Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; General Operating Permit and Plan Approval Program

[[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

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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

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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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