
[Federal Register Volume 84, Number 36 (Friday, February 22, 2019)]
[Rules and Regulations]
[Pages 5598-5601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03109]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0735; FRL-9989-99-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Nonattainment New Source Review Requirements for 2008 8-
Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the Commonwealth of 
Pennsylvania. This revision was in response to EPA's February 3, 2017 
Findings of Failure to Submit for various requirements relating to the 
2008 8-hour ozone national ambient air quality standards (NAAQS). This 
SIP revision is specific to nonattainment new source review (NNSR) 
requirements. EPA is approving this revision in accordance with the 
requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on March 25, 2019.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2017-0735. All documents in the docket are listed on 
the http://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., 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 through 
http://www.regulations.gov, or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Amy Johansen, (215) 814-2156, or by 
email at johansen.amy@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 6, 2018 (83 FR 62774), EPA published a notice of 
proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the 
NPRM, EPA proposed approval of Pennsylvania's NNSR Certification for 
the 2008 Ozone Standard. This SIP

[[Page 5599]]

revision is in response to EPA's final 2008 8-hour ozone NAAQS Findings 
of Failure to Submit for NNSR requirements. See 82 FR 9158 (February 3, 
2017). Specifically, Pennsylvania is certifying that its existing NNSR 
program, covering the Allentown-Bethlehem-Easton, PA Nonattainment Area 
(which includes Carbon, Lehigh, and Northampton Counties), the 
Lancaster, PA Nonattainment Area (which includes Lancaster County), the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE Nonattainment Area 
(which includes Bucks, Chester, Delaware, Montgomery, and Philadelphia 
Counties), Pittsburgh-Beaver Valley, PA Nonattainment Area (which 
includes Allegheny, Beaver, Butler, Fayette, Washington, and 
Westmoreland Counties) and the Reading, PA Nonattainment Area (which 
includes Berks County) for the 2008 8-hour ozone NAAQS, is at least as 
stringent as the requirements at 40 CFR 51.165, as amended by the final 
rule titled ``Implementation of the 2008 National Ambient Air Quality 
Standards for Ozone: State Implementation Plan Requirements'' (SIP 
Requirements Rule), for ozone and its precursors.1 2 See 80 
FR 12264 (March 6, 2015). The formal SIP revision was submitted by 
Pennsylvania on October 30, 2017.
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    \1\ The SIP Requirements Rule addresses a range of nonattainment 
area SIP requirements for the 2008 8-hour ozone NAAQS, including 
requirements pertaining to attainment demonstrations, reasonable 
further progress (RFP), reasonably available control technology, 
reasonably available control measures, major new source review, 
emission inventories, and the timing of SIP submissions and of 
compliance with emission control measures in the SIP. The rule also 
revokes the 1997 ozone NAAQS and establishes anti-backsliding 
requirements.
    \2\ On February 16, 2018, the United States Court of Appeals for 
the District of Columbia Circuit (D.C. Cir. Court or Court) issued 
an opinion on the EPA's SIP Requirements Rule. South Coast Air 
Quality Mgmt. Dist. v. EPA, 882 F.3d 1138, 2018 U.S. App. LEXIS 3636 
(D.C. Cir. Feb. 16, 2018). The D.C. Cir. Court found certain 
provisions from the SIP Requirements Rule, including certain 
provisions relating to anti-backsliding, to be inconsistent with the 
statute or unreasonable and vacated those provisions. Id. The Court 
found other parts of the SIP Requirements Rule unrelated to anti-
backsliding and this action reasonable and denied the petition for 
appeal on those provisions. Id.
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A. 2008 8-Hour Ozone NAAQS

    On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 
0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under 
EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is 
attained when the three-year average of the annual fourth-highest daily 
maximum 8-hour average ambient air quality ozone concentrations is less 
than or equal to 0.075 ppm.
    Upon promulgation of a new or revised NAAQS, the CAA requires EPA 
to designate as nonattainment any area that is violating the NAAQS 
based on the three most recent years of ambient air quality data at the 
conclusion of the designation process. The Allentown-Bethlehem-Easton, 
PA Nonattainment Area, the Lancaster, PA Nonattainment Area, the 
Pittsburgh-Beaver Valley, PA Nonattainment Area, and the Reading, PA 
Nonattainment Area were classified as marginal nonattainment areas for 
the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) 
using 2009-2011 ambient air quality data. See 77 FR 30088. The 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE Nonattainment Area 
was classified as a marginal nonattainment area for the 2008 8-hour 
ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008-2010 
ambient air quality data. See 77 FR 30088. On March 6, 2015, EPA issued 
the final SIP Requirements Rule, which establishes the requirements 
that state, tribal, and local air quality management agencies must meet 
as they develop implementation plans for areas where air quality 
exceeds the 2008 8-hour ozone NAAQS. See 80 FR 12264. Areas that were 
designated as marginal ozone nonattainment areas were required to 
attain the 2008 8-hour ozone NAAQS no later than July 20, 2015, based 
on 2012-2014 monitoring data. See 40 CFR 51.1103. The Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE and the Pittsburgh-Beaver Valley, 
PA Nonattainment Areas did not attain the 2008 8-hour ozone NAAQS by 
July 20, 2015; however, these areas did meet the CAA section 181(a)(5) 
criteria, as interpreted in 40 CFR 51.1107, for a one-year attainment 
date extension. See 81 FR 26697 (May 4, 2016). Therefore, on April 11, 
2016, the EPA Administrator signed a final rule extending the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE and the Pittsburgh-
Beaver Valley, PA Nonattainment Area 8-hour ozone NAAQS attainment 
dates from July 20, 2015 to July 20, 2016. Id. Based on initial 
nonattainment designations for the 2008 8-hour ozone standard, as well 
as the March 6, 2015 final SIP Requirements Rule, Pennsylvania was 
required to develop a SIP revision addressing certain CAA requirements 
for the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-
Beaver Valley, PA, and the Reading, PA Nonattainment Areas, and submit 
to EPA a NNSR Certification SIP or SIP revision no later than 36 months 
after the effective date of area designations for the 2008 8-hour ozone 
NAAQS (i.e., July 20, 2015). See 80 FR 12264 (March 6, 2015). EPA is 
approving Pennsylvania's October 30, 2017 NNSR Certification SIP 
revision.

B. 2017 Findings of Failure To Submit SIP for the 2008 8-Hour Ozone 
NAAQS

    Areas designated nonattainment for the ozone NAAQS are subject to 
the general nonattainment area planning requirements of CAA section 172 
and also to the ozone-specific planning requirements of CAA section 
182. States in the ozone transport region (OTR), such as Pennsylvania, 
are additionally subject to the requirements outlined in CAA section 
184.
    Ozone nonattainment areas in the lower classification levels have 
fewer and/or less stringent mandatory air quality planning and control 
requirements than those in higher classifications. For marginal areas, 
such as the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-
Beaver Valley, PA, and the Reading, PA Areas, a state is required to 
submit a baseline emissions inventory, adopt a SIP requiring emissions 
statements from stationary sources and implement a NNSR program for the 
relevant ozone standard. See CAA section 182(a). For each higher ozone 
nonattainment classification, a state needs to comply with all lower 
area classification requirements, plus additional emissions controls 
and more expansive NNSR offset requirements.
    The CAA sets out specific requirements for states in the OTR. Upon 
promulgation of the 2008 8-hour ozone NAAQS, states in the OTR were 
required to submit a SIP revision addressing reasonably available 
control technology (RACT). See 40 CFR 51.1116. This requirement is the 
only recurring obligation for an OTR state upon revision of a NAAQS, 
unless that state also contains some portion of a nonattainment area 
for the revised NAAQS. In that case, the nonattainment requirements 
described previously also apply to those portions of that state.
    In the March 6, 2015 SIP Requirements Rule, EPA detailed the 
requirements applicable to ozone nonattainment areas, as well as 
requirements that apply in the OTR, and provided specific deadlines for 
SIP submittals. See 80 FR 12264.
    On February 3, 2017, EPA found that 15 states and the District of 
Columbia failed to submit SIP revisions in a timely manner to satisfy 
certain requirements for the 2008 8-hour ozone NAAQS that apply to 
nonattainment areas and/or states in the OTR. See 82

[[Page 5600]]

FR 9158. As explained in that rulemaking action, consistent with the 
CAA and EPA regulations, these Findings of Failure to Submit 
established certain deadlines for the imposition of sanctions, if a 
state does not submit a timely SIP revision addressing the requirements 
for which the finding is being made, and for the EPA to promulgate a 
Federal implementation plan (FIP) to address any outstanding SIP 
requirements.
    EPA found, inter alia, that the Commonwealth of Pennsylvania failed 
to submit SIP revisions in a timely matter to satisfy NNSR requirements 
for its marginal nonattainment areas, specifically the Allentown-
Bethlehem-Easton, PA, the Lancaster, PA, the Philadelphia-Wilmington-
Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, PA, and the 
Reading, PA Areas. Pennsylvania submitted its October 30, 2017 SIP 
revision to address the specific NNSR requirements for the 2008 8-hour 
ozone NAAQS, located in 40 CFR 51.160-165, as well as its obligations 
under EPA's February 3, 2017 Findings of Failure to Submit.

II. Summary of SIP Revision and EPA Analysis

    This rulemaking action is specific to Pennsylvania's NNSR 
requirements. NNSR is a preconstruction review permit program that 
applies to new major stationary sources or major modifications at 
existing sources located in a nonattainment area. The specific NNSR 
requirements for the 2008 8-hour ozone NAAQS are located in 40 CFR 
51.160-165.
    Pennsylvania's SIP approved NNSR program, established in the 
Pennsylvania Code of Regulations (Pa. Code) Rule 25 Pa. Code Chapter 
127--Construction, Modification, Reactivation, and Operation of 
Sources, applies to the construction and modification of major 
stationary sources in nonattainment areas. In its October 30, 2017 SIP 
revision, Pennsylvania certified that the version of 25 Pa. Code 
Chapter 127 in the SIP is at least as stringent as the Federal NNSR 
requirements for the Allentown-Bethlehem-Easton, PA, the Lancaster, PA, 
the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD, DE, the 
Pittsburgh-Beaver Valley, PA, and the Reading, PA Nonattainment Areas.
    Other specific requirements for the 2008 8-hour ozone NAAQS, 
specific to NNSR requirements and the rationale for EPA's proposed 
action are explained in the NPRM and will not be restated here.
    EPA received one comment in response to the December 6, 2018 NPRM. 
The comment did not concern any of the specific issues raised in the 
NPRM, nor did it address EPA's rationale for the proposed approval of 
this SIP revision. Therefore, EPA is not responding to that comment.

III. Final Action

    EPA is approving Pennsylvania's October 30, 2017 SIP revision 
addressing the NNSR requirements for the 2008 ozone NAAQS for the 
Allentown-Bethlehem-Easton, PA, the Lancaster, PA, the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD, DE, the Pittsburgh-Beaver Valley, 
PA, and the Reading, PA Nonattainment Areas. EPA has concluded that the 
Commonwealth's submission fulfills the 40 CFR 51.1114 revision 
requirement, meets the requirements of CAA sections 110 and 172 and the 
minimum SIP requirements of 40 CFR 51.165, as well as its obligations 
under EPA's February 3, 2017 Findings of Failure to Submit. See 82 FR 
9158.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     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 April 23, 2019. 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

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shall not postpone the effectiveness of such rule or action. This 
action pertaining to Pennsylvania's NNSR program and the 2008 8-hour 
ozone NAAQS 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: February 12, 2019.
Cecil Rodrigues,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 (e)(1) is amended by adding 
an entry for ``2008 8-Hour Ozone National Ambient Air Quality Standard 
Nonattainment New Source Review Requirements'' at the end of the table. 
The added text reads as follows:


Sec.  52.2020  Identification of plan.

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

                            EPA-Approved Nonregulatory and Quasi-Regulatory Material
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                                                               State
   Name of non-regulatory SIP       Applicable geographic    submittal    EPA approval date       Additional
            revision                        area                date                              explanation
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                                                  * * * * * * *
2008 8-Hour Ozone NAAQS           Allentown-Bethlehem-         10/30/17  2/22/2019, [Insert   ..................
 Nonattainment New Source Review   Easton, PA area                        Federal Register
 Requirements.                     (includes Carbon,                      citation].
                                   Lehigh, and Northampton
                                   Counties), Lancaster,
                                   PA area (includes
                                   Lancaster County),
                                   Pittsburgh-Beaver
                                   Valley, PA area
                                   (includes Allegheny,
                                   Beaver, Butler,
                                   Fayette, Washington,
                                   and Westmoreland
                                   Counties), Reading, PA
                                   area (includes Berks
                                   County), and
                                   Pennsylvania's portion
                                   of the Philadelphia-
                                   Wilmington-Atlantic
                                   City, PA-NJ-MD-DE area
                                   (includes Bucks,
                                   Chester, Delaware,
                                   Montgomery, and
                                   Philadelphia Counties).
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[FR Doc. 2019-03109 Filed 2-21-19; 8:45 am]
 BILLING CODE 6560-50-P


