Rule2024-18162
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)
Primary source
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Published
August 16, 2024
Effective
September 16, 2024
Issuing agencies
Environmental Protection Agency
Abstract
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).
Full Text
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<title>Federal Register, Volume 89 Issue 159 (Friday, August 16, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <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 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: 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
<a href="/cdn-cgi/l/email-protection#2457474c494d50500a414848414a644154450a434b52"><span class="__cf_email__" data-cfemail="8af9e9e2e7e3fefea4efe6e6efe4caeffaeba4ede5fc">[email protected]</span></a>.
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 <a href="http://regulations.gov">regulations.gov</a>.
\2\ A copy of the court order is located in the docket for this
action. Docket Id. EPA-R03-OAR-2019-0562 in <a href="http://regulations.gov">regulations.gov</a>.
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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 NO<INF>X</INF> 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 (NO<INF>X</INF>). 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:
<bullet> 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.
<bullet> 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 NO<INF>X</INF> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>
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 <a href="http://www.epa.gov/laws-regulations/laws-and-executive-orders">www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
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]]
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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]
BILLING CODE 6560-50-P
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