[Federal Register Volume 79, Number 83 (Wednesday, April 30, 2014)]
[Rules and Regulations]
[Pages 24340-24347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-09726]



40 CFR Part 52

[EPA-R03-OAR-2012-0002; FRL-9910-06-Region 3]

Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: The Environmental Protection Agency (EPA) is reissuing its 
final limited approval of the Pennsylvania State Implementation Plan 
(SIP) to implement the regional haze program for the first planning 
period through 2018. EPA originally finalized a limited approval of the 
Pennsylvania regional haze SIP on July 13, 2012. In response to a 
petition for review of that final action in the United States Court of 
Appeals for the Third Circuit, EPA successfully moved for a voluntary 
remand, without vacatur, to more adequately respond to certain public 
comments. EPA is providing new responses to those comments in this 
rulemaking notice.

DATES: This final rule is effective on May 30, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2012-0002. 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 
Commonwealth's 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: Asrah Khadr, U.S. EPA, Region 3, (215) 
814-2071, or by email at khadr.asrah@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to EPA.

Table of Contents

I. Background
II. Public Comments and EPA Responses
III. Summary of Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On January 26, 2012, EPA proposed a limited approval of the 
Pennsylvania regional haze SIP as meeting most of the applicable 
requirements of sections 169A and 169B of the Clean Air Act (CAA) and 
EPA's implementing regulations at 40 CFR 51.308-309 (Regional Haze 
Rule) and 40 CFR 51, appendix Y (BART Guidelines). 77 FR 3984. In that 
same action, EPA proposed to approve the Pennsylvania regional haze SIP 
as meeting the infrastructure requirements of section 110(a)(2) of the 
CAA relating to visibility protection for the 1997 8-hour ozone 
National Ambient Air Quality Standard (NAAQS) and the 1997 and 2006 
fine particulate matter (PM2.5) NAAQS. EPA received several 
adverse comments on its proposed limited approval, including comments 
from Earthjustice on behalf of Sierra Club, the National Parks 
Conservation Association, and the Clean Air Council.
    In a separate but related action, EPA had previously proposed a 
limited disapproval of the Pennsylvania regional haze SIP for relying 
on the Clean Air Interstate Rule (CAIR) \1\ to satisfy the best 
available retrofit technology (BART) requirement for emissions of 
sulfur dioxide (SO2) and nitrogen oxides (NOX) 
from Pennsylvania's BART-eligible electric generating units (EGUs). 76 
FR 82219. In that same action, EPA proposed a Federal Implementation 
Plan (FIP) that replaced Pennsylvania's reliance on CAIR with reliance 
on the Cross-State Air Pollution Rule (CSAPR).\2\

    \1\ CAIR required certain states, including Pennsylvania, to 
reduce emissions of SO2 and NOX that 
significantly contribute to downwind nonattainment of the 1997 NAAQS 
for ozone and PM2.5. 70 FR 25162 (May 12, 2005).
    \2\ EPA promulgated CSAPR (76 FR 48208, August 8, 2011) as a 
replacement to CAIR in response to the United States Court of 
Appeals for the District of Columbia Circuit's decision in North 
Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).


[[Page 24341]]

    On June 7, 2012, EPA finalized the limited disapproval of the 
Pennsylvania regional haze SIP for relying on CAIR and the FIP relying 
on CSAPR. 77 FR 33642. On July 13, 2012, EPA finalized the limited 
approval of the Pennsylvania regional haze SIP and approved the 
Pennsylvania regional haze SIP as meeting the infrastructure 
requirements of section 110(a)(2) relating to visibility protection for 
the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM2.5 
NAAQS. 77 FR 41279.
    Following these actions, the DC Circuit issued a decision in EME 
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. 
granted 133 U.S. 2,857 (2013), vacating CSAPR and keeping CAIR in place 
pending EPA's promulgation of a valid replacement rule for CSAPR. EPA 
believes that the United States Supreme Court's decision in EME Homer 
City will impact the reasoning that formed the basis for EPA's limited 
disapproval of the Pennsylvania regional haze SIP and expects to 
propose an appropriate action regarding the limited disapproval upon 
final resolution of that case.
    On September 11, 2012, the aforementioned public interest groups 
filed a petition for review of EPA's final limited approval of the 
Pennsylvania regional haze SIP in the Third Circuit. See Nat'l Parks 
Conservation Ass'n, et al. v. EPA, No. 12-3534 (3d Cir. Sept. 11, 
2012). In response to the petition, EPA moved the court for a voluntary 
remand of the final limited approval, without vacatur, so that EPA 
could provide a more detailed and complete response to some of the 
petitioners' adverse comments. See Motion for Voluntary Remand at 3, 
Nat'l Parks Conservation Ass'n, et al. v. EPA, No. 12-3534 (3d Cir. 
Sept. 27, 2013). On October 22, 2013, the court granted EPA's motion 
for a voluntary remand without vacatur.

II. Public Comments and EPA Responses

    EPA received several comments on our January 6, 2012 proposed 
limited approval of the Pennsylvania regional haze SIP. Commenters 
included the U.S. Forest Service, the National Park Service, the State 
of New Jersey Department of Environmental Protection, GenOn Energy, 
Inc., a private citizen, and Earthjustice (on behalf of Sierra Club, 
the National Parks Conservation Association, and the Clean Air 
Council). As EPA explained in the motion for voluntary remand, EPA does 
not intend to readdress Earthjustice's comments relating to CAIR/CSAPR 
issues.\3\ Consistent with this representation, EPA does not readdress 
these comments in this rulemaking notice. In addition to comments from 
Earthjustice, we are also responding to significant comments from the 
National Park Service and the State of New Jersey Department of 
Environmental Protection in this rulemaking notice. EPA believes that 
the previous responses to all other significant comments were adequate. 
Please refer to the July 13, 2012 Federal Register rulemaking notice 
for these comment summaries and responses. 77 FR 41279.

    \3\ See Motion at 11 n.6.

BART Determinations for EGUs and Non-EGUs

    Comment: One commenter raised a number of concerns with 
Pennsylvania's BART determinations for both EGUs and non-EGUs. Some of 
these concerns focused on the overall level of detail, structure, 
analysis, and supporting documentation that Pennsylvania provided in 
its BART analyses, while other concerns targeted specific technical 
deficiencies in Pennsylvania's cost-effectiveness estimates and 
visibility modeling. For EGUs, the commenter criticized Pennsylvania 
for rejecting fabric filter baghouses, which are generally considered 
to be the most stringent control technology available for particulate 
matter (PM) emissions. The commenter went into considerable detail 
pointing out various shortcomings and errors in Pennsylvania's PM BART 
analyses that allegedly resulted in grossly inflated costs and 
underestimated visibility benefits for baghouses. In regards to 
Pennsylvania's cost calculations, the commenter alleged that: (1) 
Baseline emission estimates were unrealistic and unsupported; (2) 
supporting data for the cost calculations was not available for public 
review and comment; (3) lack of data made it impossible to know whether 
the overnight cost method was followed as required by the Cost Control 
Manual and BART Guidelines; (4) remaining useful lives of the sources 
were unsupported; and (5) control efficiencies for the control options 
analyzed were arbitrarily low and unsupported. To account for these 
deficiencies, the commenter hired a contractor to recalculate the cost-
effectiveness of fabric filter baghouses for two of the EGUs--Homer 
City Unit 2 and Hatfield's Ferry Unit 2. The commenter found that the 
installation of baghouses at these units would be cost-effective at 
$2,245 per ton and $2,745 per ton, respectively.
    This commenter also alleged that Pennsylvania's source-specific 
BART determinations contained ``systemic deficiencies.'' These 
deficiencies include: (1) Missing source-specific design information, 
such as megawatt rating of boilers and exhaust gas flow rates and 
composition, which prevented accurate costing; (2) improper use of the 
dollars per deciview ($/dv) metric as a cutpoint in making BART 
determinations, contrary to EPA guidance and EPA's statements in other 
regional haze actions; (3) lack of clear cost and visibility thresholds 
for determining when controls will be required or rejected; (4) failure 
to consider cumulative visibility impacts at all five Class I areas 
impacted by Pennsylvania sources; and (5) failure to follow the five-
step BART process as outlined in the BART Guidelines, including the 
omission of available control options in Step 1, a lack of feasibility 
demonstrations in Step 2, a lack of control-effectiveness ranking in 
Step 3, and a summary dismissal of energy and non-air quality 
environmental impacts in Step 4.
    Another commenter took issue with Pennsylvania's cost analyses for 
several non-EGUs, including cement kilns and a pulp and paper mill. 
This commenter explained that selective non-catalytic reduction (SNCR) 
has become the norm for controlling NOX emissions from 
cement kilns year-round, and that EPA should require a minimum of 35 
percent NOX reduction on a 30-day rolling basis at all 
kilns. This commenter also disagreed with Pennsylvania's cost analysis 
for the P.H. Glatfelter Company (Glatfelter) pulp and paper mill. The 
commenter argued that Pennsylvania overestimated the costs of wet 
scrubbers by deviating from the Control Cost Manual in several ways. As 
a result of these deviations, the commenter found that the cost-
effectiveness of wet scrubbers was only $1,204 per ton instead of the 
$1,667 per ton estimated by Pennsylvania. In light of this lower cost 
and the visibility benefits of controls, the commenter concluded that 
EPA should disapprove Pennsylvania's BART determination for Glatfelter 
and require a 90 percent efficient wet scrubber.
    Finally, multiple commenters raised concerns with Pennsylvania's 
consideration of the visibility factor for multiple BART-eligible 
sources. These commenters argued that Pennsylvania failed to consider 
the cumulative visibility impact at multiple Class I areas when 
evaluating potential control alternatives and disputed Pennsylvania's 
decision that such an analysis was unwarranted. The

[[Page 24342]]

commenters also criticized Pennsylvania's reliance on the $/dv metric, 
alleging that the use of such a metric would not be meaningful if it 
did not take into account the visibility improvement at multiple Class 
I areas. In addition, the commenters argued that Pennsylvania should 
have established an objective criteria for determining the 
acceptability of a given control technology's visibility improvement.
    Response: In its regional haze SIP, Pennsylvania identified 34 
BART-eligible sources. Consistent with the Mid-Atlantic Northeast 
Visibility Union (MANE-VU) protocol, Pennsylvania did not limit its 
BART analyses to those sources that it first determined ``might 
reasonably be anticipated to cause or contribute to'' visibility 
impairment in a Class I area based on air quality modeling. See section 
169(b)(2)(A). Rather, Pennsylvania considered the appropriateness of 
BART controls at each BART-eligible source in Pennsylvania.\4\ EPA 
notes that in most other states, BART reviews were undertaken only for 
those BART-eligible sources shown to have a greater than 0.5 deciview 
(dv) impact on a Class I area, the maximum threshold for this screening 
analysis. Of Pennsylvania's 34 BART-eligible sources, the regional haze 
SIP indicates that 26 had visibility impacts of less than 0.5 dv on any 
Class I area. EPA notes that in most states, the consideration of 
controls would have ended at this point in the analysis. Pennsylvania, 
however, considered whether additional controls would be appropriate 
for all 26 of these BART-eligible sources, regardless of whether or not 
the source by itself ``cause[s] or contribute[s]'' to visibility 

    \4\ As Pennsylvania relied on CAIR to meet the BART requirements 
for SO2 and NOX, Pennsylvania was only 
required to determine whether its BART-eligible EGUs should be 
required to install BART controls for direct emissions of PM.

    Based on EPA's assessment of the information in Pennsylvania's BART 
analyses, EPA has concluded that many of the comments criticizing 
Pennsylvania's BART determinations are correct. Because of its approach 
to BART, Pennsylvania considered the appropriateness of BART controls 
at a large number of sources. But for almost all of these sources, the 
Pennsylvania regional haze SIP contains very limited information 
describing Pennsylvania's analyses and consideration of the BART 
factors. Pennsylvania considered various control strategies and 
developed estimates of the costs of controls, but the cursory 
information available in the record does not allow for an assessment of 
how these numbers were derived or whether Pennsylvania's analyses were 
reasonably done. Similarly, it is difficult to assess the estimates of 
the improvements in visibility associated with various controls given 
the limited information in the SIP as to the assumptions relied on in 
the modeling and the summary nature of the results provided. EPA also 
agrees with the commenters that, in considering the visibility 
improvement expected from the use of controls, Pennsylvania should have 
taken into account the visibility impacts at all impacted Class I areas 
rather than focusing solely on the benefits at the most impacted area. 
Similarly, EPA agrees with the commenters that Pennsylvania's reliance 
on the $/dv metric was flawed for multiple reasons.
    Although Pennsylvania should have provided a more thorough and 
detailed analysis of costs and visibility impacts in its regional haze 
SIP, the information that Pennsylvania did provide has led EPA to 
conclude that Pennsylvania's ultimate BART determinations were 
nevertheless reasonable. First, based on the cost estimates for other 
BART sources in other states, EPA has concluded that Pennsylvania's 
cost numbers appear to be generally consistent for such controls, at 
least for purposes of screening type analyses. Where Pennsylvania 
estimated the costs of controls to be in the tens of thousands or 
hundreds of thousands of dollars per ton of pollutant removed, 
Pennsylvania's conclusions that such controls are not cost-effective 
seem reasonable, even assuming that the true cost of controls are 
likely less than what Pennsylvania estimated. EPA agrees with the 
commenters, however, that many of the controls under consideration were 
likely cost-effective measures. Unfortunately, where controls were 
estimated to be more cost-effective, EPA cannot assess the extent to 
which Pennsylvania's analyses are reasonable estimates for purposes of 
making a BART determination. When the other key BART factor--
visibility--is taken into account, however, an overall picture emerges 
that supports Pennsylvania's BART determinations.
    As noted earlier, Pennsylvania reviewed each of its BART-eligible 
sources regardless of whether they cause or contribute to visibility 
impairment under the test in the BART Guidelines. Given the magnitude 
of the source-specific impacts of these 26 BART-eligible sources, it is 
not surprising that Pennsylvania concluded that additional controls 
were not warranted. The visibility benefits of controls for this large 
subset of Pennsylvania's BART-eligible sources were generally estimated 
to be only in the hundredths of a deciview. For example, Pennsylvania 
estimated that SO2 controls at the two kilns at Lafarge 
Corporation's Whitehall Plant would result in 0.044 and 0.035 dv of 
improvement at Brigantine National Wildlife Refuge in New Jersey, the 
most impacted Class I area. No State has required BART controls where 
the benefits of control were in this range, and EPA does not consider 
Pennsylvania's control determinations to be unreasonable given these 
visibility numbers. Taking into account the visibility impacts at 
multiple Class I areas would not have affected the reasonableness of 
Pennsylvania's conclusion that the benefit of controls would have 
little or no impact on improving visibility given the magnitude of the 
visibility results shown at the most impacted area.
    Of the 26 facilities with visibility impacts less than 0.5 dv at 
any Class I area, the only source where the BART factors suggest that 
Pennsylvania reasonably could have come to a different conclusion is 
the Glatfelter pulp and paper production facility. Unlike the other 26 
sources, where either the costs of control were unreasonable or the 
visibility benefits minimal, or both, Pennsylvania estimated the costs 
of SO2 controls at Glatfelter to fall within a range that is 
generally considered highly cost-effective. Further, these controls 
would result in 0.219 dv of improvement at Shenandoah National Park, 
the most impacted Class I area. In its comments, the National Park 
Service argued that Pennsylvania had overestimated the costs of 
SO2 controls, but regardless of whether the costs were 
$1,667 per ton, as estimated by Pennsylvania, or $1,204 per ton, as 
estimated by the National Park Service, the costs of installing a 
venturi scrubber (the SO2 controls under consideration) 
falls within a range that is generally considered very reasonable. The 
National Park Service also provided additional information regarding 
the visibility improvements to be expected at Brigantine National 
Wildlife Refuge (0.218 dv) and noted that Dolly Sods and Otter Creek 
Wilderness Areas had visibility impacts ``about half'' those at 
Shenandoah and Brigantine. EPA notes, however, that if Pennsylvania had 
chosen to screen out sources with impacts of less than 0.5 dv, it would 
not have been required to undertake a BART analysis for this source at 
all. For this reason, EPA is not disapproving Pennsylvania's conclusion 
that BART controls should not be required at this source.
    Of the remaining eight BART-eligible sources, there is no 
information in the

[[Page 24343]]

Pennsylvania regional haze SIP regarding the sources' baseline 
visibility impacts for four of the sources--Allegheny Energy Supply's 
Mitchell Power Station, PPL Generation LLC's Brunner Island, Sunoco 
Chemicals' Frankford Plant, and Sunoco, Inc.'s petroleum refining 
facility. Pennsylvania did consider the visibility benefits associated 
with the installation of controls at these facilities, however, and 
determined that on balance, the costs of controls were not justified by 
the expected minimal visibility impacts. At these four facilities, the 
greatest improvement in visibility was estimated to be 0.076 dv from 
the installation of selective catalytic reduction (SCR) at the 
Frankford Plant (at $40,495 per ton). As the visibility benefits of 
controls were in the hundredths or thousandths of a deciview, EPA does 
not consider Pennsylvania's BART determinations to be unreasonable for 
these four sources, for the same reasons as explained earlier.
    The remaining four BART-eligible sources were each estimated to 
have visibility impacts above 0.5 dv at a Class I area. These 
facilities are Lehigh Cement's Evansville Cement Plant (Lehigh/
Evansville), PPL Generation LLC's Martins Creek Generating Station 
(Martins Creek), ConocoPhillips' Trainer Refinery, and Sunoco's Marcus 
Hook Refinery. Sunoco's Marcus Hook Refinery has shut down, however, 
and has surrendered its Title V operating permit. Therefore, the 
question of appropriate BART controls for this source is now moot.
    Pennsylvania's regional haze SIP indicates that both Lehigh/
Evansville and Martins Creek are each estimated to have impacts of just 
over 0.6 dv at a Class I area. For Lehigh/Evansville, Pennsylvania 
found that NOX emissions from Kilns 1 and 2 are responsible 
for the preponderance of the visibility impacts, and considered both 
the costs and visibility benefits of a range of NOX and 
SO2 controls. While certain of the controls under 
consideration were cost-effective, the visibility benefits were between 
0.005 and 0.040 dv. Although Pennsylvania considered only the most 
impacted Class I area, taking into account the visibility impacts at 
multiple Class I areas would not have changed Pennsylvania's conclusion 
that no additional controls were justified given the magnitude of 
impacts at the most impacted area. For Martins Creek, an EGU, 
Pennsylvania considered only PM controls in light of the fact that it 
is relying on CAIR as an alternative to BART for SO2 and 
NOX. Its cost analysis indicated that emission controls for 
PM were over $100,000 per ton, while visibility benefits ranged from 
0.037 dv at Brigantine to 0.022 dv at Lye Brook. Consequently, EPA 
believes that Pennsylvania's conclusion that BART was no additional 
control was reasonable for this source as well.
    The last of the remaining BART-eligible sources is ConocoPhillips' 
Trainer Refinery, which was found to have a 1.104 dv impact at 
Brigantine. This impact was due largely to emissions from two units, a 
CO boiler (CO1) and a platformer feed heater (Unit 738). Pennsylvania 
noted that CO1 is subject to a Federal consent decree that requires the 
installation of a wet scrubber and enhanced SNCR to address 
SO2 and NOX emissions, respectively. Pennsylvania 
also noted that the unit's PM emissions are subject to a new source 
performance standard (NSPS) PM limit of 0.5 pounds per 1000 pounds of 
coke burned. Pennsylvania concluded that no additional retrofit 
controls were feasible for this unit. EPA disagrees with this 
conclusion. Notably, EPA believes that SCR is likely a feasible control 
option for NOX emissions and should have been analyzed. 
Nevertheless, it is highly unlikely that Pennsylvania would have found 
SCR to be cost-effective given that SNCR has already been installed on 
CO1. Therefore, while Pennsylvania should have performed an analysis of 
SCR, EPA cannot conclude that Pennsylvania's determination that no 
further controls are warranted, was unreasonable. For Unit 738, 
Pennsylvania considered several possible SO2, 
NOX, and PM control options. Although Pennsylvania did not 
provide an adequate explanation as to why certain of the SO2 
and PM controls were not feasible or provide supporting information for 
its cost analyses, EPA notes that the visibility impacts from Unit 738 
for these two pollutants were estimated to be 0.000 dv and 0.001 dv 
respectively at the most impacted Class I area. Given this, EPA cannot 
conclude that Pennsylvania was unreasonable in finding that no further 
SO2 or PM controls were needed for this unit. The visibility 
impacts from Unit 738 for NOX were estimated to be 0.159 dv. 
Pennsylvania determined that the most effective control, SCR in 
combination with ultra low-NOX burners, would cost over 
$70,000 per ton of NOX removed. The less costly but less 
effective use of ultra low NOX burners alone was estimated 
to cost of $16,042 per ton, with a visibility benefit of 0.025 dv. Even 
assuming that the cost of the burners was significantly less, EPA again 
does not disagree with Pennsylvania's conclusion that these controls 
are unwarranted for BART.
    EPA has closely reviewed Pennsylvania's BART determinations and 
concluded that Pennsylvania's ultimate conclusions were not 
unreasonable, largely based on the expected minimal impacts on 
visibility, but also taking into account the very high costs of some 
controls. In other cases, changes in operating status or the existence 
of enforceable provisions requiring the installation of stringent new 
controls have convinced EPA that disapproving Pennsylvania's regional 
haze SIP would result in no meaningful changes to Pennsylvania's 
ultimate control determinations. As a result, notwithstanding the large 
number of errors in Pennsylvania's BART determinations, EPA is re-
finalizing the limited approval of the Commonwealth's regional haze 

PM BART Emission Limits for EGUs

    Comment: One commenter asserted that Pennsylvania improperly set 
the PM BART emission limits at every EGU source at 0.1 pound per 
million British thermal units (lb/MMBtu). The commenter explained that 
0.1 lb/MMBtu, the emission limit currently included in all of the EGUs' 
operating permits, is based on 40-year old technology that does not 
satisfy the minimum statutory requirements of BART. The commenter 
argued that 0.1 lb/MMBtu is substantially higher than limits accepted 
as BART elsewhere, as well as limits established as best available 
control technology (BACT). The commenter asserted that BACT limits are 
relevant for BART purposes because BACT is also derived by a five-step 
process and must demonstrate achievable emission reductions. The 
commenter criticized Pennsylvania for not considering BACT technologies 
and associated emission limits in its BART analyses. The commenter then 
provided a substantial list of PM emission limits that have been 
established as either BACT or BART by other states and permitting 
authorities. The commenter explained that these lower limits could be 
met by both electrostatic precipitators (ESPs) and fabric filter 
baghouses and concluded that Pennsylvania's failure to adopt such lower 
limits as PM BART for its EGUs was arbitrary and unlawful. Finally, the 
commenter pointed out that the BART Guidelines provide that maximum 
achievable control technology (MACT) for control of hazardous air 
pollutants should be taken into account in determining BART. The 
commenter asserted that EPA could not lawfully or rationally approve 
Pennsylvania's PM BART limits because they are less stringent than the 
0.03 lb/MMBtu

[[Page 24344]]

emission limit that EPA recently established as MACT for existing 
sources in the final Mercury and Air Toxics Standards (MATS) Rule.
    Response: EPA disagrees with the commenter that Pennsylvania's PM 
BART emission limits for EGUs must be disapproved. EPA acknowledges 
that BART is defined as ``as an emission limitation based on the degree 
of reduction achievable through the application of the best system of 
continuous emission reduction for each pollutant which is emitted by an 
existing stationary facility.'' 40 CFR 51.301. Consequently, once a 
state has selected a control technology that represents BART, the state 
must then complete the BART analysis by selecting an emission limit 
that represents the emission-reduction capabilities of that control 
technology. While other BART limits should be examined when determining 
the effectiveness of the chosen control option, BART ultimately remains 
a site-specific, case-by-case determination. Moreover, while BACT 
limits may prove useful in identifying the appropriate emission limit 
for BART, EPA disagree that BACT levels of control can automatically be 
presumed ``achievable'' for BART purposes. Whereas BACT applies to new 
and modified sources, BART only applies to retrofits for older sources. 
Thus, there may be instances where a source installing BART cannot 
achieve the level of reductions that would be possible at an entirely 
new source.
    Here, Pennsylvania determined that PM BART for most of the subject-
to-BART EGUs \5\ was their existing permitted emission limits of 0.1 
lb/MMBtu, which can be achieved by the existing ESPs. While EPA agrees 
with the commenter that Pennsylvania ideally should have examined 
whether 0.1 lb/MMBtu actually reflects the ``degree of reduction 
achievable'' for the particular ESP at each facility, EPA thinks that 
Pennsylvania's failure to do so was not fatal in this instance for 
several reasons. First and most importantly, the impact of tightening 
the EGUs' PM emission limits would be minimal from a visibility 
perspective. As explained in detail earlier, the modeling included in 
the Pennsylvania regional haze SIP clearly showed that the EGUs' PM 
emissions were responsible for a minimal portion of the visibility 
impairment at the affected Class I areas.

    \5\ Instead of setting an output-based PM emission limit for 
GenOn Energy's Cheswick generating station, Pennsylvania capped PM 
emissions at 361 tons per year (tpy). However, as EPA has previously 
stated, Pennsylvania appears to have set the PM BART limit for 
Cheswick in error. 77 FR 41279, 41283 (July 13, 2012). Pennsylvania 
has submitted a SIP revision to EPA that includes a revised PM BART 
emission limit for Cheswick to address this concern which EPA 
intends to act upon expeditiously. See Letter to Shawn M. Garvin, 
Regional Administrator, EPA, from E. Christopher Abruzzo, Secretary, 
Pennsylvania Department of Environmental Protection (March 25, 
2014), available at http://www.dep.state.pa.us/dep/deputate/airwaste/aq/plans/plans/cheswick/Transmittal_Letter_to_EPA.pdf.

    Second, many of the Pennsylvania EGUs have retired or put in motion 
plans to retire or to convert to cleaner burning fuels since 
Pennsylvania conducted its BART determinations. For example, in October 
2013, First Energy's Hatfield's Ferry and Mitchell generating stations 
were retired. NRG Energy's Portland generating station will cease 
combusting coal in June 2014 and plans to retire in early 2015. NRG 
Energy's New Castle generating station has submitted an application to 
Pennsylvania to convert to natural gas as a fuel source prior to the 
MATS compliance deadline of 2015. Moreover, many of the EGUs have 
recently installed new pollution controls to comply with other CAA 
requirements that further limit PM emissions. Pennsylvania has issued a 
plan approval for construction of a baghouse and dry scrubber for Units 
1 and 2 at Homer City, which also includes a new PM emission limit of 
0.05 lb/MMBtu for each unit. These recent developments have made the 
stringency of Pennsylvania's PM BART limits a moot issue for many 
    Finally, as the commenter notes, the aforementioned MATS Rule will 
limit PM emissions at each of the Pennsylvania EGUs to 0.03 lb/MMBtu by 
2015. While EPA disagrees with the commenter that EPA must disapprove 
Pennsylvania's PM BART emission limits for EGUs due to the pending 
implementation of MATS, the fact remains that MATS will imminently 
supersede BART as the required level of PM control at Pennsylvania's 
EGUs, largely mooting the issue. Disapproving Pennsylvania's PM BART 
limits due to MATS would be inappropriate, however, because EPA cannot 
require states to predict future requirements at the time they are 
developing their SIPs. EPA proposed MATS on May 13, 2011 (76 FR 24976) 
and promulgated the final version of MATS on February 16, 2012 (77 FR 
9304), well after Pennsylvania developed its regional haze SIP and made 
the relevant BART determinations. Furthermore, EPA proposed its limited 
approval of Pennsylvania's regional haze SIP on January 26, 2012, a 
full three weeks before MATS was finalized. EPA also revised MATS on 
April 24, 2013 (78 FR 24073). While the BART Guidelines indicate that 
states may rely on previously issued MACT standards for purposes of 
BART, they do not require states to revise BART determinations ex post 
facto when EPA subsequently establishes new MACT standards. For all of 
these reasons, EPA believes that the limits of 0.1 lb/MMBtu are 
sufficiently reasonable for PM BART at the Pennsylvania EGUs and can be 
approved. Where appropriate, however, EPA expects Pennsylvania to 
revisit the issue in the next regional haze implementation period.
    Comment: One commenter argued that Pennsylvania's PM BART emission 
limits are invalid because they are expressed as total filterable PM. 
The commenter argued that EPA must disapprove the limits and set 
separate emission limits for filterable coarse particulate matter 
(PM10) and PM2.5, as well as condensable PM. 
Alternatively, EPA could set emission limits for the individual 
pollutants that form condensable PM, such as sulfuric acid mist.
    Response: EPA disagrees that Pennsylvania was required to set 
separate emission limits for filterable PM10 and 
PM2.5 and condensable PM. While the BART Guidelines do 
instruct states to consider both PM10 and PM2.5 
when determining whether sources cause or contribute to visibility 
impairment, the BART Guidelines are silent as to how PM emission limits 
should be expressed, so long as they are enforceable, continuous, and 
contain appropriate averaging times, compliance verification 
procedures, and recordkeeping requirements. In practical terms, the 
function of a BART emission limit is to ensure that the technology 
selected as BART, or another technology that is at least as effective, 
is installed and properly operated. For the EGUs in Pennsylvania, the 
Commonwealth selected the existing ESPs as BART for filterable PM 
emissions. An emission limit that restricts total filterable PM will, 
by definition, restrict emissions of both filterable PM10 
and PM2.5 because these are subsets of total filterable PM. 
Thus, EPA believes that it is unnecessary for states to set separate 
emission limits for filterable PM10 and PM2.5 in 
order to ensure that the existing ESPs are properly operated and that 
both coarse and fine particulates are adequately controlled. In regards 
to condensable PM, when emitted from coal-fired EGUs, these emissions 
are composed almost entirely of inorganic sulfates that are controlled 
by scrubbers or dry sorbent injection, not by ESPs or fabric filter 
baghouses. Consequently, EPA believes that Pennsylvania's

[[Page 24345]]

reliance on CAIR/CSAPR for SO2 BART is sufficient to ensure 
that condensable PM emissions will be controlled.

Long-Term Strategy

    Comment: Several commenters stated that Pennsylvania, in 
consultation with other states within MANE-VU, committed to include a 
low-sulfur fuel strategy as part of its long-term strategy to reduce 
emissions. These commenters noted that, as of February 2012, 
Pennsylvania had proposed, but not yet adopted, a low-sulfur fuel rule. 
Because Pennsylvania's low-sulfur fuel rule had not been finalized at 
the time of EPA's proposed limited approval of Pennsylvania's regional 
haze SIP, the commenters concluded that Pennsylvania had not taken all 
of the measures necessary to obtain its share of the emission 
reductions needed to meet the reasonable progress goals (RPGs) for 
downwind Class I areas. One of these commenters recommended that EPA 
condition its approval of the Pennsylvania regional haze SIP on the 
implementation of the low-sulfur fuel strategy in Pennsylvania. Another 
commenter criticized EPA for proposing to substitute SO2 
reductions from EGUs and non-EGUs for reductions from a low-sulfur fuel 
rule, noting that the substitution resulted in a 5,702 ton shortfall. 
This commenter explained that because New Jersey relied on reductions 
from Pennsylvania's low sulfur fuel strategy in demonstrating 
reasonable progress at Brigantine Wilderness Area, an EPA approval 
would jeopardize New Jersey's ability to meet its regional haze 
commitments. A third commenter expressed concern that the emission 
reductions Pennsylvania needs to meet the RPGs for downwind Class I 
areas are not enforceable in the SIP. This commenter argued that 
finalizing an approval of Pennsylvania's long-term strategy would be 
inconsistent with other EPA actions that have acknowledged that all 
reductions modeled in setting the RPGs must be enforceable.
    Response: EPA disagrees that Pennsylvania has failed to obtain its 
share of emission reductions that it committed to in the state 
consultation process. Pennsylvania participated fully in the MANE-VU 
consultation process, which resulted in a course of action for all 
participating states to reduce emissions to collectively meet the RPGs 
in the MANE-VU region.\6\ The MANE-VU ``Ask'' provided the MANE-VU 
states, including Pennsylvania, with up to ten years ``to pursue 
adoption and implementation of reasonable and cost-effective 
NOX and SO2 emissions reduction measures, as 
appropriate and necessary.'' In its regional haze SIP, Pennsylvania 
stated that it ``will pursue these measures, as appropriate and 
necessary, and in five years at the time of Pennsylvania's first 
periodic SIP report, expects to report on progress toward adoption of 
these measures by 2018.'' With respect to the low-sulfur fuel strategy, 
the MANE-VU Ask established two sets of goals, one for the ``inner 
zone'' states of the MANE-VU region (Delaware, New Jersey, New York, 
and Pennsylvania, or portions thereof) and one goal for the ``outer 
zone'' states. The ``inner zone'' goals contained more aggressive 
compliance schedules and sulfur content limits than the ``outer zone'' 
goals. Nevertheless, states in the ``inner zone'' could choose to 
comply with the ``outer zone'' goals if they experienced supply 
disruption issues, and the ``Ask'' effectively provided all states 
until 2018 to complete the implementation of their low-sulfur fuel 
strategies. Consistent with this approach, Pennsylvania indicated in 
its regional haze SIP that, ``[b]ased on supply concerns, Pennsylvania 
will pursue a strategy that will not be less stringent than the outer 
zone strategy and would meet the sulfur content emission limits listed 
above by 2018.'' Therefore, EPA disagrees with the commenter that 
Pennsylvania was required to finalize its low-sulfur fuel rule by 2012. 
The agreed-upon timeframe in the ``Ask'' provided up to ten years for 
adoption and implementation of the various measures.

    \6\ See ``Statement of the Mid-Atlantic/Northeast Visibility 
Union (MANE-VU) Concerning a Course of Action within MANE-VU toward 
Assuring Reasonable Progress'' (January 20, 2007), also known as the 
MANE-VU ``Ask,'' in Appendix M of the Pennsylvania regional haze 

    After EPA previously finalized the limited approval of the 
Pennsylvania regional haze SIP, Pennsylvania submitted a SIP revision 
to EPA that included a low-sulfur fuel rule that met the ``outer 
zone''-strategy requirements. EPA proposed to approve this SIP revision 
on February 20, 2014. 79 FR 9701. EPA notes that Pennsylvania's low-
sulfur fuel rule does not require that the sulfur content of distillate 
oil be reduced to 15 parts per million (ppm) by 2018, as anticipated by 
the MANE-VU ``Ask.'' However, for ``outer zone'' states, the 
implementation of this requirement was dependent upon supply 
availability.\7\ Moreover, as EPA explained in detail in the technical 
support document (TSD) \8\ that accompanied our July 13, 2012 final 
rule, Pennsylvania has secured an additional 23,051 tons in 
SO2 reductions that were not anticipated at the time of the 
MANE-VU ``Ask.'' When these reductions are considered in combination 
with reductions that will result from Pennsylvania's low-sulfur fuel 
rule, EPA believes that a 15 ppm limit on distillate oil is no longer 
``appropriate and necessary'' to achieve the goals of the MANE-VU 
``Ask'' during the first planning period ending in 2018. Furthermore, 
EPA does not believe that Pennsylvania will experience a shortfall in 
emission reductions or that approval of the Pennsylvania regional haze 
SIP will prevent New Jersey from making reasonable progress at 
Brigantine. Finally, while EPA agrees with the third commenter that all 
reductions should be enforceable in the SIP itself, EPA believes that 
the proposed approval of Pennsylvania's low-sulfur fuel rule SIP 
revision largely addresses this concern. Moreover, EPA expects 
Pennsylvania to review all of its emission reductions in its five-year 
progress report, at which time the additional reductions highlighted in 
our TSD can be included in the SIP as enforceable requirements as well. 
Consequently, EPA believes that the Pennsylvania regional haze SIP 
includes all measures necessary at this time to obtain its share of the 
emission reductions needed to meet the RPGs of downwind states and 
therefore has met the requirements of 40 CFR 51.308(d)(3)(ii).

    \7\ Pennsylvania regional haze SIP, Appendix M (requiring 
``outer zone'' states ``to further reduce the sulfur content of 
distillate oil to 15 ppm by 2018, depending on supply 
    \8\ See ``Technical Support Document (TSD) for the Pennsylvania 
Regional Haze State Implementation Plan--Mid Atlantic and Northeast 
Visibility Union (MANE-VU) `Asks' Reasonable Progress Goals'' 
(January 17, 2012).

    Comment: One commenter asserted that EPA must disapprove the 
Pennsylvania regional haze SIP because it failed to include a long-term 
strategy with a detailed retirement discussion. The commenter argued 
that the Pennsylvania regional haze SIP was inadequate because it 
contained no discussion of changes in energy and other markets and 
their likely effect on EGUs and non-EGUs. The commenter concluded that 
EPA must require a retirement discussion that provides a ``realistic 
picture of future emissions from BART-subject sources.''
    Response: EPA disagrees with the commenter that the Pennsylvania 
regional haze SIP must be disapproved for failure to include a 
retirement discussion in the long-term strategy. Pennsylvania 
considered the factors listed in 40 CFR 51.308(d)(3)(v) when developing 
its long-term strategy, as

[[Page 24346]]

described in detail in our January 26, 2012 proposal. Pennsylvania 
included source retirement and replacement schedules as part of the 
emissions inventory that it used to project future conditions and 
provide a realistic estimate of future visibility impairing emissions 
from the identified sources. At the time that Pennsylvania's analyses 
were completed, they were based on the best information available. The 
projected inventories for 2018 account for post-2002 emissions 
reductions from promulgated and proposed federal, state, local, and 
site-specific control programs. Pennsylvania developed its long-term 
strategy in coordination with the MANE-VU, identifying the emissions 
units within Pennsylvania that have the largest impacts on visibility 
at the MANE-VU Class I areas, estimating emissions reductions for 2018, 
based on all controls required under Federal and state regulations for 
the 2002-2018 period (including BART), and comparing projected 
visibility improvement with the uniform rate of progress for the MANE-
VU Class I areas. Pennsylvania's long-term strategy includes measures 
needed to achieve its share of emissions reductions agreed upon through 
the consultation process with Class I area states and includes 
enforceable emissions limitations, compliance schedules, and other 
measures necessary to achieve the RPGs established by MANE-VU for the 
Class I areas.
    These projections can be expected to change as additional 
information regarding future conditions becomes available. For example, 
new sources may be built, existing sources may shut down or modify 
production in response to changed economic circumstances, and 
facilities may change their emissions characteristics as they install 
control equipment to comply with new rules. To address these 
situations, the Regional Haze Rule calls for a five-year progress 
review after submittal of the initial regional haze SIP. See 40 CFR 
51.308(g). The purpose of this progress review is to assess the 
effectiveness of emissions management strategies in meeting RPGs and to 
provide an assessment of whether current implementation strategies are 
sufficient for the state or affected states to meet their RPGs. If a 
state concludes, based on its assessment, that the RPGs for a Class I 
area will not be met, the Regional Haze Rule requires the state to take 
appropriate action. See 40 CFR 52.308(h). The nature of the appropriate 
action will depend on the basis for the state's conclusion that the 
current strategies are insufficient to meet the RPGs. Pennsylvania 
specifically committed to follow this process in its long-term 

    \9\ Pennsylvania also stated in its regional haze SIP that 
retirement and replacement would be managed in conformance with 
existing SIP requirements pertaining to new source review.

III. Summary of Final Action

    EPA is re-finalizing its limited approval of the Pennsylvania 
regional haze SIP, which was submitted on December 20, 2010 to address 
regional haze for the first implementation period. EPA is issuing a 
limited approval of the Pennsylvania regional haze SIP because, 
overall, the Pennsylvania SIP will be stronger and more protective of 
the environment with the implementation, Federal approval, and 
enforceability of its measures than it would without those measures. 
EPA has already finalized a limited disapproval of the Pennsylvania 
regional haze SIP in a separate rulemaking. See 77 FR 33642.

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. 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. 

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 June 30, 2014. 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 finalizing the limited approval of the Pennsylvania 
Regional Haze SIP may

[[Page 24347]]

not be challenged later in proceedings to enforce its requirements. See 
section 307(b)(2) of the CAA.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: April 11, 2014.
W.C. Early,
Acting, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:


1. The authority citation for part 52 continues to read as follows:

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

Subpart NN--Pennsylvania

2. In Sec.  52.2020, the table in paragraph (e)(1) is amended by 
revising the entry for ``Regional Haze Plan'' to read as follows:

Sec.  52.2020  Identification of plan.

* * * * *
    (e) * * *
    (1) * * *

   Name of non- regulatory SIP        Applicable        State submittal                           Additional
            revision                geographic area          date          EPA approval date      explanation
                                                  * * * * * * *
Regional Haze Plan..............  Statewide.........  12/20/10..........  7/13/12, 77 FR      Sec.   52.2042;
                                                                           41279.              Limited Approval.
                                                      12/20/10..........  4/30/14 [Insert     Reissuing of
                                                                           page number where   Limited Approval.
                                                                           the document
                                                  * * * * * * *

* * * * *
[FR Doc. 2014-09726 Filed 4-29-14; 8:45 am]