
[Federal Register Volume 77, Number 194 (Friday, October 5, 2012)]
[Rules and Regulations]
[Pages 60910-60914]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24524]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0882; FRL-9738-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Streamlining Amendments to the Plan Approval Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting limited approval to a State Implementation 
Plan (SIP) revision submitted by the Pennsylvania Department of 
Environmental Protection (PADEP) on April 14, 2009. The revision 
pertains to PADEP's plan approval requirements for the construction, 
modification, and operation of sources, and is primarily intended to 
streamline the process for minor permitting actions. This action is 
being taken under the Clean Air Act (CAA).

DATES: This final rule is effective on November 5, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2009-0882. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the Pennsylvania Department of Environmental 
Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market 
Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by 
email at talley.david@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On April 12, 2012 (77 FR 21908), EPA published a 
notice of proposed rulemaking (NPR) for the Commonwealth of 
Pennsylvania. The NPR proposed approval of amendments to the plan 
approval requirements for the construction, modification, reactivation, 
and operation of sources under 25 Pa. Code chapter 127. The formal SIP 
revision was submitted by PADEP on April 14, 2009.

II. Summary of SIP Revision

    The primary purpose of the amendments is to streamline the 
permitting process by eliminating some of the administrative burden and 
costs associated with processing minor permitting actions, while 
preserving the right of the public to review and comment on those 
proposed actions. The proposed amendments generally affect five 
regulations: Section 127.12b, pertaining to ``shakedown'' periods for 
new or modified sources; section 127.12d, pertaining to completeness 
determinations; sections 127.44 and 127.45, pertaining to public notice 
requirements; and section 127.48, pertaining to conferences and 
hearings. The specific requirements of the SIP revision and the 
rationale for EPA's proposed action are explained in the NPR and will 
not be restated here.

III. EPA's Response to Comments Received on the Proposed Action

    EPA received a single set of comments on its April 12, 2012 
proposed action to approve revisions to the Pennsylvania SIP. These 
comments, provided by the Clean Air Council, (hereinafter referred to 
as ``the Commenter''), raised concerns with regard to EPA's April 12, 
2012 proposed action. A full set of these comments is provided in the 
docket for today's final action. A summary of the comments and EPA's 
responses are provided below.
    Generally, the Commenter raises three areas of concern. First, the 
Commenter asserts that the proposal to increase the duration of 
``shakedown period'' extensions from 120 days to 180 days is 
inappropriate. Second, the Commenter asserts that the addition of the 
completeness determination requirements adds to PADEP's permitting 
burden, and together with the other contested revisions, ``* * * 
increases the burden on the public contrary to the stated purpose of 
the Clean Air Act * * *'' (See, Comments at 3). Third, the Commenter 
raises several specific concerns regarding the proposed revisions to 
the public participation requirements under 25 Pa. Code section 127. 
EPA's response to these comments is below.
    Comment 1: The Commenter notes that PADEP's previously approved 
regulations allow a 180-day shakedown period, with provisions for 
obtaining a 120-day extension. The Commenter further asserts that PADEP 
has not provided any justification as to why the existing 120-day 
extension period should be expanded to 180 days, and that, in the 
absence of such justification, the proposed longer extension period is 
``* * * both unnecessary and improper,'' (See, Comments at 2).
    Response 1: 25 Pa. Code section 127.12b outlines the terms and 
conditions which must be included in each plan approval. Under section 
127.12b(c), each plan approval ``* * * must authorize temporary 
operation to facilitate shakedown of sources and air cleaning devices, 
to permit operations pending issuance of a permit under Subchapter F 
(relating to operating permit requirements) or Subchapter G (relating 
to Title V operating permits) or to permit the evaluation of the air 
contamination aspects of the source.'' The currently approved 
regulations already allow for a 120-day extension of this temporary 
operating authorization. EPA disagrees with the Commenter's assertion 
that allowing a longer, 180-day extension is improper, and we leave to 
PADEP's discretion the issue of whether it is necessary. CAA section 
110(k)(3) requires the Administrator to approve a SIP submittal ``* * * 
if it meets all of the applicable requirements of this chapter.'' We 
cannot identify, nor did the Commenter point to any CAA requirement or 
provision of its implementing regulations which is contrary to PADEP's 
proposed expansion of the temporary operating authorization period. 
Furthermore, we note that 25 Pa. Code section 127.12b requires each 
plan approval to contain all applicable CAA requirements, including 
monitoring, recordkeeping and reporting, and prohibits PADEP from 
approving or extending the temporary authorization period in any 
instance which would circumvent the requirements of 25 Pa. Code section 
127. Therefore, we are approving the revisions to 25 Pa. Code 127.12b 
as submitted.
    Comment 2: Although acknowledging that the proposed addition of the 
completeness determination requirements of 25 Pa. Code section

[[Page 60911]]

127.12d complies with the CAA, the Commenter asserts that, ``It defies 
common understanding of fairness to push burdens away from the booming 
private industry while at the same time increasing the burden on 
government, especially when PADEP is facing budget cuts'' (See, 
Comments at 3).
    Response 2: EPA disagrees that the addition of completeness 
determinations imposes an undue burden on permitting authorities. On 
the contrary, clearly defining what is required of both the applicant 
and the permitting authority (PADEP in this case), as well as 
establishing deadlines on both parties eliminates potentially open 
ended, back-and-forth correspondence between the applicant and PADEP 
that draws the permitting process out unnecessarily. Such a situation 
is much more burdensome on a permitting authority than a requirement 
for completeness determinations. In any event, the point is moot. The 
completeness determination provision proposed by PADEP is not only 
compliant with the CAA, it is required by 40 CFR 51.166(q)(1). We are 
therefore approving the revisions as submitted.
    Comment 3: The third area of concern raised by the Commenter 
relates to the proposed revisions to the public participation 
requirements for plan approvals. The specific provisions with which the 
Commenter takes issue are discussed in detail as follows:
    First, the Commenter asserts that the proposed revision to 25 Pa. 
Code 127.44, specifically the elimination of the receipt of application 
notice for minor permitting actions, ``* * * would significantly 
decrease the public's awareness of the permitting activity in their own 
communities and consequently diminish the public's ability to provide 
meaningful input into the permitting process,'' (See, Comments at 3). 
Second, the Commenter asserts that the elimination of the newspaper 
publication requirement for minor permitting actions in favor of 
publication in the Pennsylvania Bulletin under the proposed revision to 
section 127.44 is contrary to 40 CFR sections 51.166(q), 51.161(b)(3), 
and 70.7(h), arguing that because the Pennsylvania Bulletin is a '' 
highly esoteric publication with very limited and specialized 
readership'' (See, Comments at 4), it fails to meet the CAA's 
``prominent advertisement'' requirements. Third, the Commenter asserts 
that eliminating the requirement for notice to be sent to affected 
states is contrary to 40 CFR 70.7(h)(3), 70.8, and 51.166(q)(2)(iv). 
Fourth, the Commenter asserts that the proposed revisions to section 
127.45, related to the required contents of the public notices, are 
contrary to 40 CFR 51.161(a) because the revised provisions do not 
include the requirement to disclose the proposed emissions limitations, 
PADEP's analysis of the applicant's proposal, and the project's impact 
on ambient air quality (See, Comments at 7). Finally, the Commenter 
asserts that section 127.48 is contrary to 40 CFR 51.166(q)(iii) and 
(v) because it gives PADEP too much discretion in determining when to 
hold conferences and public hearings.
    Response 3: Generally, the proposed revisions to the public notice 
requirements pertain to Pennsylvania's minor NSR program. In contrast 
to the considerable requirements prescribed for major NSR, the CAA, at 
section 110(a)(2)(C), addresses minor source programs only by requiring 
that each SIP include a program that provides for ``* * * regulation of 
the modification and construction of any stationary source within the 
areas covered by the plan as necessary to assure that [NAAQS] are 
achieved * * *'' The implementing regulations for minor NSR are at 40 
CFR 51.160-51.164. In sum, states have considerable discretion with 
regard to developing their minor NSR programs.
    With regard to the elimination of the receipt of application 
notice, the Commenter is incorrect in the assertion that the previously 
approved version of the Pennsylvania SIP requires both a notice of 
receipt and a notice of intent to issue. Only one notice, a notice of 
intent to take action (issue/deny) was required by the previously 
approved version of 25 Pa. Code 127.44(a). PADEP was, as a matter of 
policy, issuing two notices. It was never a requirement, and it is 
within PADEP's discretion to stop that practice. The revisions to 
section 127.44(a) are consistent with the requirements of 40 CFR 
51.161(a).
    The Commenter's assertion that the elimination of the newspaper 
publication requirement for minor permitting actions in favor of 
publication in the Pennsylvania Bulletin under the proposed revision to 
section 127.44 is contrary to 40 CFR 51.166(q), 51.161(b)(3), and 
70.7(h) is also incorrect. First, the types of actions that are subject 
to the revised requirements of 25 Pa. Code 127.44(a) are not subject to 
the major NSR requirements of 40 CFR 51.166(q). With regard to section 
70.7(h), in certain circumstances, Pennsylvania operates a ``merged'' 
permit program in which a plan approval is both an NSR and a title V 
action, and the requirements of the plan approval are brought into the 
facility's title V permit as an administrative amendment with no 
additional public notice. In such instances, all of the public notice 
requirements of part 70, including the newspaper requirement of section 
70.7(h) are applicable. It is unclear how frequently this situation 
occurs in the types of minor facilities that are subject to the 
proposed revisions to 25 Pa. Code 127.44. Nevertheless, this is a title 
V implementation issue, and does not affect the approvability of the 
proposed revisions to Pennsylvania's NSR SIP. Furthermore, we disagree 
that publication in the Pa. Bulletin fails to meet the ``prominent 
advertisement'' requirements of 40 CFR 51.161(b)(3). EPA has repeatedly 
recognized that the prominent advertisement requirements of section 
51.161(b)(3) are media neutral, and that state programs may meet the 
requirement with alternative methods, provided that it is reasonable to 
conclude that the public would have ``ready and routine access to any 
alternative publishing venues,'' (See, April 17, 2012, Janet McCabe 
Memo to Regional Administrators entitled, ``Minor New Source Review 
Public Notice Requirements under 40 CFR 51.161(b)(3)'', available at 
http://www.epa.gov/region07/air/nsr/nsrmemos/pubnot.pdf). We believe 
publication in the Pa. Bulletin meets this standard.
    With regard to the Commenter's assertion that eliminating the 
requirement for notice to be sent to affected states is contrary to 40 
CFR 70.7(h)(3), 70.8, and 51.166(q)(2)(iv), as we stated above, the 
types of actions that are subject to the proposed revised requirements 
of 25 Pa. Code 127.44(a) are not subject to the major NSR requirements 
of 40 CFR 51.166. The applicable regulations of 40 CFR 51.160-51.164 
contain no such notice requirement. As discussed above, the 
applicability of the title V requirements of part 70 is dependent on 
whether the specific plan approval is being processed as a ``merged'' 
permit, and is an implementation issue that does not impact the 
approvability of the proposed SIP revision.
    EPA agrees with the Commenter's assertion that the proposed 
revisions to 25 Pa. Code 127.45 fall short of what is required by 40 
CFR 51.161. However, as we discussed in our proposal, we believe that 
to some extent, the intent of section 51.161(a) was met in 25 Pa. Code 
sections 127.45(a)(3) and (4), which contain the requirements for what 
must be included in the public notice. These sections require a 
description of the proposed construction or modification, the

[[Page 60912]]

control technology being installed, the conditions in the proposed 
permit (with reference to applicable federal requirements), and the 
type and quantity of air contaminants being emitted. Nevertheless, the 
agency analysis required by 40 CFR 51.161(a) is not explicitly required 
in the proposed SIP revision, nor do the regulations of sections 127.44 
and 127.45 require that the agency's analysis be made available for 
public inspection in at least one location, in accordance with 40 CFR 
51.161(b)(1). Section 127.44(f)(1) requires only that the application 
be made available. This is the basis for granting limited approval. In 
order to receive full approval, PADEP must adopt regulations that 
explicitly require that the agency's analysis be included in the 
materials made available to the public, and that the materials be made 
available for public inspection in at least one location.
    Additionally, the Commenter asserts that the proposed revisions 
have lead to inadequate information being provided in the notices of 
receipt and intent to issue, thus limiting the public's ability to 
participate meaningfully in the permitting process (See, Comments at 
7). The Commenter further asserts that not only should the application 
materials and the agency's analysis be provided to the public, but that 
the proposed permit itself should also be provided. There is no 
requirement in section 51.161 that the proposed permit be made public. 
Nevertheless, EPA agrees that the generic, boilerplate language cited 
by the Commenter falls short of the intent of section 51.161 (See, 
Comments at 7-8). However, this is an implementation issue which is 
outside of the scope of the SIP revision process. Once PADEP submits 
regulations which correct the deficiencies leading to our limited 
approval, the regulations at 25 Pa. Code section 127.45 will be fully 
approvable on their face.
    Finally, EPA disagrees with the Commenter's assertion that 25 Pa. 
Code 127.48 is contrary to 40 CFR 51.166(q)(iii) and (v) because it 
gives PADEP too much discretion in determining when to hold conferences 
and public hearings. The requirements of section 127.48 apply not to 
routine public hearings held in the course of the public notice 
process, but to hearings held as a result of an official protest having 
been filed in accordance with section 127.46. There are no public 
hearing requirements in 40 CFR 51.161 for minor NSR actions. 
Additionally, we note that Pennsylvania has met the plan requirements 
of 40 CFR 51.166 by incorporating by reference in their entirety the 
federal regulations at 40 CFR 52.21. Therefore, the applicable 
requirements are not under section 51.166(q), but rather are under 
section 52.21(q). Section 52.21(q) requires that the applicable 
procedures of 40 CFR section 124 be followed in the processing of 
applications. According to section 124.12(a), ``The Director shall hold 
a public hearing whenever he or she finds, on the basis of requests, a 
significant degree of public interest in a draft permit(s).'' It is 
clear that there is some discretion afforded to the permitting 
authority in determining when a public hearing should be held.
    For the reasons discussed above, EPA believes that with the 
exception of the noted deficiencies, PADEP's proposed SIP revision 
meets all applicable CAA requirements, and that a limited approval is 
warranted.

IV. Final Action

    EPA is granting limited approval of the submitted amendments to 25 
Pa. Code chapter 127 as a revision to the Pennsylvania SIP.

V. 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. 
804(2).

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 December 4, 2012. 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 regarding streamlining amendments to Pennsylvania's 
plan

[[Page 60913]]

approval process 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 21, 2012.
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart NN--Pennsylvania

0
2. In Sec.  52.2020, the table in paragraph (c)(1) is amended by:
0
a. Revising the entry for Title 25, Section 127.12b.
0
b. Adding an entry for Title 25, Section 127.12d after the existing 
entry for Section 127.12c.
0
c. Revising the entries for Sections 127.44, 127.45, and 127.48.
    The amendments read as follows:


Sec.  52.2020  Identification of plan.

* * * * *
    (c) * * *
    (1) * * *

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                                                          State
         State citation              Title/subject      effective    EPA approval date   Additional explanation/
                                                           date                         Sec.   52.2063  citation
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                          Title 25--Environmental Protection Article III--Air Resources
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                                                  * * * * * * *
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                 Chapter 127--Construction, Modification, Reactivation and Operation of Sources
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                                                  * * * * * * *
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                                    Subchapter B--Plan Approval Requirements
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 127.12b.................  Plan Approval Terms      5/24/08  10/5/12 [Insert     Revised; limited
                                   and Conditions.                   page number where   approval.
                                                                     the document
                                                                     begins].
 
                                                  * * * * * * *
Section 127.12d.................  Completeness             5/24/08  10/5/12 [Insert     Added; limited approval.
                                   Determination.                    page number where
                                                                     the document
                                                                     begins].
 
                                                  * * * * * * *
Section 127.44..................  Public Notice......      5/24/08  10/5/12 [Insert     Revised; limited
                                                                     page number where   approval.
                                                                     the document
                                                                     begins].
Section 127.45..................  Contents of Notice.      5/24/08  10/5/12 [Insert     Revised; limited
                                                                     page number where   approval.
                                                                     the document
                                                                     begins].
 
                                                  * * * * * * *
Section 127.48..................  Conferences and          5/24/08  10/5/12 [Insert     Revised; limited
                                   Hearings.                         page number where   approval.
                                                                     the document
                                                                     begins].
 
                                                  * * * * * * *
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[FR Doc. 2012-24524 Filed 10-4-12; 8:45 am]
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