[Federal Register: August 30, 2004 (Volume 69, Number 167)]
[Rules and Regulations]
[Page 52831-52834]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30au04-9]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 138-4230; FRL-7807-3]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Federally Enforceable State Operating Permit Program for
Allegheny County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a revision to the Commonwealth of
Pennsylvania's State Implementation Plan (SIP). This SIP revision was
submitted by the Pennsylvania Department of the Environment (DEP) on
behalf of the Allegheny County Health Department (ACHD). The SIP
revision consists of the Federally enforceable state operating permit
(FESOP) program adopted by the ACHD. The intent of this revision is to
establish a SIP-approved FESOP program to be implemented by the ACHD
for sources located in Allegheny County, Pennsylvania. EPA is approving
this revision in accordance with the requirements of the Clean Air Act
(CAA).
EFFECTIVE DATE: This final rule is effective on September 29, 2004.
ADDRESSES: 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;
the Pennsylvania Department of Environmental Protection, Bureau of Air
Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania
17105; and the Allegheny County Health Department, Bureau of
Environmental Quality, Division of Air Quality, 301 39th Street,
Pittsburgh, Pennsylvania 15201.
FOR FURTHER INFORMATION CONTACT: Paul Arnold, (215) 814-2194, or by e-
mail at arnold.paul@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On June 26, 2003 (68 FR 37973), EPA published a notice of direct
final rulemaking (DFR) approving a revision to the Allegheny County
(the County) portion of the Commonwealth of Pennsylvania's SIP. The
formal SIP revision was submitted by the Pennsylvania DEP on behalf of
the ACHD on November 9, 1998, as amended on March 1, 2001. The revision
consists of the County's regulation to implement a program which
provides for the procedural and legal issuance of federally enforceable
state operating permits (FESOPs) for sources of air pollution located
in Allegheny County.
On June 26, 2003 (68 FR 37993), EPA also published a companion
notice of proposed rulemaking (NPR) approving this SIP revision. It was
stated in the June 26, 2003 DFR and NPR notices that this SIP revision
would be effective on August 25, 2003 without further notice unless EPA
received adverse written comments by July 28, 2003. If adverse comments
were submitted, the final rule approving the SIP revision would be
withdrawn. On July 28, 2003, adverse comments were submitted. On
September 26, 2003 (68 FR 55469), EPA withdrew the final rule approving
ACHD's FESOP program.
II. Pennsylvania's SIP Revision for Allegheny County
EPA has evaluated the ACHD's operating permit program and
determined that it satisfies the five criteria for approval of a FESOP
program for purposes of limiting a source's potential to emit (PTE).
See FR 27274, 27281-27284, June 28, 1989. EPA is therefore approving
the Pennsylvania DEP's request that the ACHD's regulation be made part
of the Pennsylvania SIP under section 110 of the CAA, 42 U.S.C. 7410.
The Pennsylvania DEP also requested approval of ACHD's program pursuant
to section 112(l) of the CAA, 42 U.S.C. 7412(l). EPA determined that
the County's program is consistent with the objectives and requirements
of section 112, 42 U.S.C. 7412, which governs the regulation of
hazardous air pollutants (HAP). It enables sources to apply for
federally enforceable limits on their PTE to avoid major source
classification under section 112. The details of EPA's evaluation of
the ACHD's regulation are provided in the notice published on June 26,
2003 (68 FR 37973) and shall not be restated here.
Today's action does not affect the ACHD's separate title V
operating permit program codified in Allegheny County Health
Department, Rules and Regulations, Article XXI, Part C, which was
developed by the ACHD and approved by EPA under title V of the CAA
(title V), 42 U.S.C. 7661-7661f, and EPA's implementing regulations in
40 CFR part 70 (part 70). See 66 FR 55112, Nov. 1, 2001. The title V
operating permit program applies to major stationary sources of air
pollution and certain other sources. By contrast, a FESOP program may
be and often is used to establish emission standards and other source-
specific regulatory requirements for stationary sources of air
pollution that enable them to remain ``synthetic minor'' sources that
are not subject to major source requirements, including title V
permitting requirements. Thus, the ACHD's FESOP program generally will
apply to sources that are not covered by the ACHD's title V program.\1\
---------------------------------------------------------------------------
\1\ In the event that a source covered by a FESOP becomes a
major source subject to title V permitting requirements, the
emission limits and other requirements set forth in the FESOP would
be incorporated into the title V operating permit as required by
title V, part 70 and the ACHD's corresponding authorities.
---------------------------------------------------------------------------
III. Public Comments and EPA Responses
On July 28, 2003, adverse comments were submitted to EPA regarding
its proposed approval of ACHD's FESOP
[[Page 52832]]
program. A summary of those comments and EPA's responses follows.
Comments: The commentor states that it is fully aware of the many
positive attributes of the Allegheny County Heath Department's Air
Enforcement and Compliance program, and that as a general rule supports
delegating to the County enforcement authority for air quality
regulatory implementation. The commentor, however, states its
opposition to full approval of the County's FESOP program at this time
is based on concern over the ability of the ACHD to carry out the
regulatory tasks set forth therein. The commentor first maintains that
the ACHD's FESOP program must, in addition to satisfying EPA's five
criteria for approval of a FESOP program (see 54 FR 27274, 27281-
27284), meet the minimum requirements for approvable State or local
title V program submissions listed in 40 CFR 70.4(b). In particular,
the commentor cites the requirement that a part 70 program submission
include ``* * * a statement that adequate personnel and funding have
been made available to develop, administer, and enforce the program''
[40 CFR 70.4(b)(8)]. The commentor states that the requirements of
Sec. 70.4(b) are binding on ``partial programs'' such as ACHD's by
virtue of Sec. 70.4(c)(2) as many of the sources which will obtain
FESOP's under the ACHD's program will do so for the express purpose of
avoiding Title V applicability. The commentor therefore believes that a
state or local FESOP program approval determination must also take into
account the elements of Sec. 70.4.
The commentor also expresses concern as to whether the ACHD
satisfies the requirement for approval of a FESOP program which states
that all limitations, controls and requirements imposed in a permit
must be permanent, quantifiable and enforceable as a practical matter.
The commentor asserts that if an enforcement and compliance program is
not performing at a satisfactory level, then it is not accurate to
represent that permits are enforceable ``as a practical matter.'' As a
basis for this comment, the commentor cites to a report entitled
``Review of Allegheny County Health Department's Air Enforcement &
Compliance Program'' issued by EPA Region III's Office of Air
Enforcement and Permits Review in June, 2003. The commentor discusses
the report's findings with respect to: the adequacy of the legal
resources available to the ACHD to ensure adequate enforcement; the
apparent lack of enforcement activity by the ACHD; the ACHD's failure
to fully comply with EPA reporting requirements, which the commentor
asserts is critical to EPA's and the public's ability to oversee the
ACHD's enforcement activities; the ACHD's organizational structure; and
the lack of the ACHD's follow-up on stack tests. The commentor also
incorporates by reference the additional problem areas identified by
EPA in the report.
In addition, the commentor raises two comments concerning EPA's
approval of the Pennsylvania DEP's request that EPA grant the ACHD
authority pursuant to section 112(l) of the CAA to limit sources'
potential to emit HAP through the issuance of FESOPs. The commentor
asserts that two of the section 112(l) requirements for EPA approval of
a FESOP program for HAP purposes ``provide a challenge'' in the case of
the ACHD's program. First, the commentor asserts that EPA's conclusion
that the ACHD has adequate resources due to permit fees ``seems
questionable in light of EPA's own final report on ACHD's enforcement
and compliance program.'' Second, the commentor asserts that
shortcomings in the ACHD's program, such as the ``dearth of
enforcement, failure to identify violators, and failure to supply
[Pennsylvania] DEP and EPA with all necessary records from which to
discern facility compliance * * * run contrary to'' section 112(l)(5)'s
requirement that a program is ``otherwise likely to satisfy the
objectives of the Act.''
Rather than proceed with full approval, the commentor comments that
EPA could grant a conditional approval of the County's FESOP program.
The commentor urges EPA to impose conditions upon ACHD, that would
provide for a twelve-month or longer period, as deemed appropriate by
EPA, within which to demonstrate substantial improvement across a range
of areas in ACHD's air enforcement and compliance program.
EPA's Response: EPA disagrees with the commentor's first assertion
that ``* * * a statement that adequate personnel and funding have been
made available to develop, administer, and enforce the program'' as
required by 40 CFR 70.4(b)(8) is required in order for EPA to approve
the Commonwealth of Pennsylvania's request that ACHD's FESOP regulation
be made part of the Pennsylvania SIP.--See Wall v. EPA, no. 00-4010,
slip op. at 21-24 (6th Cir. September 11, 2001). Although Clean Air Act
sections 110(a)(2)(E) and 110(a)(2)(C) do contain these provisions,
section 110(a)(2)(H) is the statutory provision which governs
requirements for individual plan revisions which States may be required
to submit from time to time. There are no cross-references in section
7410(a)(2)(H) to either 7410(a)(2)(E) or 7410(a)(2)(C). Therefore, EPA
concludes that Congress did not intend to require States to submit an
analysis of adequate funding and enforcement with each subsequent and
individual SIP revision submitted under the authority of section
110(a)(2)(H). Once EPA approves a State's SIP as meeting section
110(a)(2), EPA is not required to reevaluate that SIP for each new
revision to the plan submitted to meet requirements in other sections
of the Act. The Commonwealth of Pennsylvania had previously received
approval of its 110(a)(2) SIPs. See discussion in the Cincinnati
redesignation of this issue (65 FR 37879, 37881-37882) (June 19, 2000).
The sixth circuit has upheld EPA's interpretation in Wall v. EPA,
supra, at 20-21. Therefore, EPA concludes that Congress did not intend
to require States to submit an analysis of adequate funding and
enforcement with each subsequent and individual SIP revision submitted
under the authority of section 110(a)(2)(H).
EPA further disagrees that the report entitled ``Review of
Allegheny County Health Department's Air Enforcement & Compliance
Program'' is grounds to determine that the ACHD's FESOP regulation
fails to satisfy the criteria for approval of a FESOP program as a
revision to the Pennsylvania SIP. In its previous notices, 68 FR 37973
and 68 FR 37993, EPA established that ACHD's regulation satisfies all
five criteria used to determine that a regulation has the necessary
components to provide the procedural and legal basis for the issuance
of federally enforceable state operating permits. The level and
performance of Allegheny County's enforcement as a whole, while perhaps
affecting Allegheny's permit issuance program, is not the primary focus
of this revision to the Pennsylvania SIP. Rather the primary focus is
the establishment of regulation for the Allegheny County portion of the
Pennsylvania SIP for a state run permit program which is federally
enforceable.
EPA also disagrees with the commentor's assertion that the ACHD's
FESOP program is a ``partial program'' under 40 CFR 70.4(c)(2). The
requirements of 40 CFR 70.4(b), including the requirement of 40 CFR
70.4(b)(8), are minimum requirements for title V operating permit
programs that EPA approves pursuant to title V and part 70. However,
FESOP programs are not title V programs and are not subject to the
requirements of title V and part 70. As EPA explained in the June 28,
1989 Federal Register notice, FESOP programs are required to meet
[[Page 52833]]
five criteria for EPA approval, and they are approved as part of a SIP
pursuant to EPA's authority under title I of the Act, including section
110. The commentor argues that the ACHD's FESOP program is a ``partial
program'' under 40 CFR 70.4(c)(2), because many sources will obtain
FESOPs in order to avoid title V applicability. However, the commentor
misunderstands the nature of a partial program under title V. It is
true that the ACHD's title V operating permit program is a partial
program. Yet, in the case of the ACHD's title V operating permit
program, the term ``partial'' is a geographic reference which indicates
that the ACHD is the title V permitting authority for sources in
Allegheny County, while the Pennsylvania DEP or another local agency is
the title V permitting authority elsewhere in Pennsylvania. See 66 FR
55112, Nov. 1, 2001. This means that all of the title V sources in
Allegheny County--in other words, all of the sources in the County that
are subject to title V permitting requirements--are required to obtain
a title V operating permit from the ACHD. As indicated previously, the
ACHD's FESOP program approved today will be a separate permitting
program that is part of the SIP. It will not be used to fulfill the
requirements of title V and part 70, and therefore it is not subject to
those requirements. Moreover, sources that lawfully obtain FESOPs to
avoid title V applicability are not subject to the title V program so
long as they operate in compliance with their FESOPs.
In addition, EPA's ``ACHD 105 Grant Midyear Report Executive
Summary,'' dated May 24, 2004, identifies significant improvements in
performance and personnel resources since the issuance of the 2003
report. The 105 Grant Midyear Report Executive Summary states, ``The
ACHD is to be commended for its efforts to address the issues raised in
EPA's `Review of Allegheny County Health Department's Air Enforcement &
Compliance Program' report. Since the issuance of the June 2003 report,
the ACHD has implemented several of its recommendations. The most
notable being the hiring of the Chief of the Enforcement Section and an
attorney. The ACHD has identified and addressed four new HPVs [High
Priority Violators] in conformance with the Timely and Appropriate to
High Priority Violators Policy. Additionally, the ACHD provides copies
of NOVs [Notices of Violations] and orders pertaining to HPVs in a
timely matter.'' EPA believes ACHD has made considerable progress in
addressing the concerns raised in the 2003 ACHD Air Enforcement and
Compliance Report.
Finally, for the reasons stated in this notice and in our June 26,
2003 DFR and NPR notices, EPA disagrees with the commentor's assertions
that EPA should grant conditional approval of this SIP revision. There
are no regulatory revisions or additions that need to be made to the
ACHD's regulation. EPA has determined that Allegheny County's operating
permit regulation, as submitted by the Commonwealth of Pennsylvania,
meets the five criteria for full approval as a revision to the
Pennsylvania SIP and, with respect to HAP, meets the requirements of
section 112(l) of the CAA.
IV. Final Action
EPA is approving the SIP revision that was submitted by the
Pennsylvania DEP on behalf of the ACHD on November 9, 1998, as amended
on March 1, 2001. The revision consists of the ACHD's regulation which
provides for the procedural and legal issuance of federally enforceable
state operating permits (FESOPs) for sources of air pollution located
in Allegheny County.
V. 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).
[[Page 52834]]
C. Petitions for Judicial Review
Under section 307(b)(1) of the Act, 42 U.S.C. 7607(b)(1), petitions
for judicial review of this action must be filed in the United States
Court of Appeals for the appropriate circuit by October 29, 2004.
Filing a petition for reconsideration by the Administrator of this
final rule approving ACHD's regulation for a FESOP program 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 civil or criminal
enforcement proceedings. (See section 307(b)(2), 42 U.S.C. 7607(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: August 18, 2004.
Richard J. Kampf,
Acting Regional Administrator, Region III.
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)(209) to read as
follows:
Sec. 52.2020 Identification of plan.
* * * * *
(c) * * *
(209) Revisions for a federally enforceable state operating permit
program applicable in Allegheny County, Pennsylvania submitted on
November 9, 1998 and March 1, 2001 by the Pennsylvania Department of
Environmental Protection on behalf of the Allegheny County Health
Department:
(i) Incorporation by reference.
(A) Letters of November 9, 1998 and March 1, 2001 from the
Pennsylvania Department of Environmental Protection, on behalf of the
Allegheny County Health Department, transmitting a federally
enforceable state operating permit program.
(B) Addition of the following Allegheny County Health Department
Rules and Regulations, Article XXI Air Pollution Control:
(1) Regulation 2101.05, Regulation 2103.12--effective March 31,
1998.
(2) Regulation 2103.01, Regulation 2103.11, Regulation 2103.13,
Regulation 2103.15--effective October 20, 1995.
(3) Regulation 2103.14--effective January 12, 2001.
(ii) Additional Material.--Remainder of the State submittal
pertaining to the revisions listed in paragraph (c)(209)(i) of this
section.
[FR Doc. 04-19715 Filed 8-27-04; 8:45 am]
BILLING CODE 6560-50-P