Air Quality State Implementation Plans; Approvals and Promulgations: Pennsylvania; Reasonably Available Control Technology for Volatile Organic Compounds under the 2008 Ozone NAAQS

Air Plan Approval and Disapproval; Pennsylvania; Reasonably Available Control Technology (RACT) for Volatile Organic Compounds (VOC) Under the 2008 Ozone National Ambient Air Quality Standards (NAAQS)

Supplementary Information

I. Background

On August 13, 2018, PADEP submitted to EPA two SIP revisions to satisfy certain RACT requirements for sources of VOC emissions required by sections 182(b)(2) and 184(b)(l)(B) of the CAA and the implementing regulations for the 2008 8-hour ozone NAAQS (80 FR 12264, March 6, 2015; 40 Code of Federal Regulations (CFR) part 51, subpart AA).

On December 14, 2020 (85 FR 80616), EPA published a full approval of PADEP's two August 13, 2018 SIP submittals. The approval was challenged in the U.S. Court of Appeals for the Third Circuit, and on September 3, 2021, that court granted EPA's request for remand without vacatur of the Agency's final full approval. ⁽¹⁾ Subsequently, a petitioner filed litigation in the Eastern District of Pennsylvania on May 16, 2023, arguing that EPA had unreasonably delayed in our reconsideration of the final approval of the August 13, 2018 SIP submittals. On December 15, 2023, the court filed a consent decree requiring that EPA complete our reconsideration of the December 14, 2020 final rule by November 15, 2024. ⁽²⁾

After reconsidering this full approval, EPA proposed to revise our prior action and in a notice of proposed rulemaking (NPRM) (May 17, 2024, 89 FR 43359), the Agency proposed to partially approve and partially disapprove parts of the August 13, 2018 SIP submittals. In the May 2024 NPRM, EPA proposed approval of certain clarifying amendments as well as a negative declaration submitted by PADEP. EPA proposed disapproval of the remainder of both SIP submittals related to CTGs and control of VOC emissions from industrial cleaning solvents.

II. Summary of SIP Revisions and EPA Analysis

PADEP submitted two SIP submittals to EPA on August 13, 2018. The first of these submittals is entitled "Certification of Reasonably Available Control Technology for Control Techniques Guidelines Under the 2008 Ozone National Ambient Air Quality Standards and Incorporation of 25 Pa Code Chapter 122 (Relating to National Standards of Performance for New Stationary Sources) into the Commonwealth's State Implementation Plan." PADEP submitted this SIP revision for the purposes of meeting the RACT requirements under CAA sections 182(b)(2) and 184(b)(1)(B) and implementing the regulations for the 2008 8-hour ozone NAAQS. Specifically, this submittal: (1) certifies that PADEP's adoption and implementation of regulations to control VOC emissions is consistent with EPA's CTGs and represents RACT for these covered CTG sources for the 2008 ozone standard; (2) incorporates 25 Pa. Code Chapter 122 (relating to national standards of performance for new stationary sources) into the Pennsylvania SIP and certifies that those provisions continue to represent RACT for facilities subject to such standards of performance; and (3) incorporates specific permit conditions from certain facilities for the purpose of establishing source-specific RACT-level controls for those facilities.

The second August 13, 2018 SIP submittal, entitled "Control of Volatile Organic Compound Emissions from Industrial Cleaning Solvents; General Provisions; Aerospace Manufacturing and Rework; Additional RACT Requirements for Major Sources of NO _X and VOCs," includes: (1) the addition of 25 Pa. Code 129.63a (relating to the control of VOC from industrial cleaning solvents (ICS)); (2) amendments to 25 Pa. Code sections 121.1 and 129.51 (definitions and "general" provisions, respectively) in order to support the addition and implementation of 25 Pa. Code section 129.63a; (3) an administrative numbering correction a number correction to the VOC emission limit table in 25 Pa. Code section 129.73 (relating to aerospace manufacturing and re-work); and (4) amendments to 25 Pa. Code sections 129.96, 129.97, 129.99, and 129.100 to clarify certain requirements and to update the list of exemptions.

After reconsideration, EPA, in our 89 FR 43359, May 17, 2024 NPRM, proposed a partial disapproval and partial approval of the August 13, 2018 SIP submittals. In the NPRM associated with this action, EPA proposed to determine that the Agency erred in previously approving: the CTG portion of PADEP's RACT certification SIP, PADEP's determination that NSPS provisions meet CTG requirements and therefore are sufficient to implement RACT, ⁽³⁾ PADEP's determination that particular emission limitations in certain permits constitute RACT, and PADEP's determination that the 2006 ICS CTG is equal to RACT for the 2008 8-hour ozone NAAQs. ⁽⁴⁾ As explained in greater detail in our May 17, 2024 NPRM, PADEP failed in their August 13, 2018 SIP submittals to provide a sufficiently robust and well-developed record for their RACT determinations.

The May 2024 NPRM proposed to retain our approval of PADEP's negative declaration for one CTG source category, "Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners,"  ⁽⁵⁾ as there are no sources in Pennsylvania (excluding Philadelphia County and Allegheny County). ⁽⁶⁾ In our May 17, 2024 NPRM, we also proposed to retain our approval of PADEP's amendments to 25 Pa. Code sections 122.1, 122.2, 122.3, 129.73, 129.96, 129.97, 129.99, and 129.100, as these amendments do not impact how PADEP determined that RACT was met by certain sources.

III. EPA's Response to Comments Received

Comments: EPA received comments from one commenter, PADEP. In their comments, PADEP states that the Department "continues to certify that their current VOC CTG based rules continue to represent RACT in Pennsylvania." PADEP asserts that the "control measures, rules, and regulations" that they have in place have been sufficient to reach "monitored attainment of the 2008 ozone NAAQS across the Commonwealth of Pennsylvania." PADEP requests that EPA consider that the control measures in place in 2017 were sufficient for Pennsylvania to monitor compliance with the 2008 ozone NAAQS and therefore additional emissions reductions are unnecessary. To support its certification that Pennsylvania's existing CTG RACT rules meet RACT for the 2008 ozone NAAQS, PADEP also submitted, as part of their comments, additional documentation of their review of their CTG rules and regulations.

Response: PADEP argues that additional emissions reductions are not needed through RACT because the control measures, rules, and regulations in place in the Commonwealth have been sufficient to reach monitored attainment of the 2008 ozone NAAQS across Pennsylvania. However, this fact does not change the standard by which EPA must review these SIPs. As explained in our May 2024 NPRM, Pennsylvania's RACT requirements stem from CAA section 184(b), which provides that states in Ozone Transport Region (OTR) must follow moderate nonattainment area RACT requirements of section 182(b)(2), regardless of the attainment status in the state. Therefore, PADEP's RACT responsibilities do not change based on the attainment status or ozone monitor design values.

In both the OTR and nonattainment areas, EPA disagrees that monitored air quality alters a state's obligation to assess and adopt RACT for CTG-covered sources and major sources of VOC and nitrogen oxides (NO _X ). EPA has defined RACT as the most stringent emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. EPA has long taken the position that the statutory requirement for states to assess and adopt RACT for sources exist independently from the attainment demonstration for such areas. ⁽⁷⁾

PADEP submitted its comments and additional supporting documentation to establish that Pennsylvania's CTG based rules and controls meet RACT for the 2008 ozone NAAQS and should not be disapproved. PADEP requests that EPA approve Pennsylvania CTG RACT certification. EPA disagrees that PADEP's submitted comments and accompanying documentation constitute a part of the rulemaking record upon which EPA can now approve Pennsylvania's CTG RACT certification. As stated in EPA's implementation rules for the ozone NAAQS, an air agency choosing to provide a written certification in lieu of submitting a new or revised regulation must provide the certification to EPA qualifying as a SIP revision in accordance with CAA section 110 and 40 CFR 51.102, 103 and part 51 appendix V. ⁽⁸⁾ EPA made clear in the 2015 ozone NAAQS implementation rule that "(t)hese written statements must be treated in the same manner as any other SIP submission and must be provided to EPA in accordance with applicable SIP submission requirements and deadlines."  ⁽⁹⁾ A fundamental requirement of the SIP revision process is providing for public notice and comment, and opportunity for public hearing at the state level. PADEP did not satisfy this requirement with its comment submittal and would need to submit this kind of supporting documentation as part of a SIP revision following state level notice and comment. For this reason alone, PADEP's submitted comments and accompanying documentation do not comprise any part of the record for this rulemaking and so as such were not considered by EPA, and do not alter our proposed disapproval of Pennsylvania's CTG RACT certification.

IV. Final Action

EPA is amending our prior full approval of PADEP's August 13, 2018 SIP submittals to a partial approval and partial disapproval. Specifically:

• For the August 13, 2018 SIP submittal titled "Certification of Reasonably Available Control Technology for Control Techniques Guidelines Under the 2008 Ozone National Ambient Air Quality Standards and Incorporation of 25 Pa Code Chapter 122 (Relating to National Standards of Performance for New Stationary Sources) into the Commonwealth's State Implementation Plan."

EPA is disapproving the PADEP's certification that their adoption and implementation of regulations to control VOC emissions is consistent with EPA's CTGs and represents RACT for these covered CTG sources for the 2008 ozone standard;

EPA is approving the incorporation of 25 Pa. Code Chapter 122 (relating to national standards of performance for new stationary sources) into the Pennsylvania SIP;

EPA is disapproving PADEP's certification that 25 Pa. Code Chapter 122 continues to represent RACT for facilities subject to such standards of performance; and

EPA is disapproving PADEP's incorporation of specific permit conditions from certain facilities for the purpose of establishing source-specific RACT-level controls for those facilities.

• For the August 13, 2018 SIP submittal, titled "Control of Volatile Organic Compound Emissions from Industrial Cleaning Solvents; General Provisions; Aerospace Manufacturing and Rework; Additional RACT Requirements for Major Sources of NO _X and VOCs."

EPA is disapproving the addition of 25 Pa. Code 129.63a (relating to the control of VOC from industrial cleaning solvents (ICS)).

EPA is disapproving the amendments to 25 Pa. Code sections 121.1 and 129.51.

EPA is approving an administrative numbering correction to the VOC emission limit table in 25 Pa. Code section 129.73; and

EPA is approving the amendments to 25 Pa. Code sections 129.96, 129.97, 129.99, and 129.100.

In finalizing the disapproval, a sanctions clock under CAA section 179 begins. If EPA has not fully approved a revised plan within 18 months after this final disapproval, emission offset sanctions for new or modified sources will begin. If EPA has not approved a revised plan within six months thereafter, highway funding sanctions will apply in affected nonattainment areas. ⁽¹⁰⁾ The sanctions clock can be stopped only if the conditions of EPA's regulations at 40 CFR 52.31 are met. Pursuant to CAA section 110(c)(1)(B), this final disapproval also initiates an obligation for EPA to promulgate a Federal implementation plan (FIP) within 24 months unless PADEP has submitted, and EPA has approved, a plan addressing the applicable RACT requirements.

V. Incorporation by Reference

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in sections II and IV of the preamble, EPA is reaffirming our prior final action for the incorporation by reference of 25 Pa. Code sections 122.1, 122.2, 122.3, 129.73, 129.96, 129.97, 129.99, and 129.100. These measures had been incorporated by reference into the SIP under a previous approval (85 FR 80625, December 14, 2020) and the Agency will retain them. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

V. Statutory and Executive Order Reviews

General Requirements

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this final action partially disapproves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law.

Additional information about these statutes and Executive Orders can be found at www.epa.gov/laws-regulations/laws-and-executive-orders.

Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

Executive Order 12898 (59 FR 7629, February 16, 1994) directs Federal agencies to identify and address "disproportionately high and adverse human health or environmental effects" of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies." EPA further defines the term fair treatment to mean that "no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies." PADEP did not evaluate environmental justice considerations as part of their SIP submittals; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goals of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and indigenous peoples.

Congressional Review Act (CRA)

This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a "major rule" as defined by 5 U.S.C. 804(2).

Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 15, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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 partial approval and partial disapproval may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:

Part 52 Approval and Promulgation of Implementation Plans

Subpart Nn Pennsylvania

[FR Doc. 2024-18162 Filed 8-15-24; 8:45 am]

BILLING CODE 6560-50-P

⁽¹⁾  A copy of the court order is located in the docket for this action. Docket Id. EPA-R03-OAR-2019-0562 in regulations.gov.

⁽²⁾  A copy of the court order is located in the docket for this action. Docket Id. EPA-R03-OAR-2019-0562 in regulations.gov.

⁽³⁾  While EPA proposed to disapprove PADEP's determination that NSPS provisions meet RACT requirements, the Agency did not propose to disapprove PADEP's request to incorporate by reference the NSPS requirements on their own.

⁽⁴⁾  EPA also proposed to disapprove PADEP's amendments to 25 Pa. Code sections 121.1 and 129.51 as they support the addition and implementation of section 129.63a, which EPA proposed to disapprove.

⁽⁵⁾  EPA-450/3-82-009; September 1982.

⁽⁶⁾  The record in our original action in support of this negative declaration, as discussed in that action (85 FR at 80617, December 14, 2020, and the associated technical support document (TSD)), was sufficiently robust and well-developed.

⁽⁷⁾ See Memo from John Seitz, "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard" (1995), at 5 (explaining that Subpart 2 requirements linked to the attainment demonstration are suspended by a finding that a nonattainment area is attaining but that requirements such as RACT and vehicle inspection and maintenance must be met whether or not an area has attained the standard); see also 40 CFR 51.1318 (suspending attainment demonstrations, reasonably available control measures, reasonable further progress, contingency measures, and other attainment planning SIPs with a finding of attainment).

⁽⁸⁾ See 83 FR 62998, 63002 (December 6, 2018).

⁽⁹⁾  Id.

⁽¹⁰⁾  For the OTR states, such highway sanctions would only apply in nonattainment areas. If the OTR state does not contain any nonattainment areas, then the highway sanctions would not apply in that state.