Rule2022-21252
Air Plan Approval; Pennsylvania; 2015 Ozone National Ambient Air Quality Standards Nonattainment New Source Review Certification SIP
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 3, 2022
Effective
November 2, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the Commonwealth of Pennsylvania. The revision will fulfill Pennsylvania's nonattainment new source review (NNSR) SIP element requirement for the 2015 8-hour ozone national ambient air quality standard (NAAQS). EPA is approving these revisions to the Pennsylvania SIP in accordance with the requirements of the Clean Air Act (CAA).
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 190 (Monday, October 3, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 190 (Monday, October 3, 2022)]
[Rules and Regulations]
[Pages 59692-59695]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21252]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2022-0121; FRL-9823-02-R3]
Air Plan Approval; Pennsylvania; 2015 Ozone National Ambient Air
Quality Standards Nonattainment New Source Review Certification SIP
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision submitted by the Commonwealth of
Pennsylvania. The revision will fulfill Pennsylvania's nonattainment
new source review (NNSR) SIP element requirement for the 2015 8-hour
ozone national ambient air quality standard (NAAQS). EPA is approving
these revisions to the Pennsylvania SIP in accordance with the
requirements of the Clean Air Act (CAA).
DATES: This final rule is effective on November 2, 2022.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2022-0121. All documents in the docket are listed on
the <a href="http://www.regulations.gov">www.regulations.gov</a> 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
[[Page 59693]]
the internet and will be publicly available only in hard copy form.
Publicly available docket materials are available through
<a href="http://www.regulations.gov">www.regulations.gov</a>, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Justin Leary, Permits Branch (3AD10),
Air & Radiation Division, U.S. Environmental Protection Agency, Region
III, Four Penn Center 1600 John F. Kennedy Boulevard, Philadelphia,
Pennsylvania 19103, Philadelphia, Pennsylvania 19103. The telephone
number is (215) 814-2189. Mr. Leary can also be reached via electronic
mail at <a href="/cdn-cgi/l/email-protection#90dcf5f1e2e9bedae5e3e4f9fed0f5e0f1bef7ffe6"><span class="__cf_email__" data-cfemail="8ac6efebf8f3a4c0fff9fee3e4caeffaeba4ede5fc">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On May 31, 2022 (87 FR 32379), EPA published a notice of proposed
rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM,
EPA proposed approval of Pennsylvania's existing Federally-approved
NNSR regulations for the 2015 8-hour ozone NAAQS. The formal SIP
revision was submitted by Pennsylvania Department of Environmental
Protection (PADEP) on behalf of the Commonwealth of Pennsylvania
(Commonwealth or Pennsylvania) on January 8, 2021.
Pennsylvania is certifying that the Commonwealth's federally
approved nonattainment new source review regulation in 25 Pennsylvania
Code of Regulations (Pa. Code) Chapter 127 applies statewide and covers
the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment
area for the 2015 ozone NAAQS. Pennsylvania asserts that its
nonattainment new source review program is at least as stringent as the
requirements at 40 Code of Federal Regulations (CFR) 51.165, as amended
by the final rule titled ``Implementation of the 2015 National Ambient
Air Quality Standards for Ozone: Nonattainment Area State
Implementation Plan Requirements'' (SRR) for ozone and its precursors.
See 83 FR 62998 (December 6, 2018).
II. Summary of SIP Revision and EPA Analysis
This rulemaking action is specific to Pennsylvania's NNSR
requirements. NNSR is a preconstruction review permit program that
applies to new major stationary sources or major modifications at
existing sources located in a nonattainment area. The specific NNSR
requirements for the 2015 8-hour ozone NAAQS are located in 40 CFR
51.160-165.
The minimum SIP requirements for NNSR permitting programs for the
2015 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR
51.1314. Under the 2015 8-hour ozone NAAQS NNSR SIP requirements, the
SIP for each ozone nonattainment area must contain NNSR provisions
that: (1) set major source thresholds for oxides of nitrogen
(NO<INF>X</INF>) and volatile organic compounds (VOCs) pursuant to 40
CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv); (2) classify physical changes as a
major source if the change would constitute a major source by itself
pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); (3) consider any significant
net emissions increase of NO<INF>X</INF> as a significant net emissions
increase for ozone pursuant to 40 CFR 51.165(a)(1)(v)(E); (4) consider
certain increases of VOC emissions in extreme ozone nonattainment areas
as a significant net emissions increase and a major modification for
ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); (5) set significant
emissions rates for VOCs and NO<INF>X</INF> as ozone precursors
pursuant to 40 CFR 51.165(a)(1)(x)(A)-(C) and (E); (6) contain
provisions for emissions reductions credits pursuant to 40 CFR
51.165(a)(3)(ii)(C)(1)-(2); (7) provide that the requirements
applicable to VOC also apply to NO<INF>X</INF> pursuant to 40 CFR
51.165(a)(8); and (8) set offset ratios for VOC and NO<INF>X</INF>
pursuant to 40 CFR 51.165(a)(9)(i)-(iii) (renumbered as (a)(9)(ii)-(iv)
under the SIP Requirements Rule for the 2008 8-hour ozone NAAQS).
Pennsylvania's SIP approved NNSR program, established in the Pa.
Code Rule 25 Pa. Code Chapter 127--Construction, Modification,
Reactivation, and Operation of Sources, applies to the construction and
modification of major stationary sources in nonattainment areas. In the
October 30, 2017, SIP revision, Pennsylvania certifies that the version
of 25 Pa. Code Chapter 127 in the SIP is at least as stringent as the
Federal NNSR requirements for the Philadelphia-Wilmington-Atlantic
City, PA-NJ-MD-DE nonattainment area. EPA last approved revisions to
Pennsylvania's major NNSR SIP on February 22, 2019. In that action, EPA
approved Pennsylvania's NNSR program under the 2008 8-hour ozone NAAQS
and made PADEP's NNSR program consistent with Federal requirements. See
84 FR 5598 (February 22, 2019). The version of 25 Pa. Code Chapter 127
that is contained in the current SIP and covers the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area and is
adequate to meet all applicable NNSR requirements for the 2015 8-hour
ozone NAAQS found in 40 CFR 51.165, and the SRR.
Other specific requirements of the SRR and the rationale for EPA's
proposed action are explained in the NPRM and will not be restated
here.
III. EPA's Response to Comments Received
EPA received one comment on our proposed approval of Pennsylvania's
2015 Ozone NNSR Certification SIP. A summary of the comment and EPA's
response is provided herein. The comment received is included in the
docket for this action.
Comment: The commenter asserts that EPA failed to address the fact
that Pennsylvania submitted a letter withdrawing specific portions of
the January 8, 2021, SIP revision submittal related to inter-precursor
trading (IPT) provisions. In doing so, EPA has proposed an approval
without excluding the IPT provision that unlawfully allows IPT to
satisfy the Clean Air Act's offset requirements for ozone precursors.
The commentor asserts that EPA must state explicitly in its final
action that it is not approving the IPT provisions of the January 8,
2021, SIP and that it is approving, as a SIP commitment, Pennsylvania's
promise not to issue any NNSR permits or plan approvals that rely on
IPT. Finally, the commentor asserts that the approval should be
conditional on Pennsylvania following through on their commitment to
remove ozone related IPT provision from the commonwealth's regulations.
Response: On January 29, 2021, the United States Court of Appeals
for the D.C. Circuit concluded that ozone IPT trading is not
permissible under the CAA and vacated ozone IPT trading, i.e., the IPT
trading provision in the Federal NNSR regulations. Sierra Club v. EPA,
985 F.3d 1055 (D.C. Cir. 2021). EPA removed the language allowing IPT
trading for ozone from its NNSR regulations. 86 FR 37918 (July 19,
2021). In response to that the July 19, 2021, rule, on August 23, 2021,
PADEP sent a letter to EPA that withdrew from EPA's review the specific
portions of PADEP's January 8, 2021, SIP revision submittal that
related to inter-precursor trading (IPT).
EPA agrees with comment to the extent that EPA should have
affirmatively addressed the August 23, 2021, letter and the fact that
PADEP had withdrawn from EPA review the (IPT) provisions submitted with
the January 8, 2021, SIP revision. Pennsylvania clearly intends to not
apply the IPT provisions to ozone as made evident by the August 23,
2021, letter to the EPA.
[[Page 59694]]
Furthermore, we acknowledged in this action that the provisions for IPT
for ozone had been withdrawn from our consideration, as reflected by
our inclusion of the August 23, 2021, letter in the docket for the
action. Therefore, EPA's proposed approval of Pennsylvania's 2015 ozone
NNSR certification SIP did not at any time include a proposed approval
of any provisions relating to IPT for ozone, consistent with the D.C.
Circuit's decision. EPA affirms that, in light of the D.C. Circuit's
decision (and consistent with Pennsylvania's explicitly stated intent
in the withdrawal letter), it would be inappropriate for Pennsylvania
to issue NNSR permits which relied on IPT for ozone precursors.
Pennsylvania's regulations for the issuance of plan approvals provide
for public notice and comment, in accordance with CAA requirements. EPA
has the ability to review and comment on any deficiency in a draft plan
approval, including an inappropriate use of IPT for ozone.
However, EPA disagrees with the commentor's assertion that the
approval must be conditional on Pennsylvania following through on its
commitment to remove the IPT provisions in the commonwealth's
regulations. This action only addresses the adequacy of Pennsylvania's
SIP for purposes of implementing the 2015 ozone NAAQS. Because of the
withdrawal reflected in the Commonwealth's August 23, 2021, letter, the
IPT language in Pennsylvania's regulations is not before EPA for
approval in this action. Since the Pennsylvania provisions included in
this SIP submission are adequate for purposes of implementing the 2015
ozone standard, Pennsylvania's 2015 Ozone NNSR Certification SIP is
approvable without the condition requested by the commenter.
IV. Final Action
EPA's review of this material indicates that Pennsylvania's
submission fulfills the 40 CFR 51.1114 revision requirement, meets the
requirements of CAA sections 110 and 172 and the minimum SIP
requirements of 40 CFR 51.165. Therefore, we are finalizing our
approval of Pennsylvania's NNSR SIP for 2015 8-hour ozone NAAQS.
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). 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 action:
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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 CAA; and
<bullet> Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
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
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
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 December 2, 2022. 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 pertaining to Pennsylvania's 2015 Ozone NNSR
Certification 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Adam Ortiz,
Regional Administrator, Region III.
For the reasons set out in the preamble, 40 part 52 is amended as
follows:
PART 52--APPROVAL 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 (e)(1) is amended by adding
an entry for
[[Page 59695]]
``2015 8-Hour Ozone National Ambient Air Quality Standard Nonattainment
New Source Review Requirements'' at the end of the table to read as
follows:
Sec. 52.2020 Identification of plan.
* * * * *
(e) * * *
(1) * * *
----------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable State EPA approval
revision geographic area submittal date date Additional explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
2015 8-Hour Ozone NAAQS Pennsylvania's 1/8/21; 8/23/21 10/3/22, Insert
Nonattainment New Source portion of the Federal
Review Requirements. Philadelphia- Register
Wilmington- citation].
Atlantic City,
PA-NJ-MD-DE
area (includes
Bucks, Chester,
Delaware,
Montgomery, and
Philadelphia
Counties).
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2022-21252 Filed 9-30-22; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on October 3, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.