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