
                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                  REGION III
                               1650 Arch Street
                       Philadelphia, Pennsylvania  19103

DATE:	August 9, 2011 
SUBJECT:    Technical Support Document (TSD) for the State of Pennsylvania Implementation  
            Plan for Section 110(a)(2) Infrastructure Requirements for the 1997 8-hour Ozone         and the 1997 and 2006 Fine Particulate (PM2.5) National Ambient Air Quality Standards

FROM:	Ruth Knapp, Environmental Protection Specialist /S/
                        Office of Air Program Planning 

TO:		File

THRU:	 Cristina Fernandez,   /S/  
		 Associate Director, Office of Air Program Planning 

A.   INTRODUCTION
 
The Environmental Protection Agency (EPA) is taking action on the Commonwealth of Pennsylvania (Commonwealth)  State Implementation Plan (SIP) revisions submitted by the Pennsylvania Department of Environmental Protection (PADEP) to meet the Clean Air Act (CAA) section 110(a)(2) requirements for the revised 1997 8-hour ozone national ambient air quality standards (NAAQS), the 1997 PM2.5, and the 24-hour 2006 PM2.5  NAAQS.

B.  BACKGROUND
1997 8-Hour Ozone and PM2.5 NAAQS
On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS (62 FR 38856) and a new PM2.5 NAAQS (62 FR 38652).  The revised ozone NAAQS is based on 8-hour average concentrations.  The 8-hour averaging period replaced the previous 1-hour averaging period, and the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm.  The new PM2.5 NAAQS established a health-based PM2.5 NAAQS at 15.0 micrograms per cubic meter (ug/m[3]) based on a 3-year average of annual mean PM2.5 concentrations, and a 24-hour standard of 65 ug/m[3] based on a 3-year average of the 98[th] percentile of 24-hour concentrations.  

Whenever a new or revised NAAQS is promulgated, section 110(a) of the CAA imposes obligations upon states to submit SIP revisions that provide for the implementation, maintenance, and enforcement of the new or revised NAAQS within three years following the promulgation of such NAAQS - the so called infrastructure SIP revisions.  Although states typically have met many of the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous ozone and particulate matter (PM) standards, states (including all the Region 3 states) were still required to submit SIP revisions that address section 110(a)(2) for the 1997 NAAQS.  These SIPs were due in July 2000.  However, intervening litigation over the 1997 8-hour ozone and PM2.5 NAAQS created uncertainty about how to proceed.

In March of 2004, Earthjustice initiated a lawsuit against EPA for failure to take action against states that had not made SIP submissions to meet the requirements of sections 110(a)(1) and (2), i.e., failure to make a "finding of failure to submit the required SIP 110(a) SIP elements."  On March 10, 2005, EPA entered into a Consent Decree with Earthjustice that obligated EPA to make official findings, in accordance with section 110(k)(1) of the CAA, as to whether states have made complete SIP submissions, pursuant to sections 110(a)(1) and (2), by December 15, 2007 for the 1997 8-hour ozone NAAQS and by October 5, 2008 for the 1997 PM2.5  NAAQS.  EPA made completeness findings for the 1997 8-hour ozone NAAQS on March 27, 2008 (73 FR 16205) and on October 22, 2008 (73 FR 62902) for the 1997 PM2.5 NAAQS.  These findings pertained only to whether the submissions were complete, pursuant to 110(k)(1)(A), and did not constitute EPA approval or disapproval of such submissions.

Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements are due pursuant to section 172.  These elements are: 1) submissions required by section 110(a)(2)(C) to the extent that subsection pertains to a permit program in part D Title I of the CAA;  and 2) any submissions required by section 110(a)(2)(I), which pertain to the nonattainment planning requirements of part D Title I of the CAA.  The determinations required by the March 2005 Consent Decree excluded any determination regarding such portion of section 110(a)(2)(C) and section 110(a)(2)(I); therefore, this action does not cover these specific elements for any of the NAAQS at issue.  

This action also does not address the requirements of 110(a)(2)(D)(i)(I) for the 1997 ozone and PM2.5 NAAQS since the requirements of 110(a)(2)(D)(i)(I) for these NAAQS have been addressed by separate findings issued by EPA.  See April 25, 2005 (70 FR 21147).  On July 6, 2011, the EPA Administrator signed the Cross-State Air Pollution Rule (CSAPR) to address 110(a)(2)(D)(i)(I) for these NAAQS.  See CSAPR website at http://www.epa.gov/airquality/transport/index.html.  

With respect to the Commonwealth's obligations pursuant to CAA sections 110(a)(1) and (2) for the 1997 8-hour ozone and PM2.5  NAAQS, this technical support document discusses those elements which were the subject of EPA's March 27, 2008 and October 22, 2008 completeness findings and statutory element 110(a)(2)(D)(i)(II). For the geographic area of Allegheny County, these completeness findings noted Pennsylvania's failure to submit a SIP revision addressing the portion of 110(a)(2)(C) relating to the part C permit programs.  EPA recognizes that such requirement has already been addressed by a Federal Implementation Plan (FIP) that remains in place, and concludes that the finding of incompleteness does not trigger any additional FIP obligations for Pennsylvania.  For all other areas of Pennsylvania, the Commonwealth has a SIP approved PSD program in place and EPA has found that the 110(a)(2) submittals at issue were complete.  Therefore, EPA's proposed action, and this technical support document, addresses the Commonwealth's compliance with the portion of 110(a)(2) relating to the part C permit programs for all geographic areas except Allegheny County.   

Pennsylvania's submittals of December 7, 2007, June 6, 2008, April 26, 2010, and December 20, 2010, address the requisite 110(a)(2) requirements relating to the 1997 ozone and PM2.5  NAAQS, except for the Part C permit requirements for the geographic area of Allegheny County as noted above.  We will take separate action on the SIP submittal of December 20, 2010.  The December 20, 2010 submittal specifically addresses Regional Haze and also addresses the portion of 110(a)(2)(D)(i)(II) related to visibility. 

2006 PM2.5 NAAQS
On October 17, 2006 (71 FR 61144), EPA revised the 24-hour average PM2.5   primary and secondary NAAQS from 65 ug/m[3] to 35 ug/m[3].  As required by section 110(a)(1) of the CAA, the 110(a)(2) submittals were due within three years after promulgation of the revised standard, with the exception of sections 110(a)(2)(C) pertaining to the part D permit program and 110(a)(2)(I) for the same reasons discussed for the 1997 standard.  This action also does not address the requirements of 110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS since the requirements of 110(a)(2)(D)(i)(I) have been addressed by separate findings issued by EPA.  See June 9, 2010 (75 FR 32673).  The CSAPR signed on July 6, 2011 addresses 110(a)(2)(D)(i)(I) for this NAAQS.  See CSAPR website at http://www.epa.gov/airquality/transport/index.html.  This action also does not include the portion of 110(a)(2)(D)(i)(II) as it pertains to visibility.  The visibility portion of this element will be addressed by separate action.

Pennsylvania's submittals of April 26, 2010, December 20, 2010, and May 24, 2011 address the requisite 110(a)(2) requirements relating to the 2006 PM2.5  NAAQS except for Allegheny County's part C permit as discussed above.  As stated above, EPA will take separate action on the December 20, 2010 submittal. 

 Scope of Action on Infrastructure Submittals

EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for ozone and PM2.5  NAAQS for various states across the country.  Commenters on EPA's recent proposals for some states raised concerns about EPA statements that it was not addressing certain substantive issues in the context of acting on those infrastructure SIP submissions.  Those commenters specifically raised concerns involving provisions in existing SIPs and with EPA's statements in other proposals that it would address two issues separately and not as part of actions on the infrastructure SIP submissions:  (i) existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions ("SSM"); and (ii) existing provisions related to "director's variance" or "director's discretion"  that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA ("director's discretion").  EPA notes that there are two other substantive issues for which EPA likewise stated in other proposals that it would address the issues separately:  (i) existing provisions for minor source new source review programs that may be inconsistent with the requirements of the CAA and EPA's regulations that pertain to such programs ("minor source NSR"); and (ii) existing  provisions for Prevention of Significant Deterioration programs that may be  inconsistent with current requirements of EPA's "Final NSR Improvement Rule," 67 FR 80186  (December 31, 2002), as amended by 72 FR 32526  (June 13, 2007) ("NSR Reform").   In light of the comments, EPA now believes that its statements in various proposed actions on infrastructure SIPs with respect to these four individual issues should be explained in greater depth.

EPA intended the statements in the other proposals concerning these four issues merely to be informational, and to provide general notice of the potential existence of provisions within the existing SIPs of some states that might require future corrective action.  EPA did not want states, regulated entities, or members of the public to be under the misconception that the Agency's approval of the infrastructure SIP submission of a given state should be interpreted as a reapproval of certain types of provisions that might exist buried in the larger existing SIP for such state.  Thus, for example, EPA explicitly noted that the Agency believes that some states may have existing SIP approved SSM provisions that are contrary to the CAA and EPA policy, but that "in this rulemaking, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at facilities."  EPA further explained, for informational purposes, that "EPA plans to address such State regulations in the future."  EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues.  EPA's objective was to make clear that approval of an infrastructure SIP for these ozone and PM2.5 NAAQS should not be construed as explicit or implicit reapproval of any existing provisions that relate to these four substantive issues.

Unfortunately, the commenters and others evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be  integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issue in the context of the infrastructure SIPs.  This was not EPA's intention.  To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was reapproving any such existing provisions.  EPA's intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues may be dealt with separately, outside the context of acting on the infrastructure SIP submission of a state.  To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SIP submission with respect to any substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c).  Given the confusion evidently resulting from EPA's statements in those proposals, however, we want to explain more fully the Agency's reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separately.

The requirement for the SIP submissions at issue arises out of CAA section 110(a)(1).  That provision requires that states must make a SIP submission "within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof)" and that these SIPs are to provide for the "implementation, maintenance, and enforcement" of such NAAQS.   Section 110(a)(2) includes a list of specific elements that "[e]ach such plan" submission must meet.  EPA has historically referred to these particular submissions that states must make after the promulgation of a new or revised NAAQS as "infrastructure SIPs."  This  specific term does not appear in the statute, but EPA uses the term to distinguish this particular type of SIP submission designed  to address basic structural requirements of a SIP from other types of SIP submissions designed to  address other different requirements, such as "nonattainment SIP" submissions required to address the nonattainment planning requirements of  part D, "regional haze SIP" submissions required to address the visibility protection requirements of CAA section 169A, new source review permitting program submissions  required to address the requirements of part D, and a host of other specific types of SIP submissions that address other specific matters.

Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning the  required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous.  In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive provisions, and some of which pertain to requirements for both authority and substantive provisions.  Some of the elements of section 110(a)(2) are relatively straightforward, but others clearly require interpretation by EPA through rulemaking, or recommendations through guidance, in order to give specific meaning for a particular NAAQS.  

Notwithstanding that section 110(a)(2) states that "each" SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1).  This illustrates that EPA must determine which provisions of section 110(a)(2) may be applicable for a given infrastructure SIP submission.  Similarly, EPA has previously decided that it could take action on different parts of the larger, general "infrastructure SIP" for a given NAAQS without concurrent action on all subsections, such as  section 110(a)(2)(D)(i), because the Agency bifurcated the action on these latter "interstate transport" provisions within section 110(a)(2) and worked with states to address each of the four prongs of section 110(a)(2)(D)(i) with substantive administrative actions proceeding on different tracks with different schedules.   This illustrates that EPA may conclude that subdividing the applicable requirements of section 110(a)(2) into separate SIP actions may sometimes be appropriate for a given NAAQS where a specific substantive action is necessitated, beyond a mere submission addressing basic structural aspects of the state's SIP.  Finally, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS and the attendant infrastructure SIP submission for that NAAQS.  For example, the monitoring requirements that might be necessary for purposes of section 110(a)(2)(B) for one NAAQS could be very different than what might be necessary for a different pollutant.  Thus, the content of an infrastructure SIP submission to meet this element from a state might be very different for an entirely new NAAQS, versus a minor revision to an existing NAAQS.

Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions.  For example, nonattainment SIPs required by part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E).  By contrast, it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C, i.e., the PSD requirements applicable in attainment areas.  Nonattainment SIPs required by part D also would not need to address the requirements of section 110(a)(2)(G) with respect to emergency episodes, as such requirements would not be limited to nonattainment areas.  As this example illustrates, each type of SIP submission may implicate some subsections of section 110(a)(2) and not others.  

Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS.  Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list  of elements "as applicable."  In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way.  EPA elected to use guidance to make recommendations for infrastructure SIPs for these NAAQS.

On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM2.5  NAAQS.   Within this guidance document, EPA described the duty of states to make these submissions to meet what the Agency characterized as the "infrastructure" elements for SIPs, which it further described as the "basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the standards."    As further identification of these basic structural SIP requirements, "attachment A" to the guidance document included a short description of the various elements of section 110(a)(2) and additional information about the types of issues that EPA considered germane in the context of such infrastructure SIPs.  EPA emphasized that the description of the basic requirements listed on attachment A was not intended "to constitute an interpretation of" the requirements, and was merely a "brief description of the required elements."  EPA also stated its belief that with one exception, these requirements were "relatively self explanatory, and past experience with SIPs for other NAAQS should enable States to meet these requirements with assistance from EPA Regions."   For the one exception to that general assumption, however,  i.e., how states should proceed with respect to the requirements of section 110(a)(2)(G) for the 1997 PM2.5  NAAQS, EPA gave much more specific recommendations.  But for other infrastructure SIP submittals, and for certain elements of the submittals for the 1997 PM2.5 NAAQS, EPA assumed that each State would work with its corresponding EPA regional office to refine the scope of a State's submittal based on an assessment of how the requirements of section 110(a)(2) should reasonably apply to the basic structure of the State's SIP for the NAAQS in question.

On September 25, 2009, EPA issued guidance to make recommendations to states with respect to the infrastructure SIPs for the 2006 PM2.5 NAAQS.  In the 2009 Guidance, EPA addressed a number of additional issues that were not germane to the infrastructure SIPs for the 1997 8-hour ozone and 1997 PM2.5  NAAQS, but were germane to these SIP submissions for the 2006 PM2.5  NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had bifurcated from the other infrastructure elements for those specific 1997 ozone and PM2.5  NAAQS.

Significantly, neither the 2007 Guidance nor the 2009 Guidance explicitly referred to the SSM, director's discretion, minor source NSR, or NSR Reform issues as among specific substantive issues EPA expected states to address in the context of the infrastructure SIPs, nor did EPA give any more specific recommendations with respect to how states might address such issues even if they elected to do so.  The SSM and director's discretion issues implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C).  In the 2007 Guidance, however, EPA did not indicate to states that it intended to interpret these provisions as requiring a substantive submission to address these specific issues in the context of the infrastructure SIPs for these NAAQS.  Instead, EPA's 2007 Guidance merely indicated its belief that the states should make submissions in which they established that they have the basic SIP structure necessary to implement, maintain, and enforce the NAAQS.  EPA believes that states can establish that they have the basic SIP structure, notwithstanding that there may be potential deficiencies within the existing SIP.  Thus, EPA's other proposals mentioned these issues not because the Agency considers them issues that must be addressed in the context of an infrastructure SIP as required by section 110(a)(1) and (2), but rather because EPA wanted to be clear that it considers these potential existing SIP problems as separate from the pending infrastructure SIP actions.

EPA believes that this approach to the infrastructure SIP requirement is reasonable, because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stem to stern, review of each and every provision of an existing SIP merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS.  Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of "implementation, maintenance, and enforcement" of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP.  To the contrary, EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on those elements that are most likely to need a specific SIP revision  in light of the new or revised NAAQS.  Thus, for example, EPA's 2007 Guidance specifically directed states to focus on the requirements of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence of underlying EPA regulations for emergency episodes for this NAAQS and an anticipated absence of relevant provisions in existing SIPs.

Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs.  These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency.  Section 110(k)(5) authorizes EPA to issue a "SIP call" whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or  otherwise to comply with the CAA.  Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.  Significantly, EPA's determination that an action on the infrastructure SIP is not the appropriate time and place to address all potential existing SIP problems does not preclude the Agency's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action at a later time.  For example, although it may not be appropriate to require a state to eliminate all existing  inappropriate director's discretion provisions in the course of acting on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may be among the statutory bases that the Agency cites in the course of addressing the issue in a subsequent action.   

C.  EPA REQUIREMENTS

As discussed above, for the 1997 8-hour ozone and the 1997 PM2.5 NAAQS, states must provide SIP submissions, or provide certification that address section 110(a)(2)(A) through (M), with the exception of the portion of 110(a)(2)(C) pertaining to a permit program in Part D Title I of the CAA, 110(a)(2)(I) and (D)(i)(I).  To help States meet this statutory requirement, EPA issued guidance on October 2, 2007 entitled "Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2.5  National Ambient Air Quality Standards," which listed the basic elements that States must include in their SIPs.  

On September 25, 2009, EPA issued an updated guidance document entitled "Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5 ) National Ambient Air Quality Standards (NAAQS)", which clarifies, in further detail, expectations for certain elements to meet the requirements of sections 110(a)(1) and (2) of the CAA for both the 1997 and 2006 PM2.5  NAAQS.  Specifically, EPA provided additional guidance for satisfying the section 110(a)(2)(D) requirements for the 2006 PM2.5  NAAQS, as well as guidance for satisfying the section 110(a)(2)(G) requirements for both the 1997 and 2006 PM2.5  NAAQS.  


D.  STATE'S SUBMITTAL

To satisfy the requirements of section 110(a)(1) and (2) of the CAA for the 1997 8-hour ozone NAAQS and PM2.5  NAAQS, PADEP  submitted a number of SIP revisions and certifications in accordance with the October 2, 2007 guidance.  To satisfy the requirements of section 110(a)(1) and (2) for the 2006 PM2.5  NAAQS, and element G for the 1997 PM2.5  NAAQS, PADEP submitted a SIP revision on April 26, 2010.  PADEP also submitted a certification on May 24, 2011 to address some 2006 PM2.5 elements in accordance with the September 25, 2009 guidance.  PADEP also made SIP submittals on December 7, 2007 and June 6, 2008 to address the 1997 Ozone and PM2.5 NAAQS.  Table 1 summarizes the Commonwealth's submittals. 
 
The submittals shown in Table 1 addressed the infrastructure elements identified in section 110(a)(2), or portions thereof, that EPA is proposing to approve. 

Table 1:  110(a)(2) Elements, or Portions Thereof, EPA is Proposing to Approve for 1997 Ozone and PM2.5  and 2006 PM2.5  NAAQS for Pennsylvania 
Submittal Date
1997 8-Hour Ozone
1997 PM2.5  
2006 PM2.5  

December 7, 2007
A, B, C, D(ii), E, F, G, H,J, K, L, M
A, B, C, D(ii), E, F, G, H,J , K, L, M

December 7, 2007
D(i)(II)PSD
D(i)(II)PSD

June 6, 2008
C, D(i)(II)PSD, J 
C, D(i)(II)PSD, J 

June 6, 2008

K

April 26, 2010

G
A, B,C, E, F, G, H,J, K, L, M
May 24, 2011 


D(i)(II)PSD, D(ii)

 
E.  EVALUATION OF STATE SUBMITTAL

As shown above, Pennsylvania provided multiple submittals for the 1997 8-hour ozone and PM2.5 NAAQS, and for the 2006 PM2.5 NAAQS.  However, the demonstrations submitted by the Commonwealth for how it is meeting many of the elements are substantively identical for both the ozone and PM2.5 NAAQS, therefore, except as otherwise noted, the following evaluation of each element pertains to all standards at issue. 

1.  Section 110(a)(2)(A) 

According to the above referenced submittals, the Commonwealth's enforceable emission limitations and other control measures are covered in the Air Pollution Control Act (APCA) and those provisions of Pennsylvania Code Title 25, Environmental Protection, Article III, Chapters 121-145 (25 Pa. Code Chapters 121-145), Title 67, Chapters 175  -  177 listed in 40 CFR §52.2020(c)(1), Allegheny County Health Department (ACHD) Regulations, Parts A through I to Articles XX and XXI listed in 40 CFR 52.2020(c)(2), Philadelphia Title 3 Air Management Code  and Philadelphia Air Management Services (AMS) Regulations I, II, III, IV, V, VII, VIII, XI, and XIII listed in 40 CFR 52.2020(c)(3), and source specific provisions codified at 40 CFR 52.2020(d)(1) and (2). Additional SIP approved regulations may be found in 40 CFR part 52 Subpart NN.  Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to 110(a)(2)(A). 

EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D of Title I of the CAA to be governed by the submission deadline of section 110(a)(1).  Nevertheless, the Commonwealth may have included some previous EPA-approved SIP provisions originally submitted in response to part D in its submission documenting its compliance with the requirements of sections 110(a)(1) and (2) of the CAA.  For the purposes of this action, EPA has reviewed the above identified Pennsylvania submittals, including any rules originally submitted in response to part D, or references thereto, solely for the purposes of determining whether such submittals support a finding that the state has met the basic infrastructure requirements under section 110(a)(2).

In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at a facility.  Also, EPA is not proposing to approve or disapprove any existing State rules with regard to director's discretion or variance provisions.  See the discussion above under Section B, Scope of Action on Infrastructure Submittals. 

2.  Section 110(a)(2)(B) 

According to the above referenced submittals, Section 4(17) of the APCA, 35 P.S. § 4004, provides authority to "determine by means of field studies and sampling the degree of air pollution existing in any part of the Commonwealth."  PADEP establishes, operates and maintains a network of ambient air monitors throughout Pennsylvania, excluding Philadelphia and Allegheny Counties. Both Philadelphia AMS and the ACHD operate their monitoring networks and collect data under Pennsylvania approved programs.

Based on the above referenced submittals, the Pennsylvania network consists only of monitors that have been designated by EPA as either Reference or Equivalent monitors.  All ambient air monitors are subjected to the Quality Assurance requirements of 40 CFR Part 58, Appendix A.  In addition, all samplers are located at sites that have met the minimum siting requirements of Part 58, Appendix E.

Also according to the above referenced submittals, as required in 40 CFR Section 58.10, an annual network design plan is required to be submitted to the EPA Regional Administrator by July 1.  The network design document informs both EPA and the public of any planned changes to the sampling network for the next year.  Also the state and the local agencies collect and report to EPA all ambient air quality data for sulfur dioxide, carbon monoxide, ozone, nitrogen dioxide, lead, particulate matter 10 microns or less in diameter, and PM2.5.  The reports comply with the federal requirements of 40 CFR 58.35.  PADEP analyzes such air quality data (including data from the local agencies) to determine attainment status or progress. 

Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)(B). 


3.  Section 110(a)(2)(C)

According to the above referenced submittals, sections 4 and 8 of the APCA, 35 P.S. §§ 4004 and 4008, provide adequate authority for PADEP to enforce appropriate limitations and other control measures.  Section 6.1(k) of the APCA, 35 P.S. § 4006.1(k), provides that PADEP shall require revisions to any permit to incorporate applicable standards and regulations promulgated under the CAA after issuance of a Title V permit. 

Also according to the above referenced submittals, Section 9.1 of the APCA, 35 P.S. § 4009.1, provides that PADEP may assess civil penalties for violations of the APCA, regulations adopted under the APCA, Department orders or terms, and conditions of plan approvals and operating permits.  Additionally, Section 7.1 of the APCA, 35 P.S. § 4007.1, authorizes PADEP to withhold plan approvals, state operating permits, or Title V permits where an applicant or related party has shown a lack of ability or intention to comply with the APCA.  
 
 SIP revisions approved by EPA in 40 CFR 52.2020 such as ozone maintenance plans often  include enforceable emissions limits, control measures, fees and compliance schedules by describing regulations upon which the plans rely.

According to the above referenced submittals, the Commonwealth's enforceable emission limitations and other control measures are covered in those provisions of the APCA and Pennsylvania Code, Title 25, Environmental Protection, Article III, Chapters 121-145 (25 Pa. Code Chs. 121-145); Title 67, Chapters 175  -  177 that are listed in 40 CFR §52.2020(c)(1); ACHD Regulations, Parts A through I to Articles XX and XXI that are listed in 40 CFR 52.2020(c)(2); Philadelphia Title 3 Air Management Code and Philadelphia AMS Regulations I, II, III, IV, V, VII, VIII, XI, and XIII that are listed in 40 CFR 52.2020(c)(3); and source specific provisions codified at 40 CFR 52.2020(d)(1).  

According to the above referenced submittals, elements of the program for enforcement are found in the monitoring, recordkeeping and reporting requirements for sources in these control measures as well as those provisions of:  25 Pa. Code Chapter 127, subchapters D and E that are listed in 40 CFR 52.2020(c)(1); those provisions of ACHD Regulations, Parts H and I to Articles XX and XXI that are listed in 40 CFR 52.2020(c)(2); and those provisions of the Philadelphia Title 3 Air Management Code and Philadelphia AMS Regulation I that are listed in 40 CFR 52.2020(c)(3).

For all areas of Pennsylvania, except for Allegheny County, a SIP approved PSD program is in place. The permitting program is codified at 40 CFR 52.2020.  EPA recognizes that although no approved PSD permit program is currently in place for Allegheny County such requirement has  been addressed through the implementation of a Federal Implementation Plan (FIP), see 73 FR 16208 (March 27, 2008).  ACHD has authority to implement the current federal PSD regulations along with any future changes see 68 FR 14617 (March 26, 2003). 

Based upon EPA's review of the above referenced submittals, for all areas except Allegheny County, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to 110(a)(2)(C).   

4.  Section 110(a)(2)(D)(i)(II)

For all areas of Pennsylvania, except for Allegheny County, a SIP approved PSD program is in place. The permitting program is codified at 40 CFR 52.2020.  EPA recognized that although no approved permit program is currently in place for Allegheny County such requirement has already been addressed by a FIP  that remains in place see 73 FR 16208 (March 27, 2008). ACHD has authority to implement the current federal PSD regulations along with any future changes see 68 FR 14617 (March 26, 2003). 

Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to 110(a)(2)(D)(i)(II) for the part C permit program portion, except for the geographic area of Allegheny County.  

As stated above, EPA will take separate action on the portion of the Commonwealth's submittals which relate to the visibility requirements of 110(a)(2)(D)(i)(II).  In its May 24, 2011 submittal Pennsylvania clarified that its Regional Haze SIP submittal dated December 20, 2010 should be used to meet the relevant and applicable visibility obligations required by 110(a)(2)(D)(i)(II).  When EPA takes action on the Commonwealth's December 20, 2010 submittal, EPA will also address the December 2007 and May 2011 submittals related to the visibility protection requirements of 110(a)(2)(D)(i)(II).  

5.  Section 110(a)(2)(D)(ii) 

According to the above referenced submittals, the Commonwealth has met its obligations pursuant to CAA section 126 and it has no currently pending obligations pursuant to CAA Section 126(b) related to the 1997 ozone and 1997 and 2006 PM2.5  NAAQS.  According to the submittals, the Commonwealth has adequate provisions insuring future compliance with the requirements of sections 126 and 115 of the CAA as may be necessary.

Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to 110(a)(2)(D)(ii).  

6.  Section 110(a)(2)(E)

According to the above referenced submittals, the Commonwealth's enforceable emission limitations and other control measures are covered in:  a) the APCA and those provisions of Pennsylvania Code Title 25, Environmental Protection, Article III, Chapters 121-145 (25 Pa. Code Chs. 121-145) and Title 67, Chapters 175-177 that are listed in 40 CFR § 52.2020(c)(1); b) those provisions of ACHD Regulations, Parts A through I to Articles XX and XXI that are listed in 40 CFR §52.2020(c)(2); c) those provisions of Philadelphia Title 3 Air Management Code and Philadelphia AMS Regulations I, II, III, IV, V, VII, VIII, XI, and XIII that are listed in 40 CFR 52.2020(c)(3); and, d) source specific provisions codified at 40 CFR 52.2020(d)(1).  The regulations in the Pennsylvania Code are duly adopted by the Environmental Quality Board.  Those adopted by the local air agencies, namely ACHD and Philadelphia AMS, are duly adopted by the county Board of Health, enacted by the County Council and approved by the Chief Executive and the Air Pollution Control Board, respectively, pursuant to section 12 of the APCA  (35 P.S. § 4012). Where these provisions relate to section 110 requirements, SIP revisions have been submitted to and approved by EPA.  EPA-approved SIP revisions are codified at 40 CFR part 52, subpart NN.  

According to the submittals, Section 12 of APCA (35 P.S. § 4012) establishes the ability of the two pre-existing local air agencies to continue to operate their own programs.  Authority for AMS is provided by Title 3, Air Management Code and for ACHD by Article XXI and County Ordinance 16782. Permits and enforcement orders are issued directly by the PADEP and are not issued by state boards. 

Also, the above referenced submittals indicate Section 6.3 of APCA (35 P.S. § 4006.3) authorizes PADEP to establish fees sufficient to cover the indirect and direct costs of administering the plan approval and operating permit program including Title V and costs of administering certain committees.  25 Pa. Code §127.701, as currently approved in the SIP, establishes fees to cover the direct and indirect costs of administering the air pollution control planning process, operating permit program, certain committee operation and to support the air pollution control program authorized by state statute.  The APCA also authorizes the establishment of fees to cover non-Title V costs.  The air quality program also receives revenue from fines and penalties (Clean Air Fund) and federal funds under Section 105 and 103 of the CAA, special federal funds for PM2.5, and state general appropriations.  The local agencies receive Section 105 and 103 funds directly from EPA, have their own authority to collect Title V and other fees, and also receive revenue from fines and penalties that are restricted for air quality program purposes.  PADEP's agreements with ACHD and AMS assure that these local agencies similarly have the personnel, funding and authority to carry out their respective obligations under the SIP.

The above referenced submittals indicate that Section 12 of the APCA reserved powers to political subdivisions to enact air pollution control ordinances, which are not less stringent than the requirements of the CAA, APCA, and regulations adopted under the acts.  The APCA authorizes only two local air pollution control programs in the Commonwealth, which are administered by the Philadelphia AMS and the ACHD.  PADEP maintains agreements with the two local air agencies that PADEP relies on for implementation of the SIP in Allegheny and Philadelphia counties.  PADEP has approved the local programs in the areas of financial assistance, annual workload projection, emissions reporting, source monitoring and reporting, enforcement, ambient air monitoring and reporting, and air quality permitting. PADEP has responsibility for ensuring adequate implementation of SIP provisions by local authorities under Section 12 of the APCA, 35 P.S. § 4012. The submission of a description of the implementation of the local air pollution control program along with a detailed accounting of the costs of implementation is required on an annual basis.

Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to 110(a)(2)(E). 

7.  Section 110(a)(2)(F)

According to the above referenced submittals, regulatory requirements related to sampling and testing have been codified in 25 Pa. Code Chapter 139 and requirements in 25 Pa. Code Section §135.3 provide for the reporting of emissions inventories in a format established by PADEP on a schedule set forth in the section.  In addition, 25 Pa. Code § 135.21 requires the submission of emission statements as required by the CAA.  Area, mobile, and non-road data are reported on a 3-year cycle.

SIP submittals such as maintenance plans for the 8-hour ozone NAAQS may also include emissions limits, controls measures, fees, compliance schedules by describing regulations upon which the plans rely.  Approved submittals can be found in 40 CFR part 52 Subpart NN. 

According to the above referenced submittals, the Commonwealth's enforceable emission limitations and other control measures are covered in the APCA and those provisions of Pennsylvania Code Title 25, Environmental Protection, Article III, Chapters 121-145 (25 Pa. Code Chs. 121-145), Title 67, Chapters 175  -  177 listed in 40 CFR §52.2020(c)(1),  ACHD Regulations, Parts A through I to Articles XX and XXI listed in 40 CFR 52.2020(c)(2), Philadelphia Title 3 Air Management Code, Philadelphia AMS Regulations I, II, III, IV, V, VII, VIII, XI, and XIII listed in 40 CFR 52.2020(c)(3), and, source specific provisions codified at 40 CFR 52.2020(d)(1) and (2).  Elements of the program for enforcement are found in the monitoring, recordkeeping and reporting requirements for sources in these control measures as well as 25 PA Code §127, subchapters D and E, ACHD Regulations, Parts H and I to Articles XX and XXI and Philadelphia AMS Regulation I.

Also according to the above referenced submittals, the Commonwealth has the responsibility of making all records, reports or information obtained by PADEP or referred to at public hearings under the provisions of the APCA available to the public, except to the extent the records, reports or information are protected by confidentiality pursuant to APCA section 13.2, 35 P.S. § 4013.2.  The types of records PADEP routinely provides access to include notifications, inspection reports, notices of violation, enforcement orders, applications, permit review letters, sample results, monitoring reports, permits, approvals and denials that would relate to §110(a)(2)(F).  PADEP generally makes information available for public access through its website, but also makes hard copy reports available upon written request.

Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to 110(a)(2)(F). 

8.  Section 110(a)(2)(G) 

According to the submittals referenced above, for both ozone and PM2.5, enabling authority for "Emergency Powers" is contained in Sections 5(5) and 6.2 of the APCA (35 P.S. §§ 4005(5) and 4006.2).  The Environmental Quality Board (EQB) has adopted 25 Pa. Code Chapter 137, ACHD has adopted Part F to Article XX/XXI and Philadelphia AMS has adopted Regulation IV. 25 Pa. Code Chapter 137, Part F to Article XX/XXI and Philadelphia AMS Regulation IV were approved into the SIP on May 31, 1972 (37 FR 10842), June 16, 1993 (58 FR 33203), June 12, 1998 (63 FR 32126), June 11, 2002 (67 FR 39854), and November 14, 2002 (67 FR 68935).   

EPA's September 25, 2009 guidance, entitled Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5 ) National Ambient Air Quality Standards (NAAQS),  provides clarification that states that have air quality control regions identified as either Priority I, Priority IA or Priority II by the "Prevention of Air Pollution Emergency Episodes" rules at 40 CFR 51.150 must develop emergency episode contingency plans.  The guidance recommends that until EPA establishes significant harm levels (SHL) for PM2.5, states should establish their own SHL levels based on EPA's February 12, 2007 issue paper on setting priority and emergency action levels and also consider the recommended levels set forth in Attachment B of the September 25, 2009 guidance.  States would be required to develop emergency episode plans for any area that has monitored and recorded 24-hour PM2.5  levels greater than 140.4 ug/m[3] since 2006.  A State that has never exceeded this level since 2006 is considered to be Priority III and in accordance with the guidance, may certify that it has appropriate general emergency powers to address PM2.5  - related episodes, and is not required to adopt specific emergency episode plans at this time, given the existing monitored levels.  

According to the Pennsylvania submittals referenced above, given the existing air quality monitoring data, Pennsylvania is a Priority III area and in accordance with the guidance is not required to adopt specific emergency episode plans at this time for PM2.5.

Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to 110(a)(2)(G). 

9.  Section 110(a)(2)(H) 

 According to the above referenced submittals, Section 4(1) of the APCA, 35 P.S. § 4004(1), gives PADEP the authority and duty to implement the provisions of the CAA.  Section 5 of the APCA, 35 P.S. § 4005, gives the EQB the authority to adopt rules and regulations for the prevention, control, reduction and abatement of air pollution.  In addition, 25 Pa. Code Chapter 122 adopts the federal NAAQS by reference.  Also according to the above referenced submittals, PADEP has revised and will continue to revise the SIP as may be necessary when EPA revises the primary or secondary NAAQS and when, if ever, EPA finds the SIP is substantially inadequate to attain the NAAQS which it implements or otherwise to comply with the CAA.  PADEP has revised and will continue to revise the SIP to take advantage of improved or more expeditious methods to attain the NAAQS.

Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to 110(a)(2)(H).

10.  Section 110(a)(2)(J) 

According to the above referenced submittals, the APCA provides adequate authority for PADEP's practices of consultation and participation in SIPs, as required under CAA Sections 121 and 127 and notification of NAAQS violations as required in CAA Section 127.  It also provides authority for the public education efforts described in CAA Section 127.  Section 4 of APCA, 35 P.S. § 4004, provides general enabling authority for interaction with the public and local government.

Also according to the above referenced submittals, PADEP makes real-time and historical air quality information available on its Web site.  In the four areas where violations have been most common in the past, PADEP has formed, funded, and provided technical resources to Air Quality Partnerships.  The Partnerships receive forecasts of potentially unhealthy air quality (including, but not limited to, violations of the NAAQS), and encourage specific actions, which can be taken to prevent standards from being exceeded.  PADEP has incorporated by reference into Chapter 127, Subchapter D, the requirements in 40 CFR 52 under section 161 of the CAA (42 U.S.C.A. § 7471) for prevention of significant deterioration in their entirety.  These provisions were approved by EPA as part of the SIP and can be found in 40 CFR 52.2020.  Philadelphia's PSD regulations which are also in the SIP can be found in AMS Regulation XIII. 

Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth, with the exception of Allegheny County,  has met its obligations pursuant to CAA Section 110(a)(2)(J).  EPA recognizes that although no approved permit program is currently in place for Allegheny County such requirement has already been addressed by a FIP that remains in place (see 73 FR 16208 (March 27, 2008)).  ACHD has authority to implement the current Federal PSD regulations along with any future changes (see 68 FR 14617 (March 26, 2003)). 

Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to CAA Section 110(a)(2)(J), except for the geographic area of Allegheny County as explained above.    

11.  Section 110(a)(2)(K) 

According to the above referenced submittals, Section 4(1) of the APCA provides that it is the power and duty of PADEP to implement the provisions of the CAA in the Commonwealth.  35 P.S. § 4004 (1).  Inherent in this grant of power and duty is the obligation to meet the NAAQS established under Section 107 of the CAA.  Section 4(15) of the APCA provides that it is the power and duty of PADEP to conduct or cause to be conducted studies and research with respect to air contaminants, their nature, causes and effects, and with respect to the control, prevention, abatement and reduction of air pollution and air contamination. 35 P.S. § 4004 (15).  This power and duty include the power and duty to perform air quality modeling and data submissions prescribed by the Administrator of EPA under Section 110(a)(2)(K) of the CAA. 

According to the above referenced submittals, inherent in Pennsylvania's obligation to meet the NAAQS and to conduct or cause to be conducted studies and research is the authority and obligation for the Department to perform modeling as required under the CAA to demonstrate attainment of the NAAQS.  Pennsylvania will continue to perform modeling as required under the CAA to demonstrate attainment. Pennsylvania will continue to submit the air quality modeling data as part of its relevant SIP submissions and through federal grant commitments or in other ways that EPA may request.

Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to 110(a)(2)(K). 

12.  Section 110(a)(2)(L) 

According to the above referenced submittals, fee requirements of 25 Pa. Code Chapter 127, Subchapter I, were approved by EPA as meeting the CAA requirements and were incorporated into the Commonwealth's SIP.  The Commonwealth's Title V operating permit program in 25 Pa Code Chapter 127, Subchapter G, was approved (61 FR 39597).  Fee requirements are codified at  40 CFR 52.2020(c)(1), Appendix A  -- Approval Status of State and Local Operating Permits Programs to 40 CFR Part 70, approved by EPA at 61 Fed. Reg. 39597, July 30, 1996.    
 
Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to 110(a)(2)(L). 

13.  Section 110(a)(2)(M) 

According to the above referenced submittals, the APCA provides adequate authority for PADEP's practices of consultation and participation in SIPs, as required under CAA sections 121 and 127 and notification of NAAQS violations as required in CAA section 127.  It also provides authority for the public education efforts described in CAA section 127.  Section 4 of APCA, 35 P.S. § 4004, provides general enabling authority for interaction with the public and local government.

According to the above referenced submittals, PADEP makes real-time and historical air quality information available on its Web site.  In the four areas where violations have been most common in the past, PADEP has formed, funded, and provided technical resources to Air Quality Partnerships.  The Partnerships receive forecasts of potentially unhealthy air quality (including, but not limited to, violations of the NAAQS), and encourage specific actions, which can be taken to prevent standards from being exceeded.

Based upon EPA's review of the above referenced submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to 110(a)(2)(L). 


F.  CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA's analysis of  Pennsylvania's infrastructure submittals for the 1997 8-hour ozone and PM2.5  NAAQS and the 2006  PM2.5  NAAQS concludes that Pennsylvania's submittals meet the requirements for section 110(a)(2)(A), (B), (C), (D)(i)(II)PSD, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) as described above.  It is recommended that a rulemaking be prepared proposing approval of Pennsylvania's infrastructure submittals for the 1997 8-hour ozone and PM2.5  NAAQS, and the 2006 PM2.5  NAAQS for the elements indentified above.  
