

[Federal Register: July 14, 2006 (Volume 71, Number 135)]
[Proposed Rules]               
[Page 40048-40051]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jy06-18]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2005-0549; FRL-8196-9]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Additional NOX Emission Reductions To Support 
the Philadelphia-Trenton-Wilmington One-Hour Ozone Nonattainment Area, 
and Remaining NOX SIP Call Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP) 
revisions submitted by the Commonwealth of Pennsylvania. These 
revisions pertain to additional nitrogen oxides (NOX) 
reductions that are required for the Commonwealth to support its 
approved attainment demonstration for the Philadelphia-Trenton-
Wilmington one-hour ozone nonattainment area (the Philadelphia Area); 
NOX reductions from stationary internal combustion (IC) 
engines required to meet the NOX SIP Call Phase II (Phase 
II); and NOX reductions from cement kilns to meet the 
NOX SIP Call. The revisions also include provisions for 
emission credits for sources that generate zero-emission renewable 
energy. This action is being taken under the Clean Air Act (CAA or the 
Act).

DATES: Written comments must be received on or before August 14, 2006.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers (215) 814-2308, or by 
e-mail at powers.marilyn@epa.gov.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R037-OAR-2005-0549 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    B. E-mail: morris.makeba@epa.gov
    C. Mail: EPA-R03-OAR-2005-0549, Makeba Morris, Chief, Air Quality 
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2005-0549. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov 

or e-mail. The http://www.regulations.gov website is an ``anonymous access'' 

system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
http://www.regulations.gov, your e-mail address will be automatically captured 

and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although


[[Page 40049]]

listed in the index, some information is not publicly available, i.e., 
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 
in http://www.regulations.gov or in hard copy during normal business hours at 

the Air Protection Division, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies 
of the State submittal are available at the Pennsylvania Department of 
Environmental Resources Bureau of Air Quality Control, P.O. Box 8468, 
400 Market Street, Harrisburg, Pennsylvania 17105.

SUPPLEMENTARY INFORMATION: On March 29, 2005, the Pennsylvania 
Department of Environmental Protection (PADEP) submitted SIP revisions 
that amended Chapters 121, 129, and 145 of PADEP's air quality 
regulations under 25 Pa. Code Article III (Air Resources). Chapter 121 
is amended to include new definitions associated with the revisions to 
Chapters 129 and 145. Chapter 129 is amended to include new Sections 
129.201 through 129.204, which establishes ozone season NOX 
emission limits for certain boilers, turbines, and stationary internal 
combustion engines that are small sources of NOX in Bucks, 
Chester, Delaware, Montgomery, and Philadelphia counties (the five-
county Southeast Pennsylvania Area). Chapter 129 also includes new 
Sec.  129.205, which allows sources subject to Sec.  129.201 through 
129.203 to get emission credits for generating zero-emission renewable 
energy. Chapter 145 is amended to establish ozone season NOX 
emission limits for large stationary IC engines and large cement kilns 
to satisfy the Commonwealth's remaining statewide obligations under the 
NOX SIP Call (63 FR 57356, October 27, 1998). On February 6, 
2006, PADEP submitted a supplementary letter clarifying certain 
provisions of the March 29, 2005 submission.

I. Background

A. Pennsylvania's Additional NOX Emission Reduction 
Requirements for the Philadelphia Area

    Pennsylvania's approved attainment demonstration for the 
Philadelphia Area included commitments for additional NOX 
reductions, see 64 FR 70428, December 16, 1999 and 66 FR 54143, October 
26, 2001. Revisions to Chapter 129 establish additional NOX 
requirements for small sources of NOX in the five-county 
Southeast Pennsylvania area. These requirements are based, in part, on 
a model rule developed by the Ozone Transport Commission (OTC) to 
address ozone problems in the Ozone Transport Region (OTR).

B. Pennsylvania's NOX SIP Call Requirements

    EPA issued the NOX SIP Call (63 FR 57356, October 27, 
1998) to require 22 Eastern states and the District of Columbia to 
reduce specified amounts of one of the main precursors of ground-level 
ozone, NOX, in order to reduce interstate ozone transport. 
EPA found that the sources in these states emit NOX in 
amounts that contribute significantly to nonattainment of the 1-hour 
ozone national ambient air quality standard (NAAQS) in downwind states. 
In the NOX SIP Call, the amount of reductions required by 
states was calculated based on application of available, highly cost-
effective controls on specific source categories of NOX.
    The NOX SIP Call, including the Technical Amendments 
which addressed the 2007 electric generating units (EGU) budgets (64 FR 
26298, May 14, 1999 and 65 FR 11222, March 2, 2000), was challenged by 
a number of state, industry, and labor groups. A summary of the 
NOX SIP Call requirements, including details of the court 
decisions that were made in response to challenges to the rule and 
impacts of the court decisions on certain aspects of the rule may be 
found in EPA's rulemaking dated April 21, 2004 (69 FR 21604) entitled, 
``Interstate Ozone Transport: Response to Court Decisions on the 
NOX SIP Call, NOX SIP Call Technical Amendments, 
and Section 126 Rules.'' This rulemaking established States' 
requirements under Phase II of the NOX SIP Call. The 
relevant portions of the April 21, 2004 rulemaking that affect 
Pennsylvania's obligations under the NOX SIP Call, and that 
pertain to the State's requirements for Phase II, are discussed in this 
document to provide background on the March 29, 2005 SIP revision 
submitted by the PADEP.
    On March 3, 2000, the United States Court of Appeals for the 
District of Columbia Circuit (DC Circuit) issued its decision on the 
NOX SIP Call. Michigan v. EPA, 213 F.3rd 663 (DC Dir. 2000). 
While the DC Circuit ruled largely in favor of EPA in support of its 
requirements under the 1-hour ozone NAAQS, it also ruled, in part, 
against EPA on certain issues. The rulings against EPA included two 
areas of the NOX SIP Call that were remanded and vacated and 
two areas in which EPA was found to have failed to provide adequate 
notice of changes in the rule. In the latter case, the rulings included 
a failure to provide adequate notice of the change in the definition of 
EGU as applied to cogeneration (cogen) units that supply electricity to 
a utility power distribution system for sale in certain specified 
amounts, and a failure to provide adequate notice of the change in the 
control level EPA assumed for large stationary internal combustion (IC) 
engines. The portions of the NOX SIP Call that were upheld 
by the Court, including emission reductions associated with cement 
manufacturing, were termed ``Phase I'' of the rule. With the exception 
of the remand of the EGU growth factors used in the NOX SIP 
Call and the requirements for the 8-hour ozone NAAQS (which EPA stayed 
due to uncertainty created by the court rulings), those portions of the 
NOX SIP Call that had been remanded back to EPA were 
finalized in the April 21, 2004 rulemaking (69 FR 21604) and termed 
``Phase II'' of the rule.
    The Phase II rulemaking of April 21, 2004 finalized specific 
changes to the definition of EGUs as applied to cogen units, finalized 
the control levels assumed for large stationary IC engines in the 
NOX SIP Call, adjusted states' total budgets downward to 
reflect emission reductions based upon the application of cost 
effective controls on stationary IC engines that emitted more than 153 
tons of NOX during the 1995 ozone season, (see 65 FR 1222, 
March 2, 2000), established a SIP submittal date of April 1, 2005 for 
states to address the Phase II portion of the budget, and set a 
compliance date of May 1, 2007 for affected sources to meet Phase II. 
This rulemaking established an incremental amount of additional 
NOX reductions for each state based upon control levels of 
82 percent for lean burn engines and 90 percent for rich burn, diesel 
and dual fuel engines.
    The change to the definition of cogen units did not have an impact 
on the Phase I budget previously established for Pennsylvania. 
Therefore, in order to meet its NOX SIP Call Phase II 
obligations, the State was required only to achieve the incremental 
reductions that EPA calculated based on controlling large, stationary 
IC engines to the prescribed levels.
    In addition, as part of Phase I, cement manufacturing was 
determined to be one of the source categories having large 
contributions to transported emissions, with available, highly cost 
effective controls that can achieve NOX reductions of 30 
percent. Each State's overall NOX budget reflected this 
level of control on cement kilns that emitted

[[Page 40050]]

more than 153 tons of NOX during the 1995 ozone season, 
although a State has flexibility regarding which sources to control to 
meet the reductions.

C. Pennsylvania's Remaining Obligations Under the NOX SIP Call

    Pennsylvania's NOX SIP Call Phase I trading program was 
approved as part of the Pennsylvania SIP on August 21, 2001 (66 FR 
43795). The NOX SIP Call reductions associated with cement 
manufacturing facilities and stationary internal combustion engines 
were not addressed in that rulemaking, therefore the Commonwealth was 
required to submit SIP revisions to address any additional emission 
reductions required to meet its overall emissions budget.
    On March 29, 2005, the Commonwealth submitted a revision to its SIP 
to satisfy its remaining obligations under the NOX SIP Call. 
The SIP revision requires NOX emission reductions from large 
internal combustion engines and large cement kilns statewide.

II. Summary of SIP Revisions

A. Pennsylvania's Additional NOX Emission Reductions in the 
Philadelphia Area

    Amendments to Chapter 121 add definitions of megawatt-hour (MWH), 
parts per million dry volume (ppmvd), stationary internal combustion 
engine, tradable renewable certificate, and tradable renewable 
certificate issuing body.
    Amendments to Chapter 129 are additional NOX 
requirements submitted to satisfy the Commonwealth's commitments under 
the EPA-approved SIP revision for the Philadelphia area. These 
NOX requirements establish additional emission reductions to 
support the attainment demonstration for the Philadelphia Area (64 FR 
70428, December 16, 1999 and 66 FR 54143, October 26, 2001). The 
requirements of Chapter 129 are based, in part, on the model rule for 
additional NOX control measures developed by the Ozone 
Transport Commission (OTC), of which Pennsylvania is a member. The OTC 
was created to address ozone problems in the Ozone Transport Region 
(OTR).
    Chapter 129 establishes ozone season (May 1 through September 30) 
emission limits for NOX from boilers with a rated capacity 
of greater than 100 million Btu/hour but less than or equal to 250 
million Btu/hour; turbines with rated capacity of greater than 100 
million Btu/hour; and stationary internal combustion engines rated at 
greater than 1,000 horsepower located at industrial, utility and 
commercial sites in the five-county Southeast Pennsylvania area. The 
emission limits are required to be implemented by May 1, 2005 and shall 
comply with Section 129.204 (relating to emission accountability).
    Chapter 129 does not affect the large sources that are regulated 
under Chapter 145, Subchapter B (relating to emissions of 
NOX from stationary internal combustion engines) and does 
not apply to the naval marine combustion units operated by the United 
States Navy for the purposes of testing and operational training, or to 
units permitted as resource recovery facilities. In addition, Chapter 
129 establishes methods for determining NOX allowable 
emissions for certain boilers, stationary combustion turbines and 
stationary internal combustion engines (relating to Sections 129.201-
129.203). The owner or operator of a unit covered by these sections 
under Chapter 129 must calculate the difference between NOX 
allowable emissions and NOX actual emissions under Sec.  
129.204. Some boilers and turbines may demonstrate compliance though 
the opt-in process provisions of Sec. Sec.  145.80-145.88.
    The regulation states that an owner or operator may apply unused 
allowable emissions to its other facilities in the state, but if actual 
emissions exceed allowable emissions, NOX allowances must be 
surrendered to the State by November 1 of each year starting in 2005. 
Failure to surrender the required allowances by this date triggers a 
requirement to surrender three allowances for every ton of excess 
NOX emitted. These small NOX sources are not part 
of the State's NOX Budget Trading Program, do not receive 
allowances from the State's NOX budget, and must therefore 
secure NOX allowances on the open market.
    Section 129.205 establishes provisions for zero-emission renewable 
energy production credits. It applies in the five-county Southeast 
Pennylvania area to an owner or operator of small sources of 
NOX who generate zero-emission renewable energy. An owner or 
operator may deduct, from its actual emissions, an equivalent amount of 
NOX emissions that would otherwise be emitted from thermal 
energy generated by conventional means, subject to conditions 
stipulated in this section, which the owner or operator must certify 
have been met.
    For each ton of NOX deducted under Section 129.205 
(i.e., the credit for zero-emissions renewable energy produced), the 
Commonwealth will retire one NOX allowance from its new 
source set-aside pool (under its NOX Budget Trading Program) 
for the subsequent ozone season.

B. Pennsylvania's Emission Reductions Under Phase II of the NOX SIP 
Call

    Chapter 145, Interstate Pollution Transport Reduction Requirements 
(Pennsylvania's approved cap and trade program under the NOX 
SIP Call), is revised by adding new Subchapter B, which establishes 
statewide ozone season NOX emission limits for large 
stationary IC engines. Subchapter B, entitled Emissions of 
NOX From Stationary Internal Combustion Engines, applies to 
the following types of engines that emitted 153 tons or more of 
NOX from May 1 through September 30 in any year from 1995 
through 2004. As of May 1, 2005, these sources must comply with the 
following emission limits from May 1 through September 30 of each year:
    (1) For rich-burn stationary internal combustion engines having an 
engine rating equal to or greater than 2,400 brake horsepower, 1.5 
grams NOX per brake horsepower-hour,
    (2) For lean burn stationary internal combustion engines having an 
engine rating equal to or greater than 2,400 brake horsepower, 3.0 
grams per brake horsepower-hour, and
    (3) For diesel stationary internal combustion engines with an 
engine rating equal to or greater than 3,000 brake horsepower and for 
dual-fuel stationary internal combustion engines with an engine rating 
equal to or greater than 4,400 brake horsepower, 2.3 grams 
NOX per brake horsepower-hour. These emission limits are 
consistent with the control levels established in Phase II, and achieve 
the incremental reductions required from this source category.
    Subchapter B also includes definitions, monitoring requirements, 
methods for calculating actual and allowable NOX emissions, 
and includes requirements for surrender of NOX allowances to 
the State when a unit has excess emissions.

C. Emission Reductions From Cement Manufacturing

    To meet NOX SIP Call reductions associated with cement 
manufacturing, Chapter 145 is revised by adding new Subchapter C, which 
establishes NOX emission limits for cement kilns from May 1 
through September 30 of each year, starting in 2005. The requirements 
apply statewide, and establish an emission limit of 6 pounds of 
NOX per ton of clinker produced. As of October 31, 2005, it 
applies to any kiln that emitted 153 tons or more of NOX 
from May 1 through September 30 in any year from 1995 through 2004. 
EPA's analysis of Pennsylvania's rule showed that this emission level, 
considered together with

[[Page 40051]]

the shut down of one kiln (Kosmos) and the emission reductions 
previously required on certain other kilns, meets the requirements of 
the NOX SIP Call (see Technical Support Document for a 
detailed discussion and analysis of emission reductions from affected 
cement kilns in the Commonwealth). Subchapter C also includes 
applicability, new definitions, standard requirements for compliance 
monitoring, requirements for determining allowable and actual 
emissions, and includes requirements for surrender of NOX 
allowances to the State when a unit has excess emissions.

III. Proposed Action

    EPA is proposing to approve the SIP revisions submitted by the 
Commonwealth of Pennsylvania on March 29, 2005, and supplemented on 
February 6, 2006. EPA's review of the submittal indicates that the 
revisions to Chapter 121, addition of new Sections 129.201 though 
129.205 (Additional NOX Requirements), revision of Section 
145.42 (pertaining to accountability of NOX credit under 
Section 129.205), and addition of Subchapters B and C to Chapter 145 
(pertaining to the State's remaining NOX SIP Call 
obligations for IC engines and cement kilns, respectively), are 
approvable. These revisions strengthen the Pennsylvania SIP. EPA is 
soliciting public comments on the issues discussed in this document. 
These comments will be considered before taking final action.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). 
This action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it 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). This proposed rule also does not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely proposes to approve a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
proposed rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order.
    This proposed rule to approve Pennsylvania's additional 
NOX emission reductions for the Philadelphia Area and its 
remaining NOX SIP Call requirements does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Reporting and recordkeeping requirements.

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

    Dated: July 6, 2006
William T. Wisniewski,
Acting Regional Administrator, Region III.
 [FR Doc. E6-11109 Filed 7-13-06; 8:45 am]

BILLING CODE 6560-50-P
