[Federal Register Volume 62, Number 85 (Friday, May 2, 1997)]
[Proposed Rules]
[Pages 24060-24065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11492]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 62, No. 85 / Friday, May 2, 1997 / Proposed
Rules
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 042-4055; FRL-5820-4]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; New Source Review and Emissions Registry Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to grant limited approval of a State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Pennsylvania pursuant to the requirements of the Clean Air Act (CAA).
This revision requires major new and modified sources of volatile
organic compounds (VOCs), nitrogen oxides (NOX), particulate
matter (PM), particulate matter with an aerodynamic diameter of less
than 10 microns (PM-10), PM-10 precursors, sulfur oxides
(SOX), carbon monoxide (CO), or lead (Pb) to meet certain
new source review permitting requirements if they are proposing to
locate in a designated nonattainment area. These requirements also
apply to major new and modified sources of VOCs and for NOX
proposing to locate in the ozone transport region (OTR). This action is
being taken under section 110 of the Clean Air Act (CAA).
DATES: Comments must be received on or before June 2, 1997.
ADDRESSES: Comments may be mailed to Kathleen Henry, Chief, Permit
Programs Section, Mailcode 3AT23, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at the Air, Radiation,
and Toxics Division, U.S. Environmental Protection Agency, Region III,
841 Chestnut Building, Philadelphia, Pennsylvania 19107, and the
Pennsylvania Department of Environmental Protection, Bureau of Air
Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania
17105.
FOR FURTHER INFORMATION CONTACT: Michael H. Markowski, 3AT23, U.S.
Environmental Protection Agency, Region III, 841 Chestnut Building,
Philadelphia, Pennsylvania, 19107, (215) 566-2063.
SUPPLEMENTARY INFORMATION:
I. Background
A. New Source Requirements and Pennsylvania's Submittal
The CAA requires that all states submit to EPA, by November 15,
1992, a revision to their state implementation plans (SIPs) requiring
major new and major modified sources to meet certain new source review
(NSR) requirements if those sources are being located in areas
designated nonattainment for a pollutant, are expected to emit
pollutants in quantities likely to significantly impact such areas, or,
in the case of VOC or NOX sources, if they are being located
in the OTR. This requirement for a SIP revision applies to
Pennsylvania, which currently has areas designated nonattainment for
ozone (a pollutant formed under certain meteorological conditions from
precursor VOC and NOX emissions), CO, SO2 and PM-
10.
Pennsylvania submitted a revision to its SIP, on February 4, 1994,
requiring major new and modified sources of VOCs, NOX, PM,
PM-10, PM-10 precursors, SOX, CO, or Pb to meet certain NSR
requirements if they are being located in a designated nonattainment
area, if they are expected to emit these pollutants in quantities
sufficient to significantly impact a nonattainment area, or, in the
case of VOC and NOX sources, if they are being located in
the OTR. The NSR requirements include installing Lowest Achievable
Emission Rate (LAER) technology and obtaining emission offsets. The
submittal included associated emissions banking requirements and an
emissions reduction credit (ERC) registry. Pennsylvania's submittal
adds these new provisions in Subchapter E, Sections 127.201 through
127.217 of the Pennsylvania Code, and removes the older provisions,
which were found in Subchapter C., Sections 127.61 through 127.73 (it
reserves those regulation numbers).
B. Federal Requirements
According to section 172(c)(5) of the CAA, SIPs must require
permits for the construction and operation of new or modified major
stationary sources in nonattainment areas. The statutory permit
requirements for ozone nonattainment areas are generally contained in
revised section 173 of the CAA, and in subpart 2 of part D. Further, on
July 23, 1996, EPA published in the Federal Register a comprehensive
rulemaking which proposed significant changes to the current Prevention
of Significant Deterioration (PSD) and nonattainment NSR rules. See 61
FR 38311 (1996). That rulemaking proposed to revise regulations for the
approval and promulgation of SIPs and the requirements for preparation,
adoption, and submittal of implementation plans governing the NSR
programs mandated by Parts C and D of Title I of the CAA. Upon EPA
promulgation of the final rulemaking at a later date, all states,
including Pennsylvania, will be expected to evaluate their new source
review regulations in accordance with the new requirements and to
revise such regulations accordingly.
Important CAA requirements for new sources in nonattainment areas
are found under sections 172, 173, 182, and 184 of the CAA. These
requirements are summarized below.
a. According to section 173(a)(1) of the CAA, the state regulation
must assure that calculations of emissions offsets are based on the
same emissions baseline used in the demonstration of reasonable further
progress (RFP).
b. According to section 173(c)(1) of the CAA, the state regulation
may include provisions which allow offsets to be obtained in another
nonattainment area if that area has an equal or higher nonattainment
classification and emissions from the other nonattainment area
contribute to a NAAQS violation in the area in which the source would
construct.
c. According to section 173(c)(1) of the CAA, the state regulation
must provide that any emissions offsets obtained in conjunction with
the issuance of a permit to a new or modified source must be in effect
and enforceable by the time the new or modified source commences
operation.
[[Page 24061]]
This statutory condition for offsets augments the existing requirement
under section 173 that provides that offsets must be federally-
enforceable before permit issuance, although the required emissions
reductions need not occur until the date on which the new or modified
source commences operations.
d. According to section 173(c)(1) of the CAA, provisions of the
state regulation must assure that emissions increases from new or
modified sources will be offset by real reductions in actual emissions.
EPA's initial guidance interpreting general sections of the CAA is
contained in the Title I General Preamble published in the Federal
Register on April 16, 1992 (57 FR 13498). In the General Preamble, EPA
reiterated that emission increases and decreases for netting are to be
determined consistent with EPA's current new source rules and the
December 4, 1986 emissions trading policy statement (51 FR 43823). In
addition, pre-enactment reductions are expected to be treated as new
source growth, even though, for applicability purposes, the source's
net emissions change is de minimis. EPA's current new source rules
state that a decrease in emissions is only creditable if, among other
requirements, the decrease has not been relied upon by the state for
any permit, attainment demonstration, or reasonable further progress.
Therefore, emission reductions made because of RACT or other
requirements that have been taken into account in the state's
demonstration of reasonable further progress or attainment
demonstration are not creditable for netting purposes.
e. According to section 173(c)(2) of the CAA, the state rules must
prevent emission reductions otherwise required by the CAA from being
credited for purposes of part D offset requirements.
f. According to section 173(a)(5) of the CAA, the state regulation
must require that prior to any part D permit being issued there be an
analysis of alternative sites, sizes, production processes, and
environmental control techniques for proposed sources that demonstrates
that the benefits of the proposed source significantly outweigh the
environmental and social costs imposed as a result of its location,
construction, or modification.
g. According to section 328 of the CAA, the state regulation must
assure that sources located on the Outer Continental Shelf (OCS) are
subject to the same requirements applicable if the source were located
in the corresponding onshore area.
h. Section 173(a)(3) of the CAA requires that the state regulation
must assure that owners or operators of each proposed new or modified
major stationary source demonstrate that all of their other major
stationary sources in the state are in compliance.
i. The state regulation must define major new and major modified
sources in accordance with the area's nonattainment classification
under section 181 for ozone and section 186 for CO.
j. The state regulation must require emission offsets for major new
and major modified sources in accordance with the area's nonattainment
classification under section 181 for ozone and section 186 for CO.
k. The state regulation must require all applicable new source
requirements to be met by sources locating in the OTR. For a severe or
extreme ozone nonattainment area located in the transport region, the
major stationary source size thresholds applicable to those areas apply
for VOC and, presumptively, for NOX. These provisions must
also ensure that new or modified major stationary sources obtain VOC
and, presumptively, NOX offsets at a ratio of at least 1.15
to 1 in order to obtain a NSR permit. Higher offset ratios apply in
areas classified as serious or above under section 184 of the CAA.
l. The state regulation must ensure that any new or modified major
stationary source of NOX satisfies the requirements
applicable to any new or modified major stationary source of VOC,
unless a special NOX exemption is granted by the
Administrator under section 182(f) of the CAA.
m. State plans must, for serious and severe ozone nonattainment
areas, implement sections 182(c) (6), (7) and (8) of the CAA with
regard to modifications.
C. Nonattainment Area Requirements Pertaining to Pennsylvania
The CAA defines sources as major at various specified levels of
emissions, depending on the attainment/nonattainment status of the area
where the source is located, the severity of the nonattainment, and on
whether or not the source is located in an OTR. Pennsylvania has areas
designated nonattainment for ozone, for PM-10, for SO2, and
for CO.
With respect to ozone, section 182(d) of the CAA defines sources of
VOCs located in severe ozone nonattainment areas as major when they
have the potential to emit 25 tons per year (TPY) or more of VOCs. In
Pennsylvania there is one severe ozone nonattainment area, the
Philadelphia area (including Philadelphia, Bucks, Chester, Delaware,
and Montgomery Counties) where the 25 TPY major source threshold for
VOCs applies. Per section 182(f) of the CAA, NOX sources
located in severe ozone nonattainment areas must also be considered
major at the same threshold levels as VOC sources. Thus, in the
Philadelphia area sources are considered major when they have the
potential to emit 25 TPY or more of NOX.
For the remainder of Pennsylvania, there are moderate areas to
consider as well as the fact that the entire Commonwealth is part of
the OTR. This is the key factor establishing the level of VOC or
NOX emissions that trigger major NSR applicability. Per
section 184 of the CAA, stationary VOC and NOX sources
located in areas of Pennsylvania that are designated marginal, moderate
or attainment for ozone which are also located in the OTR are subject
to the same requirements as those applicable to such sources located in
moderate ozone nonattainment areas. Therefore, sources located in the
OTR are defined as major when they have the potential to emit 50 TPY or
more of VOC, and sources located within the OTR are defined as major
when they have the potential to emit 100 TPY or more of NOX.
Pennsylvania also has nonattainment areas for PM-10 and CO in
portions of Allegheny County, and for SO2 in portions of
Allegheny, Armstrong, and Warren Counties. In all of these areas, a new
source is considered major when it has the potential to emit 100 TPY or
more of the pollutant for which the area is designated nonattainment.
Major modifications are defined by significant emissions increases in
accordance with federal rules.
II. EPA Analysis of Pennsylvania's Submittal
A. Pennsylvania's Definitions of Major Source, Significant Emissions
Increases, and Significant Air Quality Impacts
The Commonwealth's proposed changes to Pennsylvania Regulations,
Sections 127.201 through 127.204 pertain to the definitions of major
source and major modified source (modification to an existing major
source) for each of the affected pollutants: VOC, NOX, PM-
10, PM-10 precursors, PM, SOX, CO, and Pb. Pennsylvania's
definitions of major source thresholds are consistent with federal
requirements, as are Pennsylvania's definitions of significant
emissions increases, and its definitions of ``significant'' air quality
impacts.
In severe ozone nonattainment areas (the Philadelphia area) a major
source of
[[Page 24062]]
VOCs or of NOX is defined as one which has the potential to
emit at least 25 TPY VOC or 25 TPY NOX. In serious ozone
nonattainment areas (which Pennsylvania does not have at this time), a
major source is defined as one that has the potential to emit at least
50 TPY VOC or 50 TPY NOX. Pennsylvania's regulation also
includes certain special modification provisions, at Section 127.203(c)
(discussed below at II. B.), for determining applicability in severe or
serious ozone nonattainment areas.
In severe ozone nonattainment areas the regulation applies to
either ``[a] new facility with the potential to emit 25 tons or more
per year of NOX or VOCs,'' or to ``[a] modification to an
existing facility with the potential to emit 25 tons or more per year
of NOX or VOC, or a new source at an existing facility
resulting in an increase in the potential to emit either VOC or
NOX which, when aggregated with the other emissions
increases determined in accordance with subsection (c)(1), results in
an increase of 25 tons per year or 1,000 pounds per day or 100 pounds
per hour of VOC or NOX, or more, whichever is more
restrictive.'' Section 127.203(b)(3).1
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\1\ Subsection (c)(1) refers to certain special rules for
modifications to VOC or NOX facilities located in serious
and severe nonattainment areas for ozone.
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In serious ozone nonattainment areas the regulation applies to
either ``[a] new facility with the potential to emit 50 tons or more
per year of NOX or VOCs,'' or to ``[a] modification to an
existing facility with the potential to emit 50 tons or more per year
of VOC or NOX, or a new source at an existing facility
resulting in an increase in the potential to emit either VOC or
NOX which, when aggregated with the other emissions
increases determined in accordance with subsection (c)(1), results in
an increase of 25 tons per year, 1,000 pounds per day or 100 pounds per
hour of VOC or NOX, or more, whichever is more
restrictive.'' Section 127.203(b)(2). There are currently no areas in
Pennsylvania that have been classified as serious nonattainment for
ozone.
All areas in Pennsylvania other than the Philadelphia severe ozone
nonattainment area are treated as moderate ozone nonattainment areas
because they are classified as moderate or because the entire
Commonwealth is in the OTR. In these areas the Pennsylvania regulation
applies to either ``[a] new facility with the potential to emit 100
tons or more per year of NOX or 50 tons or more per year of
VOCs,'' or to ``[a] modification to an existing facility with the
potential to emit 100 tons or more per year of NOX or 50
tons or more per year of VOCs, or a new source at an existing facility
resulting in an increase in the potential to emit either VOC or
NOX which, when aggregated with the other emissions
increases determined in accordance with Section 127.211, results in an
increase of 40 tons per year, 1,000 pounds per day or 100 pounds per
hour of VOC or NOX, or more, whichever is more
restrictive.'' Section 127.203(b)(1).
The major source size threshold for new sources of PM-10, PM-10
precursors, and PM is 100 TPY. A major modification is defined as a
modification of a major source resulting in a significant increase in
emissions. A significant increase in emissions is defined as an
increase (aggregated with other applicable increases over a specified
period of years, in accordance with Section 127.211) in the potential
to emit PM-10 of 15 TPY, of PM of 25 TPY, or of PM or PM-10 of 1000
pounds per day or 100 pounds per hour, whichever is more restrictive.
The significant air quality impact levels for PM-10, PM-10 precursors
and PM are 1.00 microgram/cubic meter (microgram/m\3\) on an annual and
5.00 micrograms/m\3\ on an 24-hour average.
The major source size threshold for new sources of PM-10, PM-10
precursors, and PM is 100 TPY. A major modification is defined as a
modification of a major source resulting in a significant increase in
emissions. A significant increase in emissions is defined as an
increase (aggregated with other applicable increases over a specified
period of years, in accordance with Section 127.211) in the potential
to emit PM-10 of 15 TPY, of PM of 25 TPY, or of PM or PM-10 of 1000
pounds per day or 100 pounds per hour, whichever is more restrictive.
The significant air quality impact levels for PM-10, PM-10 precursors
and PM are 1.00 microgram/cubic meter (microgram/m\3\) on an annual and
5.00 micrograms/m\3\ on an 24-hour average.
The major source size threshold for new SOX sources is
100 TPY. A major modification is defined as a modification of a major
source resulting in a significant increase in emissions. A significant
increase in emissions is defined as an increase in the potential to
emit SOX (aggregated with other applicable increases over a
specified period of years, in accordance with Section 127.211) of 40
TPY, 1000 pounds per day or 100 pounds of SOX per hour,
whichever is more restrictive. The significant air quality impact
levels for SOX are 1.00 microgram/m\3\ on an annual average,
5.00 micrograms/m\3\ on a 24-hour average, and 25.00 micrograms/m\3\ on
a 3-hour average.
The major source size threshold for new CO sources is 100 TPY. A
major modification is defined as a modification to a major source
resulting in a significant emissions increase. A significant increase
in emissions is defined as an aggregated increased potential to emit CO
of at least 50 TPY, 1000 pounds per day or 100 pounds per hour,
whichever is more restrictive. The significant air quality impact
levels for CO are 0.5 milligrams/cubic meter (milligrams/m\3\)on an 8-
hour average and 2.0 milligrams/m\3\ on a 1-hour average.
For new Pb sources, the major source size threshold for NSR
applicability is 100 TPY. A significant increase in emissions is
defined as an aggregated increased potential to emit Pb of 0.6 TPY, 10
pounds per day or 1 pound per hour, whichever is more restrictive. The
significant air quality impact level is 0.1 micrograms/m\3\ on a 24-
hour average.
B. Special Modification Provisions
The special modification provisions in the CAA at section 182(c)
(6) through (8) are incorporated into the Pennsylvania regulation in
Section 127.203(c) (1) through (3). These provisions are applicable to
VOC or NOX sources locating in serious or severe ozone
nonattainment areas. Currently there are no serious areas in
Pennsylvania. Section 127.203(c)(1) specifies that sources are to
aggregate their potential emissions over a consecutive 5-year period in
order to determine whether the de minimis level of 25 TPY, 1000 pounds
per day or 100 pounds per hour is exceeded. This provision further
specifies that the 5-year contemporaneous period cannot extend back
beyond January 1, 1991 or the design year of the most recent attainment
demonstration, whichever is more recent. Section 127.203(c)(2) applies
to facilities with potential emissions of VOC or NOX of less
than 100 TPY where the modification results in an other than de minimis
increase in emissions. The owner or operator may choose to offset the
emissions of the proposed source with those elsewhere in the same
facility at a ratio of at least 1.3 to 1 in order to avoid having the
proposed source being considered an applicable modification under these
regulations. If the facility does not offset at the required ratio, the
change shall be considered an applicable modification, but the facility
would be required to install BACT instead of LAER, and to meet
Pennsylvania's BAT requirements. Section 127.203(c)(3) applies to
facilities whose potential emissions of
[[Page 24063]]
VOC or NOX are greater than or equal to 100 TPY. The source
may choose to offset the emissions from the proposed source with
emission reductions elsewhere in the same facility at an internal
offset ratio of 1.3 to 1 in order to avoid installing LAER. The source
is still required to install technology to meet Pennsylvania's BAT
requirements. Pennsylvania's regulations pertaining to the special
modification provisions are consistent with the CAA's requirements.
C. Provisions for Emission Reduction Credits
Section 127.211 of the Pennsylvania regulation states the
applicability criteria for determining whether a source is subject to
the new source regulations. Included in these criteria is a requirement
that all sources determined to be major (new or modified) must have
emission reduction credits certified by Pennsylvania through the
emission reduction credit (ERC) registry, established in Sections
127.206 through 127.210. Pennsylvania requires that ERCs be generated
after January 1, 1991, which is consistent with the baseline that will
be used in Pennsylvania's rate of progress demonstrations and
demonstrations of attainment.
All ERCs are required to be made federally enforceable in the plan
approval, which will specify that the emissions decrease is federally
enforceable on or before the commence construction date. Detailed
information required to accompany a source's application to register
ERCs is provided in Section 127.207. Pennsylvania retains control over
all ERCs deposited into the registry and all ERCs withdrawn for use
from the registry. All Pennsylvania sources requiring emission offsets
must obtain their ERCs through the Pennsylvania ERC registry. Out-of-
state sources may deposit ERCs into the Pennsylvania registry or trade
ERCs provided there is reciprocity between Pennsylvania and the other
state and only upon approval through SIP approved rules and procedures,
including an EPA approved SIP revision.
The registry listing the ERCs available, along with other pertinent
information, will be published in the Pennsylvania Bulletin on a
quarterly basis. ERCs generated through the curtailment or shutdown of
a source, and which are not included in a plan approval and used as
offsets expire for use as offsets 10 years after the date the facility
ceased emitting those emissions. ERCs used for netting have a shorter
lifetime, as specified in Section 127.211. The offset ratios, based on
an area's nonattainment classification or location in the OTR, are
located in Section 127.210. Pennsylvania requires that fugitive VOC
emissions, regardless of the location of the source in the
Commonwealth, be offset by at least a 1.3:1 ratio. The offset ratios
are consistent with those required in the CAA.
For ERCs banked prior to January 1, 1991, Section 127.208(6)
prohibits the use of ERCs in an area with a higher nonattainment
classification than the one in which they were generated. Section
127.205(2) requires proposed new source applicants to demonstrate that
all other facilities under their operation or ownership are in
compliance or on a schedule for compliance approved by Pennsylvania.
Section 127.205(5) requires proposed new or modified source owners or
operators to conduct alternative sites and benefits analyses to
demonstrate that the benefits of the proposed source significantly
outweigh the environmental and social costs imposed on the Commonwealth
as a result of the proposed source's location, construction or
modification. Section 127.206(I) clearly prohibits use of ERCs to
achieve compliance with Reasonably Available Control Technology (RACT),
Best Available Technology (BAT), New Source Performance Standards
(NSPS), Best Available Control Technology (BACT), Lowest Achievable
Emission Reductions (LAER) or other emissions limitations required by
the CAA or Pennsylvania's Clean Air Act.
D. Prior Shutdown Credits
An issue associated with this proposed rulemaking action is that
Pennsylvania's regulations allow sources located in nonattainment areas
which lack approved attainment demonstrations to take credit for
emission reductions obtained from shutdowns or curtailments of
production or operating hours in cases where the reductions took place
prior to the source's application for a new source review permit.
Current EPA regulations, developed prior to the CAA Amendments of 1990,
provide that states having nonattainment areas without EPA approved
attainment demonstrations may allow sources located in those areas to
take credit for emission reductions resulting from shutdowns or
curtailments of production or operating hours only if the reductions
occurred on or after the date the new proposed source or modification
files a permit application, or, if the applicant can establish that the
proposed new source is a replacement for the shutdown or curtailed
source. See 40 CFR part 51.165(a)(3)(ii)(C)(2). Thus, under current EPA
regulations, states are prohibited from crediting emission reductions
which occurred prior to the date the new proposed source or
modification files a permit application (prior shutdown or curtailment
credits). It is important to note that Pennsylvania's current SIP
regulations do not contain this so called ``shutdown prohibition.''
Pennsylvania's revised NSR regulations, 25 Pa. Code Chapter 127,
Subchapter E, affirmatively allow sources to take credit for emission
reductions resulting from shutdowns or curtailments of production or
operating hours which occurred after January 1, 1991, or the design
year of the most recent attainment demonstration, whichever is more
recent. Because Pennsylvania's regulation would allow sources located
in nonattainment areas lacking approved attainment plans to take credit
for shutdowns or curtailments which occurred prior to the date a new
proposed source or modification files a permit application,
Pennsylvania's regulation appears not to conform with the existing EPA
regulatory prohibition on the use of prior shutdown or curtailment
credits found at 40 CFR part 51.165(a)(3)(ii)(C)(2).
However, as explained above, on July 23, 1996, EPA published in the
Federal Register a comprehensive rulemaking which proposed significant
changes to the current PSD and nonattainment NSR rules. This proposed
rulemaking is hereinafter referred to as the ``NSR Reform Rulemaking.''
See 61 FR 38311. The NSR Reform Rulemaking proposes to revise
regulations for the approval and promulgation of SIPs and the
requirements for preparation, adoption, and submittal of implementation
plans governing the NSR programs mandated by Parts C and D of Title I
of the CAA. Specifically, section VII.A of EPA's NSR Reform Rulemaking,
entitled ``Emissions Credits Resulting From Source Shutdowns and
Curtailments'', proposes to eliminate the current restrictions on
crediting of emissions reductions from source shutdowns and
curtailments that occurred after 1990. In the NSR Reform Rulemaking,
EPA proposes two different alternatives for eliminating the prior
shutdown prohibition. The second of these alternatives, entitled
``Shutdown Alternative 2'', generally lifts the current offset
restriction applicable to emissions reductions from source shutdowns
and source curtailments for all nonattainment areas and all pollutants
where such reductions occur after the baseyear of the emissions
[[Page 24064]]
inventory used (or to be used) to meet the applicable provisions of
Part D of the CAA. See proposed Section 51.165(a)(3)(ii)(C)(5)
[Alternative 2], 61 FR 38314. Under this alternative, states could
allow emissions reductions from source shutdowns or curtailments to be
used as offsets in all nonattainment areas and for all pollutants
provided such reductions occurred after the baseyear of the emissions
inventory used by the state to meet the applicable provisions of Part D
of the CAA.
As explained above, Pennsylvania's NSR regulation allows sources to
take credit for emission reductions resulting from shutdowns or
curtailments of production or operating hours which occurred after
January 1, 1991, or the design year of the most recent attainment
demonstration, whichever is more recent. Because of this regulatory
language, Pennsylvania would not have to modify its NSR rule if, in the
future, an attainment demonstration were required to be based on a more
recent design year. Currently, the earliest date by which emissions
reductions from source shutdowns or curtailments would be creditable
towards offsets under Pennsylvania's NSR rule is on or after January 1,
1991. This is because 1990 is the base year required to be used to
satisfy the Part D progress and attainment demonstration requirements
of the CAA. That date would move forward to the new design year of any
subsequent attainment demonstration required to be done by
Pennsylvania. Thus, EPA believes that Pennsylvania's NSR regulation is
generally consistent with ``Shutdown Alternative 2'' as described in
EPA's proposed NSR Reform Rulemaking since both the Pennsylvania rule
and Alternative 2 allow sources to take credit only for emissions
reductions from shutdowns or curtailments occurring after January 1,
1991. Because Pennsylvania's NSR regulation is consistent with
Alternative 2 of EPA's proposed NSR Reform Rulemaking (as discussed
above), and because approval of the revised version of Pennsylvania's
NSR regulation submitted on February 4, 1994 would strengthen the SIP
to be consistent with the CAA's provisions for NSR, EPA believes that
Pennsylvania's NSR revised regulation warrants limited approval. If EPA
promulgates Alternative 2, this limited approval would convert to a
full approval.
The alternative shutdown-related alternative set forth in EPA's NSR
Reform Rulemaking proposal is entitled ``Shutdown Alternative 1.'' This
alternative proposes, for ozone nonattainment areas, to lift the
current offset restriction applicable to emissions reductions from
source shutdowns and curtailments in such areas without EPA-approved
attainment demonstrations, provided the emissions reductions occur
after November 15, 1990 and the area has kept current with the CAA's
scheduled Part D ozone nonattainment planning requirements. See
proposed Section 51.165(a)(3)(ii)(C) (5) and (6) [Alternative 1].
EPA acknowledges that either Alternative 1 or 2 may be eventually
incorporated into the final NSR Reform Rulemaking upon its final
promulgation. It is also noted that while EPA is with this rulemaking
action proposing to grant limited approval of Pennsylvania's NSR
regulation based on the rule's consistency with Shutdown Alternative 2
in EPA's NSR Reform Rulemaking, the Commonwealth may need to amend its
NSR regulation if Shutdown Alternative 1 rather than Shutdown
Alternative 2 is promulgated. If Alternative 1 is promulgated, EPA
would determine the status of Pennsylvania's conformance with Part D
ozone planning requirements. If Pennsylvania's SIP was not current with
the Part D ozone planning requirements for any nonattainment area, EPA
would make a SIP call for Pennsylvania to amend its NSR rule to conform
with Alternative 1 as provided in EPA's final NSR Reform Rulemaking.
III. Proposed Action
EPA is proposing limited approval of the revisions to the
Pennsylvania SIP NSR regulations submitted on February 4, 1994 because
such approval would strengthen the SIP so that it meets the NSR
requirements of the CAA as discussed herein. EPA is soliciting public
comments on the issues discussed in this document or on other relevant
matters. These comments will be considered before taking final action.
Interested parties may participate in the Federal rulemaking procedure
by submitting written comments to the EPA Regional Office listed in the
Addresses section of this document.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
IV. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the state is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, the
Administrator certifies that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-state relationship under the CAA, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to state, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and
[[Page 24065]]
advising any small governments that may be significantly or uniquely
impacted by the rule.
EPA has determined that the approval action proposed does not
include a Federal mandate that may result in estimated costs of $100
million or more to either state, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under state or local law, and imposes no new
requirements. Accordingly, no additional costs to state, local, or
tribal governments, or to the private sector, result from this action.
The Administrator's decision to approve or disapprove
Pennsylvania's NSR SIP revision will be based on whether it meets the
requirements of section 110(a)(2)(A)-(K) and part D of the Clean Air
Act, as amended, and EPA regulations in 40 CFR Part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401-7671q.
Dated: April 22, 1997.
Stanley L. Laskowski,
Acting Regional Administrator, Region III.
[FR Doc. 97-11492 Filed 5-1-97; 8:45 am]
BILLING CODE 6560-50-P
