Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Nonattainment New Source Review Requirements for 2008 8-Hour Ozone Standard, 62774-62778 [2018-26479]

Download as PDF 62774 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Proposed Rules TABLE 1 Emissions reduction (tons per day) Emission reduction NOX 2008 CAA Section 185 Target ................................................................................................................................ 2008 LEV II Projection ............................................................................................................................................. LEV II emissions reduction greater than 2008 target? ........................................................................................... 2009 CAA Section 185 Target ................................................................................................................................ 2009 LEV II Projection ............................................................................................................................................. LEV II emissions reduction greater than 2009 target? ........................................................................................... LEV II was not included as a control measure relied on in the 1-hour Ozone Attainment SIP, including Rate of Progress and RFP for the NY–NJ–CT 1hour ozone area (67 FR 5170 (February 4, 2002)). LEV was included in the Ozone Attainment Demonstration SIP, but emissions reductions attributable to the LEV II program were not. Projected emissions reductions by control strategy provided by NYSDEC included specific reductions for each control measure including LEV II. Emissions reductions attributable to LEV II are surplus, were not previously accounted for and do not interfere with other applicable requirements concerning attainment, Rate of Progress, and RFP. In this action, EPA is proposing that the LEV II program is an acceptable alternative program to the 185 fee program consistent with the antibacksliding provisions of CAA Section 172(e) because it achieves greater emissions reductions than application of the 185 fee program. The principles of Section 172(e) require controls in nonattainment areas that are not less stringent than those that were applied to an area before EPA revoked the onehour NAAQS. khammond on DSK30JT082PROD with PROPOSAL VI. What action is EPA taking? EPA is proposing to approve NY’s LEV II program as an alternative program to the requirements of CAA Section 185. The EPA proposes to find the LEV II program achieves sufficient reductions to fulfill the requirements of CAA Section 172(e) and 185 for the NY portion of the NY–NJ–CT 1-hour ozone nonattainment area. The LEV II program will be incorporated into the federally enforceable SIP as an alternative CAA Section 185 program if EPA finalizes this action. VII. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP VerDate Sep<11>2014 18:35 Dec 04, 2018 Jkt 247001 submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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: • 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); • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866; • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • 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.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 7, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • 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 Clean Air Act; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 VOC 8.7 17.5 Yes 4.5 24.4 Yes 2.2 2.3 Yes 1.4 3.2 Yes practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the proposed rulemaking action is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rulemaking action does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: November 19, 2018. Peter D. Lopez, Regional Administrator, Region 2. [FR Doc. 2018–26475 Filed 12–4–18; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2017–0735; FRL–9987–48– Region 3] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Nonattainment New Source Review Requirements for 2008 8-Hour Ozone Standard Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve a revision to the Commonwealth of Pennsylvania’s state implementation plan (SIP). The revision is in response to EPA’s February 3, 2017 Findings of SUMMARY: E:\FR\FM\06DEP1.SGM 06DEP1 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Proposed Rules khammond on DSK30JT082PROD with PROPOSAL Failure to Submit for various requirements relating to the 2008 8-hour ozone national ambient air quality standards (NAAQS). This SIP revision is specific to nonattainment new source review (NNSR) requirements. EPA is approving this revision in accordance with the requirements of the Clean Air Act (CAA). DATES: Written comments must be received on or before January 7, 2019. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R03– OAR–2017–0735 at http:// www.regulations.gov, or via email to maldonado.zelma@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Mrs. Amy Johansen, (215) 814–2156, or by email at johansen.amy@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On October 30, 2017, the Pennsylvania Department of Environmental Protection (PADEP) submitted on behalf of the Commonwealth of Pennsylvania a formal revision, requesting EPA’s approval for the SIP of its NNSR Certification for the 2008 Ozone Standard and its existing Emission Statement Program. EPA is only acting on the NNSR Certification portion of the SIP revision in this action. EPA previously finalized a rulemaking action for the existing Emission Statement Program. See 83 FR 26221 (June 6, VerDate Sep<11>2014 18:35 Dec 04, 2018 Jkt 247001 2018). This SIP revision is in response to EPA’s final 2008 8-hour ozone NAAQS Findings of Failure to Submit for NNSR requirements. See 82 FR 9158 (February 3, 2017). Specifically, Pennsylvania is certifying that its existing NNSR program, covering the Allentown-Bethlehem-Easton, PA Nonattainment Area (which includes Carbon, Lehigh, and Northampton Counties), the Lancaster, PA Nonattainment Area (which includes Lancaster County) the PhiladelphiaWilmington-Atlantic City, PA-NJ-MDDE Nonattainment Area (which includes Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties), PittsburghBeaver Valley, PA Nonattainment Area (which includes Allegheny, Beaver, Butler, Fayette, Washington, and Westmoreland Counties) and the Reading, PA Nonattainment Area (which includes Berks County) for the 2008 8-hour ozone NAAQS, is at least as stringent as the requirements at 40 CFR 51.165, as amended by the final rule titled ‘‘Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements’’ (SIP Requirements Rule), for ozone and its precursors.1 2 See 80 FR 12264 (March 6, 2015). A. 2008 8-Hour Ozone NAAQS On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA’s regulations at 40 CFR 50.15, the 2008 8hour ozone NAAQS is attained when the three-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm. Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area 1 The SIP Requirements Rule addresses a range of nonattainment area SIP requirements for the 2008 8-hour ozone NAAQS, including requirements pertaining to attainment demonstrations, reasonable further progress (RFP), reasonably available control technology, reasonably available control measures, major new source review, emission inventories, and the timing of SIP submissions and of compliance with emission control measures in the SIP. The rule also revokes the 1997 ozone NAAQS and establishes anti-backsliding requirements. 2 On February 16, 2018, the United States Court of Appeals for the District of Columbia Circuit (D.C. Cir. Court or Court) issued an opinion on the EPA’s SIP Requirements Rule. South Coast Air Quality Mgmt. Dist. v. EPA, 882 F.3d 1138, 2018 U.S. App. LEXIS 3636 (D.C. Cir. Feb. 16, 2018). The D.C. Cir. Court found certain provisions from the SIP Requirements Rule, including certain provisions relating to anti-backsliding, to be inconsistent with the statute or unreasonable and vacated those provisions. Id. The Court found other parts of the SIP Requirements Rule unrelated to antibacksliding and this action reasonable and denied the petition for appeal on those provisions. Id. PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 62775 that is violating the NAAQS based on the three most recent years of ambient air quality data at the conclusion of the designation process. The AllentownBethlehem-Easton, PA Nonattainment Area, the Lancaster, PA Nonattainment Area, the Pittsburgh-Beaver Valley, PA Nonattainment Area, and the Reading, PA Nonattainment Area were classified as marginal nonattainment areas for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2009–2011 ambient air quality data. See 77 FR 30088. The PhiladelphiaWilmington-Atlantic City, PA-NJ-MDDE Nonattainment Area was classified as a marginal nonattainment area for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008–2010 ambient air quality data. See 77 FR 30088. On March 6, 2015, EPA issued the final SIP Requirements Rule, which establishes the requirements that state, tribal, and local air quality management agencies must meet as they develop implementation plans for areas where air quality exceeds the 2008 8hour ozone NAAQS. See 80 FR 12264. Areas that were designated as marginal ozone nonattainment areas were required to attain the 2008 8-hour ozone NAAQS no later than July 20, 2015, based on 2012–2014 monitoring data. See 40 CFR 51.1103. The Philadelphia-WilmingtonAtlantic City, PA-NJ-MD-DE and the Pittsburgh-Beaver Valley, PA Nonattainment Areas did not attain the 2008 8-hour ozone NAAQS by July 20, 2015; however, these areas did meet the CAA section 181(a)(5) criteria, as interpreted in 40 CFR 51.1107, for a one-year attainment date extension. See 81 FR 26697 (May 4, 2016). Therefore, on April 11, 2016, the EPA Administrator signed a final rule extending the Philadelphia-WilmingtonAtlantic City, PA-NJ-MD-DE and the Pittsburgh-Beaver Valley, PA Nonattainment Area 8-hour ozone NAAQS attainment dates from July 20, 2015 to July 20, 2016. Id.3 Based on 3 EPA proposed approval of a Determination of Attainment (DOA) for the 2008 8-hour ozone NAAQS for the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE Area and the Pittsburgh-Beaver Valley, PA Area on April 18, 2017, and August 25, 2016, respectively. These proposed actions were based on complete, certified, and quality assured ambient air quality monitoring data for the 2013– 2015 monitoring period. See 82 FR 18268 (April 18, 2017) and 81 FR 58435 (August 25, 2016). It should be noted that a DOA does not alleviate the need for Pennsylvania to certify that their existing SIP approved NNSR program is as stringent as the requirements at 40 CFR 51.165, as NNSR applies in nonattainment areas until an area has been redesignated to attainment. EPA issued final rulemaking actions on both of these DOAs. See 82 FR 50814 (November 2, 2017) (Philadelphia Area) E:\FR\FM\06DEP1.SGM Continued 06DEP1 62776 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Proposed Rules khammond on DSK30JT082PROD with PROPOSAL initial nonattainment designations for the 2008 8-hour ozone standard, as well as the March 6, 2015 final SIP Requirements Rule, Pennsylvania was required to develop a SIP revision addressing certain CAA requirements for the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the PhiladelphiaWilmington-Atlantic City, PA-NJ-MDDE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Nonattainment Areas, and submit to EPA a NNSR Certification SIP or SIP revision no later than 36 months after the effective date of area designations for the 2008 8-hour ozone NAAQS (i.e., July 20, 2015).4 See 80 FR 12264 (March 6, 2015). EPA is proposing to approve Pennsylvania’s October 30, 2017 NNSR Certification SIP revision. EPA’s analysis of how this SIP revision addresses the NNSR requirements for the 2008 8-hour ozone NAAQS is provided in Section II below. B. 2017 Findings of Failure To Submit SIP for the 2008 8-Hour Ozone NAAQS Areas designated nonattainment for the ozone NAAQS are subject to the general nonattainment area planning requirements of CAA section 172 and also to the ozone-specific planning requirements of CAA section 182.5 States in the ozone transport region (OTR), such as Pennsylvania, are additionally subject to the requirements outlined in CAA section 184. Ozone nonattainment areas in the lower classification levels have fewer and/or less stringent mandatory air quality planning and control requirements than those in higher classifications. For marginal areas, such as the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the PhiladelphiaWilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Areas, a state is required to submit a baseline emissions inventory, adopt a SIP requiring emissions statements from stationary sources, and implement a NNSR program for the relevant ozone standard. See CAA section 182(a). For each higher ozone nonattainment classification, a state needs to comply with all lower area classification requirements, plus additional emissions controls and more expansive NNSR offset requirements. The CAA sets out specific requirements for states in the OTR.6 Upon promulgation of the 2008 8-hour ozone NAAQS, states in the OTR were required to submit a SIP revision addressing reasonably available control technology (RACT). See 40 CFR 51.1116. This requirement is the only recurring obligation for an OTR state upon revision of a NAAQS, unless that state also contains some portion of a nonattainment area for the revised NAAQS.7 In that case, the nonattainment requirements described previously also apply to those portions of that state. In the March 6, 2015 SIP Requirements Rule, EPA detailed the requirements applicable to ozone nonattainment areas, as well as requirements that apply in the OTR, and provided specific deadlines for SIP submittals. See 80 FR 12264. On February 3, 2017, EPA found that 15 states and the District of Columbia failed to submit SIP revisions in a timely manner to satisfy certain requirements for the 2008 8-hour ozone NAAQS that apply to nonattainment areas and/or states in the OTR. See 82 FR 9158. As explained in that rulemaking action, consistent with the CAA and EPA regulations, these Findings of Failure to Submit established certain deadlines for the imposition of sanctions, if a state does not submit a timely SIP revision addressing the requirements for which the finding is being made, and for the EPA to promulgate a Federal implementation plan (FIP) to address any outstanding SIP requirements. EPA found, inter alia, that the Commonwealth of Pennsylvania failed to submit SIP revisions in a timely matter to satisfy NNSR requirements for its marginal nonattainment areas, specifically the Allentown-BethlehemEaston, PA, the Lancaster, PA, the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Areas.8 and 81 FR 87819 (December 6, 2016) (Pittsburgh Area). 4 Neither Pennsylvania’s obligation to submit the NNSR Certification SIP nor the requirements governing that submission were affected by the D.C. Circuit’s February 16, 2018 decision on portions of the SIP Requirements Rule in South Coast Air Quality Mgmt. Dist. v. EPA. 5 Ozone nonattainment areas are classified based on the severity of their ozone levels (as determined based on the area’s ‘‘design value,’’ which represents air quality in the area for the most recent three years). The possible classifications for ozone nonattainment areas are Marginal, Moderate, Serious, Severe, and Extreme. See CAA section 181(a)(1). 6 CAA section 184 details specific requirements for a group of states (and the District of Columbia) that make up the OTR. States in the OTR are required to submit RACT SIP revisions and mandate a certain level of emissions control for the pollutants that form ozone, even if the areas in the state meet the ozone standards. 7 NNSR requirements continue to apply in the OTR. See CAA section 184(b). 8 The EPA found that the Commonwealth of Pennsylvania also failed to submit a SIP revision for the Control Techniques Guidelines (CTG) for the volatile organic compound RACT (for all 44 CTGs). This SIP requirement will be addressed in a separate rulemaking action and will not be discussed here. See 82 FR 9158 (February 3, 2017). VerDate Sep<11>2014 18:35 Dec 04, 2018 Jkt 247001 PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 Pennsylvania submitted its October 30, 2017 SIP revision to address the specific NNSR requirements for the 2008 8-hour ozone NAAQS, located in 40 CFR 51.160–165, as well as its obligations under EPA’s February 3, 2017 Findings of Failure to Submit. EPA’s analysis of how this SIP revision addresses the NNSR requirements for the 2008 8-hour ozone NAAQS and the Findings of Failure to Submit is provided in Section II below. II. Summary of SIP Revision and EPA Analysis This rulemaking action is specific to Pennsylvania’s NNSR requirements. NNSR is a preconstruction review permit program that applies to new major stationary sources or major modifications at existing sources located in a nonattainment area.9 The specific NNSR requirements for the 2008 8-hour ozone NAAQS are located in 40 CFR 51.160–165. As set forth in the SIP Requirements Rule, for each nonattainment area, a NNSR plan or plan revision was due no later than 36 months after the July 20, 2012 effective date of area designations for the 2008 8-hour ozone standard (i.e., July 20, 2015).10 The minimum SIP requirements for NNSR permitting programs for the 2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR 51.1114. These NNSR program requirements include those promulgated in the ‘‘Phase 2 Rule’’ implementing the 1997 8-hour ozone NAAQS (75 FR 71018 (November 29, 2005)) and the SIP Requirements Rule implementing the 2008 8-hour ozone NAAQS. Under the Phase 2 Rule, the SIP for each ozone nonattainment area must contain NNSR provisions that: Set major source thresholds for oxides of nitrogen (NOX) and volatile organic compounds (VOC) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)–(iv) and (2); classify physical changes as a major source if the change would constitute a major source by itself pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); consider any significant net emissions increase of NOX as a significant net emissions increase for ozone pursuant to 40 CFR 51.165(a)(1)(v)(E); consider certain increases of VOC emissions in extreme ozone nonattainment areas as a significant net emissions increase and a 9 See CAA sections 172(c)(5), 173 and 182. respect to states with nonattainment areas subject to a Findings of Failure to Submit NNSR SIP revisions, such revisions would no longer be required if the area were redesignated to attainment. The CAA’s prevention of significant deterioration (PSD) program requirements apply in lieu of NNSR after an area is redesignated to attainment. For areas outside the OTR, NNSR requirements do not apply in areas designated as attainment. 10 With E:\FR\FM\06DEP1.SGM 06DEP1 khammond on DSK30JT082PROD with PROPOSAL Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Proposed Rules major modification for ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); set significant emissions rates for VOC and NOX as ozone precursors pursuant to 40 CFR 51.165(a)(1)(x)(A)–(C) and (E); contain provisions for emissions reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)–(2); provide that the requirements applicable to VOC also apply to NOX pursuant to 40 CFR 51.165(a)(8); and set offset ratios for VOC and NOX pursuant to 40 CFR 51.165(a)(9)(i)–(iii) (renumbered as (a)(9)(ii)–(iv) under the SIP Requirements Rule for the 2008 8-hour ozone NAAQS). Under the SIP Requirements Rule for the 2008 8-hour ozone NAAQS, the SIP for each ozone nonattainment area designated nonattainment for the 2008 8-hour ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS on April 6, 2015, must also contain NNSR provisions that include the anti-backsliding requirements at 40 CFR 51.1105. See 40 CFR 51.165(a)(12). Pennsylvania’s SIP approved NNSR program, established in the Pennsylvania Code of Regulations (Pa. Code) Rule 25 Pa. Code Chapter 127— Construction, Modification, Reactivation, and Operation of Sources, applies to the construction and modification of major stationary sources in nonattainment areas. In its October 30, 2017 SIP revision, Pennsylvania certifies that the version of 25 Pa. Code Chapter 127 in the SIP is at least as stringent as the Federal NNSR requirements for the AllentownBethlehem-Easton, PA, the Lancaster, PA, the Philadelphia-WilmingtonAtlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Nonattainment Areas. EPA last approved revisions to Pennsylvania’s major NNSR SIP on May 14, 2012. In that action, EPA approved revisions to Pennsylvania’s SIP which made PADEP’s NNSR program consistent with Federal requirements. See 77 FR 28261. EPA notes that 25 Pa. Code Section 127.207(5) nor Pennsylvania’s approved SIP contain a regulatory provision pertaining to establishing emissions reductions credits (ERC), as specified in 40 CFR 51.165(a)(3)(ii)(C)(2)(i) and 40 CFR 51.165(a)(3)(ii)(C)(2)(ii). However, even if Pennsylvania’s regulations do not offer this emissions reductions credit option, their approved SIP is still adequate to meet the standard ERC requirements found in 40 CFR 51.165(a)(3)(ii)(C)(1), where emissions reductions must be surplus, permanent, quantifiable, and Federally enforceable, for example. Pennsylvania has the appropriate ERC requirements approved VerDate Sep<11>2014 18:35 Dec 04, 2018 Jkt 247001 in their regulations and their SIP, which enables them to implement the program appropriately and in accordance with Federal requirements. Given the D.C. Cir. Court’s recent ruling in South Coast Air Quality Mgmt. Dist. v. EPA vacating the antibacksliding provisions of the SIP Requirements Rule, Pennsylvania remains required to comply with the anti-backsliding provisions found in 40 CFR 51.165(a)(12). In Pennsylvania, neither 25 Pa. Code Chapter 127 or the Pennsylvania SIP contain the antibacksliding provisions found in 40 CFR 51.165(a)(12), which applied to NNSR requirements for the 1997 ozone NAAQS. However, EPA finds that 25 Pa. Code and Pennsylvania’s SIP presently include appropriate thresholds for major stationary sources and emissions offset ratios for the worst air quality designations these nonattainment areas have been designated. For example, in 25 Pa. Code Section 121.1, a source is considered a ‘‘major NOX emitting facility’’ if it emits 25 tons per year of NOX in Bucks, Chester, Delaware, Montgomery or Philadelphia County (the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE Nonattainment Area). This emissions threshold is equivalent to an area that was designated as severe nonattainment for the ozone NAAQS and is therefore more stringent. In addition, the entire state of Pennsylvania is located in the OTR and any source in the OTR is considered major for NOX and VOC if it emits or has the potential to emit at least 100 tons per year or 50 tons per year, respectively. This requirement can be found in 25 Pa. Code Section 127.201(c), as well as Pennsylvania’s approved SIP and is equivalent to the higher moderate nonattainment area classification. Additionally, emissions offset ratios for sources located in Pennsylvania are more stringent than the requirements of 40 CFR 51.165(a)(9)(i). 25 Pa. Code Section 127.210 and the approved Pennsylvania SIP require sources in a marginal nonattainment area to offset their NOX and VOC emissions at a ratio of 1.15 to 1 versus the Federal NNSR requirement for a source located in a marginal nonattainment area to offset NOX and VOC at a less stringent ratio of 1.1 to 1. See 40 CFR 51.165(a)(9)(i)(A). Therefore, EPA finds that Pennsylvania’s regulations and approved SIP are more stringent than EPA’s NNSR anti-backsliding requirements and their program is adequate to implement NNSR for the 2008 ozone NAAQS. The version of 25 Pa. Code Chapter 127 that is contained in the current SIP has not changed since the 2012 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 62777 rulemaking where EPA last approved Pennsylvania’s NNSR provisions, with respect to ozone and its precursors.11 This version of the rule covers the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the PhiladelphiaWilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Nonattainment Areas and remains adequate to meet all applicable NNSR requirements for the 2008 8-hour ozone NAAQS found in 40 CFR 51.165, the Phase 2 Rule and the SIP Requirements Rule. III. Proposed Action EPA is proposing to approve Pennsylvania’s October 30, 2017 SIP revision addressing the NNSR requirements for the 2008 ozone NAAQS for the Allentown-BethlehemEaston, PA, the Lancaster, PA, the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the Reading, PA Nonattainment Areas. EPA has concluded that the Commonwealth’s submission fulfills the 40 CFR 51.1114 revision requirement, meets the requirements of CAA sections 110 and 172 and the minimum SIP requirements of 40 CFR 51.165, as well as its obligations under EPA’s February 3, 2017 Findings of Failure to Submit. See 82 FR 9158. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IV. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action: • 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); • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory 11 Subsequently, EPA did approve an update to Pennsylvania’s SIP incorporating preconstruction permitting requirements for fine particulate matter (PM2.5) into their NNSR regulations on July 13, 2012. See 77 FR 41276. E:\FR\FM\06DEP1.SGM 06DEP1 62778 Federal Register / Vol. 83, No. 234 / Thursday, December 6, 2018 / Proposed Rules action because SIP approvals are exempted under Executive Order 12866. • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • 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.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 7, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this proposed rule, approving Pennsylvania’s 2008 8-hour ozone NAAQS Certification SIP revision for NNSR 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 EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. khammond on DSK30JT082PROD with PROPOSAL 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. Authority: 42 U.S.C. 7401 et seq. Dated: November 26, 2018. Cosmo Servidio, Regional Administrator, Region III. [FR Doc. 2018–26479 Filed 12–4–18; 8:45 am] BILLING CODE 6560–50–P VerDate Sep<11>2014 18:35 Dec 04, 2018 Jkt 247001 DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 405 and 423 [CMS–4174–CN] RIN 0938–AT62 Medicare Program: Changes to the Medicare Claims and Medicare Prescription Drug Coverage Determination Appeals Procedures, Correction Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Proposed rule; correction. 1. On page 49513, second column, line 5, the alphanumeric term ‘‘AT27’’ is corrected to read ‘‘AT62’’ in the RIN. 2. On page 49523, first column, first full paragraph, last line 23, the reference ‘‘§ 423.2056(d)(1)’’ is corrected to read ‘‘§ 423.2056(f)’’. 3. On page 49525, first column, first partial paragraph, line 2, the figure ‘‘.0083’’ is corrected to read ‘‘.083’’. Dated: November 29, 2018. Ann C. Agnew, Executive Secretary to the Department, Department of Health and Human Services. [FR Doc. 2018–26497 Filed 12–4–18; 8:45 am] BILLING CODE 4120–01–P AGENCY: This document corrects technical and typographical errors in the proposed rule that appeared in the Federal Register on October 2, 2018 entitled ‘‘Medicare Program: Changes to the Medicare Claims and Medicare Prescription Drug Coverage Determination Appeals Procedures.’’ FOR FURTHER INFORMATION CONTACT: Joella Roland, (410) 786–7638. SUPPLEMENTARY INFORMATION: DEPARTMENT OF THE INTERIOR Fish and Wildlife Service SUMMARY: I. Background In FR Doc. 2018–21223 of October 2, 2018 (83 FR 49513), there were technical and typographical errors that are identified and corrected in the Correction of Errors section of this document. II. Summary of Errors On page 49513, we in inadvertently made a typographical error in the alphanumeric portion of the regulation identification number (RIN). On page 49523, in our discussion of the ‘‘Notice of a Remand,’’ we inadvertently referenced an incorrect subsection of the regulation. In noting the corresponding change to part 423, subpart U, we erroneously referenced § 423.2056(d)(1) instead of § 423.2056(f). On page 49525, in the ‘‘Regulatory Impact Statement,’’ although our calculation of the total amount of time that would be saved by not requiring appellants to sign appeals was correct, we made an inadvertent typographical error in the formula used to calculate this amount. Instead of referencing .083 hours, we incorrectly listed .0083 hours in the formula. III. Correction of Errors In FR Doc. 2018–21223 of October 2, 2018 (83 FR 49513), make the following corrections: PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 50 CFR Part 17 [Docket No. FWS–R2–ES–2017–0014; 4500090023] RIN 1018–BD53 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Sonoyta Mud Turtle Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Sonoyta mud turtle (Kinosternon sonoriense longifemorale) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 12.28 acres (4.97 hectares) in Pima County, Arizona, located entirely within Organ Pipe Cactus National Monument, fall within the boundaries of the proposed critical habitat designation. If we finalize this rule as proposed, it would extend the Act’s protections to this subspecies’ critical habitat. We also announce the availability of a draft economic analysis of the proposed designation of critical habitat for the Sonoyta mud turtle. DATES: We will accept comments on the proposed rule or draft economic analysis that are received or postmarked on or before February 4, 2019. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by January 22, 2019. ADDRESSES: Written comments: You may submit comments on the proposed rule SUMMARY: E:\FR\FM\06DEP1.SGM 06DEP1

Agencies

[Federal Register Volume 83, Number 234 (Thursday, December 6, 2018)]
[Proposed Rules]
[Pages 62774-62778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26479]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0735; FRL-9987-48-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Nonattainment New Source Review Requirements for 2008 8-
Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the Commonwealth of Pennsylvania's state 
implementation plan (SIP). The revision is in response to EPA's 
February 3, 2017 Findings of

[[Page 62775]]

Failure to Submit for various requirements relating to the 2008 8-hour 
ozone national ambient air quality standards (NAAQS). This SIP revision 
is specific to nonattainment new source review (NNSR) requirements. EPA 
is approving this revision in accordance with the requirements of the 
Clean Air Act (CAA).

DATES: Written comments must be received on or before January 7, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0735 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mrs. Amy Johansen, (215) 814-2156, or 
by email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 30, 2017, the Pennsylvania Department of Environmental 
Protection (PADEP) submitted on behalf of the Commonwealth of 
Pennsylvania a formal revision, requesting EPA's approval for the SIP 
of its NNSR Certification for the 2008 Ozone Standard and its existing 
Emission Statement Program. EPA is only acting on the NNSR 
Certification portion of the SIP revision in this action. EPA 
previously finalized a rulemaking action for the existing Emission 
Statement Program. See 83 FR 26221 (June 6, 2018). This SIP revision is 
in response to EPA's final 2008 8-hour ozone NAAQS Findings of Failure 
to Submit for NNSR requirements. See 82 FR 9158 (February 3, 2017). 
Specifically, Pennsylvania is certifying that its existing NNSR 
program, covering the Allentown-Bethlehem-Easton, PA Nonattainment Area 
(which includes Carbon, Lehigh, and Northampton Counties), the 
Lancaster, PA Nonattainment Area (which includes Lancaster County) the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE Nonattainment Area 
(which includes Bucks, Chester, Delaware, Montgomery, and Philadelphia 
Counties), Pittsburgh-Beaver Valley, PA Nonattainment Area (which 
includes Allegheny, Beaver, Butler, Fayette, Washington, and 
Westmoreland Counties) and the Reading, PA Nonattainment Area (which 
includes Berks County) for the 2008 8-hour ozone NAAQS, is at least as 
stringent as the requirements at 40 CFR 51.165, as amended by the final 
rule titled ``Implementation of the 2008 National Ambient Air Quality 
Standards for Ozone: State Implementation Plan Requirements'' (SIP 
Requirements Rule), for ozone and its precursors.1 2 See 80 
FR 12264 (March 6, 2015).
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    \1\ The SIP Requirements Rule addresses a range of nonattainment 
area SIP requirements for the 2008 8-hour ozone NAAQS, including 
requirements pertaining to attainment demonstrations, reasonable 
further progress (RFP), reasonably available control technology, 
reasonably available control measures, major new source review, 
emission inventories, and the timing of SIP submissions and of 
compliance with emission control measures in the SIP. The rule also 
revokes the 1997 ozone NAAQS and establishes anti-backsliding 
requirements.
    \2\ On February 16, 2018, the United States Court of Appeals for 
the District of Columbia Circuit (D.C. Cir. Court or Court) issued 
an opinion on the EPA's SIP Requirements Rule. South Coast Air 
Quality Mgmt. Dist. v. EPA, 882 F.3d 1138, 2018 U.S. App. LEXIS 3636 
(D.C. Cir. Feb. 16, 2018). The D.C. Cir. Court found certain 
provisions from the SIP Requirements Rule, including certain 
provisions relating to anti-backsliding, to be inconsistent with the 
statute or unreasonable and vacated those provisions. Id. The Court 
found other parts of the SIP Requirements Rule unrelated to anti-
backsliding and this action reasonable and denied the petition for 
appeal on those provisions. Id.
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A. 2008 8-Hour Ozone NAAQS

    On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 
0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under 
EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is 
attained when the three-year average of the annual fourth-highest daily 
maximum 8-hour average ambient air quality ozone concentrations is less 
than or equal to 0.075 ppm.
    Upon promulgation of a new or revised NAAQS, the CAA requires EPA 
to designate as nonattainment any area that is violating the NAAQS 
based on the three most recent years of ambient air quality data at the 
conclusion of the designation process. The Allentown-Bethlehem-Easton, 
PA Nonattainment Area, the Lancaster, PA Nonattainment Area, the 
Pittsburgh-Beaver Valley, PA Nonattainment Area, and the Reading, PA 
Nonattainment Area were classified as marginal nonattainment areas for 
the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) 
using 2009-2011 ambient air quality data. See 77 FR 30088. The 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE Nonattainment Area 
was classified as a marginal nonattainment area for the 2008 8-hour 
ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008-2010 
ambient air quality data. See 77 FR 30088. On March 6, 2015, EPA issued 
the final SIP Requirements Rule, which establishes the requirements 
that state, tribal, and local air quality management agencies must meet 
as they develop implementation plans for areas where air quality 
exceeds the 2008 8-hour ozone NAAQS. See 80 FR 12264. Areas that were 
designated as marginal ozone nonattainment areas were required to 
attain the 2008 8-hour ozone NAAQS no later than July 20, 2015, based 
on 2012-2014 monitoring data. See 40 CFR 51.1103.
    The Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE and the 
Pittsburgh-Beaver Valley, PA Nonattainment Areas did not attain the 
2008 8-hour ozone NAAQS by July 20, 2015; however, these areas did meet 
the CAA section 181(a)(5) criteria, as interpreted in 40 CFR 51.1107, 
for a one-year attainment date extension. See 81 FR 26697 (May 4, 
2016). Therefore, on April 11, 2016, the EPA Administrator signed a 
final rule extending the Philadelphia-Wilmington-Atlantic City, PA-NJ-
MD-DE and the Pittsburgh-Beaver Valley, PA Nonattainment Area 8-hour 
ozone NAAQS attainment dates from July 20, 2015 to July 20, 2016. 
Id.\3\ Based on

[[Page 62776]]

initial nonattainment designations for the 2008 8-hour ozone standard, 
as well as the March 6, 2015 final SIP Requirements Rule, Pennsylvania 
was required to develop a SIP revision addressing certain CAA 
requirements for the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, 
the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE, the Pittsburgh-
Beaver Valley, PA, and the Reading, PA Nonattainment Areas, and submit 
to EPA a NNSR Certification SIP or SIP revision no later than 36 months 
after the effective date of area designations for the 2008 8-hour ozone 
NAAQS (i.e., July 20, 2015).\4\ See 80 FR 12264 (March 6, 2015). EPA is 
proposing to approve Pennsylvania's October 30, 2017 NNSR Certification 
SIP revision. EPA's analysis of how this SIP revision addresses the 
NNSR requirements for the 2008 8-hour ozone NAAQS is provided in 
Section II below.
---------------------------------------------------------------------------

    \3\ EPA proposed approval of a Determination of Attainment (DOA) 
for the 2008 8-hour ozone NAAQS for the Philadelphia-Wilmington-
Atlantic City, PA-NJ-MD-DE Area and the Pittsburgh-Beaver Valley, PA 
Area on April 18, 2017, and August 25, 2016, respectively. These 
proposed actions were based on complete, certified, and quality 
assured ambient air quality monitoring data for the 2013-2015 
monitoring period. See 82 FR 18268 (April 18, 2017) and 81 FR 58435 
(August 25, 2016). It should be noted that a DOA does not alleviate 
the need for Pennsylvania to certify that their existing SIP 
approved NNSR program is as stringent as the requirements at 40 CFR 
51.165, as NNSR applies in nonattainment areas until an area has 
been redesignated to attainment. EPA issued final rulemaking actions 
on both of these DOAs. See 82 FR 50814 (November 2, 2017) 
(Philadelphia Area) and 81 FR 87819 (December 6, 2016) (Pittsburgh 
Area).
    \4\ Neither Pennsylvania's obligation to submit the NNSR 
Certification SIP nor the requirements governing that submission 
were affected by the D.C. Circuit's February 16, 2018 decision on 
portions of the SIP Requirements Rule in South Coast Air Quality 
Mgmt. Dist. v. EPA.
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B. 2017 Findings of Failure To Submit SIP for the 2008 8-Hour Ozone 
NAAQS

    Areas designated nonattainment for the ozone NAAQS are subject to 
the general nonattainment area planning requirements of CAA section 172 
and also to the ozone-specific planning requirements of CAA section 
182.\5\ States in the ozone transport region (OTR), such as 
Pennsylvania, are additionally subject to the requirements outlined in 
CAA section 184.
---------------------------------------------------------------------------

    \5\ Ozone nonattainment areas are classified based on the 
severity of their ozone levels (as determined based on the area's 
``design value,'' which represents air quality in the area for the 
most recent three years). The possible classifications for ozone 
nonattainment areas are Marginal, Moderate, Serious, Severe, and 
Extreme. See CAA section 181(a)(1).
---------------------------------------------------------------------------

    Ozone nonattainment areas in the lower classification levels have 
fewer and/or less stringent mandatory air quality planning and control 
requirements than those in higher classifications. For marginal areas, 
such as the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-
Beaver Valley, PA, and the Reading, PA Areas, a state is required to 
submit a baseline emissions inventory, adopt a SIP requiring emissions 
statements from stationary sources, and implement a NNSR program for 
the relevant ozone standard. See CAA section 182(a). For each higher 
ozone nonattainment classification, a state needs to comply with all 
lower area classification requirements, plus additional emissions 
controls and more expansive NNSR offset requirements.
    The CAA sets out specific requirements for states in the OTR.\6\ 
Upon promulgation of the 2008 8-hour ozone NAAQS, states in the OTR 
were required to submit a SIP revision addressing reasonably available 
control technology (RACT). See 40 CFR 51.1116. This requirement is the 
only recurring obligation for an OTR state upon revision of a NAAQS, 
unless that state also contains some portion of a nonattainment area 
for the revised NAAQS.\7\ In that case, the nonattainment requirements 
described previously also apply to those portions of that state.
---------------------------------------------------------------------------

    \6\ CAA section 184 details specific requirements for a group of 
states (and the District of Columbia) that make up the OTR. States 
in the OTR are required to submit RACT SIP revisions and mandate a 
certain level of emissions control for the pollutants that form 
ozone, even if the areas in the state meet the ozone standards.
    \7\ NNSR requirements continue to apply in the OTR. See CAA 
section 184(b).
---------------------------------------------------------------------------

    In the March 6, 2015 SIP Requirements Rule, EPA detailed the 
requirements applicable to ozone nonattainment areas, as well as 
requirements that apply in the OTR, and provided specific deadlines for 
SIP submittals. See 80 FR 12264.
    On February 3, 2017, EPA found that 15 states and the District of 
Columbia failed to submit SIP revisions in a timely manner to satisfy 
certain requirements for the 2008 8-hour ozone NAAQS that apply to 
nonattainment areas and/or states in the OTR. See 82 FR 9158. As 
explained in that rulemaking action, consistent with the CAA and EPA 
regulations, these Findings of Failure to Submit established certain 
deadlines for the imposition of sanctions, if a state does not submit a 
timely SIP revision addressing the requirements for which the finding 
is being made, and for the EPA to promulgate a Federal implementation 
plan (FIP) to address any outstanding SIP requirements.
    EPA found, inter alia, that the Commonwealth of Pennsylvania failed 
to submit SIP revisions in a timely matter to satisfy NNSR requirements 
for its marginal nonattainment areas, specifically the Allentown-
Bethlehem-Easton, PA, the Lancaster, PA, the Philadelphia-Wilmington-
Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the 
Reading, PA Areas.\8\ Pennsylvania submitted its October 30, 2017 SIP 
revision to address the specific NNSR requirements for the 2008 8-hour 
ozone NAAQS, located in 40 CFR 51.160-165, as well as its obligations 
under EPA's February 3, 2017 Findings of Failure to Submit. EPA's 
analysis of how this SIP revision addresses the NNSR requirements for 
the 2008 8-hour ozone NAAQS and the Findings of Failure to Submit is 
provided in Section II below.
---------------------------------------------------------------------------

    \8\ The EPA found that the Commonwealth of Pennsylvania also 
failed to submit a SIP revision for the Control Techniques 
Guidelines (CTG) for the volatile organic compound RACT (for all 44 
CTGs). This SIP requirement will be addressed in a separate 
rulemaking action and will not be discussed here. See 82 FR 9158 
(February 3, 2017).
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II. Summary of SIP Revision and EPA Analysis

    This rulemaking action is specific to Pennsylvania's NNSR 
requirements. NNSR is a preconstruction review permit program that 
applies to new major stationary sources or major modifications at 
existing sources located in a nonattainment area.\9\ The specific NNSR 
requirements for the 2008 8-hour ozone NAAQS are located in 40 CFR 
51.160-165. As set forth in the SIP Requirements Rule, for each 
nonattainment area, a NNSR plan or plan revision was due no later than 
36 months after the July 20, 2012 effective date of area designations 
for the 2008 8-hour ozone standard (i.e., July 20, 2015).\10\
---------------------------------------------------------------------------

    \9\ See CAA sections 172(c)(5), 173 and 182.
    \10\ With respect to states with nonattainment areas subject to 
a Findings of Failure to Submit NNSR SIP revisions, such revisions 
would no longer be required if the area were redesignated to 
attainment. The CAA's prevention of significant deterioration (PSD) 
program requirements apply in lieu of NNSR after an area is 
redesignated to attainment. For areas outside the OTR, NNSR 
requirements do not apply in areas designated as attainment.
---------------------------------------------------------------------------

    The minimum SIP requirements for NNSR permitting programs for the 
2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR 
51.1114. These NNSR program requirements include those promulgated in 
the ``Phase 2 Rule'' implementing the 1997 8-hour ozone NAAQS (75 FR 
71018 (November 29, 2005)) and the SIP Requirements Rule implementing 
the 2008 8-hour ozone NAAQS. Under the Phase 2 Rule, the SIP for each 
ozone nonattainment area must contain NNSR provisions that: Set major 
source thresholds for oxides of nitrogen (NOX) and volatile 
organic compounds (VOC) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-
(iv) and (2); classify physical changes as a major source if the change 
would constitute a major source by itself pursuant to 40 CFR 
51.165(a)(1)(iv)(A)(3); consider any significant net emissions increase 
of NOX as a significant net emissions increase for ozone 
pursuant to 40 CFR 51.165(a)(1)(v)(E); consider certain increases of 
VOC emissions in extreme ozone nonattainment areas as a significant net 
emissions increase and a

[[Page 62777]]

major modification for ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); set 
significant emissions rates for VOC and NOX as ozone 
precursors pursuant to 40 CFR 51.165(a)(1)(x)(A)-(C) and (E); contain 
provisions for emissions reductions credits pursuant to 40 CFR 
51.165(a)(3)(ii)(C)(1)-(2); provide that the requirements applicable to 
VOC also apply to NOX pursuant to 40 CFR 51.165(a)(8); and 
set offset ratios for VOC and NOX pursuant to 40 CFR 
51.165(a)(9)(i)-(iii) (renumbered as (a)(9)(ii)-(iv) under the SIP 
Requirements Rule for the 2008 8-hour ozone NAAQS). Under the SIP 
Requirements Rule for the 2008 8-hour ozone NAAQS, the SIP for each 
ozone nonattainment area designated nonattainment for the 2008 8-hour 
ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS on 
April 6, 2015, must also contain NNSR provisions that include the anti-
backsliding requirements at 40 CFR 51.1105. See 40 CFR 51.165(a)(12).
    Pennsylvania's SIP approved NNSR program, established in the 
Pennsylvania Code of Regulations (Pa. Code) Rule 25 Pa. Code Chapter 
127--Construction, Modification, Reactivation, and Operation of 
Sources, applies to the construction and modification of major 
stationary sources in nonattainment areas. In its October 30, 2017 SIP 
revision, Pennsylvania certifies that the version of 25 Pa. Code 
Chapter 127 in the SIP is at least as stringent as the Federal NNSR 
requirements for the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, 
the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the 
Pittsburgh-Beaver Valley, PA, and the Reading, PA Nonattainment Areas. 
EPA last approved revisions to Pennsylvania's major NNSR SIP on May 14, 
2012. In that action, EPA approved revisions to Pennsylvania's SIP 
which made PADEP's NNSR program consistent with Federal requirements. 
See 77 FR 28261.
    EPA notes that 25 Pa. Code Section 127.207(5) nor Pennsylvania's 
approved SIP contain a regulatory provision pertaining to establishing 
emissions reductions credits (ERC), as specified in 40 CFR 
51.165(a)(3)(ii)(C)(2)(i) and 40 CFR 51.165(a)(3)(ii)(C)(2)(ii). 
However, even if Pennsylvania's regulations do not offer this emissions 
reductions credit option, their approved SIP is still adequate to meet 
the standard ERC requirements found in 40 CFR 51.165(a)(3)(ii)(C)(1), 
where emissions reductions must be surplus, permanent, quantifiable, 
and Federally enforceable, for example. Pennsylvania has the 
appropriate ERC requirements approved in their regulations and their 
SIP, which enables them to implement the program appropriately and in 
accordance with Federal requirements.
    Given the D.C. Cir. Court's recent ruling in South Coast Air 
Quality Mgmt. Dist. v. EPA vacating the anti-backsliding provisions of 
the SIP Requirements Rule, Pennsylvania remains required to comply with 
the anti-backsliding provisions found in 40 CFR 51.165(a)(12). In 
Pennsylvania, neither 25 Pa. Code Chapter 127 or the Pennsylvania SIP 
contain the anti-backsliding provisions found in 40 CFR 51.165(a)(12), 
which applied to NNSR requirements for the 1997 ozone NAAQS. However, 
EPA finds that 25 Pa. Code and Pennsylvania's SIP presently include 
appropriate thresholds for major stationary sources and emissions 
offset ratios for the worst air quality designations these 
nonattainment areas have been designated. For example, in 25 Pa. Code 
Section 121.1, a source is considered a ``major NOX emitting 
facility'' if it emits 25 tons per year of NOX in Bucks, 
Chester, Delaware, Montgomery or Philadelphia County (the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE Nonattainment Area). This 
emissions threshold is equivalent to an area that was designated as 
severe nonattainment for the ozone NAAQS and is therefore more 
stringent. In addition, the entire state of Pennsylvania is located in 
the OTR and any source in the OTR is considered major for 
NOX and VOC if it emits or has the potential to emit at 
least 100 tons per year or 50 tons per year, respectively. This 
requirement can be found in 25 Pa. Code Section 127.201(c), as well as 
Pennsylvania's approved SIP and is equivalent to the higher moderate 
nonattainment area classification. Additionally, emissions offset 
ratios for sources located in Pennsylvania are more stringent than the 
requirements of 40 CFR 51.165(a)(9)(i). 25 Pa. Code Section 127.210 and 
the approved Pennsylvania SIP require sources in a marginal 
nonattainment area to offset their NOX and VOC emissions at 
a ratio of 1.15 to 1 versus the Federal NNSR requirement for a source 
located in a marginal nonattainment area to offset NOX and 
VOC at a less stringent ratio of 1.1 to 1. See 40 CFR 
51.165(a)(9)(i)(A). Therefore, EPA finds that Pennsylvania's 
regulations and approved SIP are more stringent than EPA's NNSR anti-
backsliding requirements and their program is adequate to implement 
NNSR for the 2008 ozone NAAQS.
    The version of 25 Pa. Code Chapter 127 that is contained in the 
current SIP has not changed since the 2012 rulemaking where EPA last 
approved Pennsylvania's NNSR provisions, with respect to ozone and its 
precursors.\11\ This version of the rule covers the Allentown-
Bethlehem-Easton, PA, the Lancaster, PA, the Philadelphia-Wilmington-
Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the 
Reading, PA Nonattainment Areas and remains adequate to meet all 
applicable NNSR requirements for the 2008 8-hour ozone NAAQS found in 
40 CFR 51.165, the Phase 2 Rule and the SIP Requirements Rule.
---------------------------------------------------------------------------

    \11\ Subsequently, EPA did approve an update to Pennsylvania's 
SIP incorporating preconstruction permitting requirements for fine 
particulate matter (PM2.5) into their NNSR regulations on 
July 13, 2012. See 77 FR 41276.
---------------------------------------------------------------------------

III. Proposed Action

    EPA is proposing to approve Pennsylvania's October 30, 2017 SIP 
revision addressing the NNSR requirements for the 2008 ozone NAAQS for 
the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-
Beaver Valley, PA, and the Reading, PA Nonattainment Areas. EPA has 
concluded that the Commonwealth's submission fulfills the 40 CFR 
51.1114 revision requirement, meets the requirements of CAA sections 
110 and 172 and the minimum SIP requirements of 40 CFR 51.165, as well 
as its obligations under EPA's February 3, 2017 Findings of Failure to 
Submit. See 82 FR 9158. EPA is soliciting public comments on the issues 
discussed in this document. These comments will be considered before 
taking final action.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed action:
     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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory

[[Page 62778]]

action because SIP approvals are exempted under Executive Order 12866.
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 7, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule, approving Pennsylvania's 2008 8-
hour ozone NAAQS Certification SIP revision for NNSR 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 EPA notes that it will not impose 
substantial direct costs on tribal governments or preempt tribal law.

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.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: November 26, 2018.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2018-26479 Filed 12-4-18; 8:45 am]
 BILLING CODE 6560-50-P