[Federal Register Volume 80, Number 59 (Friday, March 27, 2015)]
[Rules and Regulations]
[Pages 16286-16289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06965]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2014-0342; FRL-9925-16-Region 3]
Approval and Promulgation of Implementation Plans; Pennsylvania;
Pennsylvania Regional Haze State Implementation Plan Revision: Sulfur
Dioxide and Nitrogen Oxide Best Available Retrofit Technology Limits
for the Cheswick Power Plant
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing a
limited approval and limited disapproval of a revision to the
Pennsylvania State Implementation Plan (SIP) submitted by the
Commonwealth of Pennsylvania through the Pennsylvania Department of
Environmental Protection (PADEP). This SIP revision addresses the
sulfur dioxide (SO2) and nitrogen oxide (NOX)
Best Available Retrofit Technology (BART) requirements for Boiler
Number 1 of the Cheswick Generating Station (Cheswick) in Allegheny
County. EPA is finalizing a limited approval of the SIP revision for
Cheswick's SO2 and NOX BART requirements on the
basis that the revision corrects an error in the SIP and strengthens
the Pennsylvania SIP, while EPA is also finalizing a limited
disapproval of this part of the SIP revision because the SIP revision
relies on the Clean Air Interstate Rule (CAIR) and not the Cross-State
Air Pollution Rule (CSAPR) which has replaced CAIR. This final action
is in accordance with the requirements of the Clean Air Act (CAA) and
EPA's rules for BART.
DATES: This final rule is effective on April 27, 2015.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2014-0342. 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: Irene Shandruk, (215) 814-2166, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Regional haze is visibility impairment that is produced by a
multitude of sources and activities which are located across a broad
geographic area and emit fine particles (e.g., sulfates, nitrates,
organic carbon, elemental carbon, and soil dust) and their precursors
(e.g., SO2, NOX, and in some cases, ammonia
(NH3) and volatile organic compounds (VOC)). Fine particle
precursors react in the atmosphere to form fine particulate matter
(PM2.5), which impairs visibility by scattering and
absorbing light. Visibility impairment reduces the clarity, color, and
visible distance that one can see. Section 169A of the CAA establishes
as a national goal the ``prevention of any future, and the remedying of
any existing, impairment of visibility in mandatory class I Federal
areas which impairment results from manmade air pollution'' and
requires SIPs for states whose emissions may reasonably be anticipated
to cause or contribute to visibility impairment in Class I areas to
contain emission limits, compliance schedules and other measures as may
be necessary to make reasonable progress toward the national goal of
achieving natural visibility
[[Page 16287]]
conditions in Class I areas.\1\ A regional haze SIP generally must
include, among other measures, source-specific BART emission limits for
each source subject to BART. A detailed discussion of the requirements
of the regional haze program can be found in our earlier notice
proposing action on Pennsylvania's regional haze SIP. See 77 FR 3984
(January 26, 2012).
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\1\ EPA's regulations implementing CAA section 169A are located
at 40 CFR 51.308 and require states to establish long-term
strategies for making reasonable progress toward meeting the
national goal in CAA section 169A.
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Rather than requiring source-specific BART controls, states also
have the flexibility to adopt an emissions trading program or other
alternative program as long as the alternative provides greater
reasonable progress towards improving visibility than BART. 40 CFR
51.308(e)(2). EPA made such a demonstration for the CAIR.\2\ 70 FR
39104 (July 6, 2005). EPA's regulations provided that states
participating in the CAIR cap and trade program under 40 CFR part 96
pursuant to an EPA-approved CAIR SIP or which remain subject to the
CAIR Federal Implementation Plan (FIP) in 40 CFR part 97, do not
require affected BART eligible electric generating units (EGUs) to
install, operate, and maintain BART for emissions of SO2 and
NOX. See 40 CFR 51.308(e)(4). EPA subsequently determined
that the trading programs in CSAPR, which was promulgated to replace
CAIR, would achieve greater reasonable progress towards the national
goal than would BART and could also serve as an alternative to source-
by-source BART. See 77 FR 33641 (June 7, 2012).\3\
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\2\ CAIR required certain states like Pennsylvania to reduce
emissions of SO2 and NOX that significantly
contribute to downwind nonattainment of the 1997 NAAQS for
PM2.5 and ozone. See 70 FR 25162 (May 12, 2005). CAIR was
later found to be inconsistent with the requirements of the CAA and
the rule was remanded to EPA. See North Carolina v. EPA, 550 F.3d
1176 (D.C. Cir. 2008). The court left CAIR in place until replaced
by EPA with a rule consistent with its opinion. Id.
\3\ CSAPR was proposed by EPA to replace CAIR and to help states
reduce air pollution and attain CAA standards. See 75 FR 45210
(August 2, 2010) (proposal) and 76 FR 48208 (August 8, 2011) (final
rule). The United States Court of Appeals for the D.C. Circuit (D.C.
Circuit) issued a decision in EME Homer City Generation, L.P. v.
EPA, 696 F.3d 7 (D.C. Cir. 2012), vacating CSAPR and keeping CAIR in
place pending the promulgation of a valid replacement rule.
Subsequently, on April 29, 2014, the United States Supreme Court
reversed the August 21, 2012 opinion of the D.C. Circuit which had
vacated CSAPR and remanded the matter to the D.C. Circuit for
further proceedings. EPA v. EME Homer City Generation, L.P., 134 S.
Ct. 1584 (2014). After the Supreme Court's decision, EPA filed a
motion to lift the stay of CSAPR and asked the D.C. Circuit to toll
CSAPR's compliance deadlines by three years, so that the Phase 1
emissions budgets apply in 2015 and 2016 (instead of 2012 and 2013),
and the Phase 2 emissions budgets apply in 2017 and beyond (instead
of 2014 and beyond). On October 23, 2014, the D.C. Circuit granted
EPA's motion and lifted the stay on CSAPR. EME Homer City
Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Oct. 23, 2014),
Order at 3. EPA views the D.C. Circuit's October 23, 2014 Order as
also granting EPA's request to toll CSAPR's compliance deadlines.
EPA commenced implementation of CSAPR on January 1, 2015. 79 FR
71663 (Dec. 3, 2014) (interim final rule revising CSAPR compliance
deadlines).
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On December 20, 2010, PADEP submitted revisions to the Pennsylvania
SIP to address regional haze as required by the CAA and 40 CFR 51.308.
At the time of the development and submission of Pennsylvania's
December 20, 2010 regional haze SIP submission, EPA had not yet
promulgated CSAPR to replace CAIR. On July 13, 2012, EPA finalized a
limited approval of the Pennsylvania regional haze SIP. 77 FR 41279.
Our approval was limited due to Pennsylvania's reliance upon CAIR for
certain regional haze requirements including BART for EGUs. On June 7,
2012, EPA had also finalized the limited disapproval of Pennsylvania's
regional haze SIP (and other states' regional haze SIPs that relied
similarly on CAIR) due to its reliance on CAIR as EPA had issued the
CSAPR to replace CAIR at that time. 77 FR 33641. On June 7, 2012, EPA
also finalized a limited FIP for Pennsylvania and other states, which
merely substituted reliance on EPA's more recent CSAPR NOX
and SO2 trading programs for EGUs for the SIP's reliance on
CAIR.\4\ See 77 FR 33641.
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\4\ In response to a petition for review of EPA's limited
approval of the Pennsylvania regional haze SIP in the United States
Court of Appeals for the Third Circuit, EPA successfully moved for a
voluntary remand without vacatur. On April 30, 2014, EPA reissued
its final limited approval of the Pennsylvania SIP to implement the
Commonwealth's regional haze program for the first planning period
through 2018. 79 FR 24340.
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For the December 20, 2010 regional haze SIP, the Allegheny County
Health Department (ACHD) had performed a BART analysis for Cheswick, a
Pennsylvania EGU. In the May 4, 2009 Cheswick BART review memo, ACHD
stated it performed its BART analysis in accordance with 40 CFR
51.308(e) and 40 CFR part 51, appendix Y, Guidelines for BART
Determinations Under the Regional Haze Rule (BART Guidelines).\5\ The
May 4, 2009 Cheswick BART review memo was included in Pennsylvania's
December 20, 2010 regional haze SIP (in Appendix J) and specifically
stated that SO2 and NOX limits were not
considered in the memo since the source was participating in CAIR. The
May 4, 2009 BART Review Memo for Cheswick and the December 20, 2010
regional haze SIP submission also contained an error concerning the
recommended particulate matter (PM) BART for Cheswick.
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\5\ The BART Guidelines provide a process for making BART
determinations that states and local agencies can use in
implementing the regional haze BART requirements on a source-by-
source basis, as provided in 40 CFR 51.308(e)(1).
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The December 20, 2010 regional haze SIP submission explicitly
provided that BART for Pennsylvania EGUs was participation in CAIR;
however, the SIP submission incorrectly identified SO2 and
NOX BART emission limits for Cheswick in error.
II. Summary of SIP Revision and EPA Analysis
On March 25, 2014, the Commonwealth of Pennsylvania through PADEP
submitted a SIP revision to revise the incorrect PM BART emission limit
for Cheswick's Boiler No. 1 and to remove the errant inclusion of the
BART SO2 and NOX emission limits for Cheswick's
Boiler No. 1 from the regional haze SIP because Pennsylvania intended
CAIR as SO2 and NOX BART for all EGUs including
Cheswick. EPA has corrected the PM BART error in a separate rulemaking.
See 80 FR 2834 (January 21, 2015). On January 21, 2015 (80 FR 2841),
EPA published a notice of proposed rulemaking (NPR) for the
Commonwealth of Pennsylvania proposing limited approval and limited
disapproval of this SIP revision to correct the SO2 and
NOX BART for Cheswick. As explained in detail in the NPR,
EPA proposed a limited approval to the March 25, 2014 SIP revision to
the Cheswick SO2 and NOX BART limits included in
the Pennsylvania regional haze SIP because the removal of the specific
SO2 and NOX emission limits corrects an error in
the regional haze SIP and strengthens the Pennsylvania SIP overall
through replacing the incorrect BART limits with Cheswick's
participation in an emissions trading program. EPA proposed a limited
disapproval to the portion of the SIP revision addressing
SO2 and NOX BART for Cheswick because the
revision relied on replacing the specific SO2 and
NOX limits with CAIR which the D.C. Circuit remanded to EPA
and which EPA replaced with CSAPR. EPA began implementing CSAPR on
January 1, 2015 as the emissions trading program for SO2 and
NOX for EGUs in certain states including Pennsylvania
following the D.C. Circuit's lifting of the stay on CSAPR. See EME
Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Oct. 23,
2014), Order at 3. See also 79 FR 71663 (interim final rule revising
CSAPR compliance deadlines).
Although CAA section 110(c)(1) provides that EPA must promulgate a
FIP within two years after disapproving
[[Page 16288]]
a SIP submission in whole or in part, unless EPA approves a SIP
revision correcting the deficiencies, EPA believes our limited
disapproval of the March 25, 2014 SIP submission does not result in any
new FIP obligation for EPA because we already promulgated a FIP on June
7, 2012 to address the identified deficiency (replacing CAIR with CSAPR
for SO2 and NOX BART for Pennsylvania EGUs).
Thus, as explained in the NPR, the June 7, 2012 FIP fully addresses
Cheswick's SO2 and NOX BART because Cheswick is a
Pennsylvania EGU subject to CSAPR. Under section 179(a) of the CAA,
final disapproval of a submittal that addresses a requirement of part D
of title I of the CAA (CAA sections 171-193) or is required in response
to a finding of substantial inadequacy as described in CAA section
110(k)(5) (SIP Call) starts a sanctions clock. Pennsylvania's March 25,
2014 SIP revision submittal for revising Cheswick's BART was not
submitted to meet either of these requirements. Therefore, our limited
disapproval of Pennsylvania's SIP submission concerning Cheswick's
SO2 and NOX BART does not trigger mandatory
sanctions under CAA section 179. Other specific requirements and the
rationale for EPA's proposed action are explained in the NPR and will
not be restated here.\6\ No adverse public comments were received on
the NPR.
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\6\ In the NPR, EPA found this SIP revision to Cheswick's BARTs
complies with section 110(l) of the CAA and will not interfere with
any applicable requirements concerning attainment and reasonable
further progress or any other applicable requirement of the CAA,
such as the visibility and regional haze provisions of sections 169A
and 169B of the CAA.
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III. Final Action
EPA is finalizing a limited approval of the portion of the
Pennsylvania March 25, 2014 revision to its regional haze SIP which
removes specific SO2 and NOX BART emission
limitations for Cheswick set in error and is finalizing a limited
disapproval of the SIP revision due to its reliance upon CAIR, which
has been replaced with CSAPR. As EPA issued a FIP for SO2
and NOX BART emission limitations for EGUs in Pennsylvania,
which includes Cheswick, no further action by EPA is required to
address the limited disapproval. This conclusion is based on our review
of the March 25, 2014 SIP revision as well as Pennsylvania's December
20, 2010 regional haze SIP submission, including technical data and
supporting analysis. This final action concludes that Cheswick's
participation in CSAPR supersedes the previous SO2 and
NOX BART determinations for Cheswick included in
Pennsylvania's regional haze SIP.
IV. 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. Section 804, however, exempts from section 801 the
following types of rules: Rules of particular applicability; rules
relating to agency management or personnel; and rules of agency
organization, procedure, or practice that do not substantially affect
the rights or obligations of non-agency parties. 5 U.S.C. 804(3).
Because this is a rule of particular applicability, EPA is not required
to submit a rule report regarding this action under section 801.
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 May 26, 2015. 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 revising the SO2 and NOX BART
emission limitations for Cheswick in Pennsylvania's regional haze SIP
may not be challenged later in proceedings to enforce its requirements.
(See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: March 10, 2015.
William C. Early,
Acting Regional Administrator, Region III.
Therefore, 40 CFR part 52 is amended as follows:
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PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart NN--Pennsylvania
0
2. In Sec. 52.2020, the table in paragraph (e)(1) is amended by adding
a new entry following the existing entries for ``Regional Haze Plan''
to read as follows:
Sec. 52.2020 Identification of plan.
* * * * *
(e) * * *
(1) * * *
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Name of non-regulatory SIP Applicable geographic State
revision area submittal date EPA Approval date Additional explanation
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* * * * * * *
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Regional Haze Plan................ Statewide............ 3/25/14 3/27/15 [Insert Federal Register Rulemaking pertains to Boiler No. 1
citation]. of the Cheswick Power Plant in
Allegheny County.
Limited approval removes SO2 and NOX
Best Available Retrofit Technology
limits. Limited disapproval relates
to the Federal Implementation Plan
at Sec. 52.2042(b) and (c).
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[FR Doc. 2015-06965 Filed 3-26-15; 8:45 am]
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