E9-16365. Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Allegheny County, Continuous Opacity Monitor Regulation

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the Pennsylvania State Implementation Plan (SIP). This SIP revision, “Revision 58, Continuous Opacity Monitor Regulation Changes,” consists of changes to the Allegheny County Health Department (ACHD) Rules and Regulations, Article XXI, Air Pollution Control. EPA is approving this revision to the Pennsylvania SIP in accordance with the requirements of the Clean Air Act (CAA).

DATES:

This rule is effective on September 11, 2009 without further notice, unless EPA receives adverse written comment by August 12, 2009. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2009-0352 by one of the following methods:

A. http://www.regulations.gov. Follow the on-line instructions for submitting comments.

B. E-mail: [e-mail].

C. Mail: EPA-R03-OAR-2009-0352, Cristina Fernandez, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

D. Hand Delivery: At the previously listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2009-0352. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., 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 in http://www.regulations.gov or in hard copy 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 Allegheny County Health Department, Bureau of Environmental Quality, Division of Air Quality, 301 39th Street, Pittsburgh, Pennsylvania 15201.

FOR FURTHER INFORMATION CONTACT:

Maria A. Pino, [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On May 16, 2007, the Commonwealth of Pennsylvania submitted a formal revision to the Pennsylvania SIP. The SIP revision consists of changes to Article XXI of the ACHD Rules and Regulations to specify the method to determine compliance with opacity requirements for coke oven combustion stacks, allow the use of continuous opacity monitoring systems (COMS) to measure visual emissions, and remove a redundant phrase in the current approved SIP.

II. Summary of SIP Revision

The revisions in “Revision 58, Continuous Opacity Monitor Regulation Changes” make three changes to the ACHD Rules and Regulations, Article XXI, Air Pollution Control.

The revision to § 2105.21.f specifies the method to determine compliance with opacity requirements for coke oven combustion stacks. The new language states that opacity measurements are to be performed according to the methods established in § 2107.11. This addition to § 2105.21.f strengthens the Pennsylvania SIP because the current SIP does not specify visible emission compliance methods for coke oven combustion stacks.

The revision to § 2107.11 allows the use of COMS to measure visual emissions. Previously, compliance with visible emission requirements was determined only by EPA Method 9, which requires a certified smoke reader to observe the emissions leaving the stack during daylight hours. EPA Method 9 had been the only federally acceptable method to determine compliance with visibility emissions. However, on February 24, 1997, EPA promulgated its Credible Evidence Revisions, which clarified that non-reference test data, i.e., any creditable evidence, can be used in enforcement actions and for compliance determinations under the Clean Air Act (62 FR 8314). Thus, Method 9 is not the exclusive means to determining compliance with visibility requirements, and the use of data from COMS is deemed acceptable. This change strengthens the Pennsylvania SIP by allowing the use of COMS data to determine compliance with visibility requirements, which will make compliance determinations easier.

The revision to § 2108.03 removes the redundant phrase, “within the time specified,” in the current approved SIP. This revision does not change the meaning of § 2108.03, but adds clarity. Therefore, this revision is approvable.

III. Final Action

EPA is approving “Revision 58, Continuous Opacity Monitor Regulation Changes,” submitted by the Commonwealth of Pennsylvania on May 16, 2007. The revision to § 2105.21.f specifies the method to determine compliance with opacity requirements for coke oven combustion stacks in Allegheny County. The revision to § 2107.11 allows the use of COMS to measure visual emissions in Allegheny County. The revision to § 2108.03 removes a redundant phrase in the current approved SIP. EPA is approving these revisions to the Pennsylvania SIP in accordance with the requirements of the CAA.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. This revision to the Pennsylvania SIP serves to strengthen and add clarity to the SIP, but does not add any new regulatory requirements. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 11, 2009 without further notice unless EPA receives adverse comment by August 12, 2009. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

IV. 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 September 11, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking.

This action, which revises the Pennsylvania SIP to establish the method to determine compliance with opacity requirements for coke oven combustion stacks and allows the use of COMS to measure visible emissions in Allegheny County, and removes a redundant phrase in the current approved SIP, 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
• Incorporation by reference
• Nitrogen dioxide
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

Dated: July 1, 2009.

William C. Early,

Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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

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

Subpart NN—Pennsylvania

2. In § 52.2020, the table in paragraph (c)(2) is amended by revising the entries for Article XXI, Sections 2105.21, 2107.11, and 2108.03 to read as follows:

§ 52.2020

Identification of plan.

* * * * *

(c) * * *

(2) * * *

Article XX or XXI citation	Title/subject	State effective date	EPA approval date	Additional explanation/§ 52.2063 citation
*         *         *         *         *         *         *
Part E—Source Emission and Operating Standards
*         *         *         *         *         *         *
Subpart 2—Slag, Coke, and Miscellaneous Sulfur Sources
*         *         *         *         *         *         *
§ 2105.21	Coke Oven and Coke Gas Oven	4/1/07	7/13/09, [Insert page number where the document begins]	Revision to paragraph 2105.21.f (Combustion Stacks).
*         *         *         *         *         *         *
Part G—Methods
*         *         *         *         *         *         *
§ 2107.11	Visible Emissions	4/1/07	7/13/09, [Insert page number where the document begins]
*         *         *         *         *         *         *
Part H—Reporting, Testing & Monitoring
*         *         *         *         *         *         *
§ 2108.03	Continuous Emission Monitoring	4/1/07	7/13/09, [Insert page number where the document begins]	Revision to paragraph 2108.03.f (Violations).
*         *         *         *         *         *         *

* * * * *