controlling Regulatory
Costs
This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.
Paperwork Reduction Act
This rulemaking does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act
This action merely proposes to disapprove state requirements as not
meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law. Accordingly, the Administrator
certifies that this rulemaking will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
Unfunded Mandates Reform Act
Because this rulemaking proposes to disapprove pre-existing
requirements under state law and does not impose any additional
enforceable duty beyond that required by state law, it 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).
Executive Order 13132: Federalism
This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely proposes to disapprove a state
requirement and does not alter the relationship or the distribution of
power and responsibilities established in the CAA.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
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 rulemaking 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).
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
This rulemaking also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it proposes to
disapprove a state rule.
Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' this action
is also not subject to Executive Order 13211 (66 FR 28355, May 22,
2001).
National Technology Transfer Advancement Act
In reviewing state submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the state
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a state submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a state
submission, to use VCS in place of a state submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply.
Executive Order 12898: Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
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 and low-income
populations in the United States. EPA lacks the discretionary authority
to address environmental justice in this action. In reviewing SIP
submissions, EPA's role is to approve or disapprove state choices,
based on the criteria of the CAA.
Accordingly, this action proposing partial disapproval of
Pennsylvania's RACT regulations for the 1997 and 2008 ozone NAAQS,
merely disapproves certain state requirements for inclusion into the
SIP under section 110 of the CAA and will not in-and-of itself create
any new requirements. Accordingly, it does not provide EPA with the
discretionary authority to address, as
[[Page 51318]]
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive
Order 12898.
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.
Dated: September 8, 2021.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2021-19818 Filed 9-14-21; 8:45 am]
BILLING CODE 6560-50-P
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