[Federal Register Volume 61, Number 147 (Tuesday, July 30, 1996)]
[Rules and Regulations]
[Pages 39593-39597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19204]
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[[Page 39594]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA065-4026a; FRL-5535-2]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; General Operating Permit and Plan Approval Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Pennsylvania which amends 25 Pa. Code
Chapter 127 to include a new Subchapter H entitled ``General Plan
Approvals and Operating Permits.'' The intended effect of this action
is to enable Pennsylvania to create Federally enforceable general State
operating permit and general plan approval conditions for sources of
criteria pollutants pursuant to Section 110 of the Clean Air Act (the
``Act''). In order to extend the Federal enforceability of general
State operating permits and general plan approvals to include hazardous
air pollutants (HAPs), EPA is also approving Pennsylvania's general
plan approval and general operating permits program regulations
pursuant to section 112(l) of the Act.
EFFECTIVE DATE: This final rule is effective September 30, 1996 unless
notice is received on or before August 29, 1996 that adverse or
critical comments will be submitted. If the effective date is delayed,
timely notice will be published in the Federal Register.
ADDRESSES: Comments may be mailed to David Arnold, 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; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460; and Pennsylvania
Department of Environmental Protection, Rachel Carson State Office
Building, P.O. Box 8468, Harrisburg, Pennsylvania 17105-8468.
FOR FURTHER INFORMATION CONTACT: Michael H. Markowski, 3AT23, U.S.
Environmental Protection Agency, Region 3, 841 Chestnut Building,
Philadelphia, Pennsylvania, 19107, (215) 566-2063.
SUPPLEMENTARY INFORMATION: On May 18, 1995, the Pennsylvania Department
of Environmental Protection (PADEP) submitted to EPA for review and
approval a revision to its State Implementation Plan (SIP) designed to
create federally enforceable limits on a source's potential to emit.
The submittal supplements the Commonwealth's existing plan approval and
State operating permit programs, codified in Subchapters B and F,
respectively, and consists of regulations establishing a general State
operating permit program and a general plan approval program, codified
in Chapter 127, Subchapter H of the Pennsylvania Code. In a March 7,
1996 Federal Register notice, EPA proposed approval of Pennsylvania's
operating permit and plan approval programs codified in Subchapters F
and B, respectively, of Pennsylvania's air quality regulations. See 61
FR 9125. However, in that notice, EPA did not specifically propose
approval of the Pennsylvania general operating permit and general plan
approval program provisions codified in Subchapter H of Pennsylvania's
air quality regulations. Therefore, EPA is approving Pennsylvania's
general permit programs, under Subchapter H, with this separate
rulemaking action.
Summary of SIP Revision
Pennsylvania's general FESOP and general plan approval program
regulations were adopted and became effective in the Commonwealth on
November 26, 1994. The general operating permit and general plan
approval program regulations are codified under Chapter 127, Subchapter
H of the Commonwealth's air quality regulations. EPA found the SIP
submittal complete on May 31, 1995.
Pennsylvania's proposed SIP revision submitted to EPA on May 18,
1995 will strengthen the Pennsylvania SIP by establishing a
comprehensive general operating permit and general plan approval (i.e.,
construction permit) program. Pennsylvania refers to new source review
construction permits as ``plan approvals.'' Section 121.1 of the
Pennsylvania air quality regulations defines general plan approvals and
general operating permits as plan approvals and operating permits that
are issued for a category of stationary air contamination sources that
are similar in nature and that can be adequately regulated using
standardized specifications and conditions. For clarity, EPA notes that
the PADEP's general permit program codified under Subchapter H of the
Pennsylvania regulations is intended only to supplement, but not
replace, the PADEP's existing plan approval and operating permit
programs codified under Subchapters B and F, respectively, of the
Pennsylvania regulations.
EPA Evaluation
On June 28, 1989 (54 FR 27274) EPA published criteria for approving
and incorporating into the SIP regulatory programs for the issuance of
federally enforceable state operating permits. Permits issued pursuant
to an operating permit program meeting these criteria and approved into
the SIP are considered federally enforceable. EPA has encouraged States
to consider developing such programs in conjunction with Title V
operating permit programs for the purpose of creating federally
enforceable limits on a source's potential to emit. This mechanism
would enable sources to reduce their potential to emit of criteria
pollutants to below the Title V applicability thresholds and avoid
being subject to Title V. (See the guidance document entitled,
``Limitation of Potential to Emit with Respect to Title V Applicability
Thresholds,'' dated September 18, 1992, from John Calcagni, Director of
EPA's Air Quality Management Division).
As part of this action, EPA is approving Pennsylvania's general
plan approval (i.e., construction permit) and general operating permit
programs pursuant to Section 112(l) of the Clean Air Act for the
purpose of allowing the Commonwealth to issue general plan approvals
and general operating permits which limit source's potential to emit
hazardous air pollutants (HAPs). Section 112(l) of the Clean Air Act
provides the underlying authority for controlling emissions of HAPs.
Therefore, in order to extend federal enforceability of the
Commonwealth's general operating permit and general plan approval
programs to include HAPs, EPA is today approving Pennsylvania's general
plan approval and general operating permit programs pursuant to Section
112(l) of the Act.
Limiting a source's potential to emit to below major source
thresholds through the use of federally enforceable terms and
conditions in a general State operating permit or general plan approval
exempts such a source from Title V permitting requirements. General
State operating permit programs which have been incorporated into the
SIP renders general operating permits
[[Page 39595]]
issued pursuant to such a program as federally enforceable, and the
program itself is referred to as a federally enforceable State
operating permit program, or ``FESOP'' program. This FESOP mechanism
will allow sources to reduce their potential to emit to below the Title
V applicability thresholds and avoid being subject to Title V.
Similarly, general construction permit (i.e., plan approval) programs
which have been incorporated into the SIP renders general construction
permits, or, in Pennsylvania's case, general plan approvals, issued
pursuant to such a program as federally enforceable.
A. Federal Criteria for Approval of Pennsylvania's General FESOP and
General Plan Approval Programs Pursuant to Section 110 of the Act
The five criteria for approving a State operating permit program
into a SIP were set forth in the June 28, 1989 Federal Register
document (54 FR 27282). Permits issued under an approved program are
federally enforceable and may be used to limit the potential to emit of
sources of criteria air pollutants. Pennsylvania's general FESOP
provisions of Subchapter H, Chapter 127 meet the June 28, 1989 criteria
by ensuring that the limits will be permanent, quantifiable, and
practically enforceable and by providing adequate notice and comment to
both EPA and the public. Please refer to the Technical Support Document
for a thorough analysis of the June 28, 1989 criteria as applied to
Pennsylvania's general FESOP program.
EPA is approving pursuant to Section 110 of the Act and the
approval criteria specified in the June 28, 1989 Federal Register
document the following regulations that were submitted to make general
operating permits and general plan approvals federally enforceable:
Subchapter H, Chapter 127, Sections 127.601 through 127.622, inclusive.
As described above, Pennsylvania also submitted on May 18, 1995 for
EPA approval revisions to its minor new source review construction
permit (i.e., plan approval) program. Pennsylvania's new source review
construction permit is called a ``plan approval.'' These proposed
revisions to the Pennsylvania SIP establish a comprehensive general
plan approval program under Chapter 127, Subchapter H of the
Commonwealth's air quality regulations designed to supplement the
Commonwealth's existing plan approval program codified under Chapter
127, Subchapter B. The Commonwealth's plan approval program has been
part of its SIP for many years and meets the requirements in Section
110(a)(2)(C) of the Act which requires all SIPs to provide for the
regulation of the modification and construction of any stationary
source within the areas covered by the plan implementation as necessary
to assure that national ambient air quality standards (NAAQS) are
achieved. Pennsylvania's plan approval regulations under Subchapter B
were originally approved by EPA into the SIP on May 31, 1972 (37 FR
10842) for the purpose of meeting the Section 110(a)(2)(C) requirement.
EPA notes that Pennsylvania had previously submitted, on February
10, 1994, its new source review (NSR) construction permit program for
review and approval, for the purpose of making the program consistent
with the Clean Air Act Amendments of 1990. EPA is reviewing this
program submittal and will take the appropriate approval/disapproval
action at a later date. EPA has reviewed the proposed changes and
additions to Pennsylvania's plan approval program which are the subject
of this rulemaking action and has determined that they meet all
applicable federal requirements for approval.
B. Approval of Pennsylvania's General Plan Approval and General FESOP
Programs Under Section 112(l)
On May 18, 1995, PADEP requested approval of Pennsylvania's general
FESOP and general plan approval programs under Section 112 of the Act
for the purpose of creating federally enforceable limitations on the
potential to emit of HAPs. As described above, the Commonwealth's plan
approval program regulations were initially approved by EPA and
incorporated into the Pennsylvania SIP on May 31, 1972. EPA is today
approving and incorporating into the SIP Pennsylvania's general
operating permit and general plan approval program regulations
submitted on May 18, 1995.
EPA approval of the Commonwealth's general plan approval and
general FESOP programs under Section 112(l) of the Act is necessary to
extend Pennsylvania's authority under Section 110 of the Act to include
authority to create federally enforceable limits on the potential to
emit of HAPs. EPA's approval of Pennsylvania's general FESOP and plan
approval programs pursuant to Section 110 of the Act provides a
mechanism only for controlling criteria air pollutants which does not
extend to HAPs. Only Section 112 of the Act provides the underlying
authority for States to limit potential to emit of HAPs in federally
enforceable general State operating permits and general construction
permits. This necessitates EPA approval of the Pennsylvania general
operating permit and general plan approval programs pursuant to Section
112(l) of the Act.
The criteria used by EPA for the original SIP approval of
Pennsylvania's plan approval program are located in 40 CFR 51.160-164.
EPA believes that the PADEP's existing plan approval program under
Subchapter B meets the requirements of 40 CFR 51.160 through 51.164.
EPA has determined that the five approval criteria for approving
FESOP programs into the SIP, as specified in the June 28, 1989 Federal
Register notice referenced above, are also appropriate for evaluating
and approving the programs under Section 112(l). The June 28, 1989
notice does not address HAPs because it was written prior to the 1990
amendments to Section 112 of the Act. Hence, the following five
criteria are applicable to FESOP approvals under Section 112(l): (1)
The program must be submitted to and approved by EPA; (2) the program
must impose a legal obligation on the operating permit holders to
comply with the terms and conditions of the permit, and permits that do
not conform with the June 28, 1989 criteria shall be deemed not
federally enforceable; (3) the program must contain terms and
conditions that are at least as stringent as any requirements contained
in the SIP or enforceable under the SIP or any other Section 112 or
other Clean Air Act standard or requirement; (4) permits issued under
the program must contain conditions that are permanent, quantifiable,
and enforceable as a practical matter; and (5) permits issued under the
program must be subject to public participation. Please refer to the
Technical Support Document for a thorough analysis of how
Pennsylvania's general operating permits program satisfies each of the
five approval criteria. Since the State's general operating permits
program meets the five program approval criteria for both criteria and
hazardous air pollutants, the program may be used to limit the
potential to emit of both criteria and hazardous air pollutants.
In addition to meeting the criteria discussed above, Pennsylvania's
general plan approval and general operating permits programs for
limiting potential to emit of HAPs must meet the statutory criteria for
approval under Section 112(l)(5) of the Act. This section allows EPA to
approve a program only if it: (1) contains adequate authority to assure
compliance with any Section 112 standard or requirement; (2) provides
for adequate resources; (3) provides for an expeditious schedule for
assuring compliance with Section 112
[[Page 39596]]
requirements; and (4) is otherwise likely to satisfy the objectives of
the Act.
The EPA plans to codify the approval criteria for programs limiting
the potential to emit of HAPs through amendments to Subpart E of 40 CFR
part 63, the regulations promulgated to implement section 112(l) of the
Act. (See 58 FR. 62262, November 26, 1993). The EPA currently
anticipates that these criteria, as they apply to FESOP programs, will
mirror those set forth in the June 28, 1989 notice, with the addition
that the State's authority must extend to HAPs instead of or in
addition to VOC's and PM10. The EPA currently anticipates that
FESOP programs that are approved pursuant to Section 112(l) prior to
the planned Subpart E revisions will have had to meet these criteria,
and hence will not be subject to any further approval action.
The EPA believes it has the authority under section 112(l) to
approve programs to limit potential to emit of HAPs directly under
section 112(l) prior to this revision to Subpart E. Section 112(l)(5)
requires the EPA to disapprove programs that are inconsistent with
guidance required to be issued under section 112(l)(2). This might be
read to suggest that the ``guidance'' referred to in section 112(l)(2)
was intended to be a binding rule. Even under this interpretation, the
EPA does not believe that section 112(l) requires this rulemaking to be
comprehensive. That is, it need not address every possible instance of
approval under section 112(l). The EPA has already issued regulations
under section 112(l) that would satisfy any section 112(l)(2)
requirement for rulemaking. Given the severe timing problems posed by
impending deadlines set forth in ``maximum achievable control
technology'' (MACT) emission standards under section 112 and for
submittal of Title V permit applications, the EPA believes it is
reasonable to read section 112(l) to allow for approval of programs to
limit potential to emit prior to promulgation of a rule specifically
addressing this issue. The EPA is therefore approving Pennsylvania's
general FESOP and general plan approval programs now so that
Pennsylvania may begin to issue federally enforceable general operating
permits and general plan approvals limiting potential to emit as soon
as possible. This will allow Pennsylvania to immediately begin
exempting sources from Title V requirements where this is possible and
appropriate.
The EPA is approving Pennsylvania's general FESOP and general plan
approval programs pursuant to Section 112(l) of the Act because the
programs meet applicable approval criteria specified in the June 28,
1989 Federal Register document and in Section 112(l)(5) of the Act.
Regarding the statutory criteria of Section 112(l)(5) of the Act
referred to above, the EPA believes Pennsylvania's general FESOP and
general plan approval programs contain adequate authority to assure
compliance with Section 112 requirements since neither program provides
for waiving any Section 112 requirement(s). Sources would still be
required to meet Section 112 requirements applicable to non-major
sources. Regarding adequate resources, Pennsylvania has included in its
general FESOP and general plan approval programs provisions for
collecting fees from sources making application for either a general
plan approval, a general operating permit, or both. Furthermore, EPA
believes that Pennsylvania's general FESOP and general plan approval
programs provide for an expeditious schedule for assuring compliance
because they allow a source to establish a voluntary limit on potential
to emit and avoid being subject to a federal Clean Air Act requirement
applicable on a particular date. Nothing in Pennsylvania's general plan
approval or general operating permit programs would allow a source to
avoid or delay compliance with a federal requirement if it fails to
obtain the appropriate federally enforceable limit by the relevant
deadline. Finally, Pennsylvania's general FESOP and general plan
approval programs are consistent with the objectives of the Section 112
program because their purpose is to enable sources to obtain federally
enforceable limits on potential to emit to avoid major source
classification under Section 112. The EPA believes that this purpose is
consistent with the overall intent of Section 112.
EPA has concluded that the general operating permit and general
plan approval programs submitted by Pennsylvania meet the requirements
of EPA's June 28, 1989 notice and the statutory requirements under
section 112(l) of the Act and is therefore approving the programs. For
more detailed information on the analysis of the State's submission,
please refer to the technical support document (TSD) included in the
docket at the address noted above.
EPA is approving this SIP revision without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective September 30, 1996 unless, by August 29, 1996, adverse or
critical comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting on this action should do
so at this time. If no such comments are received, the public is
advised that this action will be effective on September 30, 1996.
Final Action
EPA is approving as revisions to the Pennsylvania SIP changes to
Chapter 127 of the Pennsylvania Code which were submitted on May 18,
1995. The submittal revises Pennsylvania's existing plan approval and
FESOP programs by adding a comprehensive general FESOP and general plan
approval program under Chapter 127, Subchapter H of the Commonwealth's
air quality regulations.
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.
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
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under the Clean Air Act, 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).
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
the 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 advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated 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
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
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.
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 30, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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. This action 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,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: June 26, 1996.
Stanley L. Laskowski,
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. 7401-7671q.
Subpart NN--Pennsylvania
2. Section 52.2020 is amended by adding paragraph (c)(111) to read
as follows:
Sec. 52.2020 Identification of plan.
* * * * *
(c) * * *
(111) Revisions to the Operating Permit and Plan Approval
Regulations to add Subchapter H, ``General Plan Approvals and Operating
Permits'', submitted on May 18, 1995 by the Pennsylvania Department of
Environmental Resources:
(i) Incorporation by reference.
(A) Letter of May 15, 1995 from the Pennsylvania Department of
Environmental Resources transmitting Pennsylvania's general plan
approval and general operating permit programs.
(B) The following amendments to Title 25, Chapter 127, effective on
November 26, 1994: Sec. 127.601, 127.611, 127.612, 127.621, and
127.622.
(ii) Additional material.
(A) Remainder of Pennsylvania's May 18, 1995 submittal.
3. Section 52.2061 is amended by adding paragraph (b) to read as
follows:
Sec. 52.2061 Operating permits.
* * * * *
(b) Emission limitations and related provisions which are
established in Pennsylvania general operating permits as federally
enforceable conditions shall be enforceable by EPA. EPA reserves the
right to deem general permit conditions not federally enforceable. Such
a determination will be made according to appropriate procedures, and
be based upon the general permit, general permit approval procedures,
or general permit requirements which do not conform with the general
operating permit program requirements or the requirements of EPA's
underlying regulations.
4. Section 52.2062 is amended by adding paragraph (b) to read as
follows:
Sec. 52.2062 Plan approvals.
* * * * *
(b) Emission limitations and related provisions which are
established in Pennsylvania general plan approvals as federally
enforceable conditions shall be enforceable by EPA. EPA reserves the
right to deem general plan approval conditions not federally
enforceable. Such a determination will be made according to appropriate
procedures, and be based upon the general plan approval, the relevant
approval procedures, or plan requirements which do not conform with the
general plan approval program requirements or the requirements of EPA's
underlying regulations.
[FR Doc. 96-19204 Filed 7-29-96; 8:45 am]
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