	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2009-0370; FRL-       ]

	Approval and Promulgation of Air Quality Implementation Plans;

	Pennsylvania; Clean Air Interstate Rule; NOx SIP Call Rule; Amendments
to NOx Control Rules 

 

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.

SUMMARY:  EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Pennsylvania.  The revision addresses
the requirements of EPA’s Clean Air Interstate Rule (CAIR) and
modifies other requirements in Pennsylvania’s SIP that interact with
CAIR including:  the termination of Pennsylvania’s NOx Budget Trading
Program; statewide provisions for large, stationary internal combustion
engines; statewide provisions for large cement kilns; provisions for
small sources of NOx in the Pennsylvania portion of the Philadelphia
8-hour ozone nonattainment area; and emission reduction credits.   EPA
is determining that the SIP revision fully implements the CAIR
requirements for Pennsylvania.  Although the D.C. Circuit found CAIR to
be flawed, the rule was remanded without vacatur and thus remains in
place.  Thus, EPA is continuing to take action on CAIR SIPs as
appropriate.  CAIR, as promulgated, requires States to reduce emissions
of SO2 and NOx that significantly contribute to, or interfere with
maintenance of, the national ambient air quality standards (NAAQS) for
fine particulates and/or ozone in any downwind state.  CAIR establishes
budgets for SO2 and NOX for States that contribute significantly to
nonattainment in downwind States and requires the significantly
contributing States to submit SIP revisions that implement these
budgets.  States have the flexibility to choose which control measures
to adopt to achieve the budgets, including participation in
EPA-administered cap-and-trade programs addressing SO2, NOX annual, and
NOX ozone season emissions.  In the SIP revision that EPA is approving,
Pennsylvania will meet CAIR requirements by participating in these
cap-and-trade programs.  EPA is approving the SIP revision, with the
exceptions noted, as fully implementing the CAIR requirements for
Pennsylvania.  Consequently, this action will also cause the CAIR
Federal Implementation Plans (CAIR FIPs) concerning SO2, NOX annual, and
NOX ozone season emissions by Pennsylvania sources to be automatically
withdrawn.  

EFFECTIVE DATE:  The final rule is effective on [Insert date of
publication].

ADDRESSES:  EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2009-0370.  All documents in the docket are listed in
the www.regulations.gov website.   Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (CBI) or other information whose disclosure is
restricted by statute.  Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form.  Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State
submittal are available at the Pennsylvania Department of Environmental
Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market
Street, Harrisburg, Pennsylvania 17105.

 

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

SUPPLEMENTARY INFORMATION:   Throughout this document, whenever
“we,” “us,” or “our” is used, we mean EPA. 

Table of Contents

I.  What Action Did EPA Propose?

II. Summary of Pennsylvania SIP Revision 

III. What is the Final Action?

IV. What is the Effective Date?

V.  Statutory and Executive Order Reviews

I.  What Action Did EPA Propose?

On September 24, 2009 (74 FR 48695), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Pennsylvania.  The NPR proposed
approval of a revision to the Pennsylvania SIP that addresses EPA’s
CAIR requirements and modifies other requirements in Pennsylvania’s
SIP that interact with CAIR including: the termination of
Pennsylvania’s NOx Budget Trading Program; statewide provisions for
large, stationary internal combustion engines; statewide provisions for
large cement kilns; provisions for small sources of NOx in the
Pennsylvania portion of the Philadelphia 8-hour ozone nonattainment
area; and emission reduction credits.  

Summary of Pennsylvania SIP Revision

On May 23, 2008, the Pennsylvania Department of Environmental Protection
(PADEP) submitted a full CAIR SIP revision to meet the requirements of
CAIR, which was promulgated on May 12, 2005 (70 FR 25162), and
subsequently revised on April 28, 2006, and December 13, 2006.  The SIP
revision consisted of amendments to Pennsylvania regulations codified at
25 Pa. Code Chapters 121, 129, and 145.  The SIP revision addresses all
the requirements of the 40 CFR part 96 model rules set forth in the May
12, 2005 CAIR rulemaking.  In addition, the SIP revision modifies other
requirements in Pennsylvania’s SIP that interact with CAIR.  A
detailed discussion of the CAIR requirements, the CAIR history
(including the CAIR remand), Pennsylvania’s CAIR submittal, the other
modifications in the SIP revision that interact with CAIR, and EPA’s
rationale for approval of the Pennsylvania SIP revision may be found in
the NPR and will not be repeated here. No comments were received. 

EPA notes that, in North Carolina, 531 F.3d at 916-21, the Court
determined, among other things, that the State SO2 and NOX budgets
established in CAIR were arbitrary and capricious.  However, as
discussed above, the Court also decided to remand CAIR but to leave the
rule in place in order to “temporarily preserve the environmental
values covered by CAIR” pending EPA’s development and promulgation
of a replacement rule that remedies CAIR’s flaws.  North Carolina, 550
F.3d at 1178.  EPA had indicated to the Court that development and
promulgation of a replacement rule would take about two years.  Reply in
Support of Petition for Rehearing or Rehearing en Banc at 5 (filed Nov.
17, 2008 in North Carolina v. EPA, Case No. 05-1224, D.C. Cir.).  The
process at EPA of developing a proposal that will undergo notice and
comment and result in a final replacement rule is ongoing.  In the
meantime, consistent with the Court’s orders, EPA is implementing CAIR
by approving State SIP revisions that are consistent with CAIR (such as
the provisions setting State SO2 and NOX budgets for the CAIR trading
programs) in order to “temporarily preserve” the environmental
benefits achievable under the CAIR trading programs.

III.  What is the Final Action?

EPA is approving the Pennsylvania CAIR SIP revision submitted on July
23, 2008.  Under the SIP revision, Pennsylvania will participate in the
EPA-administered cap-and-trade programs for NOx annual, NOx ozone
season, and SO2 annual emissions.  The SIP revision meets the applicable
requirements in 40 CFR 51.123(o) and (aa), with regard to NOX annual and
NOX ozone season emissions, and 40 CFR 51.124(o), with regard to SO2
emissions.  As a consequence of the SIP approval, the CAIR FIPs for
Pennsylvania are automatically withdrawn, in accordance with the
automatic withdrawal provisions of EPA’s November 2, 2007 rulemaking
(72 FR 62338).   The automatic withdrawal is reflected in the rule text
that accompanies this notice and deletes and reserves the provisions in
Part 52 that establish the CAIR FIPs for Pennsylvania sources.    

The SIP revision also modifies other requirements in Pennsylvania’s
SIP that interact with CAIR including:  the termination of
Pennsylvania’s NOx Budget Trading Program; statewide provisions for
large, stationary internal combustion engines; statewide provisions for
large cement kilns; provisions for small sources of NOx in the
Pennsylvania portion of the Philadelphia 8-hour ozone nonattainment
area; and emission reduction credits.   

IV.  What is the Effective Date?

EPA finds that there is good cause for this approval to become effective
upon publication because a delayed effective date is unnecessary due to
the nature of the approval, which allows the Commonwealth, as indicated
in the NPR for this rulemaking, to use its own methodology for
distribution and timing of NOx allowances.  The expedited effective date
for this action is authorized under both 5 U.S.C. 553(d)(1), which
provides that rule actions may become effective less than 30 days after
publication if the rule ‘‘grants or recognizes an exemption or
relieves a restriction’’ and section 5 U.S.C. 553(d)(3), which
allows an effective date less than 30 days after publication ‘‘as
otherwise provided by the agency for good cause found and published with
the rule.’’ 

CAIR SIP approvals relieve states and CAIR sources within states from
being subject to provisions in the CAIR FIPs that otherwise would apply
to them, allowing states to implement CAIR based on their SIP-approved
state rule. The relief from these obligations is sufficient reason to
allow an expedited effective date of this rule under 5 U.S.C. 553(d)(1).
 In addition, Pennsylvania’s relief from these obligations provides
good cause to make this rule effective immediately upon publication,
pursuant to 5 U.S.C. 553(d)(3).  The purpose of the 30-day waiting
period prescribed in 5 U.S.C. 553(d) is to give affected parties a
reasonable time to adjust their behavior and prepare before the final
rule takes effect. Where, as here, the final rule relieves obligations
rather than imposes obligations, affected parties, such as the
Commonwealth of Pennsylvania and CAIR sources within the Commonwealth,
do not need time to adjust and prepare before the rule takes effect.

V.   Statutory and Executive Order Reviews 

A.   General Requirements 

Under the Clean Air Act, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act 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 Clean Air Act.  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 (Public Law 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
Clean Air Act; and 

does not provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive Order
12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
is not approved to apply in Indian country located in the state, and EPA
notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law.

B.   Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating the
rule must submit a rule report, which includes a copy of the rule, to
each House of the Congress and to the Comptroller General of the United
States.  EPA will submit a report containing this action and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register.  A major rule cannot
take effect until 60 days after it is published in the Federal Register.
 This action is not a “major rule” as defined by 5 U.S.C. 804(2). 

C.  Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial
review of this action must be filed in the United States Court of
Appeals for the appropriate circuit by [Insert date 60 days from date of
publication of this document in the Federal Register].  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 to approve the Pennsylvania SIP revision to meet the
requirements of CAIR and modify associated provisions that interact with
CAIR may not be challenged later in proceedings to enforce its
requirements.  (See section 307(b)(2).)

List of Subjects in 40 CFR part 52  

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

November 25, 2009______				/s/___________________________    

Dated:                            				Shawn M. Garvin,                  
             								Regional Administrator,

                                  					Region III.

40 CFR part 52 is amended as follows: 

PART 52 - [AMENDED] 

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 ( 52.2020, the table in paragraph (c)(1) is amended by: 

  a. Revising entries for Title 25, Chapter 121, Section 121.1, Chapter
129, Sections 129.201, 129.202, and 129.204; Subchapter B, Section
145.113, and Subchapter C, Section 145.143. 

  b. Adding entries for Title 25, Chapter 145, Subchapter A, Section
145.8; Subchapter D, Sections 145.201 through 145.205, Sections 145.211
through 145.213, and Sections 145.221 through 145.223.

The amendments read as follows:

( 52.2020  	Identification of plan.

* 	* 	* 	* 	*

(c) ***  	

(1) ***

State citation

	

Title/subject	

State effective date	

EPA approval date	

Additional

explanation/

( 52.2063 citation



	TITLE 25.  ENVIRONMENTAL PROTECTION

	ARTICLE III.  AIR RESOURCES



*       *      *     *      *      *      *

CHAPTER 121. 	GENERAL PROVISIONS

Section 121.1

	Definitions	4/12/08	[Insert Federal Register publication date] [Insert
page number where the document begins]	Add definition for “vintage or
vintage year”

CHAPTER 129.	STANDARDS FOR SOURCES ADDITIONAL NOx REQUIREMENTS



Section 129.201	

Boilers.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]	

Revised section.



Section 129.202	

Stationary combustion turbines.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]	

Revised section.



*       *       *       *       *       *       *



Section 129.204	

Emission accountability.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]	

Revised section.

*       *       *       *       *       *       *





CHAPTER 145.  	

INTERSTATE POLLUTION TRANSPORT REDUCTION



Subchapter A.	

NOx  BUDGET TRADING PROGRAM GENERAL PROVISIONS





*       *       *       *       *       *       *



Section 145.8	

Transition to CAIR NOx Trading Programs	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]	

New section.



*       *       *       *       *       *       *



Subchapter B.	

Emissions of NOx From Stationary Internal Combustion Engines



*       *       *       *       *       *       *



Section 145.113	

Standard requirements.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]	

New subsection d.



Subchapter C	

Emissions of NOx From Cement Manufacturing



*       *       *       *       *       *       *



Section 145.143	

Standard requirements.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]

	

Subchapter D.	

CAIR NOx And SO2 Trading Programs – General Provisions



Section 145.201	

Purpose.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]

	

Section 145.202	

Definitions.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]

	

Section 145.203	

Applicability.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]

	

Section 145.204 	

Incorporation of Federal regulations by reference.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]

	

ADDITIONAL REQUIREMENTS FOR CHAPTER 127

EMISSION REDUCTION CREDIT PROVISIONS



Section 145.205	

Emission reduction credit provisions.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]

	

ADDITIONAL REQUIREMENTS FOR CAIR NOx ANNUAL TRADING PROGRAM

Section 145.211	Timing Requirements for CAIR NOx allowance allocations.
4/12/08	[Insert Federal Register publication date] [Insert page number
where the document begins]

	

Section 145.212	

CAIR NOx allowance allocations.	4/12/08	[Insert Federal Register
publication date] [Insert page number where the document begins]

	

Section 145.213	

Supplemental monitoring, recordkeeping and reporting requirements for
gross electrical output and useful thermal energy for units subject to
40 CFR 96.170-96.175.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]

	

ADDITIONAL REQUIREMENTS FOR CAIR NOx OZONE SEASON TRADING PROGRAM



Section 145.221	

Timing requirements for CAIR NOx ozone season allowance allocations
4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]

	

Section 145.222	

CAIR NOx Ozone Season allowance allocations.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]

	

Section 145.223	

Supplemental monitoring, recordkeeping and reporting requirements for
gross electrical output and useful thermal energy for units subject to
40 CFR 96.370 – 96.375.	4/12/08	

[Insert Federal Register publication date] [Insert page number where the
document begins]

	

*       *       *       *       *       *       *



*             *             *            *            *

§ 52.2040 [Removed and Reserved]

3.  Section 52.2040 is removed and reserved.

§ 52.2041 [Removed and Reserved]

4.  Section 52.2041 is removed and reserved.

1 The Court also determined that the CAIR trading programs were unlawful
(id. at 906-8) and that the treatment of title IV allowances in CAIR was
unlawful (id. at 921-23).  For the same reasons that EPA is approving
the provisions of Pennsylvania’s SIP revision that use the SO2 and NOX
budgets set in CAIR, EPA is also approving, as discussed below,
Pennsylvania’s SIP revision to the extent the SIP revision adopts the
CAIR trading programs, including the provisions, addressing
applicability, allowance allocations, and use of title IV allowances. 

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