Rule2024-20598
Air Plan Approval; Pennsylvania; Attainment Plan for the Indiana Nonattainment Area for the 2010 1-Hour Sulfur Dioxide National Ambient Air Quality Standard
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
September 13, 2024
Effective
October 15, 2024
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 (Pennsylvania or PA). The revision pertains to the attainment plan for the Indiana, PA nonattainment area for the 2010 1- hour sulfur dioxide (SO<INF>2</INF>) national ambient air quality standard (NAAQS). The EPA is approving these revisions to the Pennsylvania SIP in accordance with the requirements of the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 89 Issue 178 (Friday, September 13, 2024)</title>
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[Federal Register Volume 89, Number 178 (Friday, September 13, 2024)]
[Rules and Regulations]
[Pages 74836-74847]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-20598]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2024-0024; FRL-11529-02-R3]
Air Plan Approval; Pennsylvania; Attainment Plan for the Indiana
Nonattainment Area for the 2010 1-Hour Sulfur Dioxide National Ambient
Air Quality Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision submitted by the Commonwealth of
Pennsylvania (Pennsylvania or PA). The revision pertains to the
attainment plan for the Indiana, PA nonattainment area for the 2010 1-
hour sulfur dioxide (SO<INF>2</INF>) national ambient air quality
standard (NAAQS). The 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 October 15, 2024.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2024-0024. 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: Megan Goold, 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) 814-2027. Ms. Goold
can also be reached via electronic mail at <a href="/cdn-cgi/l/email-protection#177078787b73397a727076795772677639707861"><span class="__cf_email__" data-cfemail="b0d7dfdfdcd49eddd5d7d1def0d5c0d19ed7dfc6">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On June 22, 2010, the EPA published a new 1-hour primary
SO<INF>2</INF> NAAQS of 75 parts per billion (ppb) at 40 CFR
[[Page 74837]]
50.17(a), which is met at an ambient air quality monitoring site when
the 3-year average of the annual 99th percentile of daily maximum 1-
hour average concentrations does not exceed 75 ppb, as determined in
accordance with 40 Code of Federal Regulations (CFR) part 50 appendix T
(75 FR 35520, June 22, 2010). Under CAA section 107(d)(1), the EPA is
required to designate areas as ``nonattainment,'' ``attainment,'' or
``unclassifiable'' within two years of establishing a new or revising
an existing standard. As part of this process, states must submit
recommendations for area designations and boundaries to the EPA within
one year of the effective date of the standard. Effective on October 4,
2013,\1\ the Indiana, PA Nonattainment Area (hereafter referred to as
``the Indiana, PA NAA'') (which encompasses Indiana County, and
Plumcreek Township, South Bend Township and Elderton Borough of
Armstrong County) was designated as nonattainment for the 2010
SO<INF>2</INF> NAAQS. The area encompasses the primary SO<INF>2</INF>
emitting sources: the Keystone Generating Station (Keystone), Conemaugh
Generating Station (Conemaugh), Homer City Generating Station (Homer
City), and Seward Generating Station (Seward). The October 4, 2013,
final designation triggered a requirement for Pennsylvania to submit by
April 4, 2015 (within 18 months per CAA section 191(a)), a SIP revision
with an attainment plan for how the Indiana, PA NAA would attain the
2010 SO<INF>2</INF> NAAQS as expeditiously as practicable, but no later
than October 4, 2018, (five years from the designation per CAA section
192(a)) in accordance with CAA sections 110(a), 172(c) and 191-192.
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\1\ 78 FR 47191 (August 5, 2013).
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For a number of areas, including the Indiana, PA NAA, the EPA
published a March 18, 2016 Finding of Failure to Submit, with an
effective date of April 18, 2016, finding that Pennsylvania and other
pertinent states had failed to submit the required SO<INF>2</INF>
attainment plan by this submittal deadline. (See 81 FR 14736, March 18,
2016). This finding initiated a deadline under CAA section 179(a) for
the potential imposition of new source review and highway funding
sanctions. However, as a result of Pennsylvania's October 11, 2017
submittal (hereafter referred to as ``the 2017 SIP submittal''), and
the EPA's subsequent October 13, 2017 letter to Pennsylvania finding
the submittal complete, the CAA section 179(a) sanctions were not
imposed. Additionally, under CAA section 110(c), the March 18, 2016,
finding triggered a requirement that the EPA promulgate a Federal
implementation plan (FIP) within two years of the effective date of the
finding unless, by that time, the state has made the necessary complete
submittal, and the EPA has approved the submittal as meeting applicable
requirements. The EPA took final action approving this attainment plan
on October 19, 2020 (85 FR 66240, October 19, 2020), which removed the
FIP obligation.
On December 18, 2020, the Sierra Club, Clean Air Council, and
Citizens for Pennsylvania's Future filed a petition for judicial review
with the U.S. Court of Appeals for the Third Circuit, challenging that
final approval.\2\ On April 5, 2021, the EPA filed a motion for
voluntary remand without vacatur of its approval of the Indiana, PA
SO<INF>2</INF> attainment plan.
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\2\ Sierra Club, et al. v. EPA, Case No. 20-3568 (3d Cir.).
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On August 17, 2021, the U.S. Court of Appeals for the Third Circuit
granted the EPA's request for remand without vacatur of the final
approval of Pennsylvania's SO<INF>2</INF> attainment plan for the
Indiana, PA NAA, and required that the EPA take final action in
response to the remand no later than one year from the date of the
court's order.
On August 18, 2022, the EPA revised and corrected its prior full
approval action (85 FR 66240, October 19, 2020) without further
submission from Pennsylvania (effective September 19, 2022) (87 FR
50778, August 18, 2022). Specifically, the EPA retained the approval of
the emissions inventory and nonattainment new source review (NNSR)
program requirements, and disapproved the attainment demonstration,
reasonably available control measures and reasonably available control
technology (RACM/RACT) requirements, reasonable further progress (RFP)
requirements, and contingency measures (hereafter referred to as the
``2022 Partial Approval/Partial Disapproval'') (87 FR 50778, August 18,
2022). The partial disapproval action initiated a sanctions clock under
CAA section 179, providing for emission offset sanctions for new
sources if the EPA has not fully approved a revised attainment plan
within 18 months (March 19, 2024) after final partial disapproval, and
providing for highway funding sanctions if the EPA has not fully
approved a revised plan within 6 months thereafter (September 19,
2024). The sanctions clock can be stopped only if the conditions of the
EPA's regulations at 40 CFR 52.31 are met. Also, under CAA section
110(c), the partial disapproval action initiated an obligation for the
EPA to promulgate a FIP within two years unless Pennsylvania has
submitted, and the EPA has fully approved, a plan addressing the
disapproved attainment planning requirements.
On October 12, 2023, Pennsylvania submitted a 2023 SO<INF>2</INF>
Attainment Plan SIP Revision for the Indiana, PA NAA (hereafter
referred to as the ``2023 SIP submittal''). The 2023 SIP submittal
addresses the requirements of CAA sections 172(c), 191 and 192 and the
disapproved attainment planning requirements in the EPA's 2022 Partial
Approval/Partial Disapproval. Specifically, this SIP revision contains
a modified attainment demonstration using dispersion modeling,
evaluates sources for RACT/RACM purposes, gives an RFP explanation,
provides for contingency measures, and includes revised emissions
limitations and control measures.
Nonattainment area SO<INF>2</INF> SIPs must meet the applicable
requirements of the CAA, specifically CAA sections 110, 172, 191 and
192. The EPA's regulations governing nonattainment area SIPs are set
forth at 40 CFR part 51, with specific procedural requirements and
control strategy requirements residing at subparts F and G,
respectively. Soon after Congress enacted the 1990 amendments to the
CAA, the EPA issued comprehensive guidance on SIPs in a document
entitled the ``General Preamble for the Implementation of title I of
the Clean Air Act Amendments of 1990,'' published in the Federal
Register at 57 FR 13498 (April 16, 1992) (General Preamble). Among
other things, the General Preamble addressed SO<INF>2</INF> SIPs and
fundamental principles for SIP control strategies. Id. at 13545-49,
13567-68. On April 23, 2014, the EPA issued guidance and
recommendations for meeting the statutory requirements in
SO<INF>2</INF> SIPs addressing the 2010 primary NAAQS, in a document
entitled, ``Guidance for 1-Hour SO<INF>2</INF> Nonattainment Area SIP
Submissions'' (hereafter referred to as ``2014 SO<INF>2</INF>
Nonattainment Guidance'').\3\ In the 2014 SO<INF>2</INF> Nonattainment
Guidance, the EPA described the statutory requirements for a complete
nonattainment area SIP, which include an accurate emissions inventory
of current emissions for all sources of SO<INF>2</INF> within the
nonattainment area; an attainment demonstration; enforceable emissions
limitations and control measures;
[[Page 74838]]
demonstration of RFP; implementation of RACM (including RACT);
nonattainment new source review; and adequate contingency measures for
the affected area.
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\3\ Memorandum from Stephen D. Page, ``Guidance for 1-Hour
SO<INF>2</INF> Nonattainment Area SIP Submissions'', April 23, 2014.
<a href="http://www.epa.gov/sites/default/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf">www.epa.gov/sites/default/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf</a>.
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For the EPA to fully approve a SIP as meeting the requirements of
CAA sections 110, 172, 191, and 192 and the EPA's regulations at 40 CFR
part 51, the SIP for the affected area needs to demonstrate to the
EPA's satisfaction that each of the aforementioned requirements have
been met. Under CAA sections 110(l) and 193, the EPA may not approve a
SIP that would interfere with any applicable requirement concerning
NAAQS attainment and RFP, or any other applicable requirement, and no
requirement in effect before November 15, 1990 (or required to be
adopted by an order, settlement, agreement, or plan in effect before
November 15, 1990), in any area which is a nonattainment area for any
air pollutant, may be modified in any manner unless it ensures
equivalent or greater emission reductions of such air pollutant.
CAA section 172(c)(1) directs states with areas designated as
nonattainment to demonstrate that the submitted plan provides for
attainment of the NAAQS. 40 CFR part 51, subpart G further delineates
the control strategy requirements that SIPs must meet, and the EPA has
long required that all SIPs and control strategies reflect the four
fundamental principles of quantification, enforceability,
replicability, and accountability. See General Preamble, 57 FR 13498 at
13567-68 (April 16, 1992). SO<INF>2</INF> attainment plans must consist
of two components: (1) emission limits and other controls, including
measures that assure implementation of permanent, enforceable and
necessary emission controls, and (2) a modeling analysis which meets
the requirements of 40 CFR part 51, appendix W and demonstrates that
these emission limits and control measures provide for timely
attainment of the primary SO<INF>2</INF> NAAQS as expeditiously as
practicable, but by no later than the attainment date for the affected
area. In all cases, the emission limits and control measures must be
accompanied by appropriate methods and conditions to determine
compliance with the respective emission limits and control measures,
and must be quantifiable (i.e., a specific amount of emission reduction
can be ascribed to the measures), fully enforceable (specifying clear,
unambiguous and measurable requirements for which compliance can be
practicably determined), replicable (the procedures for determining
compliance are sufficiently specific and non-subjective so that two
independent entities applying the procedures would obtain the same
result), and accountable (source-specific limits must be permanent and
must reflect the assumptions used in the SIP demonstrations).
II. Summary of SIP Revision and EPA Analysis
On June 7, 2024 (89 FR 48523), the EPA published a notice of
proposed rulemaking (NPRM) for Pennsylvania. In the NPRM, the EPA
proposed approval of a revision to Pennsylvania's SIP to demonstrate
attainment of the 2010 SO<INF>2</INF> NAAQS in the Indiana, PA NAA. As
noted, Pennsylvania submitted the formal SIP revision on October 12,
2023. This submission includes Pennsylvania's attainment demonstration
and other attainment plan elements required under the CAA, including
the requirement for meeting RFP toward attainment of the NAAQS, RACM/
RACT, enforceable emission limitations and control measures, and
contingency measures. Notably, the submission does not contain
information regarding the required emissions inventory or the state's
NNSR program, as these were previously approved by the EPA (87 FR
50778, August 18, 2022). In this action, the EPA is determining that
the Pennsylvania 1-hour SO<INF>2</INF> attainment plan for Indiana, PA
meets the applicable statutory and regulatory requirements and is thus
approving Pennsylvania's submission into its SIP. Also, the EPA is
incorporating the following SO<INF>2</INF> emission limits into the
source-specific section of the PA SIP for the Keystone Plant, Conemaugh
Station and Seward Station (as well as the compliance strategies listed
in the unredacted portion of the Consent Order and Agreements (COAs)
found in appendix C of the state submittal):
<bullet> Keystone--Remove 9,600 lbs/hr on a 24-hour (daily) block
average and replace with 8,328 lbs/hr combined based on a 24-hour block
average for Boiler 1 & Boiler 2 (Source IDs 031 & 032).
<bullet> Seward--Remove 3,038.4 lbs/hr and replace with 2,895 lbs/
hr combined based on a 30-day operating hours average rolling by one
day for Source IDs 034 & 035. Remove 13,308 tpy and replace with 12,680
tpy combined for Source IDs 034 & 035. Add the requirement to inject
limestone into Source ID 034 and Source ID 035 during initial firing
each time Source ID 034 and Source ID 035 are operated to reduce the
magnitude and frequency of SO<INF>2</INF> emission spikes in accordance
with good air pollution control practices.
<bullet> Conemaugh--Add 3,080 lbs/hr combined on a 3-hour block
average for Units 1 & 2 (Source IDs 031 & 032).
Other specific requirements of the Indiana County attainment plan
and the rationale for the EPA's action are explained in the NPRM, and
its associated technical support document (TSD), and will not be
restated here.
III. EPA's Response to Comments Received
The EPA received four sets of comments in response to the NPRM. Two
sets of comments were in opposition to the EPA's proposed action. The
EPA also received one comment in support of the EPA's proposed action
and one that was not relevant.
Comment 1. The comment asserts that the EPA's interpretation of
what contingency measures are permissible in an SO<INF>2</INF>
attainment plan is not the ``best reading'' of the Clean Air Act. The
comment cites section 172(c)(9), Contingency Measures, emphasizing that
contingency measures take effect ``without further action by the State
or Administrator.'' The comment takes issue with the approach to
SO<INF>2</INF> contingency measures set forth in the EPA's General
Preamble, which states that ``contingency measures'' mean ``. . . the
State agency has a comprehensive program to identify sources of
violations of the SO<INF>2</INF> NAAQS and to undertake an aggressive
follow-up for compliance and enforcement.'' See 57 FR 13498 at 13547
(April 16, 1992). The comment asserts that an enforcement action is
``further action,'' which contradicts section 172(c)(9). Additionally,
the comment claims that the EPA's citation to the state's authority to
enforce its SIP is already required by CAA section 110(a)(2)(C) and
does not necessarily meet the conditions of an enforcement program, let
alone the contingency measure requirement, without a schedule and
mechanism requiring action when violations occur. The comment suggests
alternative contingency measures including switching to low-sulfur
fuel, limiting operation until the SIP is revised, or a daily
SO<INF>2</INF> emission limit. Lastly, the comment states that the SIP
lacks provisions to ensure ``aggressive follow-up'' can and will take
place in the event the area fails to attain the NAAQS and therefore
fails to meet the requirements of section 172(c)(9).
Response 1. The EPA disagrees with this comment.
First, as a general matter, the EPA's longstanding approach to
contingency
[[Page 74839]]
measures in SO<INF>2</INF> attainment plans, based on the Agency's
technical expertise and understanding of control strategies addressing
SO<INF>2</INF>, has been consistently applied by the EPA and states
since shortly after the enactment of the 1990 Clean Air Act Amendments,
including in the General Preamble, updated guidance memoranda \4\ and
numerous SO<INF>2</INF> SIP approval actions.\5\
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\4\ SO<INF>2</INF> Guideline Document, U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards,
Research Triangle Park, NC 27711, EPA-452/R-94-008, February 1994
(1994 SO<INF>2</INF> Guideline); Guidance for 1-Hour SO<INF>2</INF>
Nonattainment Area SIP Submissions, Office of Air Quality Planning
and Standards, Stephen D. Page, April 23, 2014 (2014 SO<INF>2</INF>
Nonattainment Guidance).
\5\ 87 FR 61514, 61522-61523 (October 12, 2022); 84 FR 51988,
51994-51995 (October 1, 2019); 84 FR 32672, 32677 (July 9, 2019)
(final rule 84 FR 49659 (September 23, 2019); 83 FR 51629, 51632-
51633 (October 12, 2018); 83 FR 40487, 40497 (August 15, 2018)
(final rules 85 FR 49967 (August 17, 2020) and 84 FR 10692 (March
22, 2019)); 82 FR 45242, 45251 (September 28, 2017) (final rule 83
FR 25922 (June 5, 2018)); 82 FR 40086, 40097-40098 (August 24, 2017)
(final rule 85 FR 73218 (November 17, 2020)).
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Second, in response to the comment's specific objection that
contingency measures are to take effect ``without further action,'' the
EPA has interpreted ``without further action'' in the ozone, lead, and
carbon monoxide contexts to mean no further rulemaking or legislative
action, though the EPA recognized that certain actions such as
notification of sources or modifications of permits would be needed for
effective implementation. 57 FR 13498, 13512 and 13533 (April 16,
1992), 58 FR 67748, 67752 (December 22, 1993). Undertaking enforcement
against sources for violations of emission limitations that were
necessary to provide for SO<INF>2</INF> NAAQS attainment is consistent
with the EPA's longstanding position across all of the NAAQS that
ministerial actions to effectuate contingency measures, rather than
additional rulemaking or legislative action to adopt new contingency
measures, is appropriate to meet the requirements of CAA section
172(c)(9). To commence an enforcement action when an emission
limitation violation is identified, no further administrative or
legislative action is necessary, and the state can expeditiously
proceed to remedy the violation--even without needing to wait to
determine whether such violation has caused or contributed to a
violation of the NAAQS in the nonattainment area.
Contrary to the comment's suggestion that Pennsylvania does not
have a comprehensive enforcement program as required by CAA section
110(a)(2)(C), Pennsylvania has such a program as specified in section
4(27) of the Pennsylvania Air Pollution Control Act (APCA), 35 P.S.
Sec. 4004(27), which authorizes the Pennsylvania Department of
Environmental Protection (PADEP) to take any action it deems necessary
or proper for the effective enforcement of the Act and the rules and
regulations promulgated thereunder. Such actions include the issuance
of orders (i.e., enforcement orders and orders to take corrective
action to address air pollution or the danger of air pollution from a
source) and the assessment of civil penalties. Any person in violation
of the APCA, the rules and regulations, any order of PADEP, or a plan
approval or operating permit conditions could also be subject to
criminal fines upon conviction under section 9, 35 P.S. Sec. 4009.
Section 7.1 of the APCA, 35 P.S. Sec. 4007.1, prohibits PADEP from
issuing plan approvals and operating permits for any applicant,
permittee, or a general partner, parent or subsidiary corporation of
the applicant or the permittee that is placed on PADEP's Compliance
Docket until the violations are corrected to the satisfaction of PADEP.
Consequently, the EPA disagrees with the comment's assertion that in
order to credit PADEP's comprehensive enforcement program as satisfying
the CAA section 172(c)(9) SO<INF>2</INF> contingency measure
requirement, the program would have to include elements such as
mandatory additional penalties or elimination of agency discretion to
prosecute violations.
Again, the enforcement process is more streamlined and targeted
compared to rulemaking or legislation, which as discussed above, is
considered disallowed ``further action'' for other criteria pollutants,
and moreover enforcement is more akin to permissible implementation
steps such as notification of sources and modification of permits.
Compare 57 FR 13498, 13547 (April 16, 1992) (discussing a comprehensive
program to identify violations and undertaking aggressive follow-up for
compliance and enforcement) with 57 FR 13498, 13512 and 13533 (April
16, 1992) (interpreting ``without further action'' to mean no further
rulemaking or legislation but to allow implementation steps such as
modification of permits and notification of sources) and 58 FR 67748,
67752 (December 22, 1993). Thus, enforcement serves as an appropriate
contingency measure for SO<INF>2</INF> nonattainment SIPs.
In addition to having a fully approved comprehensive enforcement
program, PADEP has included what it refers to as additional contingency
measures that are automatically triggered based on varying parameters,
as described below.\6\ First, when any of the four sources' emissions
in the NAA reach 99% of the SO<INF>2</INF> emissions limit for the
facility, within 48 hours the facility is required to undertake a full
system audit of the SO<INF>2</INF> emitting sources and submit a
written report to PADEP within 15 days, and corrective actions shall be
identified by PADEP as necessary. Second, if the Strongstown monitor in
the NAA registers a daily maximum 1-hour average concentration
exceeding 75 ppb, PADEP will notify the facilities in the NAA, and each
facility is required to identify whether any of its SO<INF>2</INF>-
emitting sources were running at the time of the exceedance, and within
a reasonable time period leading up to the exceedance, not to exceed 24
hours. If any of the SO<INF>2</INF>-emitting sources were running at
the time of the exceedance, the facility must then analyze the
meteorological data on the day the hourly exceedance occurred to ensure
that the exceedance was not due to SO<INF>2</INF> emissions from the
respective facility. The facility's findings must be submitted to PADEP
within 30 days of being notified of the exceedance.\7\ These emissions-
threshold-activated and exceedance-activated measures further ensure
that ``aggressive follow-up'' will occur without further regulatory
steps taken by the state. They also further reduce the likelihood of a
violation of the emission limits or NAAQS. These measures are in line
with the additional contingency measures the EPA mentions in the 2014
SO<INF>2</INF> Nonattainment Guidance and in the General Preamble and
are included in the Pennsylvania SIP.\8\ The most recent
[[Page 74840]]
design values at the Strongstown monitor in the NAA are 19 ppb in 2022,
22 ppb in 2021, and 25 ppb in 2020, which are well below the 1-hour
primary 2010 SO<INF>2</INF> NAAQS of 75 ppb. The proactive nature of
PADEP's emissions-threshold-activated and exceedance-activated
measures, as well as the direct quantifiable impact of the
SO<INF>2</INF> control measures and the current design values in the
NAA, make it very unlikely that a NAAQS violation could occur in this
area while the sources are complying with their emission limits.
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\6\ These measures enhance Pennsylvania's fully approved
enforcement program that serves to meet the contingency measure
requirement, are not necessary to meet applicable requirements of
the CAA under section 110(a)(2)(A), and are already included in the
SIP.
\7\ Note the daily maximum 1-hour average concentration can be
above 75 ppb multiple times in one year and still not violate the
NAAQS due to the statistical nature of the design values. Therefore,
this measure could be triggered multiple times before a design value
of 75 ppb, and therefore a NAAQS violation, ever occurs.
\8\ These exceedance-activated and emissions-threshold-activated
measures were retained in the SIP, as explained in the partial
disapproval, 87 FR 15166, 15177 (March 17, 2022) (final rule
published 87 FR 50778 (August 18, 2022)), and the 2023 SIP
submittal's attainment plan reiterates these requirements and the
plan will be included in the SIP. For the sake of clarity and
consistency, Keystone's COA will be removed from the SIP because the
state has requested the removal of the 9600 lb/hr 24-hr
SO<INF>2</INF> emission limit which was approved into the SIP via a
source-specific SIP revision based on the COA; included in that COA
is the emissions-threshold activated measure which in the COA is
based on the previously disapproved emissions limit. With the
approval of the 2023 attainment plan into the SIP, the emissions-
threshold activated measure and the exceedance-activated measure for
Keystone are still included in the SIP.
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The comment listed several options for contingency measures that
the comment suggests should be included in the SIP. The EPA
acknowledges that one or more of these options may be appropriate in a
specific situation, and for a specific source, if the area fails to
achieve RFP or fails to attain the NAAQS by the statutory attainment
date. However, because Indiana, PA is a multisource area with several
emission units per facility, requiring one or more of these measures
may not be appropriate depending on the cause of the potential
violations of the SO<INF>2</INF> standard, which would need to be
evaluated at the time of occurrence. For example, triggering a fuel-
switch at one facility may not bring the area into attainment if the
issue is caused by another facility violating its limit. Similarly,
limiting operation of one facility may be appropriate if the subject
facility is the cause of the problem, but requiring further measures at
other facilities may not be warranted where the cause of the NAAQS
violation was non-compliance with emission limits by a different
facility and where the NAAQS violation can be most efficiently remedied
by bringing that source into compliance with its established emission
limits. Likewise, limiting operations at all SO<INF>2</INF>-emitting
facilities in the area may not appropriately address the issue due to
the localized nature of SO<INF>2</INF> emissions and possible direct
link between ambient concentrations and emissions from a specific
facility. Similarly, changing the limits at all facilities, for example
from a longer-term limit to a shorter-term limit, may appropriately
address the problem, but it also may not, and the state would evaluate
appropriate measures if and when an issue arises. These are
illustrative examples, and while not exhaustive, they highlight the
need for the state to be able to respond appropriately in a particular
scenario due to the localized nature of SO<INF>2</INF> impacts.
In summary, the EPA's longstanding approach to implementing the
section 172(c)(9) contingency measures requirement in SO<INF>2</INF>
attainment plans via comprehensive enforcement programs is appropriate.
This approach is based upon the EPA's technical expertise and in-depth
understanding of SO<INF>2</INF> control strategies and is consistent
with the approaches undertaken for other criteria pollutants that have
distinguished acceptable ministerial steps from regulatory or
legislative action in satisfying the Act's requirement that contingency
measures take effect ``without further action.'' Accordingly, in this
case, Pennsylvania's fully approved comprehensive enforcement program,
and as bolstered by the state's aforementioned requirements that are
triggered automatically when emissions thresholds are reached or NAAQS
exceedances are recorded, is approved as meeting the CAA section
172(c)(9) contingency measure requirement.
Comment 2. A comment takes issue with the EPA's approach to
attainment determinations when an area initially fails to attain by the
attainment date. The comment cites the requirement for the EPA to
determine within six months of the attainment date whether the standard
has been attained for a given area. Section 179(c)(1) of the Clean Air
Act further states that if the Administrator has found that the area
did not attain, the EPA ``may revise or supplement such determination
at any time based on more complete information or analysis concerning
the area's air quality as of the attainment date.'' The comment notes
that the EPA's 1996 SO<INF>2</INF> Memorandum \9\ and 2014
SO<INF>2</INF> Nonattainment Guidance do not require a new SIP
submittal and further modeling is not required if the source
characteristics are ``still reasonably represented.'' The comment
claims that the EPA ought to require states to submit a demonstration
that modeling assumptions have not changed. The comment states that
because neither the EPA nor the state are reevaluating modeling
assumptions, there is an added responsibility on the public to comment
on the record on proposed attainment determinations. Lastly, the
comment notes that this issue is magnified by the improper use of 30-
day rolling averages as emission limits, further complicating
compliance.
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\9\ Memorandum from Sally L. Shaver, ``Attainment Determination
Policy for Sulfur Dioxide Nonattainment Areas'', January 26, 1996
(1996 SO<INF>2</INF> Memorandum).
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Response 2. This comment is outside the scope of this action and
does not require a response. The EPA notes that in this action, it is
not implementing CAA section 179(c) or making a determination of
attainment by the attainment date. To the extent the comment relates to
objections to the emission limits adopted in the attainment plan, as
explained elsewhere, the EPA concludes that the plan will provide for
attainment, accounting for worst-case allowable emissions and
meteorology.
Comment 3. The comment asserts that the EPA's approach to
reasonably available control measures (RACM) and reasonably available
control technology (RACT) in the context of SO<INF>2</INF> attainment
plans is not the ``best reading'' of the Clean Air Act. The comment
cites the EPA's 2014 SO<INF>2</INF> Nonattainment Guidance, stating
that the requirement to implement all RACM is fulfilled if a plan
provides for attainment of the SO<INF>2</INF> standards. The comment
then cites requirements for attainment plans, 42 U.S.C. 7502(c)(1)
(emphasis added):
Such plan provisions shall provide for the implementation of all
reasonably available control measures as expeditiously as
practicable (including such reductions in emissions from existing
sources in the area as may be obtained through the adoption, at a
minimum, of reasonably available control technology) and shall
provide for attainment of the national primary ambient air quality
standards.
In interpreting the provision, the comment highlights the word
``and'' in these nonattainment plan provisions, stating that the
requirement for all RACM and RACT must be fulfilled and the requirement
for attainment must also be met. The comment also states that the EPA
must give effect to every word and phrase in a statutory provision and
that the EPA has failed to give effect to the requirement that all
RACM/RACT be implemented. Next, the comment claims that the EPA fails
to consider the plain meaning of statutory terms in reference to
``available'' control options. The comment claims that the EPA's
proposal fails to determine whether additional controls are needed and
is lacking an analysis of control efficiencies for existing and
potential controls, as well as costs for upgrades.
Response 3. In identifying the ``best reading'' of a statutory
requirement, the EPA has considered the overall and specific purpose of
the requirement, the technical context in which it is imposed, and the
most reasonable manner in which its obligations may be fulfilled. The
Clean Air Act nonattainment planning requirements in section 172(c)
applicable to states are set
[[Page 74841]]
in place to provide for attainment and subsequent maintenance of the
NAAQS in a designated nonattainment area--i.e., an area which the EPA
has previously determined is not meeting the NAAQS. All section 172(c)
requirements are targeted to remedy that NAAQS-violating occurrence. As
the comment referenced, RACM/RACT is required under Clean Air Act
section 172(c)(1) for nonattainment areas. Section 172(c)(1) of the CAA
requires the implementation of all RACM as expeditiously as practicable
(including such reductions in emissions from existing sources in the
area as may be obtained through the adoption, at a minimum, of RACT)
and shall provide for attainment of the NAAQS.
The comment suggests that the RACM/RACT requirement of section
172(c)(1) requires a state to assess and adopt measures that go further
than what is necessary to attain the SO<INF>2</INF> NAAQS in the
nonattainment area, but such an approach undercuts the purpose of this
provision as applied in the SO<INF>2</INF> nonattainment plan context.
At its core, this RACM/RACT requirement serves to remedy the status quo
situation of an area not meeting the NAAQS, in order to prospectively
achieve NAAQS attainment. This is clear from the requirement's
placement within one of the two paragraphs in section 172(c)--along
with section 172(c)(6)'s requirement that the plan include emissions
limitations as necessary to provide for NAAQS attainment--that specify
enumerated remedial measures that are not otherwise required absent an
area's being designated nonattainment. Moreover, when applied in the
SO<INF>2</INF> nonattainment plan context, these provisions of section
172(c) must be read in concert with the other applicable statutory
provision that Congress enacted in 1990 specifically governing
SO<INF>2</INF> plans, section 192(a), that similarly stressed the need
for remedial implementation plans to provide for NAAQS attainment. As
explained elsewhere and further below, for SO<INF>2</INF> the EPA has
long taken the technical view that this source-oriented pollutant,
compared to more regional pollutants like ozone and particulate matter,
can be addressed via identification of necessary emission limits, and
the control measures needed to meet them, that will provide for
attaining air quality. When that analysis has been undertaken and
appropriate attainment-providing emission limits have been devised, the
central purpose of the section 172(c) attainment planning requirements
will have been fulfilled, and it is not necessary to require additional
controls. Consequently, the EPA does not consider that it would be the
``best reading'' of the RACM/RACT requirement to interpret
``reasonably'' in section 172(c)(1), when applied in the SO<INF>2</INF>
SIP context, as requiring imposition of additional controls when those
that are necessary to provide for NAAQS attainment have already been
identified and required.
For decades, the EPA has consistently defined RACT for
SO<INF>2</INF> as that control technology that will achieve the NAAQS
within statutory timeframes. See, e.g., General Preamble, 57 FR 13498,
13547 (April 16, 1992), which was published soon after the enactment of
the 1990 Clean Air Act Amendments; see also, 1994 SO<INF>2</INF>
Guideline at 6-39. RACT for certain other criteria pollutants is
control technology that is reasonably available considering
technological and economic feasibility (see December 9, 1976 memorandum
from Roger Strelow, ``Guidance for Determining Acceptability of SIP
Regulations in Non-Attainment Areas''). The EPA's definition of RACT
for SO<INF>2,</INF> as that control technology which is necessary to
achieve the NAAQS (40 CFR 51.100 (o)),\10\ is based on the specific
characteristics of SO<INF>2</INF>. Since SO<INF>2</INF> RACT is already
defined as the technology necessary to achieve the SO<INF>2</INF>
NAAQS, control technology that failed to achieve the NAAQS would fail
to be SO<INF>2</INF> RACT, and control technology beyond what is
necessary to attain the SO<INF>2</INF> NAAQS would be beyond the
central purpose of the nonattainment planning requirements of section
172(c).
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\10\ RACT means devices, systems, process modifications, or
other apparatus or techniques that are reasonably available taking
into account: (1) The necessity of imposing such controls in order
to attain and maintain a national ambient air quality standard; (2)
The social, environmental, and economic impact of such controls; and
(3) Alternative means of providing for attainment and maintenance of
such standard. (This provision defines RACT for the purposes of 40
CFR 51.341(b) only.)
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When determining RACT for SO<INF>2</INF>, it is appropriate to take
into account the necessity of the control in meeting the standard. As
noted, the EPA's definition of RACT in the SO<INF>2</INF> nonattainment
context accounts for the characteristics of the specific pollutant. For
a pollutant such as SO<INF>2</INF>, the relationship between an
individual source's emissions and the overall air quality can be
explicitly quantified, and the emission reductions necessary to attain
the NAAQS are based on a limited number of sources in a NAA.\11\
Therefore, a state can explicitly calculate the emission reductions
necessary to provide for attainment of the SO<INF>2</INF> NAAQS, and it
is appropriate not to require states to impose control measures
requiring further reductions beyond what is necessary to achieve
attainment.
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\11\ For reference, in the Indiana, PA NAA, 99.6% of the area's
SO<INF>2</INF> emissions inventory comes from the four facilities
controlled in the attainment plan.
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For the Indiana, PA NAA, PADEP provided the necessary modeling,
which demonstrated the specific hourly emission limits (and comparably
stringent longer-term limits) that are required to provide for
attainment of the standard. The EPA reviewed this modeling and
determined it comports with the EPA's Guideline on Air Quality Models
(40 CFR part 51, appendix W) and the EPA's 2014 SO<INF>2</INF>
Nonattainment Guidance. Therefore, the EPA concluded that the emission
limits established as RACM were shown to provide for attainment and
thus met the longstanding definition of RACT for SO<INF>2</INF>. PADEP
implemented these emission limits as expeditiously as practicable (with
Keystone's and Conemaugh's limits effective immediately after August
15, 2023, and Seward's limits effective immediately after August 17,
2023 via Consent Orders and Agreements).
While the comment disagrees with the EPA's approach to RACM/RACT
for SO<INF>2</INF> and characterizes its version as a better reading of
the Act, the comment does not explain why its reading of the Act is a
better reading specific to the SO<INF>2</INF> NAAQS. The comment does
not address the specific characteristics of the pollutant,
characteristics that the EPA has considered while it has consistently
defined RACT for SO<INF>2</INF>.\12\
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\12\ The comment refers to the visibility program's method of
determining retrofit controls. However, the visibility program
operates under a different statutory and regulatory framework, and
SO<INF>2</INF> is one of many visibility impairing pollutants.
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As discussed above, this has been the EPA's longstanding definition
and approach for SO<INF>2</INF> RACT since the 1990 Clean Air Act
Amendments. The EPA has consistently applied this definition of
SO<INF>2</INF> RACT and promulgated numerous implementation plan
approvals using this approach.\13\ Consequently, the EPA disagrees with
the comment's assertion that its approach does not reflect the ``best
[[Page 74842]]
reading'' of Clean Air Act section 172(c)(1) for SO<INF>2</INF>
implementation plans.
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\13\ 87 FR 61514, 61520-61521 (October 12, 2022); 84 FR 32672,
32676-32677 (July 9, 2019) (final rule 84 FR 49659 (September 23,
2019); 83 FR 50314, 50321-50324 (October 5, 2018) (final rule 84 FR
51988 (October 1, 2019)); 83 FR 12516, 12519-12520 (March 22, 2018)
(final rule 83 FR 51629 (October 12, 2018); 83 FR 40487, 40497
(August 15, 2018) (final rules 85 FR 49967 (August 17, 2020) and 84
FR 10692 (March 22, 2019)); 82 FR 45242, 45250-45251 (September 28,
2017) (final rule 83 FR 25922 (June 5, 2018)); 82 FR 40086, 40096-
40097 (August 24, 2017) (final rule 85 FR 73218 (November 17,
2020)).
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Comment 4. Two comments claim that longer-term emission limits do
not support attainment of the 1-hour SO<INF>2</INF> standard. One
comment states that the EPA's 2014 SO<INF>2</INF> Nonattainment
Guidance \14\ allows the use of 30-day emission limits as long as
hourly emissions above the critical emission value \15\ (CEV) are rare
and if the magnitude of emissions do not significantly exceed the CEV.
The comment further states that the EPA justified 30-day emission
limits to allow for operational flexibility at sources. Next, the
comment claims that the EPA's 2014 SO<INF>2</INF> Nonattainment
Guidance highlights the value of supplemental limits, e.g., caps on the
frequency or magnitude of elevated emissions, but fails to explain and
justify approving longer-term emission limits in the absence of
supplemental limits. Further, the comment states that the EPA's
recognition of the value of supplemental limits in the 2014
SO<INF>2</INF> Nonattainment Guidance demonstrates that 30-day rolling
averages, when used without supplemental limits, insufficiently protect
the NAAQS.
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\14\ <a href="http://www.epa.gov/sites/default/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf">www.epa.gov/sites/default/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf</a>.
\15\ The maximum modeled emission rate expressed as a 1-hour
average that results in attainment is labeled the ``critical
emissions value'' or CEV.
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The second comment states that the SO<INF>2</INF> limit was set as
a 1-hour standard to protect human health from harmful, short-term
exposures of SO<INF>2</INF> and that Seward's and Keystone's emission
limits are not protective under that standard. The comment claims that
the Seward and Keystone generating stations ``regularly and
frequently'' exceed their hourly CEV. Citing data from January 1, 2018
through March 31, 2024, the comment asserts that Keystone exceeded the
9,718 lbs/hr CEV on 532 occasions and that Seward exceeded the 3,830
lbs/hr CEV on 349 occasions, which occurred on 28 separate days in
2018, 7 days in 2019, 13 days in 2020, 31 days in 2021, 58 days in
2022, 40 days in 2023, and 16 days in 2024. The comment claims that the
PADEP justification for disregarding these exceedances, i.e., because
they ``occurred over a large number of possible operating hours per
year,'' is dismissive of the fact that the SO<INF>2</INF> standard is a
short-term standard and that just four hours on four days with
SO<INF>2</INF> concentrations over 75 ppb will lead to nonattainment of
the NAAQS.
Response 4. The EPA disagrees with the assertion that longer-term
limits cannot be protective of a 1-hour SO<INF>2</INF> standard. As
explained in the NPRM for this action, and in the EPA's 2014
SO<INF>2</INF> Nonattainment Guidance, the EPA believes that
appropriately set longer-term limits can be protective of the 1-hour
SO<INF>2</INF> NAAQS.
The EPA acknowledges the concern that longer-term emission limits
can allow short periods with emissions above the CEV, which, if
coincident with meteorological conditions conducive to high
SO<INF>2</INF> concentrations, could in turn create the possibility of
an hourly NAAQS exceedance occurring on a day when an exceedance would
not have occurred if emissions were continuously controlled at the
level corresponding to the CEV. However, for several reasons, the EPA
believes that the approach recommended in its guidance document
suitably addresses this concern.
First, from a practical perspective, the EPA expects the actual
emission profile of a source subject to an appropriately set longer-
term average limit to be similar to the emission profile of a source
subject to an analogous 1-hour average limit. The EPA expects this
similarity because it has recommended that the longer-term average
limit be set at a level that is comparably stringent to the otherwise
applicable 1-hour limit (reflecting a downward adjustment from the CEV)
and that takes the source's emissions profile (and inherent level of
emissions variability) into account. This downward adjustment of the
limit is to compensate for the loss of stringency inherent in applying
a longer-term average limit, by requiring most values to be lower than
they are required to be with a 1-hour limit at the CEV. As a result,
the EPA expects either form of emission limit to yield comparable air
quality.
Second, from a more theoretical perspective, the EPA has compared
the likely air quality with a source having maximum allowable emissions
under an appropriately set longer-term limit, to the likely air quality
with the source having maximum allowable emissions under the comparable
1-hour limit. In this comparison, in the 1-hour average limit scenario,
the source is presumed at all times to emit at the CEV, and in the
longer-term average limit scenario, the source is presumed occasionally
to emit more than the CEV, but on average, and presumably at most
times, to emit well below the CEV. In an ``average year,'' \16\
compliance with the 1-hour limit is expected to result in three
exceedance days (i.e., three days with maximum hourly values above 75
ppb) and a fourth day with a maximum hourly value at 75 ppb. By
comparison, with the source complying with a longer-term limit, it is
possible that additional hourly exceedances would occur that would not
occur in the 1-hour limit scenario (if emissions exceed the CEV at
times when meteorology is conducive to poor air quality). However, this
comparison must also factor in the likelihood that exceedances that
would be expected in the 1-hour limit scenario would not occur in the
longer-term limit scenario. This result arises because the longer-term
limit requires lower emissions most of the time (because the limit is
set below the CEV), so a source complying with an appropriately set
longer-term limit is likely to have lower emissions at critical times
than would be the case if the source were emitting as allowed with a 1-
hour limit.
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\16\ An ``average year'' is used to mean a year with average air
quality. While 40 CFR part 50, appendix T, provides for averaging
three years of annual 99th percentile daily maximum hourly values
(e.g., the fourth highest maximum daily hourly concentration in a
year with 365 days with valid data), this discussion and an example
below uses a single ``average year'' to simplify the illustration of
relevant principles.
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To illustrate this point, the EPA conducted a statistical analysis
using a range of scenarios using actual plant data. The analysis is
described in appendix B of the EPA's 2014 SO<INF>2</INF> Nonattainment
Guidance. Based on the analysis described in the 2014 SO<INF>2</INF>
Nonattainment Guidance, the EPA expects that an emission profile with
maximum allowable emissions under an appropriately set, comparably
stringent 30-day average limit is likely to have the net effect of
having a lower number of hourly exceedances and better air quality than
an emission profile with maximum allowable emissions under a 1-hour
emission limit at the CEV. This result provides a compelling policy
rationale for allowing the use of a longer averaging period in
appropriate circumstances where the facts indicate this result can be
expected to occur.
The 2014 SO<INF>2</INF> Nonattainment Guidance offers specific
recommendations for determining an appropriate longer-term average
limit. PADEP correctly followed the recommendations in devising the
longer-term limits for Seward and Keystone. The 24-hour average limit
of 8,328 lbs/hr went into effect for Keystone on August 15, 2023, and
the 30-day average limit of 2,895 lbs/hr went into effect for Seward on
August 17, 2023. The EPA reviewed the comment's hourly data files for
Seward and Keystone from January 1, 2018 through March 31, 2024, in
which the CEV at Keystone was exceeded on 532
[[Page 74843]]
separate occasions, and the CEV at Seward was exceeded on 349 separate
occasions. During the majority of this time period, the sources were
not subject to the new limits developed for this attainment plan.
Additionally, the stated number of occasions over the CEV for Seward
and Keystone during the six and one quarter years of data equate to
less than one percent of the hours for each source, which EPA considers
to be a minimal amount of occasions over the CEV. The EPA disagrees
with the comment on the air quality consequences of these occasions of
elevated emissions. While there were times after the new 30-day limit
went into effect where hourly emissions were above the CEV, there is no
evidence that these emissions caused an exceedance of the NAAQS. The
EPA believes that a full analysis of the air quality impact of
Pennsylvania's limits must consider these hours of elevated emissions
in conjunction with the far greater number of hours when emissions are
required to be well below the level that would model violations (i.e.,
the CEV). The comment provided no modeling analysis that incorporated
both the hours of emissions above the CEV and the hours below. For
reasons described in more detail in the EPA's guidance, the NPRM and
the EPA's Technical Support Document: Critical Emission Value Modeling
Analysis for the Indiana, PA 1-Hour SO<INF>2</INF> Nonattainment Area
(EPA Modeling TSD) for this action, the EPA believes that the net
effect of these compensating factors is that PADEP's limits provide
adequate assurance that the area will attain the SO<INF>2</INF>
standard.
The EPA disagrees with the comment's assertion that supplemental
limits must be required to limit the magnitude of emissions spikes when
a longer-term limit is established. As explained in detail above, a
comparably stringent longer-term limit can provide for protection of
the NAAQS, even without supplemental limits. In any event, PADEP
exercised additional options for restricting the frequency and
magnitude of occurrences of elevated emissions per the 2014
SO<INF>2</INF> Nonattainment Guidance,\17\ such as setting averaging
times shorter than thirty days or analyzing emissions data \18\ to
determine when to target emission episodes using supplemental limits.
For Keystone, PADEP applied a shorter averaging time of 24 hours. For
Seward, which has a 30-day limit, PADEP included a supplemental limit
in the form of a work practice requirement of injecting limestone into
the combustor during initial firing which was deemed appropriate due to
specific emissions data patterns experienced during those periods.
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\17\ According to the 2014 SO<INF>2</INF> Nonattainment
Guidance, p. 34, states have several additional options for
restricting the frequency and magnitude of occurrences of elevated
emissions. First, states may apply shorter averaging times, such as
24 hours, which provide less allowance of emission spikes than would
longer averaging times, such as 30 days. Second, for sources that
are or will be operating emission control equipment, states may
establish requirements for the operation of this control equipment.
For such sources, a substantial component of the variability in
emissions often arises from variations in the operation of the
control equipment, perhaps including operating the source when the
control equipment is not operating. States have multiple options for
requiring less variability in control equipment operation. One
option would be a direct work practice requirement for operation of
the control equipment, perhaps specifying some minimum level of
control efficiency and associated monitoring, recordkeeping, and
reporting requirements.
\18\ If this type of information on historic emission patterns
is not available, it may be difficult to determine supplemental
limits.
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Comment 5. The comment states that the CEVs set for each stationary
SO<INF>2</INF> source impacting nonattainment in Indiana County are not
protective of the NAAQS. The comment cites an assessment of the EPA's
modeling analysis which asserts that the CEVs yield peak concentrations
approximately 50 micrograms per cubic meter above the NAAQS. Steven
Klafka, Conemaugh, Homer City, Keystone and Seward Generating Stations
Indiana County, Pennsylvania Evaluation of Compliance with the 1-hour
NAAQS for SO<INF>2</INF>, (Wingra Engineering July 8, 2024).
Response 5: The EPA has reviewed the July 8, 2024 modeling analysis
prepared for the Sierra Club by Wingra Engineering (July 2024 Wingra
Analysis) and found several deficiencies with it. These include the
choice of meteorological data and the combining of emission sources
across an amalgamated modeling domain. The July 2024 Wingra Analysis
otherwise utilizes the same modeling system components (receptor grid
locations/elevations/hill-height scales, building downwash parameters,
surface characteristics, etc.) as those used in the modeling analysis
performed by Pennsylvania and reviewed by the EPA. For consistency
purposes, the comment's July 2024 Wingra Analysis utilized the same
versions of the AERMOD platform used by Pennsylvania.
As described in section 6 of PADEP's Air Dispersion Modeling
Technical Support Document (Docket file EPA-R03-OAR-2024-0024-
0003_attachment_9) the air dispersion modeling for the Indiana, PA NAA
utilized representative meteorological datasets from two sites. Data
from the Johnstown-Cambria County Airport (KJST) meteorological site
represented atmospheric conditions in the vicinity of Keystone and
Homer City power plants. The KJST meteorological site is approximately
58 kilometers southeast of Keystone and approximately 38 kilometers
southeast of Homer City. Data from the Ash Site #1 meteorological site
represented atmospheric conditions in the vicinity of Conemaugh and
Seward. The Conemaugh-Seward (Ash Site #1) meteorological site is
located between the two power plants, approximately 1.9 kilometers
northeast of the Conemaugh power plant and approximately 1.7 kilometers
south-southwest of the Seward power plant.
Based on the EPA's Guideline on Air Quality Models (40 CFR part 51,
appendix W), meteorological data used as input to a dispersion model
should be selected on the basis of spatial and climatological
(temporal) representativeness as well as the ability of the individual
parameters selected to characterize the transport and dispersion
conditions in the area of concern. Representativeness of the
meteorological data is dependent on numerous factors. These factors
include but are not limited to: (1) the proximity of the meteorological
monitoring site to the area under consideration; (2) the complexity of
the terrain; (3) the exposure of the meteorological monitoring site;
and (4) the period of time during which data are collected. Both
meteorological data sets used in Pennsylvania's modeling analysis meet
applicable completeness requirements.
While the July 2024 Wingra Analysis claims that the Ash Site #1 is
representative of impacts from emissions released by all four plants,
the EPA disagrees because of the difference in local topography around
the modeled sources. The decision to utilize the KJST meteorological
site for the Homer City and Keystone power plants and the Ash Site #1
for the Conemaugh and Seward power plants was largely based on the
modeled sources' topographical settings (terrain features). Each of the
meteorological sites were best suited to capture the proper boundary
layer characteristics for their respective sources.
The Indiana, PA NAA sits along the Allegheny Plateau physiographic
province of the Appalachian Mountains system west of the eastern
continental divide. Maps depicting topographical elevations in the
vicinity of the Indiana, PA NAA showing the locations of the Conemaugh,
Homer City, Keystone and Seward power plants and the KJST and
[[Page 74844]]
Ash Site #1 meteorological sites can be found in the EPA's technical
support document that is part of the public record in the docket for
this action (Figures 1 and 2 of the EPA Modeling TSD). Relatively flat
terrain resides in the western portion of the nonattainment area where
the Homer City and Keystone power plants are located. Both power plants
sit at significantly lower elevations than the KJST site. Furthermore,
the KJST site is located on some of the highest terrain in western
Pennsylvania and no topographic features between the KJST site and
Homer City and Keystone would unduly influence the wind fields at the
KJST site. In contrast, the Conemaugh and Seward power plants are
located along the Conemaugh River in the southeastern part of the
Indiana, PA NAA between the Chestnut (west) and Laurel (east) ridges
that define the northern terminus of the Ligonier Valley. The latter
two power plants reside within a valley marked by higher terrain to the
east and west. This valley impacts local meteorological parameters such
as wind fields and atmospheric stability. Air flow can become channeled
within valley features, and topography can influence vertical
atmospheric stability, especially at night, setting up potentially
strong vertical temperature inversions.
The July 2024 Wingra Analysis amalgamates all of the model
receptors Pennsylvania utilized in its three modeling domains covering
the entire Indiana, PA NAA. The rationale for dividing the Indiana, PA
NAA into three separate modeling domains (with different sources and
meteorological data) was explained in the Air Dispersion Modeling
Technical Support Document from PADEP (pages 6-8 to 6-9, 6-15 to 6-17,
and 8-1 to 8-3) and in the EPA Modeling TSD (pages 63 and 70) that are
part of the public docket for this action.
No rationale was provided in the July 2024 Wingra Analysis
submitted during the public comment period to support combining the
three modeling domains utilized in PADEP's SIP modeling demonstration.
Additionally, no rationale was provided to refute the division of the
Indiana, PA NAA into three distinct modeling domains. The EPA believes,
therefore, that Wingra Engineering's modeling analysis erred on its
modeling domain setup by combining all sources into one amalgamated
receptor domain.
Noting the deficiencies in the July 2024 Wingra Analysis, the EPA
concludes that the modeling analysis presented by PADEP demonstrates
the validity of the CEVs established for the Conemaugh, Homer City,
Keystone and Seward power plants.
Comment 6. The comment states that the adjustment factor of 0.756,
used to convert the Seward generating station's CEV to a 30-day rolling
average, is too high. The comment claims that Pennsylvania's proposed
adjustment factor results in 20% higher emission limits when compared
to emission limits calculated with the EPA's adjustment factor of 0.63.
The comment states that if the January 2019 through March 2023 dataset
is used instead of the 2018-2021 dataset used by PADEP, the Seward
adjustment factor would be reduced to 0.712. Next, the comment provided
seven different adjustment factors calculated based on differing
historic data periods. Additionally, the comment asserts that Seward's
SO<INF>2</INF> emissions have increased since 2013, and the proposed
30-day limit increases the likelihood of continued nonattainment if
emission reductions are not established.
Response 6. The spreadsheet submitted as Attachment C to the
comment, included incorrect calculations for the 30-day average values.
As specified in the state submittal, the 30-day rolling average for
Seward should be calculated for each operating day, by calculating the
average of all the hourly emission data, using only hours during which
fuel is combusted from the preceding 30 operating days. In the
spreadsheet calculations, the comment always averaged the previous 30-
days using 720 hours (total number of hours in 30 days) as opposed to
the number of hours when fuel was actually burned. In the SIP
submittal, PADEP correctly calculated the 30-day average emission
values in developing the adjustment factors for Seward. PADEP also
justified the period of time used for the calculations by explaining
that, in line with the EPA's 2014 SO<INF>2</INF> Nonattainment
Guidance, PADEP used data from years of stable operation. As PADEP
described, when the SIP analysis began in 2022, it initially considered
emission data for years 2017 through 2021. However, in 2017, there was
an operational change at Seward \19\ that could have affected the
emission variability. Because of operational changes at Seward in 2017
and in an effort to have one consistent emission dataset for all three
facilities with longer-term SO<INF>2</INF> emission limits, PADEP
calculated the adjustment factors using emission data for years 2018
through 2021. The EPA believes this is consistent with the
recommendation on emission data use in the 2014 SO<INF>2</INF>
Nonattainment Guidance, pages 29-30.
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\19\ After a change of ownership in December 2016, Seward
implemented a startup operational change, which is the addition of
limestone to the combustor during initial firing to reduce
SO<INF>2</INF> emissions.
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Also, the comment appears to misunderstand the adjustment factor of
0.63 included in table 1 of appendix B of the 2014 SO<INF>2</INF>
Nonattainment Guidance. The EPA's 2014 SO<INF>2</INF> Nonattainment
Guidance did not calculate nor provide source-specific adjustment
factors for Seward, but rather, calculated the average adjustment
factor for 90 sources equipped with a dry scrubber. The EPA believes
that if continuous emissions monitoring systems (CEMs) data is
available for a source, it is most appropriate to use that data for
developing adjustment factors, as long as it continues to represent the
distribution of emissions that is expected once the attainment plan is
implemented. This was the case with Seward. The EPA concludes that the
adjustment factor of 0.756 calculated for Seward is more appropriate
because it is source-specific, based on CEMS data and provides for a
comparably stringent 30-day average emission limit.
Regarding the comment about the annual SO<INF>2</INF> emissions
increases since 2013, the EPA reviewed the data and notes that
SO<INF>2</INF> emissions increased from 2013-2018. However, after that
period the emissions remained in a similar range. Additionally, annual
emissions are not a direct indicator of compliance with the NAAQS nor
with the 30-day emission limit which the EPA is approving as providing
for attainment in this plan.
Comment 7. The comment claims that the EPA ignores the ongoing
negative impacts of Indiana County's major SO<INF>2</INF> sources on
neighboring Westmoreland and Cambria counties. The comment states that
Pennsylvania has failed to meaningfully address SO<INF>2</INF> sources
in Indiana County and that the EPA should encourage Pennsylvania to
implement more protective SO<INF>2</INF> limits to wholly address
nonattainment caused by these sources and to be protective of
vulnerable populations in Indiana County and neighboring areas.
Response 7. The comment's concern regarding negative impacts
outside of the Indiana, PA NAA boundaries from the Indiana County
SO<INF>2</INF> sources is beyond the scope of this action.
Section 171(2) of the CAA defines nonattainment area to mean for
any air pollutant, an area which is designated ``nonattainment'' with
respect to that pollutant within the meaning of section 107(d) of this
title. In an earlier, separate action, the boundaries of the Indiana,
[[Page 74845]]
PA NAA were set and finalized in August 2013 in ``Round One'' of EPA's
designations for the 2010 SO<INF>2</INF> NAAQS under section 107(d) of
the CAA, and these boundaries were not challenged.\20\ Westmoreland and
Cambria counties are not included within those boundaries.
---------------------------------------------------------------------------
\20\ 78 FR 47191 (August 5, 2013); <a href="http://www.epa.gov/sulfur-dioxide-designations/so2-designations-state-designations-round-1">www.epa.gov/sulfur-dioxide-designations/so2-designations-state-designations-round-1</a>.
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Pennsylvania's obligation under section 110(a) of the CAA is to
submit `` . . . a plan which provides for implementation, maintenance,
and enforcement of such primary standard in each air quality control
region (or portion thereof) within such State.'' CAA section 110(a)(1).
Section 110 further provides that ``[i]n the case of a plan or plan
revision for an area designated as a nonattainment area, [the plan
shall] meet the applicable requirements of part D of this subchapter
(relating to nonattainment areas).'' CAA section 110(a)(2)(I). Section
172(c)(6) then requires the SIP for a nonattainment area to include
enforceable emission limitations and control measures as necessary or
appropriate to provide for NAAQS attainment ``in such area.'' In this
case, Pennsylvania's attainment plan for the Indiana, PA NAA includes
limits on SO<INF>2</INF> sources and a modeling demonstration showing
that SO<INF>2</INF> concentrations throughout the nonattainment area
are at or below the NAAQS.
Further, the EPA's role is limited to determining whether the
submitted SIP meets the requirements of the CAA, see section 110(k)--in
this action, Pennsylvania's 2023 SIP submittal does not address areas
outside the defined nonattainment area. Absent a clear requirement that
Pennsylvania must include model receptors outside of the nonattainment
area in its submission, the EPA will confine its analysis to whether
the attainment SIP demonstrates attainment within the designated
nonattainment area.
On February 12, 2024, EPA published notice in a separate action of
its intent to redesignate portions of Cambria and Westmoreland Counties
\21\ to nonattainment for the 2010 SO<INF>2</INF> NAAQS (89 FR 9815).
The CAA provides the EPA with the authority to revise designations of,
or ``redesignate,'' areas under CAA section 107(d)(3). Such
redesignations can originate as requests by states (per CAA section
107(d)(3)(D)), and the EPA can also notify a state at any time that a
designation of any area or portion of an area should be revised, on the
basis of air quality data, planning and control considerations, or any
other air quality-related considerations the EPA Administrator deems
appropriate. If finalized, the nonattainment designation for these
counties will require the state to submit nonattainment area
requirements per CAA section 172.
---------------------------------------------------------------------------
\21\ EPA designated Cambria County unclassifiable and
Westmoreland County attainment/unclassifiable for the 2010 1-hour
SO<INF>2</INF> NAAQS effective April 9, 2018. 83 FR 1098 (January 9,
2018).
---------------------------------------------------------------------------
Comment 8. The comment states that the SIP should incorporate the
closure of the Homer City generating station, as well as the projected
2028 retirements of the Keystone and Conemaugh generating stations.
Further, the comment asserts that the SIP should not be approvable
until the SO<INF>2</INF> emission limits for these plants are removed.
Response 8. The EPA disagrees with the comment. CAA section
172(c)(6) requires the SIP for a nonattainment area to include
enforceable emission limitations and control measures as necessary or
appropriate to provide for NAAQS attainment in the area. With this
action, the EPA is approving the emission limits for the four sources
in the Indiana, PA NAA as meeting this requirement. As such, it is not
necessary to include the Homer City retirement nor the projected
retirements of Keystone and Conemaugh in the SIP as enforceable
measures. And as explained in the NPRM, as the EPA is not aware of
PADEP rescinding Homer City's operating permit, Homer City ceasing
operations does not guarantee that the units are permanently and
enforceably shutdown. 89 FR 48523, 48528 (June 7, 2024). Nor did
PADEP's 2023 SIP submittal request to incorporate the pending closure
of Homer City into the SIP. Similarly for Keystone and Conemaugh, the
EPA is not aware of PADEP rescinding the permits for these two sources
nor did PADEP's 2023 SIP submittal request their projected retirements
be included in the SIP. The approval of this attainment plan is thus
properly based on Homer City's possible continued operation, as well as
Keystone's and Conemaugh's continued operations.
IV. Final Action
The EPA is approving the attainment plan for the Indiana, PA NAA
for the 2010 1-hour SO<INF>2</INF> NAAQS, which Pennsylvania submitted
on October 12, 2023, as a revision to the Pennsylvania SIP.
Specifically, the EPA is approving the attainment demonstration, RACM/
RACT requirements, RFP requirements, and contingency measures of the
attainment plan. The EPA previously approved the emissions inventory
and NNSR program elements of the attainment plan.
This approval terminates the highway funding sanction and FIP
clocks started under CAA sections 179 and 110, respectively, resulting
from EPA's partial disapproval of the prior SIP submittal. It also
removes the permitting offset sanction that has been in place since
March 19, 2024.
V. Incorporation by Reference
In this document, the EPA is finalizing regulatory text that
includes incorporation by reference. In accordance with requirements of
1 CFR 51.5, EPA is finalizing the incorporation by reference of
SO<INF>2</INF> emission limits and compliance parameters established in
(the unredacted portions of) the COAs for the Seward, Conemaugh and
Keystone facilities, as discussed in section II of this preamble and
described in the amendments to 40 CFR part 52 set forth below. The 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 the EPA Region III Office
(please contact the person identified in the For Further Information
Contact section of this preamble for more information). Therefore,
these materials have been approved by the EPA for inclusion in the SIP,
have been incorporated by reference by the EPA into that plan, are
fully federally enforceable under sections 110 and 113 of the CAA as of
the effective date of the final rulemaking of the EPA's approval, and
will be incorporated by reference in the next update to the SIP
compilation.\22\
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\22\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
VI. 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, the 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);
[[Page 74846]]
<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); and
<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.
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 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.
The 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.'' The 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 its SIP submittal; the CAA and applicable implementing regulations
neither prohibit nor require such an evaluation. The EPA did not
perform an EJ analysis and did not consider EJ in this action. Due to
the nature of the action being taken here, this action is expected to
have a neutral to positive impact on the air quality of the affected
area. Consideration of EJ is not required as part of this action, and
there is no information in the record inconsistent with the stated goal
of E.O. 12898 of achieving environmental justice for people of color,
low-income populations, and Indigenous peoples.
In addition, this final rule approving Pennsylvania's Indiana, PA
NAA SO<INF>2</INF> attainment plan does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and the EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
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. The 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 November 12, 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 action approving the Indiana, PA attainment plan for the
2010 1-hour SO<INF>2</INF> NAAQS 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, Reporting and recordkeeping
requirements, Sulfur oxides.
Adam Ortiz,
Regional Administrator, Region III.
For the reasons stated in the preamble, the 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. Amend the table in paragraph (d)(3) by:
0
i. Adding entries for ``Keystone Generating Station'', ``Conemaugh
Generating Station'', and ``Seward Generating Station'' at the end of
the table; and
0
ii. Removing the first entry for ``Seward Station''; and the entry for
``Keystone Plant''.
0
b. Adding in paragraph (e)(1) table the entry ``Attainment Plan for the
Indiana County, Pennsylvania Nonattainment Area for the 2010 Sulfur
Dioxide Primary National Ambient Air Quality Standard'' at the end of
the table.
The additions read as follows:
Sec. 52.2020 Identification of plan.
* * * * *
(d) * * *
(3) * * *
[[Page 74847]]
----------------------------------------------------------------------------------------------------------------
Additional
State EPA approval explanation/
Name of source Permit No. County effective date Sec. 52.2063
date citation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Keystone Generating Station.. Consent Order Armstrong........ 08/15/23 9/13/2024, For Source IDs
and Agreement. [INSERT 031 and 032:
Federal Combined SO2
Register emission
CITATION]. limit; CEMS
monitoring;
definition of
``24-hour
block'';
Quarterly
emission
reporting
requirement;
and reporting
of hourly SO2
lbs/hr
emission
averages.
Conemaugh Generating Station. Consent Order Indiana.......... 08/15/23 9/13/2024, For Source IDs
and Agreement. [INSERT 031 and 032:
Federal Combined SO2
Register emission
CITATION]. limit; CEMS
monitoring;
definition of
``3-hour
block'';
Quarterly
emission
reporting
requirement;
and reporting
of hourly SO2
lbs/hr
emission
averages.
Seward Generating Station.... Consent Order Indiana.......... 08/17/23 9/13/2024, For Source IDs
and Agreement. [INSERT 034 and 035:
Federal Combined SO2
Register emission
CITATION]. limit; CEMS
monitoring;
definition of
``operating
day'';
reporting of
hourly SO2 lbs/
hr emission
rate;
injection of
limestone
during initial
firing; and
quarterly
submission of
``Hourly
Injection
Reports.''
----------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
(1) * * *
----------------------------------------------------------------------------------------------------------------
State
Name of non-regulatory SIP Applicable submittal EPA approval date Additional explanation
revision geographic area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Attainment Plan for the Indiana, Indiana County and 10/12/23 9/13/2024, [INSERT 52.2033(g).
Pennsylvania Nonattainment Area portions of Federal.
for the 2010 Sulfur Dioxide Armstrong County Register CITATION].
Primary National Ambient Air (Plumcreek
Quality Standard. Township, South
Bend Township, and
Elderton Borough).
----------------------------------------------------------------------------------------------------------------
* * * * *
0
3. Amend Sec. 52.2033 by adding paragraph (g) to read as follows:
Sec. 52.2033 Control strategy: Sulfur oxides.
* * * * *
(g) EPA approves the Attainment Plan for the Indiana, PA
Nonattainment Area for the 2010 Sulfur Dioxide National Ambient Air
Quality Standard submitted by the Pennsylvania Department of
Environmental Protection on October 12, 2023. EPA approves the
attainment demonstration and other attainment plan elements, including
Reasonably Available Control Technology (RACT)/Reasonably Available
Control Measures (RACM) determination, Reasonable Further Progress
(RFP) requirements, and contingency measures.
[FR Doc. 2024-20598 Filed 9-12-24; 8:45 am]
BILLING CODE 6560-50-P
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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.