[Federal Register Volume 83, Number 50 (Wednesday, March 14, 2018)]
[Proposed Rules]
[Pages 11155-11162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04933]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0290; FRL-9975-14-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Regulatory Amendments Addressing Reasonably Available
Control Technology Requirements Under the 1997 and 2008 8-Hour Ozone
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing
rulemaking action on a state implementation plan (SIP) revision
submitted by the Commonwealth of Pennsylvania (Pennsylvania or the
Commonwealth). This revision consists of regulatory amendments intended
to meet certain reasonably available control technology (RACT)
requirements under the 1997 and 2008 8-hour ozone national ambient air
quality standards (NAAQS). EPA is proposing to approve most parts of
the Pennsylvania SIP revision as meeting RACT requirements under the
Clean Air Act (CAA). EPA is also proposing to conditionally approve
certain provisions of this SIP revision, based upon Pennsylvania's
commitment to submit additional enforceable measures that meet RACT.
This action is being taken under the CAA.
DATES: Written comments must be received on or before April 13, 2018.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2017-0290 at http://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the ``For Further Information Contact'' section. For the
full EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Emlyn V[eacute]lez-Rosa, (215) 814-
2038, or by email at [email protected].
SUPPLEMENTARY INFORMATION: On May 16, 2016, the Pennsylvania Department
of Environmental Protection (PADEP) submitted a revision to the
Pennsylvania SIP consisting of amendments to regulations in 25 Pa. Code
Chapters 121 and 129, to meet certain RACT requirements of the CAA for
both the 1997 and 2008 8-hour ozone NAAQS.
I. Background
The Pennsylvania May 16, 2016 SIP revision submitted by PADEP
includes the Pennsylvania regulations in 25 Pa. Code sections 129.96-
129.100 titled ``Additional RACT Requirements for Major Sources of
NOX and VOCs'' (the RACT II Rule) and amendments to 25 Pa.
Code section 121.1, including
[[Page 11156]]
related definitions, to be incorporated into the Pennsylvania SIP.
These regulatory amendments were adopted by PADEP on April 23, 2016 and
effective on the same date upon publication in the Pennsylvania
Bulletin. The May 16, 2016 SIP revision was submitted to satisfy
certain CAA RACT requirements under both the 1997 and 2008 8-hour ozone
NAAQS for specific source categories.
On July 18, 1997 (62 FR 38856), EPA promulgated a standard for
ground level ozone based on 8-hour average concentrations (1997 8-hour
ozone NAAQS). The 8-hour averaging period replaced the previous 1-hour
averaging period, and the level of the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm. On April 30, 2004 (69 FR 23858),
EPA designated nonattainment areas under the 1997 8-hour ozone NAAQS.
Designations included 16 nonattainment areas in Pennsylvania, with only
2 moderate nonattainment areas, namely Philadelphia-Wilmington-Atlantic
City, PA-NJ-MD-DE (the Philadelphia Area) and Pittsburgh-Beaver Valley
(the Pittsburgh Area). The remaining 14 areas in Pennsylvania were
designated marginal nonattainment areas. See 40 CFR 81.339.
On March 12, 2008 (73 FR 16436), EPA strengthened the 8-hour ozone
standards, by revising its level to 0.075 ppm averaged over an 8-hour
period (2008 8-hour ozone NAAQS). On May 21, 2012, EPA designated most
areas in the country for the 2008 8-hour ozone NAAQS, including 5
marginal nonattainment areas in Pennsylvania: Allentown-Bethlehem-
Easton, Lancaster, Reading, the Philadelphia Area, and the Pittsburgh
Area. See 77 FR 30088 and 40 CFR 81.339.
On March 6, 2015 (80 FR 12264), EPA announced its revocation of the
1997 8-hour ozone NAAQS for all purposes and for all areas in the
country, effective on April 6, 2015. EPA also determined that certain
nonattainment planning requirements continue to be in effect under the
revoked standard for nonattainment areas under the 1997 8-hour ozone
NAAQS, including RACT. See 80 FR 12296 (March 6, 2015).
A. RACT Requirements for Ozone
The CAA regulates emissions of nitrogen oxides (NOX) and
volatile organic compounds (VOC) to prevent photochemical reactions
that result in ozone formation. RACT is an important strategy for
reducing NOX and VOC emissions from major stationary sources
within areas not meeting the ozone NAAQS.
Areas designated nonattainment for the ozone NAAQS are subject to
the general nonattainment area planning requirements of CAA section
172. Section 172(c)(1) of the CAA provides that SIPs for nonattainment
areas must include reasonably available control measures (RACM) for
demonstrating attainment of all NAAQS, including emissions reductions
from existing sources through adoption of RACT. Further, section
182(b)(2) of the CAA sets forth additional RACT requirements for ozone
nonattainment areas classified as moderate or higher nonattainment.
Section 182(b)(2) of the CAA sets forth three distinct requirements
regarding RACT for the ozone NAAQS: First, section 182(b)(2)(A)
requires states with ozone areas designated moderate or higher to
submit a rule (or negative declaration) for each category of VOC
sources in the nonattainment area covered by a Control Technique
Guideline (CTG) document issued by EPA between November 15, 1990 and
the date of attainment for an ozone NAAQS. These rules shall be
submitted as SIP revisions within the period set forth by EPA in
issuing the relevant CTG document. Second, section 182(b)(2)(B)
requires a rule (or negative declaration) for all VOC sources in the
nonattainment area covered by any CTG issued before November 15, 1990.
And third, section 182(b)(2)(C) requires a rule or rules for
implementing RACT for any other major stationary sources of VOCs
located in the nonattainment area.
In addition, section 182(f) subjects major stationary sources of
NOX to the same RACT requirements that are applicable to
major stationary sources of VOC. EPA has not issued any CTGs for
categories of NOX sources, so the requirement in section
182(f) in essence refers to section 182(b)(2)(C). The ozone RACT
requirements under section 182(b)(2) are usually referred to as VOC CTG
RACT, non-CTG major VOC RACT, and major NOX RACT.
Pursuant to section 183(c) of the CAA, EPA must revise and update
CTGs and Alternative Control Techniques guidelines (ACTs) as the
Administrator determines necessary. EPA's CTGs establish presumptive
RACT level control requirements for various source categories. The CTGs
usually identify a particular control level which EPA recommends as
being RACT. In some cases, EPA has issued ACTs for source categories,
which in contrast to the CTGs, only present a range for possible
control options but do not identify any particular option as the
presumptive norm for what is RACT. States are required to address RACT
for the source categories covered by CTGs through adoption of rules as
part of the SIP.
Section 184(b)(1)(B) of the CAA applies the RACT requirements in
section 182(b)(2) for moderate nonattainment areas to nonattainment
areas classified as marginal and to attainment areas located within
ozone transport regions established pursuant to section 184 of the CAA.
Section 184(a) of the CAA established by law the current Ozone
Transport Region (the OTR) comprised of 12 eastern states, including
Pennsylvania. The requirement in section 184(b)(1)(B) is referred to as
OTR RACT. A ``major source'' is defined based on the source's potential
to emit (PTE) of NOX, VOC, or both pollutants, and the
applicable thresholds differ based on the classification of the
nonattainment area in which the source is located. See sections 182(c)-
(f) and 302 of the CAA.
Since the 1970's, EPA has consistently defined RACT as the lowest
emission limit that a particular source is capable of meeting by the
application of the control technology that is reasonably available
considering technological and economic feasibility. See December 9,
1976 memorandum from Roger Strelow, Assistant Administrator for Air and
Waste Management, to Regional Administrators, ``Guidance for
Determining Acceptability of SIP Regulations in Non-Attainment Areas,''
and also 44 FR 53762 (September 17, 1979).
EPA has provided more substantive RACT requirements through final
implementation rules for each ozone NAAQS as well as through guidance.
In 2004 and 2005, EPA promulgated an implementation rule for the 1997
8-hour ozone NAAQS in two phases (``Phase 1 of the 1997 Ozone
Implementation Rule'' and ``Phase 2 of the 1997 Ozone Implementation
Rule''). See 69 FR 23951 (April 30, 2004) and 70 FR 71612 (November 29,
2005), respectively. Particularly, the Phase 2 Ozone Implementation
Rule addressed RACT statutory requirements under the 1997 8-hour ozone
NAAQS. See 70 FR 71652.
On March 6, 2015, EPA issued its final rule for implementing the
2008 8-hour ozone NAAQS (``the 2008 Ozone SIP Requirements Rule''). See
80 FR 12264. At the same time, EPA revoked the 1997 8-hour ozone NAAQS,
effective on April 6, 2015.\1\ The 2008
[[Page 11157]]
Ozone SIP Requirements Rule provided comprehensive requirements to
transition from the revoked 1997 8-hour ozone NAAQS to the 2008 8-hour
ozone NAAQS, as codified in 40 CFR part 51, subpart AA, following
revocation. Consistent with previous policy, EPA determined that areas
designated nonattainment for both the 1997 and 2008 8-hour ozone NAAQS
at the time of revocation, must retain implementation of certain
nonattainment area requirements (i.e. anti-backsliding requirements)
for the 1997 8-hour ozone NAAQS as specified under section 182 of the
CAA, including RACT. See 40 CFR 51.1100(o). An area remains subject to
the anti-backsliding requirements for a revoked NAAQS until EPA
approves a redesignation to attainment for the area for the 2008 8-hour
ozone NAAQS. There are no effects on applicable requirements for areas
within the OTR, as a result of the revocation of the 1997 8-hour ozone
NAAQS. Thus, Pennsylvania, as a state within the OTR, remains subject
to RACT requirements for both the 1997 ozone NAAQS and the 2008 ozone
NAAQS.
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\1\ On February 16, 2018, the United States Court of Appeals for
the District of Columbia Circuit (D.C. Cir. Court) issued an opinion
on the 2008 Ozone SIP Requirements Rule. South Coast Air Quality
Mgmt. Dist. v. EPA, No. 15-1115 (D.C. Cir. Feb. 16, 2018). The D.C.
Cir. Court found certain parts reasonable and denied the petition
for appeal on those. In particular, the D.C. Cir. Court upheld the
use of NOX averaging to meet RACT requirements for 2008
ozone NAAQS. However, the Court also found certain other provisions,
not relevant to this action, unreasonable. The D.C. Cir. Court
vacated the provisions it found unreasonable.
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In addressing RACT, the 2008 Ozone SIP Requirements Rule is
consistent with existing policy and Phase 2 of the 1997 Ozone
Implementation Rule. In the 2008 Ozone SIP Requirements Rule, EPA
requires RACT measures to be implemented by January 1, 2017 for areas
classified as moderate nonattainment or above and all areas of the OTR.
EPA also provided in the 2008 Ozone SIP Requirements Rule that RACT
SIPs must contain adopted RACT regulations, certifications where
appropriate that existing provisions are RACT, and/or negative
declarations stating that there are no sources in the nonattainment
area covered by a specific CTG source category. In the preamble to the
2008 Ozone SIP Requirements Rule, EPA clarified that states must
provide notice and opportunity for public comment on their RACT SIP
submissions, even when submitting a certification that the existing
provisions remain RACT or a negative declaration. States must submit
appropriate supporting information for their RACT submissions, in
accordance with the Phase 2 of the 1997 Ozone Implementation Rule.
Adequate documentation must support that states have considered control
technology that is economically and technologically feasible in
determining RACT, based on information that is current as of the time
of development of the RACT SIP.
In addition, in the 2008 Ozone SIP Requirements Rule, EPA clarified
that states can use weighted average NOX emissions rates
from sources in the nonattainment area for meeting the major
NOX RACT requirement under the CAA, as consistent with
existing policy.\2\ EPA also recognized that states may conclude in
some cases that sources already addressed by RACT determinations for
the 1-hour and/or 1997 8-hour ozone NAAQS may not need to implement
additional controls to meet the 2008 ozone NAAQS RACT requirement. See
80 FR 12278-12279.
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\2\ EPA's NOX RACT guidance ``Nitrogen Oxides
Supplement to the General Preamble'' (57 FR 55625; November 25,
1992) encouraged states to develop RACT programs that are based on
``area wide average emission rates.'' Additional guidance on area-
wide RACT provisions is provided by EPA's January 2001 economic
incentive program guidance titled ``Improving Air Quality with
Economic Incentive Programs,'' available at http://www.epa.gov/ttn/oarpg/t1/memoranda/eipfin.pdf. In addition, as mentioned previously,
the D.C. Cir. Court recently upheld the use of NOX
averaging to meet RACT requirements for 2008 ozone NAAQS. South
Coast Air Quality Mgmt. Dist. v. EPA, No. 15-1115 (D.C. Cir. Feb.
16, 2018).
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B. Applicability of RACT Requirements in Pennsylvania
As indicated earlier, RACT requirements apply to any ozone
nonattainment areas classified as moderate or higher (serious, severe
or extreme) under CAA sections 182(b)(2) and 182(f). Pennsylvania has
outstanding ozone RACT requirements for both the 1997 and 2008 8-hour
ozone NAAQS. The entire Commonwealth of Pennsylvania is part of the OTR
established under section 184 of the CAA and thus is subject statewide
to the RACT requirements of CAA sections 182(b)(2) and 182(f), pursuant
to section 184(b).
At the time of revocation of the 1997 8-hour ozone NAAQS (effective
April 6, 2015), only two moderate nonattainment areas remained in the
Commonwealth of Pennsylvania for this standard, the Philadelphia and
the Pittsburgh Areas. As required under EPA's anti-backsliding
provisions, these two moderate nonattainment areas continue to be
subject to RACT under the 1997 8-hour ozone NAAQS. Given its location
in the OTR, the remainder of the Commonwealth is also treated as
moderate nonattainment area under the 1997 8-hour ozone NAAQS for any
planning requirements under the revoked standard, including RACT. The
OTR RACT requirement is also in effect under the 2008 8-hour ozone
NAAQS throughout the Commonwealth, since EPA did not designate any
nonattainment areas above marginal for this standard in Pennsylvania.
Thus, in practice, the same RACT requirements continue to be applicable
in Pennsylvania for both the 1997 and 2008 8-hour ozone NAAQS. RACT
must be evaluated and satisfied as separate requirements under each
applicable standard.
RACT applies to major sources of NOX and VOC under each
ozone NAAQS or any VOC sources subject to CTG RACT. Which
NOX and VOC sources in Pennsylvania are considered ``major''
and must be therefore subject to RACT, is dependent on the location of
each source within the Commonwealth. Sources located in nonattainment
areas would be subject to the ``major source'' definitions established
under the CAA. In the case of Pennsylvania, sources located in any
areas outside of moderate or above nonattainment areas, as part of the
OTR, shall be treated as if these areas were moderate.
States were required to make RACT SIP submissions for the 1997 8-
hour ozone NAAQS by September 15, 2006. PADEP submitted a SIP revision
on September 25, 2006, certifying that a number of previously approved
VOC CTG and non-CTG RACT rules continued to satisfy RACT under the 1997
8-hour ozone NAAQS for the remainder of Pennsylvania.\3\ PADEP has met
its obligations under the 1997 8-hour ozone NAAQS for its CTG and non-
CTG VOC sources. See 82 FR 31464 (July 7, 2017). RACT control measures
addressing all applicable CAA requirements under the 1997 8-hour ozone
NAAQS have been implemented and fully approved in the jurisdictions of
Allegheny County and Philadelphia County in Pennsylvania. See 78 FR
34584 (June 10, 2013) and 81 FR 69687 (October 7, 2016).
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\3\ The September 15, 2006 SIP submittal initially included
Pennsylvania's certification of NOX RACT regulations;
however, NOX RACT portions were withdrawn by PADEP on
June 27, 2016.
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For the 2008 8-hour ozone NAAQS, states were required to submit
RACT SIP revisions by July 20, 2014. On May 16, 2016, PADEP submitted a
SIP revision addressing RACT under both the 1997 and 2008 8-hour ozone
NAAQS in Pennsylvania. Specifically, the May 16, 2016 SIP submittal
intends to satisfy sections 182(b)(2)(C), 182(f), and 184 of the CAA
for both the 1997 and 2008 8-hour ozone NAAQS for Pennsylvania's major
NOX and VOC non-CTG sources, except ethylene production
plants, surface active agents manufacturing, and mobile equipment
repair and refinishing.
[[Page 11158]]
This notice includes EPA's rationale for proposing rulemaking
action on the Pennsylvania May 16, 2016 SIP revision for purposes of
meeting these RACT requirements under the CAA. EPA prepared two
technical support documents (TSDs) in support of this proposed
rulemaking action: ``Technical Support Document for the Pennsylvania
State Implementation Plan Revision for Certain Reasonably Available
Control Technology Requirements under the 1997 and 2008 8-Hour Ozone
National Ambient Air Quality Standards'' and ``Technical Support
Document for the Pennsylvania State Implementation Plan Revision for
Certain Reasonably Available Control Technology Requirements under the
1997 and 2008 8-Hour Ozone National Ambient Air Quality Standards- Cost
Effective Analyses for Coal Fired Boilers.'' For further details on
this proposed rulemaking action, please refer to these TSDs, which are
included as part of this rulemaking docket and are available online at
www.regulations.gov.
II. Summary of SIP Revision and EPA's Evaluation
The RACT II Rule applies statewide to existing major NOX
and/or VOC sources in Pennsylvania, except those subject to other
Pennsylvania regulations, as specified in 25 Pa. Code 129.96(a)-(b).\4\
All but one of the exempted rules listed in section 129.96(a)-(b) have
been previously approved by EPA into the SIP to meet RACT requirements
under the CAA. The RACT II Rule exempts all VOC source categories for
which PADEP had adopted CTG RACT regulations at the time the RACT II
Rule was finalized. In addition, regulations exempted under the RACT II
Rule also apply to three non-CTG VOC source categories: (1) Ethylene
production plants, (2) surface active agents manufacturing, and (3)
mobile equipment repair and refinishing. The RACT II Rule also exempts
25 Pa. Code sections 129.301-129.310, which has not been approved as
RACT, although it is approved into the SIP. This regulation establishes
NOX control requirements for glass melting furnaces. Any
other NOX major sources in Pennsylvania are covered by the
RACT II Rule.
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\4\ In the context of the RACT II Rule, the terms ``major
NOX emitting facility'' and ``major VOC emitting
facility,'' as defined in 25 Pa Code section 121.1, are used to
refer to major stationary sources.
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The RACT II Rule requirements apply to any emissions unit or
process at an affected major source having a PTE of 1 ton per year
(TPY) or more of NOX and/or VOC. In the context of the rule,
existing major sources are those already in existence as of July 20,
2012 or any major sources installed or modified after July 20, 2012,
which became a major source before January 1, 2017. The RACT II Rule
establishes a general compliance date of January 1, 2017, as provided
in paragraphs in 129.97(a) and 129.99(d)(4). EPA recognizes that RACT
controls under the 1997 8-hour ozone NAAQS were required to be
implemented in Pennsylvania by 2009 and that this requirement is past
due; however, EPA believes that the May 16, 2016 SIP revision should
sufficiently address the pending RACT obligations under the 1997 8-hour
ozone NAAQS by addressing the more stringent RACT level of control
under the 2008 8-hour ozone NAAQS. The general compliance date of the
RACT II Rule is consistent with EPA's required deadline for states to
implement RACT controls under the 2008 8-hour ozone NAAQS. See 80 FR
12279.
The RACT II Rule permits an affected major source that needs
additional time to install an air pollution control device to meet the
requirements under the RACT II Rule to petition PADEP for an
alternative compliance schedule. The RACT II Rule also allows an owner
or operator of a major source to petition an alternative compliance
schedule if it needs additional time to install an air pollution
control device on an affected emissions unit in order to comply with
the RACT II requirements. These provisions allow the owner or operator
in this situation to petition in writing for an alternative compliance
schedule, by proposing an interim emission limit, and a later
compliance date to implement such control device ``as soon as possible
but not later than 3 years after the written approval of the
petition.'' EPA believes that the language in the rule allows for
Pennsylvania's implementation of RACT controls as expeditiously as
practicable.
Section 129.97 of the RACT II Rule establishes NOX and
VOC emission limits or operational requirements on certain types of
emissions units in the affected major sources which Pennsylvania
presumes to meet RACT, thus referred to in the rule as presumptive
RACT. Operating requirements apply to smaller emissions units; namely,
combustion units with rated heat input equal to or greater than 20
million British Thermal Units per hour (MMBTU/hr) and less than 50
MMBTU/hr, NOX sources with PTE of less than 5 TPY, VOC
sources with PTE of less than 2.7 TPY, combustion units with rated heat
input of less than 20 MMBTU/hour, and emergency generators operating
less than 500 hours in a 12-month rolling period. Presumptive RACT
NOX limits are provided for combustion units, process
heaters, combustion turbines, stationary internal combustion engines,
cement kilns, and municipal waste combustors. Presumptive RACT VOC
limits are provided for combustion turbines, stationary internal
combustion engines, and municipal solid waste landfills.
In evaluating whether controls and emission limitations meet RACT,
EPA generally considers controls that have been achieved in practice by
other similar existing sources to be technologically and economically
feasible. For that reason, to evaluate PADEP's RACT determinations
under the RACT II Rule, EPA reviewed NOX emissions limits in
effect in adjacent OTR states for certain source categories addressed
by Pennsylvania's rule.\5\ EPA also reviewed and considered guidance
documents that have been published to assist states in identifying
NOX RACT level of controls. EPA finds that the
NOX presumptive limits in 25 Pa. Code section 129.97 of the
RACT II Rule are comparable to NOX emission limitations in
other states and consistent with EPA's RACT guidance on additional
control requirements. EPA finds that the presumptive requirements of
the RACT II Rule represent emission limitations achievable through
implementation of reasonably available controls. EPA also finds the VOC
presumptive limits for combustion turbines and internal combustion
engines to be reasonable considering feasibility of available controls.
For municipal solid waste landfills, the RACT II Rule incorporates by
reference as VOC presumptive limits the federal New Source Performance
Standards (NSPS) in 40 CFR part 60, subpart Cc (Subpart Cc) and subpart
WWW (Subpart WWW). EPA finds that the NSPS standards represent
reasonably achievable NOX emissions limits based on the
operation of reasonably available controls, and thus, meet RACT for
this source category.
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\5\ EPA evaluated NOX emission limits in adjacent OTR
states because the OTR states are all subject to the same RACT
requirements for the 1997 and 2008 ozone NAAQS under CAA section
184.
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EPA further evaluated the NOX presumptive requirements
in 25 Pa. Code section 129.97 of the RACT II Rule that are applicable
to large coal-fired boilers. Sources under these requirements would
include utility boilers and large industrial boilers, which are a
significant NOX emissions sector in Pennsylvania. The RACT
II Rule establishes more rigorous requirements for large coal-fired
boilers with certain post-combustion controls
[[Page 11159]]
in place, specifically selective catalytic reduction (SCR), while other
coal-fired boilers without these controls in place are the subject of
less stringent NOX emissions limits based on the boiler
type. EPA finds that the presumptive limit of 0.12 pounds of
NOX per heat input in million British Thermal Unit (lb/
MMBTU) is consistent with the operation of SCR presently installed and
reasonably represents RACT for coal-fired boilers with this control in
place. EPA evaluated economic feasibility of installing and operating
additional post-combustion controls on any large coal-fired boilers in
Pennsylvania that to date do not have these controls, in order to
determine which RACT control level is reasonable as a basis for PADEP's
presumptive requirements for this subset of boilers. EPA finds that
Pennsylvania's presumptive RACT determination for coal-fired boilers
without post-combustion controls is reasonable, as it is based on the
economic infeasibility of retrofitting coal-fired boilers in
Pennsylvania. Thus, EPA concludes that PADEP has adequately established
for coal-fired boilers NOX presumptive RACT requirements
based on reasonably available controls that therefore represent RACT.
For further details, refer to EPA's ``Technical Support Document for
the Pennsylvania State Implementation Plan Revision for Certain
Reasonably Available Control Technology Requirements under the 1997 and
2008 8-Hour Ozone National Ambient Air Quality Standards- Cost
Effective Analyses for Coal Fired Boilers.''
Pursuant to 25 Pa. Code section 129.97(g)(4), any combustion unit
firing multiple fuels and subject to different presumptive limits for
each fuel, must comply with a single NOX or VOC emission
limit determined on a total heat input fuel weighted basis for any fuel
representing 1% of more of the combustion unit's annual fuel combustion
on a heat input basis. EPA finds the RACT II Rule's multiple fuel
compliance method practicable and adequate for RACT.
Affected major sources subject to the presumptive requirements of
25 Pa. Code section 129.97 that cannot comply with the applicable
presumptive NOX limits for any given emissions units, may
choose one of two alternative compliance options to establish RACT.
Such sources may either propose an alternative NOX emissions
limit based on average NOX emissions from multiple sources
or else propose a source-specific emission NOX or VOC limit.
The NOX averaging provisions established in 25 Pa. Code
section 129.98 allow the owner or operator of an affected major
NOX source that is unable to meet a NOX
presumptive limit for at least one of its emissions unit, to establish
an alternative RACT limit by averaging the NOX emissions
from the non-compliant emissions unit and other emissions units.
Participating NOX emissions units can be located either
within the same facility (facility-wide averaging) or in another
facility but within the same nonattainment area (system-wide
averaging). As discussed in the following section, EPA finds that 25
Pa. Code section 129.98 is not sufficient to address RACT for sources
seeking averaging, without the specific NOX averaging
provisions for any affected sources being submitted to EPA for SIP
approval. Therefore, EPA is proposing to conditionally approve the
provisions in 25 Pa. Code section 129.98. Additional discussion and
explanation for this conditional approval is provided in the following
section III of this notice.
Under 25 Pa. Code section 129.99, the owner or operator of an
affected major NOX and/or VOC source that is unable to meet
a presumptive requirement under section 129.97, may propose an
alternative RACT emissions limit, based on the feasibility evaluation
of reasonably available controls for each emissions unit. The resulting
limits are typically unique to the affected emissions unit and
achievable through the application of specific controls, therefore
referred to as source-specific RACT limits. In addition, an affected
major source of NOX and/or VOC with any emissions unit that
is not subject to any presumptive limits or requirements under 25 Pa.
Code section 129.97, is required to propose a source-specific RACT
limit under 25 Pa. Code section 129.99, similarly based on the
evaluation of technologically and economically feasible controls.
Section 129.99 outlines a common procedure for proposing a source-
specific RACT limit, whether proposed as an alternative under section
129.99(a) or as required under section 129.99(b)-(c). A written RACT
proposal under section 129.99 must be submitted to PADEP or local
agency for any affected emissions units with PTE of 5.0 TPY or more of
NOX and/or 2.7 TPY or more of VOC. Source-specific limits
determined to be adequate by PADEP or local agency will be approved
into federally enforceable permits and then submitted for EPA's review
and approval into the SIP to meet RACT. As discussed in the following
section, EPA finds that 25 Pa. Code section 129.99 is not approvable by
itself without further information on specific sources and is therefore
not approvable as RACT for sources seeking or required to establish an
alternative RACT limit. Therefore, EPA is proposing to conditionally
approve the provisions in 25 Pa. Code section 129.99. Additional
discussion and explanation for this conditional approval is provided in
the section III of this notice.
The RACT II Rule contains certain ancillary provisions to ensure
RACT level of control for sources that have been previously subject to
RACT or are subject to other federally enforceable requirements.
Section 129.97(i) of the RACT II Rule provides that the presumptive
requirements in section 129.97 will supersede any RACT requirements of
a ``RACT permit'' issued prior April 23, 2016 under 25 Pa. Code
sections 129.91-95, unless the RACT permit contains more stringent
requirements. ``RACT permits'' under 25 Pa. Code sections 129.91-95
were submitted by Pennsylvania as SIP revisions and, if determined to
meet RACT, were approved by EPA into the Pennsylvania SIP under 40 CFR
52.2020(d). Section 129.99(k) of the RACT II Rule provides that any
source-specific requirements approved under section 129.99 will
supersede any similar NOX and/or VOC requirements that have
been approved into an existing enforceable permit issued for the
affected source prior to April 23, 2016, except to the extent the
existing permit requirements are more stringent. Subsequent RACT SIP
revisions under section 129.99 must include a demonstration consistent
with CAA section 110(l) to supersede any previously SIP approved RACT
requirements, and such revisions will be evaluated and acted on by EPA
separately. EPA finds that the provisions in sections 129.97(i) and
129.99(k) are approvable, as they adequately ensure that additional SIP
revisions establishing RACT for major NOX and non-CTG VOC
sources in Pennsylvania reflect the most stringent level of control for
the affected sources.
25 Pa. Code section 129.100 of the RACT II Rule establishes
compliance demonstration and recordkeeping requirements for affected
sources. Specific monitoring and testing requirements are established
for sources complying with presumptive RACT requirements under section
129.97. Recordkeeping requirements are established under section
129.100(d) for any affected sources under the RACT II Rule.
Additional compliance demonstration requirements for NOX
averaging or
[[Page 11160]]
source-specific RACT alternative limits will be established by PADEP or
the local permitting agency on a source-specific basis, in accordance
with sections 129.98 and 129.99, respectively, and consistent with
section 129.100. In the case of sources complying with 129.99, such
additional compliance demonstration requirements will be submitted to
EPA for approval into the SIP, along with the source-specific limits.
Because section 129.98 does not contain any similar requirement to
submit NOX averaging provisions for approval into the SIP,
EPA finds that the RACT II Rule does not sufficiently establish
compliance demonstration requirements for sources choosing to comply
with NOX averaging under section 129.98, without submitting
those additional compliance demonstration requirements to EPA for
approval in the SIP. EPA is proposing conditional approval of the
NOX averaging provisions in section 129.98, which will
address the lack of specific compliance demonstration requirements for
sources seeking to comply with these provisions. Additional discussion
and explanation for this conditional approval is provided in the
section III of this notice.
Any definitions related to the RACT II Rule are codified in 25 Pa.
Code section 121.1. The May 16, 2016 SIP revision included amendments
to existing definitions: ``CEMS--continuous emissions monitoring
system,'' ``major NOX emitting facility,'' ``major VOC
emitting facility,'' ``stationary internal combustion engine or
stationary reciprocating internal combustion engine;'' and included new
definitions for ``process heater,'' ``refinery gas,'' ``regenerative
cycle combustion cycle combustion turbine,'' ``simple cycle combustion
turbine,'' and ``stationary combustion turbine.'' The definitional
changes in 25 Pa. Code section 121.1 are consistent with requirements
in the RACT II Rule and are thus approvable under CAA section 110.
EPA finds that the presumptive requirements of 25 Pa. Code section
129.97 represent RACT for the NOX and VOC source categories
affected by these provisions. EPA also finds that the applicability
requirements of 25 Pa. Code section 129.96, the compliance
demonstration requirements of 25 Pa. Code section 129.100, and the
definitions in 25 Pa. Code section 121.1 are necessary to implement the
RACT requirements of section 129.97. Thus, EPA finds that these
particular provisions of the RACT II Rule are approvable in accordance
with requirements in CAA sections 110, 172, 182, and 184 as meeting
RACT for the affected major sources of non-CTG VOC and major sources of
NOX under both the 1997 and 2008 8-hour ozone NAAQS. As
discussed in the following section, EPA is also proposing conditional
approval of 25 Pa. Code sections 129.98 and 129.99.
Additional details of Pennsylvania's SIP submission and EPA's
reasoning for proposing approval of this SIP revision can be found in
the ``Technical Support Document for the Pennsylvania State
Implementation Plan Revision for Certain Reasonably Available Control
Technology Requirements under the 1997 and 2008 8-Hour Ozone National
Ambient Air Quality Standards,'' prepared for this rulemaking action
and available online at www.regulations.gov for this rulemaking.
III. Rationale for Proposing Conditional Approval of Certain Provisions
EPA identified deficiencies in 25 Pa. Code sections 129.98 and
129.99, respectively, that prevent full approval of the RACT II Rule
SIP revision. The NOX averaging provisions in 25 Pa. Code
section 129.98 are deficient because they do not clearly specify how to
properly establish an alternative RACT limit and do not require the
submission of averaging NOX limits to EPA for SIP approval
as RACT. EPA finds that the NOX averaging provisions,
particularly as provided in section 129.98(e), are too vague to
establish an adequate alternative RACT limit, without a specific
determination for each source and specific inclusion into the
Pennsylvania SIP of all permit conditions relevant to implementation of
the NOX alternative limit for each affected source. Although
section 129.98 (e) intended to define the alternative NOX
RACT emission limit under a NOX averaging plan, the equation
provided only stipulates that the cumulative actual NOX
emissions from the emission units included in the averaging plan must
be no greater than the cumulative allowable NOX emissions
for those emissions units. Section 129.98(e) also specifies that the
alternative NOX limit must be based on the application of
the relevant presumptive NOX limit (as an emissions rate)
under 25 Pa. Code section 129.97 or a more stringent limit and must be
expressed as NOX mass emissions; and it requires compliance
with the alternative NOX limit determined on a 30-day
rolling basis. Neither 25 Pa. Code section 129.98(e) nor any other
provision in section 129.98 establish how to properly compute the
alternative NOX limit, such that an affected source can
consistently establish an alternative limit and the resulting limit is
practically and federally enforceable to meet RACT and in accordance
with CAA section 110(a)(2)(A).
The lack of specificity in 25 Pa. Code section 129.98 allows
certain unbounded discretion in determining an alternative
NOX RACT limit, which correspondingly results in our
inability to determine if such limit would be adequate for RACT for any
major source required to meet RACT. Also, this uncertainty prevents
consistent implementation of the NOX averaging provisions
and ultimately prevents the adequate enforceability of these provisions
as a practical matter. 25 Pa. Code Section 129.98 fails to provide, on
its face, a generic mechanism to establish a presumptive alternative
NOX limit.
Further, EPA has long interpreted the RACT requirement of the CAA
to mean states must adopt and submit regulations that include emission
limitations \6\ as applicable to the subject sources. In other words, a
state would not fully meet the RACT requirement until it established
emissions limitations applicable to the appropriate sets of sources.
Hence, the NOX averaging provisions in section 129.98, even
if sufficiently specific, would not be adequate to fully meet RACT in
the absence of the submitted RACT emissions limitations for approval
into the SIP.\7\ Consequently, NOX averaging alternative
limits would need to be established on a source-specific basis, and
would need to be submitted to EPA for approval into the SIP.\8\
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\6\ The use of the term emissions limitation is not meant to
exclude the use of work practice standards or other operation and
maintenance requirements that might be determined to be RACT.
\7\ EPA's November 7, 1996 Memorandum ``Approval Option for
Generic RACT Rules Submitted to Meet the non-CTG VOC RACT
Requirements and Certain NOX RACT Requirements.''
\8\ However, as mentioned previously, the D.C. Cir. Court
recently upheld the use of NOX averaging to meet RACT
requirements for 2008 ozone NAAQS. South Coast Air Quality Mgmt.
Dist. v. EPA, No. 15-1115 (D.C. Cir. Feb. 16, 2018).
---------------------------------------------------------------------------
With respect to 25 Pa. Code section 129.99 for source-specific
RACT, EPA finds that the generic process to subsequently establish
source-specific RACT emissions limits is deficient, because it lacks a
date certain by which Pennsylvania must submit the relevant source-
specific RACT SIP revisions to EPA to meet RACT requirements for the
1997 and 2008 ozone NAAQS. According to EPA's longstanding policy, such
``generic rule'' or process cannot fully satisfy RACT, in the absence
of the submitted emission limitations.\9\ Thus,
[[Page 11161]]
EPA cannot fully approve 25 Pa. Code section 129.99 of the RACT II Rule
without the submission of all source-specific RACT limits established
under these provisions.
---------------------------------------------------------------------------
\9\ EPA's November 7, 1996 Memorandum ``Approval Option for
Generic RACT Rules Submitted to Meet the non-CTG VOC RACT
Requirements and Certain NOX RACT Requirements.''
---------------------------------------------------------------------------
Further, EPA finds that the RACT II Rule does not specify
compliance demonstration requirements for sources choosing to meet RACT
by complying with NOX averaging under section 129.98.
Section 129.100 only establishes recordkeeping requirements for sources
complying with NOX averaging under section 129.98. Section
129.98 requires each source included in the NOX emissions
averaging plan to provide methods for demonstrating compliance and
recordkeeping and reporting requirements; however, those requirements
are not required to be included into the SIP. Because these additional
compliance demonstration requirements would need to be determined on a
source-specific basis consistent with the limits and affected sources
under a NOX averaging plan, EPA requires the submission of
such requirements for approval into the SIP, in order for the
alternative NOX limits under section 129.98 to be
practically and federally enforceable, pursuant to CAA section
110(a)(2)(A).
On September 26, 2017, PADEP submitted a supplemental document to
EPA that included PADEP's specific commitments to address the
deficiencies in 25 Pa. Code sections 129.98 and 129.99. PADEP committed
to submit to EPA, within 12 months of EPA's final rulemaking action,
additional SIP revisions that include the portions of enforceable
permits containing the terms and conditions relevant for compliance
with section 129.98, which would include the alternative NOX
limits as averaging plans and relevant compliance demonstration
requirements. PADEP also committed to submit within 12 months of EPA's
final rulemaking action, additional source-specific RACT SIP revisions
containing source-specific RACT limits approved by PADEP under 25 Pa.
Code section 129.99. A copy of PADEP's September 22, 2017 documentation
containing these commitments is available in the docket for this
rulemaking and online at www.regulations.gov.
EPA finds Pennsylvania's commitments adequately address the
deficiencies noted in this rulemaking action for 25 Pa. Code sections
129.98 and 129.99 and are a sufficient basis for EPA to propose
conditional approval of these provisions as meeting RACT for sources
seeking a NOX averaging plan or source-specific RACT. Under
section 110(k)(4) of the CAA, EPA may conditionally approve a plan
based on a commitment from the state to adopt specific enforceable
measures within 1 year from the date of approval. If the state fails to
adopt and submit the specified measures by the end of 1 year (from the
final conditional approval), or fails to submit anything at all, EPA
will revert its conditional approval to a disapproval, triggering
additional obligations under sections 179 and 110(c) of the CAA.
In this event, EPA will send a letter to the state finding that it
had failed to meet its commitment and that the SIP submittal is
disapproved. Subsequently, a disapproval notice will be published in
the Federal Register, and appropriate language will be inserted in the
Code of Federal Regulations. EPA's disapproval, effective as of the
date of the letter to the state, will trigger a ``clock'' to impose
sanctions under section 179(a) and for EPA to issue a federal
implementation plan (FIP) under section 110(c)(1). For plan submittals
required under Part D, such as ozone RACT, section 179(a) allows for up
to 18 months for the state to correct the deficiency that is the
subject of a finding or disapproval before EPA is required to impose
sanctions. Further, section 110(c)(1) provides for up to 2 years for
the state to correct the deficiency, or else additional sanctions apply
at this time, and for EPA to approve a new submittal before being
obligated to promulgate a FIP. Similarly, if EPA receives a submittal
addressing the commitment but determines that the submittal is
incomplete, EPA will send a letter to the state making such a finding.
As with the failure to submit, the sanctions and FIP clocks will begin
as of the date of the finding letter.
In addition, where the state does make a complete submittal by the
end of the 1-year period, EPA will have to evaluate that submittal to
determine if it may be approved and take final action on the submittal
within 12 months after the date EPA determines the submittal is
complete. If the submittal does not adequately address the deficiencies
that were the subject of the conditional approval, and is therefore not
approvable, EPA will go through notice-and-comment rulemaking to
disapprove the submittal. The 18-month clock for sanctions and the 2-
year clock for a FIP start as of the date of final disapproval. If EPA
determines that the rule is approvable, EPA will propose approval of
the rule. In either instance, whether EPA finally approves or
disapproves the rule, the conditional approval remains in effect until
EPA takes its final action.
By conditionally approving 25 Pa. Code sections 129.98 and 129.99,
EPA would ensure that adequate RACT limits are established in addition
to or as alternative to the presumptive RACT requirements of 25 Pa.
Code section 129.97. Additional compliance demonstration requirements
would also be approved into the SIP for sources complying with either
25 Pa. Code section 129.98 or 129.99, which would ensure adequate
federal and practical enforceability of any additional RACT limits
under the RACT II Rule for compliance with CAA section 110(a)(2)(A). In
addition, with EPA's conditional approval of these requirements, EPA
would set a specific schedule for producing enforceable RACT measures,
resulting in more timely implementation of RACT controls in
Pennsylvania than would otherwise occur if EPA was to disapprove these
provisions and require a federal plan for control.
Conditional approval of 25 Pa. Code sections 129.98 and 129.99
should not result in the approved portions of the RACT II Rule being
any more stringent than anticipated or intended by Pennsylvania. 25 Pa.
Code 129.99 requires source-specific RACT to receive EPA approval and
required sources complying with these requirements to submit an
alternative proposal to PADEP by a date certain which has already
passed. In addition, compliance with 25 Pa. Code sections 129.98 and
129.99 is intended in most cases as an alternative option for affected
sources that are unable to comply with the established presumptive RACT
emissions requirements under section 129.97. The presumptive RACT
requirements in section 129.97 remain applicable unless and until a
source receives approval of an alternative RACT limit (under 25 Pa.
Code sections 129.98 and 129.99) and EPA approves such alternative RACT
limits into the Pennsylvania SIP. Further, PADEP's September 22, 2017
commitments confirm PADEP's intention to submit alternative RACT limits
under 25 Pa. Code sections 129.98 and 129.99 to EPA for SIP approval.
The submission of any alternative RACT requirement approved by
Pennsylvania as a SIP revision will not supplant the presumptive RACT
requirements for purposes of Federal enforceability unless and until
the alternative is fully approved by EPA into the SIP.
In conclusion, EPA is proposing conditional approval under CAA
section 110(k)(4) only of 25 Pa. Code sections 129.98 and 129.99 of the
RACT II Rule
[[Page 11162]]
for the reasons provided above. EPA is also proposing full approval
under CAA 110 of the rest of the RACT II Rule included for
incorporation in the Pennsylvania SIP through PADEP's May 16, 2016 SIP
submittal, as EPA finds that the remainder of the RACT II Rule meets
the intended RACT requirements under sections 172, 182, 184 and 110 of
the CAA for the 1997 and 2008 ozone NAAQS.
IV. Proposed Action
EPA's review of the Pennsylvania May 16, 2016 SIP submittal
indicates that certain portions of the submittal are adequate to meet
RACT requirements under the CAA for both the 1997 and 2008 8-hour ozone
NAAQS. EPA is proposing to fully approve into the SIP the provisions in
25 Pa. Code sections 129.96-129.97, and 129.100 of the RACT II Rule and
relevant definitions in 25 Pa. Code section 121.1, adopted by
Pennsylvania on April 23, 2016, as meeting RACT for the 1997 and 2008
ozone NAAQS. These provisions are adequate to meet the ozone-specific
RACT requirements of sections 172, 182(b)(2)(C), 182(f), and 184 of the
CAA for both the 1997 and 2008 8-hour ozone NAAQS for specific
NOX and VOC sources in Pennsylvania, and in accordance with
section 110.
In addition, EPA is proposing to conditionally approve 25 Pa. Code
sections 129.98 and 129.99, as these provisions provide alternative
RACT requirements which require further PADEP and EPA action in order
to meet RACT requirements under the CAA. The provisions of 25 Pa. Code
sections 129.98 and 129.99 will become fully approvable, if PADEP
submits to EPA, within 12 months of EPA's final action, additional SIP
revisions that include any alternative NOX averaging limits
and source-specific RACT limits adopted under sections 129.98 and
129.99, respectively, as well as any relevant compliance demonstration
requirements. Once EPA has determined that PADEP has satisfied this
condition, EPA shall remove the conditional nature of its approval and,
at that time, the provisions in 25 Pa. Code sections 129.98 and 129.99
will receive a full approval status. Should PADEP fail to meet this
condition, the final conditional approval of 25 Pa. Code sections
129.98 and 129.99 will convert to a disapproval. EPA is soliciting
public comments on the issues discussed in this document. These
comments will be considered before taking final action.
IV. Incorporation by Reference
In this proposed rule, EPA is proposing to include in a final EPA
rule regulatory text that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, EPA is proposing to
incorporate by reference the regulatory provisions of 25 Pa. Code
sections 129.96-129.100 of the RACT II Rule and related amendments of
25 Pa Code section 121.1, as adopted by Pennsylvania on April 23, 2016.
EPA has made, and will continue to make, these materials generally
available through http://www.regulations.gov and at the EPA Region III
Office (please contact the person identified in the ``For Further
Information Contact'' section of this preamble for more information).
V. 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 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 (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 proposed rule, concerning Pennsylvania's 1997 and
2008 8-hour ozone reasonably available control technology for certain
major NOx and VOC sources, 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: February 23, 2018.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2018-04933 Filed 3-13-18; 8:45 am]
BILLING CODE 6560-50-P