Air quality implementation plans; approval and promulgation; various States: Pennsylvania,

[Federal Register: February 2, 1999 (Volume 64, Number 21)]

[Proposed Rules]

[Page 5015-5017]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr02fe99-16]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA112-4084; FRL-6229-2]

Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Nitrogen Oxides Allowance Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania. This revision implements Pennsylvania's portion of the Ozone Transport Commission's (OTC) September 27, 1994 Memorandum of Understanding (MOU) including a regional nitrogen oxides (NO‹INF›X‹/INF›) cap and trade program that will significantly reduce NO‹INF›X‹/INF› emissions generated within the Ozone Transport Region (OTR). The intended effect of this action is to propose approval of Pennsylvania's regulations implementing Phase II of the OTC's MOU to reduce nitrogen oxides.

DATES: Written comments must be received on or before March 4, 1999.

ADDRESSES: Written comments may be mailed to David L. Arnold, Chief, Ozone & Mobile Sources Branch, Mailcode 3AP21, U.S. EPA, Region III, 1650 Arch Street, Philadelphia, PA 19103. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air

[[Page 5016]]

Protection Division, EPA, Region III, 1650 Arch Street, Philadelphia, PA 19103 and Pennsylvania Department of Environmental Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street, Harrisburg, PA 17105.

FOR FURTHER INFORMATION CONTACT: Cristina Fernandez, (215) 814-2178, or by e-mail at fernandez.cristina@epa.gov. While information may be requested via e-mail, comments must be submitted in writing to the above Region III address.

SUPPLEMENTARY INFORMATION: On December 19, 1997, the Pennsylvania Department of Environmental Protection (PADEP) submitted a revision to its State Implementation Plan (SIP). The revision consists of amendments to Title 25 of the Pennsylvania Code including Chapter 121.01--Definitions and Chapter 123--NO‹INF›X‹/INF› Allowance Requirements.

1. Background

   The Ozone Transport Commission (OTC) adopted a Memorandum of Understanding (MOU) on September 27, 1994, committing the signatory states to the development and proposal of a two phase region-wide reduction in nitrogen oxides (NO‹INF›X‹/INF›) emissions by 1999 and 2003, respectively. As reasonably available control technology (RACT) to reduce NO‹INF›X‹/INF› emissions was required to be implemented by May of 1995, the MOU refers to the reduction in NO‹INF›X‹/INF› emissions to be achieved by 1999 as Phase II; and the reduction in NO‹INF›X‹/INF› emissions to be achieved by 2003 as Phase III. The OTC states include Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Delaware, the northern counties of Virginia and the District of Columbia. All of the OTC states, with the exception of the Commonwealth of Virginia, signed the September 27, 1994 MOU. The OTC MOU requires a reduction in ozone season NO‹INF›X‹/INF› emissions from utility and large industrial combustion facilities 2 within the Ozone Transport Region (OTR) in order to further the effort to achieve the health-based National Ambient Air Quality Standard (NAAQS) for ozone. In the MOU, the OTC states agreed to propose regulations for the control of NO‹INF›X‹/INF› emissions in accordance with the following guidelines:

   1. The level of NO‹INF›X‹/INF› required would be established from a 1990 baseline emissions level.

   2. The reduction would vary by location, or zone, and would be implemented in two phases utilizing a region wide trading program.

   3. The reduction would be determined based on the less stringent of each of the following:

   1. By May 1, 1999, the affected facilities in the inner zone shall reduce their rate of NO‹INF›X‹/INF› emissions by 65% from baseline, or emit NO‹INF›X‹/INF› at a rate no greater than 0.20 pounds per million Btu. (This is a Phase II requirement.)

   2. By May 1, 1999, the affected facilities in the outer zone shall reduce their rate of NO‹INF›X‹/INF› emissions by 55% from baseline, or shall emit NO‹INF›X‹/INF› at a rate no greater than 0.20 pounds per million Btu. (This is a Phase II requirement.)

   3. By May 1, 2003, the affected facilities in the inner and outer zones shall reduce their rate of NO‹INF›X‹/INF› emissions by 75% from baseline, or shall emit NO‹INF›X‹/INF› at a rate no greater than 0.15 pounds per million Btu. (This is a Phase III requirement.)

   4. By May 1, 2003, the affected facilities in the Northern zone shall reduce their rate of NO‹INF›X‹/INF› emissions by 55% from baseline, or shall emit NO‹INF›X‹/INF› at a rate no greater than 0.20 pounds per million Btu. (This is a Phase III requirement.)

   A Task Force of representatives from the OTC states, organized through the Northeast States for Coordinated Air Use Management (NESCAUM) and the Mid-Atlantic Regional Air Management Association (MARAMA), was charged with the task of developing a Model Rule that would implement the program defined by the OTC MOU. During 1995 and 1996, the NESCAUM/MARAMA NO‹INF›X‹/INF› Budget Task Force worked with EPA and developed a model rule as a template for OTC states to adopt their own rules to implement the OTC MOU. The model was issued May 1, 1996. The model rule was developed for the OTC states to implement the Phase II reductions called for in the MOU to be achieved by May 1, 1999. The model rule does not include the implementation of Phase III.

2. Summary of SIP Revision

   Pennsylvania's Chapters 121.01 Definitions and 123--Nitrogen Oxides Allowance Requirements are based upon and are consistent with the ``NESCAUM/MARAMA NO‹INF›X‹/INF› Budget Rule'' issued in May 1, 1996. The model rule was developed by the states in the OTR using the EPA's economic incentive rules (59 FR 16690) which were published on April 7, 1994, as the general regulatory framework.

   Pennsylvania Chapter 121.01 has been amended to include definitions for the terms used in Chapter 123--NO‹INF›X‹/INF› Allowances Requirements. Chapter 123--NO‹INF›X‹/INF› Allowances Requirements and its Appendix A include reduction requirements to implement Phase II of the OTC's MOU. The regulations include provisions for a regional cap and trade program, and establish NO‹INF›X‹/INF› emission allowances for each NO‹INF›X‹/INF› control period beginning May 1, 1999 through the NO‹INF›X‹/INF› control period ending September 30, 2002. The budgeted sources and their NO‹INF›X‹/INF› allowances allocations are identified. Pennsylvania Chapter 123--NO‹INF›X‹/INF› Allowances Requirements is divided into twenty sections: (1) Purpose; (2) Source NO‹INF›X‹/INF› allowance requirements and NO‹INF›X‹/INF› allowance control period; (3) General NO‹INF›X‹/INF› allowance provisions; (4) Source authorized account representative requirements; (5) Allowance Tracking System (NATS) provisions; (6) NO‹INF›X‹/INF› allowance transfer protocol; (7) NO‹INF›X‹/INF› allowance transfer procedures; (8) Source emissions monitoring requirements; (9) Source emissions reporting requirements; (10) Source compliance requirements; (11) Failure to meet source compliance requirements; (12) Source operating permit provision requirements; (13) source recordkeeping requirements; (14) General NO‹INF›X‹/INF› allocation provisions; (15) Initial NO‹INF›X‹/INF› allowance NO‹INF›X‹/INF› allocations; (16) Source opt-in provisions; (17) New NO‹INF›X‹/INF› affected source provisions; (18) Emission reduction credit provisions; (19) Bonus NO‹INF›X‹/INF› allowance awards; (20) Audit. Appendix A to Chapter 123 is where the budgeted sources and their NO‹INF›X‹/INF› allowance allocations are identified.

3. Proposed Action

   EPA is proposing to approve the Pennsylvania SIP revision for Chapter 121.01--Definitions and Chapter 123--NO‹INF›X‹/INF› Allowance Requirements, submitted on December 19, 1997 implementing Phase II of the OTC's MOU to reduce nitrogen oxides. EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the ADDRESSES section of this document. A more detailed description of the state submittal and EPA's evaluation are included in a Technical Support Document (TSD) prepared in support of this rulemaking action. A copy of the TSD is available upon request from the EPA Regional Office listed in the ADDRESSES section of this document.

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4. Administrative Requirements

   1. Executive Orders 12866

      The Office of Management and Budget (OMB) has exempted this regulatory action from review under E.O. 12866, entitled ``Regulatory Planning and Review.''

   2. Executive Order 12875

      Under E.O. 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a state, local, or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments. If EPA complies by consulting, E.O. 12875 requires EPA to provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected state, local, and tribal governments, the nature of their concerns, copies of written communications from the governments, and a statement supporting the need to issue the regulation. In addition, E.O. 12875 requires EPA to develop an effective process permitting elected officials and other representatives of state, local, and tribal governments ``to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.'' Today's rule does not create a mandate on state, local or tribal governments. The rule does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of E.O. 12875 do not apply to this rule.

   3. Executive Order 13045

      Executive Order 13045, entitled ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies to any rule that the EPA determines (1) is ``economically significant,'' as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined by Executive Order 12866, and it does not address an environmental health or safety risk that would have a disproportionate effect on children.

   4. Executive Order 13084

      Under E.O. 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If EPA complies by consulting, E.O. 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.'' Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this rule.

   5. Regulatory Flexibility Act

      The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This proposed rule will not have a significant impact on a substantial number of small entities because 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 create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities. Moreover, due to the nature of the Federal-State relationship 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).

   6. Unfunded Mandates

      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 annual costs to State, local, or tribal governments in the aggregate; or to 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 proposed approval action does not include a Federal mandate that may result in estimated annual 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 requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action to approve Pennsylvania's NO‹INF›X‹/INF› Allowance Requirements regulations to implement Phase II of the OTC MOU.

      List of Subjects in 40 CFR Part 52

      Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

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

      Dated: January 22, 1999. W. Michael McCabe, Regional Administrator, Region III.

      [FR Doc. 99-2445Filed2-1-99; 8:45 am]

      BILLING CODE 6560-50-P