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Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Clean Air Interstate Rule; NOX

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

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(CAIR FIPs) concerning SO2, NOX annual, and NOX ozone season emissions by Pennsylvania sources to be automatically withdrawn.

DATES:

Effective Date: The final rule is effective on December 10, 2009.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2009-0370. All documents in the docket are listed in the http://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 http://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.

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FOR FURTHER INFORMATION CONTACT:

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

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SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. What Action Did EPA Propose?

II. Summary of Pennsylvania SIP Revision

III. What Is the Final Action?

IV. What Is the Effective Date?

V. Statutory and Executive Order Reviews

I. What Action Did EPA Propose?

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

II. Summary of Pennsylvania SIP Revision

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

EPA notes that, in North Carolina, 531 F.3d at 916-21, the Court determined, among other things, that the State SO2 and NOX budgets established in CAIR were arbitrary and capricious.[1] However, as discussed above, the Court also decided to remand CAIR but to leave the rule in place in order to “temporarily preserve the environmental values covered by CAIR” pending EPA's development and promulgation of a replacement rule that remedies CAIR's flaws. North Carolina, 550 F.3d at 1178. EPA had indicated to the Court that development and promulgation of a replacement rule would take about two years. Reply in Support of Petition for Rehearing or Rehearing en Banc at 5 (filed Nov. 17, 2008 in North Carolina v. EPA, Case No. 05-1224, D.C. Cir.). The process at EPA of developing a proposal that will undergo notice and comment and result in a final replacement rule is ongoing. In the meantime, consistent with the Start Printed Page 65447Court's orders, EPA is implementing CAIR by approving State SIP revisions that are consistent with CAIR (such as the provisions setting State SO2 and NOX budgets for the CAIR trading programs) in order to “temporarily preserve” the environmental benefits achievable under the CAIR trading programs.

III. What Is the Final Action?

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

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

IV. What Is the Effective Date?

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

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

V. Statutory and Executive Order Reviews

A. General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

  • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
  • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
  • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
  • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (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 Clean Air Act; and
  • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 8, 2010. 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, Start Printed Page 65448and shall not postpone the effectiveness of such rule or action.

This action to approve the Pennsylvania SIP revision to meet the requirements of CAIR and modify associated provisions that interact with CAIR may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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List of Subjects in 40 CFR Part 52

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Dated: November 25, 2009.

Shawn M. Garvin,

Regional Administrator, Region III.

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is amended as follows:

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PART 52—[AMENDED]

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

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

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Subpart NN—Pennsylvania

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2. In § 52.2020, the table in paragraph (c)(1) is amended by:

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

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

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The amendments read as follows:

Identification of plan.
* * * * *

(c) * * *

(1) * * *

State citationTitle/subjectState effective dateEPA approval dateAdditional explanation/§ 52.2063 citation
TITLE 25. ENVIRONMENTAL PROTECTION ARTICLE III. AIR RESOURCES
*         *         *         *         *         *         *
CHAPTER 121. GENERAL PROVISIONS
Section 121.1Definitions4/12/0812/10/09 [Insert page number where the document begins]Add definition for “vintage or vintage year.”
*         *         *         *         *         *         *
CHAPTER 129. STANDARDS FOR SOURCES ADDITIONAL NO X REQUIREMENTS
Section 129.201Boilers4/12/0812/10/09 [Insert page number where the document begins]Revised section.
Section 129.202Stationary combustion turbines4/12/0812/10/09 [Insert page number where the document begins]Revised section.
*         *         *         *         *         *         *
Section 129.204Emission accountability4/12/0812/10/09 [Insert page number where the document begins]Revised section.
*         *         *         *         *         *         *
CHAPTER 145. INTERSTATE POLLUTION TRANSPORT REDUCTION
Subchapter A. NO X Budget Trading Program General Provisions
*         *         *         *         *         *         *
Section 145.8Transition to CAIR NOX Trading Programs4/12/0812/10/09 [Insert page number where the document begins]New section.
*         *         *         *         *         *         *
Subchapter B. Emissions of NO X From Stationary Internal Combustion Engines
*         *         *         *         *         *         *
Section 145.113Standard requirements4/12/0812/10/09 [Insert page number where the document begins]New subsection d.
Subchapter C. Emissions of NO X From Cement Manufacturing
*         *         *         *         *         *         *
Section 145.143Standard requirements4/12/0812/10/09 [Insert page number where the document begins]
Subchapter D. CAIR NO X and SO 2 Trading Programs—General Provisions
Section 145.201Purpose4/12/0812/10/09 [Insert page number where the document begins]
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Section 145.202Definitions4/12/0812/10/09 [Insert page number where the document begins]
Section 145.203Applicability4/12/0812/10/09 [Insert page number where the document begins]
Section 145.204Incorporation of Federal regulations by reference4/12/0812/10/09 [Insert page number where the document begins]
ADDITIONAL REQUIREMENTS FOR CHAPTER 127 EMISSION REDUCTION CREDIT PROVISIONS
Section 145.205Emission reduction credit provisions4/12/0812/10/09 [Insert page number where the document begins]
ADDITIONAL REQUIREMENTS FOR CAIR NO X ANNUAL TRADING PROGRAM
Section 145.211Timing Requirements for CAIR NOX allowance allocations4/12/0812/10/09 [Insert page number where the document begins]
Section 145.212CAIR NOX allowance allocations4/12/0812/10/09 [Insert page number where the document begins]
Section 145.213Supplemental monitoring, recordkeeping and reporting requirements for gross electrical output and useful thermal energy for units subject to 40 CFR 96.170-96.1754/12/0812/10/09 [Insert page number where the document begins]
ADDITIONAL REQUIREMENTS FOR CAIR NO X OZONE SEASON TRADING PROGRAM
Section 145.221Timing requirements for CAIR NOX ozone season allowance allocations4/12/0812/10/09 [Insert page number where the document begins]
Section 145.222CAIR NOX Ozone Season allowance allocations4/12/0812/10/09 [Insert page number where the document begins]
Section 145.223Supplemental monitoring, recordkeeping and reporting requirements for gross electrical output and useful thermal energy for units subject to 40 CFR 96.370-96.3754/12/0812/10/09 [Insert page number where the document begins]
*         *         *         *         *         *         *
* * * * *
[Removed and Reserved]
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3. Section 52.2040 is removed and reserved.

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[Removed and Reserved]
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4. Section 52.2041 is removed and reserved.

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Footnotes

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

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[FR Doc. E9-29216 Filed 12-9-09; 8:45 am]

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