[Federal Register Volume 77, Number 186 (Tuesday, September 25, 2012)]
[Rules and Regulations]
[Pages 58955-58962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23497]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2010-0159; FRL-9731-9]
Approval and Promulgation of Air Quality Implementation Plans;
Commonwealth of Pennsylvania; Section 110(a)(2) Infrastructure
Requirements for the 1997 8-Hour Ozone and the 1997 and 2006 Fine
Particulate Matter National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving submittals from the Commonwealth of
Pennsylvania pursuant to the Clean Air Act (CAA). Whenever new or
revised National Ambient Air Quality Standards (NAAQS) are promulgated,
the CAA requires states to submit a plan for the implementation,
maintenance and enforcement of such NAAQS. The plan is required to
address basic program elements including, but not limited to,
regulatory structure, monitoring, modeling, legal authority, and
adequate resources necessary to assure attainment and maintenance of
the standards. These elements are referred to as infrastructure
requirements. Pennsylvania has made submittals addressing the
infrastructure requirements for the 1997 8-hour ozone and fine
particulate matter (PM2.5) NAAQS and the 2006
PM2.5 NAAQS. This action approves those submittals, or
portions thereof.
DATES: This final rule is effective on October 25, 2012.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2010-0159. All documents in the docket are listed in
the www.regulations.gov Web site. Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State
submittal are available at the Pennsylvania Department of Environmental
Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market
Street, Harrisburg, Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Ruth Knapp, (215) 814-2191, or by
email at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. Background
On September 1, 2011 (76 FR 54410), EPA published a notice of
proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR
proposed approval of Pennsylvania's submittals that provide the
infrastructure elements specified in CAA section 110(a)(2)(A), (B),
(C), (D), (E), (F), (G), (H), (J), (K), (L), and (M), or portions
thereof, necessary to implement, maintain, and enforce the 1997 8-hour
ozone and PM2.5 NAAQS and the 2006 PM2.5 NAAQS.
The submittals by the Commonwealth of Pennsylvania dated December 7,
2007 and June 6, 2008 addressed the section 110(a)(2) requirements for
the 1997 8-hour ozone NAAQS. The submittals dated December 7, 2007,
June 6, 2008, and April 26, 2010 addressed the section 110(a)(2)
requirements for the 1997 PM2.5 NAAQS. Finally, the
submittals dated April 26, 2010 and May 24, 2011 addressed the section
110(a)(2) requirements for the 2006 PM2.5 NAAQS.
II. Summary of SIP Revision
The submittals referenced in the Background section above address
the infrastructure elements specified in CAA section 110(a)(2) as
applicable. These submittals provide for the implementation,
maintenance, and enforcement of the 1997 8-hour ozone NAAQS, the 1997
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS. The
rationale supporting EPA's proposed action
[[Page 58956]]
including the scope of infrastructure SIPs in general is explained in
the NPR and the technical support document (TSD) accompanying the NPR
and will not be restated here. The TSD is available online at
www.regulations.gov, Docket ID Number EPA-R03-OAR-2010-0159. On October
3, 2011, EPA received public comments on its September 1, 2011 NPR from
the Clean Air Council and the Sierra Club (referred to herein as
Commenter). A summary of the comments submitted and EPA's responses are
provided in Section III of this action.
III. Summary of Public Comments and EPA Responses
Comment: The Commenter raises concerns relating to Pennsylvania's
ambient air monitoring system. According to the Commenter, ``The
current monitoring system does not account for the Marcellus Shale
industry and therefore the ambient air quality monitoring plan is
inadequate to monitor, collect and analyze the NAAQS.'' The Commenter
provides descriptions of one study and one event to support a general
concern that ``impacts of oil and gas development on air quality are by
no means insignificant.'' The Commenter does not identify any specific
Federally enforceable air quality monitoring requirement with which
Pennsylvania's monitoring system fails to comply for either the 1997
ozone NAAQS or for the 1997 or 2006 PM2.5 NAAQS.
Response: EPA disagrees with the Commenter concerning the statutory
infrastructure requirements for monitoring. The infrastructure
requirement at issue is set forth at CAA section 110(a)(2)(B)(i) and
requires that, for each NAAQS at issue, Pennsylvania's SIP must
``provide for establishment and operation of appropriate devices,
methods, systems, and procedures necessary to (i) monitor, compile, and
analyze data on ambient air quality * * *'' EPA has documented in the
TSD and the administrative record supporting the rulemaking that
Pennsylvania has met this statutory requirement. In the course of
evaluating the submittals, EPA confirmed that the Commonwealth has met
the monitoring requirements for the 1997 ozone and 1997 and 2006
PM2.5 NAAQS. Pennsylvania has three Federally approved air
quality monitoring plans. The Pennsylvania Department of Environmental
Protection (PADEP) establishes, operates and maintains a network of
ambient air monitors throughout Pennsylvania, excluding Philadelphia
and Allegheny Counties. Both Philadelphia Air Management Services (AMS)
and the Allegheny County Health Department (ACHD) operate separate air
monitoring networks and collect data pursuant to the Federally approved
monitoring plans within these areas. Each annual monitoring network
plan is made available for public inspection for at least 30 days prior
to submission to EPA. See 40 CFR 58.10(a)(1). Additionally, as required
in 40 CFR 58.10, each state is required to submit an annual network
design plan to the EPA Regional Administrator by July 1 of each year.
The most recent monitoring plans approved by EPA were submitted by
PADEP on August 4, 2011, by AMS on July 1, 2011 and by ACHD on July 1,
2011. EPA approved each of these plans and notified the appropriate
entity of the approval on December 6, 2011. These approval letters may
be found in the docket supporting this action. The Commenter raises no
issue as to whether the regulatory requirements set forth in 40 CFR
Part 58, Subpart B have been met or whether the public has had
opportunities to submit comments on each annual network plan or
modifications to such plans in accordance with 40 CFR 58.14. Rather,
the Commenter seems to request EPA to expand the statutory requirement
for the infrastructure SIP set forth in CAA section 110(a)(2)(B) to
include air quality monitoring criteria for a specific industry that
goes beyond the current regulatory requirements for monitoring networks
for ozone and PM2.5. EPA continues to believe that the
relevant ambient air quality monitoring and data systems in
Pennsylvania meet the statutory requirement that a state's SIP must
provide for the establishment and operation of appropriate devices,
methods, systems and procedures to monitor, compile and analyze data on
ambient air quality because the monitoring network meets current
regulatory requirements and is consistent with applicable EPA guidance.
The Commenter may submit comments and suggestions concerning the
monitoring networks in another more appropriate forum by submitting
comments on future annual monitoring network plan submissions prepared
by PADEP, AMS or ACHD which are open to public comment prior to being
submitted to EPA.
Comment: After summarizing the statutory language of CAA section
110(a)(2)(C), the Commenter raises concerns about Pennsylvania's
current permitting program and states that, ``The current permitting
program is inadequate to assure that the NAAQS are achieved because it
exempts all engines less than 100 horsepower associated with oil and
gas industry.'' In support of this general concern, the Commenter cites
to 25 Pa. Code section 127.14 (relating to exemptions) and states,
``PADEP may determine sources or classes of sources to be exempt from
the plan approval and permitting requirements of 25 Pa. Code Chapter
127 (relating to construction, modification, reactivation, and
operation of sources).'' The Commenter asserts that, ``The blanket
exemption for oil and gas exploration and production facilities and
operation except for gas compressor station engines equal to or greater
than 100 HP or gas extraction wells at landfills is inconsistent with
the CAA.'' The Commenter also raises concerns relating to ozone
maintenance plans that were submitted by Pennsylvania in accordance
with a separate statutory requirement. The Commenter claims such plans
are inadequate due to recent gas and oil activity.
Response: The comments at issue acknowledge that Pennsylvania has a
program as described by CAA section 110(a)(2)(C) which is ``a program
to provide for the * * * regulation of the modification and
construction of any stationary source within [Pennsylvania] as
necessary to assure that the NAAQS are achieved.'' The comments focus
on the adequacy of such a program, rather than the existence of such a
program. The Commenter's conclusory statements that specific exemptions
in Pennsylvania's regulations governing the modification and
construction of air contamination sources cause the program to be
``inadequate to assure that the NAAQS are achieved'' are not supported
by any data. The Commenter asserts without any support that, in order
to assure that the NAAQS are achieved, Pennsylvania should not exempt
gas compressor stations engines less than 100 HP or gas extraction
wells at landfills. However, the Commenter has not provided, and EPA is
not aware of, any data indicating that, as a direct result of the
exemption set forth at 25 Pa. Code section 127.14, there is an area of
Pennsylvania that is not achieving any NAAQS at issue (the 1997
PM2.5 NAAQS, 1997 ozone NAAQS and the 2006 PM2.5
NAAQS). EPA has no data indicating that the emissions from the
activities subject to the cited exemption are preventing Pennsylvania
from achieving any NAAQS at issue. The Commenter has not provided
sufficient information to support a conclusion that the cited exemption
is ``inconsistent with the CAA.'' Furthermore, although the Commenter
raises concerns about
[[Page 58957]]
ozone maintenance plans, which have been previously approved by EPA,
the Commenter does not explain how such SIP approved maintenance plans
relate to Pennsylvania's compliance with CAA 110(a)(2)(A) or (C) for
the NAAQS at issue. Ozone maintenance plans are approved by EPA
pursuant to CAA section 175A. These plans were subject to public notice
and comment as part of EPA's approval process. The proper forum to
raise concerns relating to such plans would have been during such
public comment periods. These maintenance plans are not subject to
review and comment during this agency action. EPA disagrees with any
assertion that the SIP approved ozone maintenance plans referred to by
the Commenter provide adequate justification for finding that
Pennsylvania has failed to meet its obligations for the 1997 ozone and
PM2.5 and 2006 PM2.5 NAAQS pursuant to CAA
section 110(a)(2)(A) and (C).
Pennsylvania's plan approval requirements for new sources or
modifications at existing sources are included in its SIP. On July 30,
1996, EPA approved Pennsylvania's Minor New Source Review (NSR) program
into its SIP. See 61 FR 39597. The Commonwealth and EPA have relied on
the existing state NSR program to assure that new and modified sources
do not interfere with attainment and maintenance of the NAAQS. EPA has
determined that Pennsylvania's minor NSR program adopted pursuant to
CAA section 110(a)(2)(C) regulates emissions of PM2.5 and
ozone and their precursors. For the 1997 PM2.5, 1997 ozone
and 2006 PM2.5 NAAQS, Pennsylvania's NSR program meets the
statutory requirement that a state include in its SIP ``a program to
provide for the * * * regulation of the modification and construction
of any stationary source within [Pennsylvania] as necessary to assure
that the NAAQS are achieved.''
In this action, EPA is approving Pennsylvania's infrastructure SIPs
for the 1997 PM2.5 and ozone NAAQS and the 2006
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(C) to include a program in the SIP that regulates the
modification and construction of any stationary source as necessary to
assure that the NAAQS are achieved. Even in those situations where EPA
has identified that a state's minor NSR provisions may be contrary to
the existing EPA regulations, EPA has repeatedly taken the position
that, as part of infrastructure SIP approvals, EPA is not proposing to
approve or disapprove a state's existing minor NSR program itself to
the extent that it is or may be inconsistent with EPA's regulations
governing this program. EPA has indicated that it intends to work with
states to reconcile state minor NSR programs with EPA's regulatory
provisions for the program. EPA has taken this position because the
statutory requirements of CAA 110(a)(2)(C) provide for considerable
flexibility in designing minor NSR programs. The SIP provision cited by
the Commenter (25 Pa. Code section 127.14) is not inconsistent with
EPA's NSR regulatory provisions and is not inconsistent with the
statutory requirements of section CAA 110(a)(2)(C). EPA believes that,
while assuring reasonable consistency across the country in protecting
the NAAQS with respect to new and modified minor sources, Pennsylvania
should be given an appropriate level of flexibility to design a program
that meets its particular air quality concerns. EPA will continue to
monitor Pennsylvania's NSR program to ensure that this program
regulates the modification and construction of any stationary source as
necessary to assure that the NAAQS are achieved.
Comment: The Commenter expresses concern that ``PADEP requires
little to no monitoring or reporting for criteria and hazardous air
pollutants associated with the drilling, extracting, and processing of
natural gas from the Marcellus Shale'' and asserts that these alleged
monitoring or reporting deficiencies are the result of PADEP's failure
to aggregate sources in accordance with requirements in NSR, Prevention
of Significant Deterioration (PSD), and Title V of the CAA. The
Commenter refers to the September 22, 2009 Memo from Gina McCarthy,
Assistant Administrator for the EPA's Office of Air and Radiation,
``Withdrawal of Source Determinations for Oil and Gas Industries.'' The
Commenter states that, as part of the Commenter's review of thirty plan
approval files in 2011, it found only three aggregation analyses by
PADEP and asserts that PADEP should conduct such analyses on every plan
approval application.
Response: The statutory requirement, CAA section 110(a)(2)(F), at
issue as cited by the Commenter requires that each SIP for each NAAQS
``require, as may be prescribed by the Administrator--(i) the
installation, maintenance, and replacement of equipment, and the
implementation of other necessary steps, by owners or operators of
stationary sources to monitor emissions from such sources, (ii)
periodic reports on the nature and amounts of emissions and emissions-
related data from such sources, and (iii) correlation of such reports
by the State agency with any emissions limitations or standards
established pursuant to this chapter, which reports shall be available
at reasonable times for public inspection.'' See CAA section
110(a)(2)(F). EPA disagrees with the Commenter's statements under
section 110(a)(2)(F) which are related to source determinations under
Pennsylvania's NSR, PSD and Title V programs. The narrow issue raised
by the Commenter relates to implementation of Pennsylvania's Federally
approved program. The issue raised goes beyond the basic statutory
requirements of CAA section 110(a)(2)(F) that, as part of its SIP, the
Commonwealth include certain general requirements. Pennsylvania
incorporates by reference the Federal PSD regulations and has a SIP
approved NSR program. Therefore, EPA believes there is no question that
the Commonwealth meets this general statutory requirement. EPA's
administrative record, including the TSD for this action, provides
sufficient support for the finding that Pennsylvania's SIP for each of
the relevant NAAQS meets the statutory requirement set forth at CAA
section 110(a)(2)(F).
Comment: The Commenter states that PADEP does not have enough
personnel to properly implement its SIP. The Commenter relies upon an
undated Clean Water Action report which summarizes the reduction in
PADEP's overall budget during the period of 2000 through 2011. The
Commenter also relies upon an April 13, 2011 local newspaper article
reporting that four Pennsylvania environmental regulators indicated
that they ``spend as little as 35 minutes reviewing each of the
thousands of applications for natural gas well permits * * *''
Response: EPA understands the concern that reductions in a state's
budget may impede the state's ability to fulfill its obligations.
However, a reduction in a state's budget allocated to environmental
protection is by itself an insufficient basis for finding that a state
has failed to meet its statutory obligations to ``provide (i) necessary
assurances that the State * * * will have adequate personnel, funding,
and authority under State law to carry out such implementation plan * *
*'' See CAA section 110(a)(2)(E)(i). The administrative record for this
action identifies several funding sources including Title V permit
fees, federal funds under CAA sections 105 and 103 and funds from the
Clean Air Fund and supports a finding that Pennsylvania has provided
EPA with such assurances that it has adequate personnel and funding to
carry out its SIP. If, in the
[[Page 58958]]
future, EPA determines that the Commonwealth does not have adequate
personnel or funding to carry out its SIP, or for any other reason
fails to meet any requirement of its approved SIP, then EPA may
exercise its authority pursuant to CAA sections 110(a)(2)(E), 179 or
110(k)(5). The action that EPA is taking today does not limit EPA's
authority pursuant to those CAA sections.
Comment: The Commenter expresses concern that ``PA DEP does not
have an adequate plan to deal with the emergency situations associated
with Marcellus Shale operations.'' The Commenter relies upon an
Internet news article and its experience of receiving complaints from
citizens living near natural gas operations.
Response: EPA disagrees with the Commenter and believes
Pennsylvania has met the requirements of CAA section 110(a)(2)(G). The
Commenter raises a general concern regarding general emergency
situations, including those situations unrelated to air quality. The
TSD and administrative record supporting EPA's action support a finding
that Pennsylvania has met its obligations to provide adequate
contingency plans to implement authority comparable to that in CAA
section 303, as required by CAA section 110(a)(2)(G). The TSD clearly
sets forth the relevant statutory and regulatory emergency authority.
Furthermore, the TSD sets forth how the Commonwealth followed EPA's
September 25, 2009 guidance, entitled ``Guidance on SIP Elements
Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine
Particle (PM2.5) National Ambient Air Quality Standards
(NAAQS)'' which provides EPA's interpretation of ``Prevention of Air
Pollution Emergency Episodes'' rules at 40 CFR 51.150 and criteria for
which states must develop emergency episode contingency plans. The
Commenter does not assert that the Commonwealth has not met its
statutory and regulatory obligations. Here, the Commenter seeks an
expansion of the statutory and regulatory requirements relating
specifically to adequate contingency plans for any type of emergency
situation. However, the purpose of EPA's action is to determine whether
the Commonwealth has met the basic infrastructure requirements of CAA
section 110(a)(2) and related regulatory requirements. Therefore, there
is no basis for finding that Pennsylvania's SIP fails to meet such
requirements. Pennsylvania's SIP contains the requisite general
emergency authority to address urgent air quality situations but is not
required to have specific contingency plans for all situations and
specifically does not require a plan for PM2.5 as per EPA
guidance.
Comment: The Commenter provides a summary of the requirements of
CAA section 110(a)(2)(D)(i)(I) and (II). The remaining portion of the
comment focuses upon concerns that emissions from ``Marcellus Shale
operations'' may impact Pennsylvania and states adjacent to or downwind
of Pennsylvania due to concerns relating to source determinations and
ambient air quality monitoring. The Commenter claims ``[t]he proposed
SIP fails to take into account the impact that Marcellus Shale
operations are having on areas downwind from shale activity.''
Response: This comment appears to address requirements of CAA
section 110(a)(2)(D)(i)(I) and (II). As explained in the NPR (76 FR
54410) and the TSD, EPA's action is limited to a determination of
whether the Commonwealth has met its obligations pursuant to the
portion of 110(a)(2)(D)(i)(II) relating to the part C permit program
(or the PSD permit requirements). Therefore, any comment relating to
additional requirements of CAA section 110(a)(2)(D)(i)(I) is not
relevant to this action. With respect to the PSD requirements of CAA
section 110(a)(2)(D)(i)(II), it is EPA's position that this sub-element
may be met by a state's confirmation in an infrastructure SIP
submission that new major sources and major modifications in the state
are subject to PSD requirements consistent with the CAA. Pennsylvania
has made this confirmation. Pennsylvania's SIP incorporates by
reference all Federally enforceable PSD regulations for the NAAQS at
issue.\1\ For Allegheny County, the PSD requirements have been
addressed by an existing Federal Implementation Plan (FIP). The TSD and
the administrative record clearly support a finding that Pennsylvania
has met its statutory obligations to include adequate provisions
prohibiting any source within Pennsylvania from emitting any air
pollutant in amounts which will interfere with PSD measures required by
any other state. The Commenter does not explain how any emissions from
any source in Pennsylvania may interfere with another state's PSD SIP
requirements. As explained above, Pennsylvania has met its statutory
obligations relating to its PSD Program as required by CAA section
110(a)(2)(D)(i)(II). Many of the CAA 110(a)(2) SIP elements, including
section 110(a)(2)(D)(i), relate to the general information and
authorities that constitute the ``infrastructure'' of a state's air
quality management program. The CAA 110(a)(2) SIP submissions that EPA
is acting upon are not required to address specific industry sources.
Rather, these submissions are required to demonstrate the general
statutory and regulatory infrastructure a state has to implement to
meet the requirements of Subchapter I (Programs and Activities) of the
CAA.
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\1\ EPA notes that Pennsylvania's incorporation by reference of
40 CFR 52.21 includes 40 CFR 51.21(k)(1) which provides that the
``owner or operator of the proposed source or modification shall
demonstrate that allowable emission increases from the proposed
source or modification * * * would not cause or contribute to air
pollution in violation of'' any NAAQS.
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Comment: The Commenter generally asserts that EPA cannot fully
approve Pennsylvania's infrastructure SIPs for several reasons. First,
the Commenter generally asserts that the process was not sufficiently
transparent because the NPR did not include all of the relevant
information, including references to all relevant rules, EPA's analysis
of such rules, and links to all relevant data that may be available on
the Internet.
Response: EPA disagrees with the Commenter. The Commenter is
interested in transparency and interested in the Agency providing
substantially more information in the Federal Register. The Commenter
does not assert that the NPR in conjunction with the TSD and other
materials in the docket for the proposals were inadequate to promote an
appropriate public process on the Commonwealth's infrastructure SIP
submittals. EPA believes that the NPR in conjunction with the
information provided in the supporting administrative docket were
adequate to allow the public an opportunity to review and comment on
EPA's proposed action.
The Commenter raises a procedural issue that is separate and
distinct from the substantive issue addressed by EPA's proposed
rulemaking which is whether the SIP submissions at issue meet the
criteria of the portions of CAA section 110(a)(2) addressed in the NPR.
The Commenter has not provided EPA with sufficient information
supporting a finding that Pennsylvania has failed to meet any of its
obligations pursuant to the portions of CAA section 110(a)(2) addressed
in EPA's proposed action.
As a general matter, the Commenter seems to interpret the EPA
Administrator's goal of transparency as a mandate that all information
for any EPA proposed administrative rulemaking must be set forth in the
NPR itself, with no reliance on an administrative record. EPA
appreciates the Commenter's interest in a ``one-stop-shop'' for all
information (even tangential information) related to its
[[Page 58959]]
proposed action. However, the proposed interpretation of
``transparent'' would be unduly burdensome and contrary to the
requirements of the Administrative Procedures Act (APA), 5 U.S.C.
533(b). EPA followed the APA and provided sufficient information to
support its proposed administrative action and a public comment period
on its proposed action. The documents contained in the docket provided
numerous references to specific regulations and the Code of Federal
Regulations. The docket also includes EPA's analysis of such rules
relevant to this action along with relevant guidance and data. With
respect to ``links to all relevant data that may be available on the
Internet,'' EPA does not typically include detailed information when
it's otherwise publicly available. With respect to analysis of data,
there is no requirement that detailed technical information must be
included in the NPR. EPA often includes a TSD as part of its
administrative rulemaking actions. By including a TSD, in addition to
the NPR, the public may more easily understand the basic action EPA is
proposing to take and access more detailed information if desired. By
making a TSD available on-line, by request, and as a hardcopy in the
paper docket, EPA has made this important underlying technical
information available to the public and has eliminated unnecessary
costs associated with the overall rulemaking action. EPA's NPR and
additional information contained in the docket for public review are in
accordance with the APA and fulfill the Administrator's interest in
transparency as well as Federal law requirements.
Comment: The Commenter states that the CAA requires that the
infrastructure SIPs include an adequate PSD permitting program needed
to address CAA section 110(a)(2)(C), (D)(i)(II) and (J) and expresses
concern that Pennsylvania's PSD program may not be ``approved'' if it
lacks significant emission rates found in 40 CFR 52.21(b)(23)(i) [2011]
and PM2.5 increments found in 40 CFR 52.21(c) [2011]. The
Commenter states it is not clear whether the Pennsylvania PSD program
incorporates by reference the version of the Code of Federal
Regulations that existed at the time EPA approved Pennsylvania's PSD
program into the SIP or automatically incorporates the current version
of the Code of Federal Regulations. The Commenter requests that EPA
either clarify that 25 Pa. Code Section 127.83 incorporates the most
recent version of 40 CFR 52.21 automatically or, alternatively, the
Commenter indicates that EPA cannot approve the Pennsylvania SIP for
the 2006 PM2.5 NAAQS until the SIP is updated to incorporate
the PM2.5 increments which were effective December 20, 2010.
Response: EPA believes Pennsylvania has a PSD permitting program
sufficient to meet the requirements in CAA section 110(a)(2)(C),
(D)(i)(II) and (J). Pennsylvania has met the requirements for the
PM2.5 NAAQS embodied in the PM2.5 NSR
Implementation Rule (see 73 FR 28321 (May 16, 2008)), as well as the
increment requirements of EPA's October 20, 2010 rulemaking (75 FR
64864) by virtue of its incorporation by reference of 40 CFR 52.21 in
its entirety. EPA's approval of 25 Pa. Code Section 127.83 on August
21, 1984 (49 FR 33127) explains that Pennsylvania's incorporation by
reference of 40 CFR 52.21 does not identify a specific edition of 40
CFR 52.21 and that all future changes thereto would automatically be
incorporated by reference. Therefore, Pennsylvania's SIP approved PSD
program clearly includes the Federal regulations identified by the
Commenter.
Comment: The Commenter states that EPA cannot approve
Pennsylvania's SIP with regard to CAA section 110(a)(2)(G). The
Commenter states that the NPR and TSD give no indication that
Pennsylvania has adopted emergency episode plans. The Commenter
references the portion of EPA's September 25, 2009 guidance entitled
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2)
for the 2006 24-Hour Fine Particle (PM2.5) National Ambient
Air Quality Standard (NAAQS)'' which states that states have to
establish their own priority action levels and emergency action levels
for PM2.5 ``through their public processes.''
Response: EPA disagrees with the Commenter's view that
Pennsylvania's infrastructure SIP submission is not consistent with CAA
section 110(a)(2)(G) with respect to the 1997 and 2006 PM2.5
NAAQS. As the Commenter noted, EPA has not amended the regulations of
40 CFR 51.151 to include a significant harm level or priority cut point
for PM2.5. In the absence of such regulations, EPA issued
guidance to states to recommend how they could comply with CAA section
110(a)(2)(G). Also, although the regulations have not changed, a state
still needs to meet the statutory requirement, and EPA provided an
approach states could use to meet the requirements. The Commenter
refers to the September 25, 2009 ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standard (NAAQS).''
This document is part of the docket supporting the proposed action and
is the document that indicates the approach a state could take to meet
the requirement. This document may be found in hard copy in the paper
docket file and in the electronic docket at Document ID Number EPA-RO3-
0AR-2010-0159-0008. The Commenter refers to a portion of this guidance,
but fails to include other relevant portions of this guidance. The
relevant portion of this guidance recommends:
To address the section 110(a)(2)(G) element, states with air
quality control regions identified as either Priority I, Priority
IA, or Priority II by the ``Prevention of Air Pollution Emergency
Episodes'' rules at 40 CFR 51.150, must develop emergency episode
contingency plans. Currently, those regulations do not specifically
address PM2.5 * * * [F]or the purposes of satisfying the
requirements of section 110(a)(2)(G), states would develop emergency
episode plans for any area that has monitored and recorded 24-hour
PM2.5 levels greater than 140.4 ug/m\3\ since 2006V If
this level was never exceeded in any area of the state, the state
can certify that it has appropriate general emergency powers to
address PM2.5 related episodes, and that no specific
emergency episode plans are necessary at this time, given the
existing monitored levels. States should develop submissions to meet
this requirement through appropriate public processes.
In accordance with this guidance, Pennsylvania submitted a SIP
revision addressing the contingency plan portion of CAA section
110(a)(2)(G) for both the 1997 and 2006 PM2.5 NAAQS on April
26, 2010. This submittal states in relevant part, ``For both the 2006
and 1997 PM2.5 NAAQS, no specific emergency episode plans
are necessary given that existing monitored levels have not exceeded
the level of 140.4 micrograms per cubic meter (ug/m\3\) identified by
EPA in its September 25, 2009 ``Guidance on SIP Elements Required Under
Sections 110(a)(1) and (2) for the 2006 24-hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS), pp.
6-7.'' This submittal was subject to the appropriate public processes.
The transmittal letter states that the ``public participation process
for this SIP revision included a 30 day written comment period and an
opportunity for public hearing * * * The DEP did not receive any
comments during the public comment period.'' This letter from
Pennsylvania is contained in the docket with Document ID Number EPA-
RO3-0AR-2010-0159-0003. A copy of the April 26, 2010 SIP submittal and
the notices of opportunity for public comments are included as
attachments to the electronic copy of the document identified above
(EPA-R03-
[[Page 58960]]
OAR-2010-0159-0003). Pennsylvania's submittals identified in the
electronic docket with Docket ID Number EPA-R03-OAR-2010-0159 meet the
requirements in the EPA's guidance document that the Commenter
references. Based upon such submittals, Pennsylvania has submitted
sufficient information to support a finding that the monitored data
throughout the Commonwealth of Pennsylvania from 2006 through April
2010 have not exceeded 140.4 ug/m\3\. Accordingly, EPA has concluded
that Pennsylvania's infrastructure SIPs are consistent with the
requirements of CAA section 110(a)(2)(G).
Comment: The Commenter seeks EPA's review of Pennsylvania's ambient
air quality monitoring data for the limited purpose of determining
whether Pennsylvania is accurately asserting that it has not monitored
any PM2.5 readings above 140.4 ug/m\3\.
Response: EPA agrees that the Agency as a matter of general
practice should review state monitoring data in conjunction with its
review of a state's assertions relating to such data. A state is
required to certify all air monitoring data on a yearly basis (see 40
CFR 58.15) and EPA reviews this data each year. EPA has reviewed
Pennsylvania's certified ambient air quality monitoring data and as
part of that independent review has determined that Pennsylvania's
assertion is correct. Pennsylvania's highest PM2.5 reading
since 2006 was at Liberty, PA. The sampled value occurred in 2006 and
was 100.7 ug/m\3\. The relevant monitoring data is also accessible to
the public at various web sites including http://www.epa.gov/airdata.
Based upon its review of Pennsylvania's ambient air quality monitoring
data since 2006, EPA has determined that Pennsylvania has correctly
indicated that it has not monitored any 24 hour PM2.5
readings above 140.4 ug/m\3\.
Comment: The Commenter raises two issues related to the definitions
provided in 25 Pa. Code Section 121.1. The Commenter states that with
regard to ozone, the definitions of marginal, serious, and severe ozone
nonattainment areas in the SIP approved version of 25 Pa. Code Section
121.1 are based on 1-hour ozone NAAQS rather than the 1997 8-hour ozone
NAAQS and that these definitions need to be updated. Also, the
Commenter states that there is no definition of PM2.5 in 25
Pa. Code Section 121.1 and that Pennsylvania needs one.
Response: EPA agrees that as a general matter the absence or
inadequacy of definitions could be relevant to review of a SIP
submittal pursuant to CAA section 110(a)(2), however, EPA disagrees
that the specific issues raised by the Commenter support a finding that
the SIPs at issue fail to meet the applicable 110(a)(2) requirements.
EPA has considered the concerns raised by the Commenter and finds that
the Commenter has not identified a defect in the SIP approved version
of 25 Pa. Code Section 121.1 that, in and of itself, is sufficient to
support a finding that Pennsylvania has not met its obligations
pursuant to the portions of section 110(a)(2) addressed herein. The SIP
submissions at issue which EPA is approving do not directly address and
do not modify the definitions set forth in 25 Pa. Code Section 121.1.
Therefore, these specific definitions are not directly a part of this
rulemaking. Furthermore, the statutory provisions at issue do not
expressly set criteria for the state regulatory definition provisions.
The Commenter has not explained how the issues raised relating to
specific definitions relate to Pennsylvania's compliance with its
obligations pursuant to the portions of CAA section 110(a)(2) at issue
in this rulemaking. EPA disagrees with the Commenter concerning the
ozone classification definitions because these terms are not directly
relevant to the issues germane to the infrastructure SIP action. The
definitions relating to ozone nonattainment areas may be relevant to
Pennsylvania's compliance with CAA section 110(a)(2)(I). However, as
indicated in EPA's NPR, the SIP submittals at issue do not pertain to
CAA section 110(a)(2)(I) and EPA's action does not pertain to the
applicable requirements of CAA Chapter I, part D (relating to
nonattainment areas). These requirements, and issues pertaining only to
nonattainment areas for a specific NAAQS, are not required to be
addressed on the same schedule as issues pertaining to other general
requirements of CAA section 110(a)(1) and 110(a)(2). Therefore, this
comment is not relevant to EPA's action and EPA does not have any
obligation to respond to such comments. EPA disagrees with the
Commenter concerning the PM2.5 definition issue because the
Pennsylvania SIP currently includes a definition of the
PM2.5 NAAQS. Section 121.1 defines the term NAAQS as
National Ambient Air Quality Standards. In accordance with 25 Pa. Code
section 131.2, as EPA promulgates new or revised NAAQS, Pennsylvania
incorporates the NAAQS by reference. Therefore, the Pennsylvania SIP
provides a definition of the PM2.5 NAAQS that is consistent
with the CAA. As a related matter, Pennsylvania recently revised its
nonattainment NSR rules. Section 121.1 contains a specific entry for
PM2.5 which states ``PM2.5--Particulate matter
with an aerodynamic diameter of less than or equal to a nominal 2.5
micrometer body as measured by the applicable reference method or an
equivalent method.'' These revised rules were subject to public comment
and became effective on September 3, 2011. Pennsylvania submitted these
NSR revisions including, but not limited to, 25 Pa. Code Section 121.1
to EPA for inclusion into the SIP on September 23, 2011, and EPA
approved this revision on July 13, 2012. (See 77 FR 41276).
IV. Final Action
EPA is approving the Commonwealth of Pennsylvania's submittals that
provide the infrastructure elements specified in CAA section
110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and
(M), or portions thereof, necessary to implement, maintain, and enforce
the 1997 8-hour ozone and PM2.5 NAAQS and the 2006
PM2.5 NAAQS. EPA made completeness findings for the 1997 8-
hour ozone NAAQS on March 27, 2008 (73 FR 16205) and on October 22,
2008 (73 FR 62902) for the 1997 PM2.5 NAAQS. These findings
pertained only to whether the submissions were complete, pursuant to
CAA section 110(k)(1)(A), and did not constitute EPA approval or
disapproval of such submissions. For the geographic area of Allegheny
County, the completeness finding of March 27, 2008 (73 FR 16205) noted
Pennsylvania's failure to submit a SIP revision addressing the portion
of 110(a)(2)(C) relating to the Part C permit programs for the 1997
ozone NAAQS. EPA recognized that such requirement has already been
addressed by a FIP that remains in place, and concluded that the
finding of incompleteness would not trigger any additional FIP
obligation for Pennsylvania. For all other areas of Pennsylvania,
except for Allegheny County, EPA found that the Commonwealth had a SIP
approved PSD program in place and found that the CAA section 110(a)(2)
submittals at issue were complete.
Two elements identified in CAA section 110(a)(2) are not governed
by the three year submission deadline of CAA section 110(a)(1) because
SIPs incorporating necessary local nonattainment area controls are not
due within three years after promulgation of a new or revised NAAQS,
but rather are due at the time the nonattainment area plan requirements
are due pursuant to CAA section 172. These elements are: (i)
Submissions required by section
[[Page 58961]]
110(a)(2)(C) to the extent that the subsection pertains to a permit
program in Part D Title I of the CAA; and (ii) any submissions required
by section 110(a)(2)(I) which pertains to the nonattainment planning
requirements of Part D Title I of the CAA. This action does not cover
these specific elements. This action also does not address the
requirements of 110(a)(2)(D)(i)(I) for the 1997 8-hour ozone and
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS.
V. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
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 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 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 rule 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.
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 26, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action.
This action pertaining to Pennsylvania's section 110(a)(2)
infrastructure requirements for the 1997 8-hour ozone and
PM2.5 NAAQS and the 2006 PM2.5 NAAQS may not be
challenged later in proceedings to enforce its requirements. (See
section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Volatile organic compounds.
Dated: September 7, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart NN--Pennsylvania
0
2. In Sec. 52.2020, the table in paragraph (e)(1) is amended by adding
entries at the end of the table for Section 110(a)(2) Infrastructure
Requirements for the 1997 8-Hour Ozone NAAQS, Section 110(a)(2)
Infrastructure Requirements for the 1997 PM2.5 NAAQS, and
Section 110(a)(2) Infrastructure Requirements for the 2006
PM2.5 NAAQS. The amendments read as follows:
Sec. 52.2020 Identification of plan.
* * * * *
(e) * * *
(1) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable
revision geographic area State submittal date EPA Approval date Additional explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Infrastructure Statewide............ 12/7/07, 6/6/08........................ 9-25-12 [Insert page This action addresses the
Requirements for the 1997 8-Hour number where the following CAA elements
Ozone NAAQS. document begins]. or portions thereof:
110(a)(2)(A), (B), (C),
(D), (E), (F), (G), (H),
(J), (K), (L), and (M).
[[Page 58962]]
Section 110(a)(2) Infrastructure Statewide............ 12/7/07, 6/6/08, 4/26/10............... 9-25-12 [Insert page This action addresses the
Requirements for the 1997 PM2.5 number where the following CAA elements
NAAQS. document begins]. or portions thereof:
110(a)(2)(A), (B), (C),
(D), (E), (F), (G), (H),
(J), (K), (L), and (M).
Section 110(a)(2) Infrastructure Statewide............ 4/26/10, 5/24/11....................... 9-25-12 [Insert page This action addresses the
Requirements for the 2006 PM2.5 number where the following CAA elements
NAAQS. document begins]. or portions thereof:
110(a)(2)(A), (B), (C),
(D), E), (F), (G), (H),
(J), (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2012-23497 Filed 9-24-12; 8:45 am]
BILLING CODE 6560-50-P