[Federal Register: March 28, 2003 (Volume 68, Number 60)]
[Rules and Regulations]
[Page 15059-15061]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28mr03-8]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA202-4400a; FRL-7474-2]
Approval and Promulgation of Air Quality Implementation Plans;
Philadelphia County, PA; Construction, Modification and Operation
Permit Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action to approve revisions to the
Philadelphia County portion of the Pennsylvania State Implementation
Plan (SIP). The revision approves Philadelphia County's regulations
governing the construction of new and modified sources and the
operation of existing sources of air pollution in the County. EPA is
approving this SIP revision in accordance with the requirements of the
Clean Air Act.
DATES: This rule is effective on May 27, 2003 without further notice,
unless EPA receives adverse written comment by April 28, 2003. 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: Written comments should be addressed to Makeba Morris,
Chief, Permitting and Technical Assessment Branch, Mailcode 3AP11, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. Copies of the documents relevant to
this action are available for public inspection during normal business
hours at the Air Protection Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103;
the Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, 1301 Constitution Avenue, NW., Room B108,
Washington, DC 20460; Pennsylvania Department of Environmental
Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street,
Harrisburg, Pennsylvania 17105; Department of Public Health, Air
Management Services, 321 University Avenue, Philadelphia, Pennsylvania
19104.
FOR FURTHER INFORMATION CONTACT: Paul Arnold, (215) 814-2194, or by e-
mail at arnold.paul@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On May 13, 1999, the Commonwealth of Pennsylvania submitted on
behalf of Philadelphia County Air Management Services (AMS) a formal
revision to its State Implementation Plan (SIP). The SIP revision
consists of Philadelphia Air Management Regulation XIII--``Pertaining
to the Construction, Modification, Reactivation, and Operation of
Sources.''
II. Summary of SIP Revision
Regulation XIII enables Philadelphia County AMS to administer the
permit program requirements contained in the Commonwealth of
Pennsylvania's 25 Pa. Code Chapter 127, ``Construction, Modification,
Reactivation, and Operation of Sources.'' Substantively, Regulation
XIII incorporates by reference 25 Pa. Code Chapter 127 in its entirety.
Philadelphia County made minor administrative revisions to 25 Pa. Code
Chapter 127 to reflect the appropriate officials and administrative
procedures relevant to AMS.
Regulation XIII, through incorporation of the various subchapters
of 25 Pa. Code Chapter 127, adopts provisions that pertain to a number
of distinct permit programs that satisfy a variety of Clean Air Act
requirements. Each of the permit program elements contained in 25 Pa.
Code Chapter 127 have been previously submitted to EPA for review and
approval as part of the SIP for the Commonwealth of Pennsylvania. Since
Philadelphia County did not make any substantive changes to 25 Pa. Code
Chapter 127 when it incorporated its provisions into its Regulation
XIII, the review and analysis performed by EPA when it previously acted
on 25 Pa. Code Chapter 127 remains relevant and appropriate. The
following table indicates the relevant subchapters of 25 Pa. Code
Chapter 127 that have been previously approved by EPA as part of the
Pennsylvania SIP.
[[Page 15060]]
Previous EPA SIP Action on 25 Pa. Code Chapter 127
------------------------------------------------------------------------
25 Pa. Code Chapter 127 Subchapter Approval date
------------------------------------------------------------------------
A. General provisions pertaining to July 30, 1996.
permit program purpose and operational 61 FR 39597.
flexibility.
B. Plan approval requirements related to July 30, 1996.
construction or modification of minor 61 FR 39597.
sources.
F. Operating permit requirements related July 30, 1996.
to the ongoing operation of minor and 61 FR 39597.
major sources.
H. General plan approval and operating July 30, 1996.
permit provisions pertaining to permits 61 FR 39594.
for groups or categories of sources.
I. Plan approval and operating permit July 30, 1996.
fee provisions. 61 FR 39594.
J. General conformity provisions of the Sept. 29, 1997.
Clean Air Act. 62 FR 50870.
------------------------------------------------------------------------
EPA directs interested parties to review the rulemaking actions
detailed above for further analysis in support of this action to
approve Regulation XIII as part of Philadelphia County's portion of the
Pennsylvania SIP.
Regulation XIII also contains provisions that enable Philadelphia
County to implement and enforce the federal prevention of significant
deterioration (PSD) of air quality permit program. The PSD program
covers any new construction or any major modification of a major
stationary air emission source in an area which has air quality better
than the national ambient air quality standards. The program requires
the issuance of permits prior to construction or modification of
certain sources. Regulation XIII adopts the requirements of the Federal
PSD program at 40 CFR 52.21 by reference in its entirety. Because
Regulation XIII does not reference a specific edition of 40 CFR part
52, all future changes to part 52 with regard to the federal PSD
program are automatically incorporated by reference into Regulation
XIII.
The Federal PSD program promulgated at 40 CFR part 52 intrinsically
meets the minimum requirements of 40 CFR part 51 pertaining to the
adoption and implementation of PSD permit programs by state and local
air pollution control agencies. Therefore, Regulation XIII, by
incorporating the Federal PSD program, meets the minimum requirements
of 40 CFR part 51 with regard to PSD programs.
Since 1983, Philadelphia County AMS has been delegated the
authority to implement and enforce the provisions of 40 CFR 52.21 on
behalf of EPA. (See 48 FR 31638, July 11, 1983.) Incorporation of the
Federal PSD regulations into Regulation XIII and approval into the
Philadelphia County portion of the Pennsylvania SIP effectively
eliminates the need for the existing PSD delegation agreement. Upon the
effective date of this action, the existing delegation of authority
agreement between EPA and Philadelphia County regarding implementation
and enforcement of the Federal PSD program will be terminated.
In addition, while EPA is approving Philadelphia County's PSD SIP,
EPA recognizes that it has a responsibility to insure that all States
properly implement their preconstruction permitting programs. EPA's
approval of Philadelphia County's PSD program does not divest the
Agency of the duty to continue appropriate oversight to insure that PSD
determinations made by Philadelphia County are consistent with the
requirements of the Clean Air Act, EPA regulations, and the SIP. EPA's
authority to oversee PSD program implementation is set forth in
sections 113, 167, and 505(b) of the Act. For example, section 167
provides that EPA shall issue administrative orders, initiate civil
actions, or take whatever other enforcement action may be necessary to
prevent construction of a major stationary source that does not
``conform to the requirements of'' the PSD program. Similarly, section
113(a)(5) provides for administrative orders and civil actions whenever
EPA finds that a State ``is not acting in compliance with'' any
requirement or prohibition of the Act regarding construction of new or
modified sources. Likewise, section 113(a)(1) provides for a range of
enforcement remedies whenever EPA finds that a person is in violation
of an applicable implementation plan.
It should be noted that EPA is not taking action at this time on
certain discrete portions of Regulation XIII. Regulation XIII contains
provisions that pertain to the County's new source review (NSR)
permitting program for the construction or modification of major
sources in nonattainment areas. Similarly, Regulation XIII contains
provisions that reflect the requirements of the County's operating
permit program developed to satisfy title V of the Clean Air Act. The
NSR and title V provisions of Regulation XIII may be considered
separate and/or additional permitting requirements relative to the
other permitting requirements contained in the Regulation XIII. The
EPA's inaction on these provisions at this time does not adversely
impact the implementation of the portions of Regulation XIII that are
being approved as part of the Philadelphia County portion of the
Pennsylvania SIP pursuant to this action. The EPA intends to take
separate action on the NSR and title V operating permit program
portions of Regulation XIII in the future.
III. Final Action
EPA is approving Philadelphia Air Management Regulation XIII of the
AMS regulations pertaining to a number of the County's construction and
operating permit programs. EPA is publishing this rule without prior
proposal because the Agency views this as a noncontroversial amendment
and anticipates no adverse comment because this rulemaking incorporates
the requirements contained in Commonwealth of Pennsylvania's 25 Pa.
Code Chapter 127, which was previously reviewed and approved by EPA.
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 May 27, 2003 without further notice unless EPA
receives adverse comment by April 28, 2003. 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
[[Page 15061]]
interested in commenting must do so at this time.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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). This rule also does not
have tribal implications because it will not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action also does not have Federalism implications because it does
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action merely approves a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 rule 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. This rule 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 May 27, 2003. 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 approving Philadelphia County's Air
Management Regulation XIII 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,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: March 20, 2003.
Donald S. Welsh,
Regional Administrator, Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart NN--Pennsylvania
0
2. Section 52.2020 is amended by adding paragraph (c)(203) to read as
follows:
Sec. 52.2020 Identification of plan.
* * * * *
(c) * * *
(203) Revisions to Philadelphia Air Management Regulation XIII--
``Pertaining to the Construction, Modification, Reactivation, and
Operation of Sources'' submitted on May 13, 1999 by the Pennsylvania
Department of Environmental Protection on behalf of Philadelphia County
Air Management Services:
(i) Incorporation by reference.
(A) Letter of May 13, 1999 from the Pennsylvania Department of
Environmental Protection on behalf of Philadelphia County Air
Management Services transmitting Regulation XIII governing the
construction of new and modified sources and operation of existing
sources of air pollution in the County.
(B) Philadelphia Air Management Regulation XIII--``Pertaining to
the Construction, Modification, Reactivation, and Operation of
Sources'', except as it pertains to the new source review permit
program and the title V operating permit program, effective October 30,
1995.
(ii) Additional Material.--Remainder of the State submittal
pertaining to the revisions listed in paragraph (c)(203)(i) of this
section.
[FR Doc. 03-7510 Filed 3-27-03; 8:45 am]
BILLING CODE 6560-50-P