                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY                                   REGION III                                1650 Arch Street                        Philadelphia, Pennsylvania  19103

DATE:  January 7, 2015	 SUBJECT:    Technical Support Document (TSD) for the Commonwealth of Pennsylvania Implementation Plans for Infrastructure Requirements for the 2008 Ozone, 2010 Nitrogen Dioxide, 2010 Sulfur Dioxide and 2012 Fine Particulate Matter National Ambient Air Quality Standards

FROM:	Ruth Knapp, Environmental Protection Specialist /s/                         Office of Air Program Planning

TO:		File

THRU:	 Cristina Fernandez, /s/   		 Associate Director, Office of Air Program Planning

A.   INTRODUCTION

The Environmental Protection Agency (EPA) is taking action on the Commonwealth of Pennsylvania (Commonwealth) State Implementation Plan (SIP) revisions submitted by the Pennsylvania Department of Environmental Protection (PADEP) to meet the Clean Air Act (CAA) section 110(a)(2) requirements for the following revised National Ambient Air Quality Standards (NAAQS):  2008 Ozone, 2010 Nitrogen Dioxide (NO2), 2010 Sulfur Dioxide (SO2), and 2012 Fine Particulate Matter (PM2.5).

B.  BACKGROUND The NAAQS  On March 27, 2008, EPA promulgated a revised NAAQS for ozone based on the annual fourth highest daily maximum 8-hour average concentration over three years.  EPA revised the level of the 8-hour ozone NAAQS to 0.075 parts per million (ppm).  This specific NAAQS will be referred to as the 2008 Ozone NAAQS.

On February 9, 2010, EPA established an additional primary standard for NO2 at a level of 100 parts per billion (ppb) which is based on the 98[th] percentile of 1-hour daily maximums averaged over 3 years.  This specific NAAQS will be referred to as the 2010 NO2 NAAQS.      On June 22, 2010, EPA promulgated a revised NAAQS for the 1-hour primary SO2 standard at a level of 75 parts per billion (ppb), based on a 3-year average of the annual 99[th] percentile of 1-hour daily maximum concentrations. This specific NAAQS will be referred to as the 2010 SO2 NAAQS.

On December 14, 2012, EPA promulgated a revised primary NAAQS for PM2.5 for the annual standard. The revised standard was set at the level of 12 micrograms per cubic meter (ug/m[3]) calculated as the annual average which is averaged over a three year period.  This specific NAAQS will be referred to as the 2012 PM2.5 NAAQS.     For all the four NAAQS discussed previously, pursuant to section 110(a) of the CAA, states are required to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within a shorter period as EPA may prescribe.  More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs.  Section 110(a)(2) lists specific elements that states must meet for ``infrastructure'' SIP requirements related to a newly established or revised NAAQS.  These requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS.

Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances.  In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission.  The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains.  In the case of the previously discussed NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions.  For the rest of this document all of the NAAQS which are the subject of this TSD (2008 Ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5) will be referred to as the "four NAAQS" and all discussions will apply to all of these four NAAQS unless otherwise indicated in the TSD.

C.  EPA REQUIREMENTS

As discussed above, for the four NAAQS, states must provide SIP submissions, or provide certification that the existing SIP contains provisions addressing relevant infrastructure SIP elements from sections 110(a)(2)(A) through (M) of the CAA.  To help states meet this statutory requirement, on September 13, 2013, EPA issued the Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2). (Infrastructure guidance).  (Guidance can be found at this link:  http://www.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf ).

D.  STATE'S SUBMITTALS

To satisfy the requirements of section 110(a)(1) and (2) of the CAA for the four NAAQS, PADEP submitted four SIP revisions on July 15, 2014 to satisfy the requirements of section 110(a)(1) and (2) for each of the four NAAQS.  Each submittal addressed the following infrastructure elements that EPA is proposing to approve for all four NAAQS:  Sections 110(a)(2)(A), (B), (C), (D)(i)(II)(with respect to requirements to prevent significant deterioration (PSD)), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA.  EPA is proposing to approve the Pennsylvania submittals for these elements.  None of the submittals included or addressed element (I) which pertains to the nonattainment requirements of part D of Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of CAA section 110(a)(1), and will be addressed in a separate process for each NAAQS if necessary.  In addition, none of the submittals included provisions for 110(a)(2)(D)(i)(I) (transport of emissions).  All four submittals included information pertaining to 110(a)(2)(D)(i)(II) (visibility protection).  However, EPA is not taking action on this element at this time and will take separate action on 110(a)(2)(D)(i)(II) (visibility protection).

E.  EVALUATION OF STATE SUBMITTALS

1.  Section 110(a)(2)(A)

Section 110(a)(2)(A) requires enforceable emission limitations and other control measures, means and techniques, as well as schedules and timetables for compliance applicable to the four NAAQS.

According to the infrastructure SIP submittals for the four NAAQS, the Commonwealth's enforceable emission limitations and other control measures, means or techniques, as well as schedule and timetables for compliance are covered in the Air Pollution Control Act (APCA) and those provisions of Pennsylvania Code Title 25, Environmental Protection, Article III, Chapters 121-145 (25 Pa. Code Chapters 121-145), Title 67, Chapters 175  -  177 listed in 40 CFR §52.2020(c)(1), Allegheny County Health Department (ACHD) Regulations, Parts A through I to Articles XX and XXI listed in 40 CFR 52.2020(c)(2), the City of  Philadelphia's Title 3 Air Management Code  and City of  Philadelphia's Air Management Services (AMS) Regulations I, II, III, IV, V, VII, VIII, XI, and XIII listed in 40 CFR 52.2020(c)(3), and source specific provisions codified at 40 CFR 52.2020(d)(1) and (2).  The Pennsylvania SIP which includes all of these is located at 40 CFR Part 52 Subpart NN.  Based upon EPA's review of the submittals, EPA is proposing to determine that the Commonwealth has met its obligations pursuant to section 110(a)(2)(A) for the four NAAQS.

EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D of Title I of the CAA to be governed by the submission deadline of section 110(a)(1).  Nevertheless, the Commonwealth may have included some previous EPA-approved SIP provisions originally submitted in response to part D in its submissions documenting its compliance with the requirements of sections 110(a)(1) and (2) of the CAA.  For the purposes of this action, EPA has reviewed the above identified Pennsylvania submittals, including any rules originally submitted in response to part D, or references thereto, solely for the purposes of determining whether such submittals support a finding that the state has met the basic infrastructure requirements under section 110(a)(2).

In this action, EPA is not proposing to approve or disapprove any existing Pennsylvania regulatory or statutory provisions with regard to excess emissions during Startup, Shutdown, and Malfunction (SSM) of operations at a facility.  EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance (August 11, 1999 Steven Herman and Robert Perciasepe Memorandum, "State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown"), and the Agency is addressing such state regulations in a separate rulemaking.  See 78 FR 12460 (February 22, 2013) (proposed rulemaking on SSM SIP provisions) and 79 FR 55920 (September 17, 2014)(supplemental proposed rulemaking on affirmative defense provisions for malfunctions).  In the meantime, EPA encourages any state having deficient SSM provisions to take steps to correct it as soon as possible.

Also in this action, EPA is not proposing to approve or disapprove any existing Pennsylvania regulatory or statutory provisions with regard to director's discretion or variance provisions.  EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (see 52 FR 45109, November 1987), and the Agency is addressing such states regulations in a separate rulemaking. See 78 FR 12460.  In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

EPA finds Pennsylvania's infrastructure SIP submittals for the four NAAQS meet the requirements of CAA Section 110(a)(2)(A).  The Pennsylvania SIP at 40 CFR 52.2020 includes enforceable emission limitations and other control measures, means and techniques, as well as schedules and timetables for compliance applicable to the four NAAQS.

2.  Section 110(a)(2)(B)

CAA section 110(a)(2)(B) requires each plan to provide for the establishment and operation of appropriate devices, methods, systems and procedures to monitor, compile and analyze data on ambient air quality and to make such data available to EPA upon request.

According to the infrastructure SIP submittals for each of the four NAAQS, Section 4(17) of the APCA, 35 P.S. § 4004, provides authority to "determine by means of field studies and sampling the degree of air pollution existing in any part of the Commonwealth."  PADEP establishes, operates and maintains a network of ambient air monitors throughout Pennsylvania, excluding Philadelphia and Allegheny Counties.  Both AMS and the ACHD operate their monitoring networks and collect data under Pennsylvania approved programs.

Based on the infrastructure SIP submittals for all four NAAQS, the Pennsylvania network consists only of monitors that have been designated by EPA as either Reference or Equivalent monitors.  All ambient air monitors are subjected to the Quality Assurance requirements of 40 CFR Part 58, Appendix A.  In addition, all samplers are located at sites that have met the minimum siting requirements of 40 CFR Part 58, Appendix E.

Also according to the infrastructure SIP submittals, as required in 40 CFR Section 58.10, an annual network design plan is required to be submitted to the EPA Regional Administrator by July 1 of each year. The network design plan document informs both EPA and the public of any planned changes to the sampling network for the next year. The annual network design plans from PADEP, AMS and ACHD provide a description of the current monitoring network, a reason for each change, and any other information relevant to any change.  PADEP and the local agencies (AMS and ACHD) provide a 30-day public comment period for the annual network design plan.  In addition, PADEP and the local air agencies provide EPA Region III with prior notification of any planned changes to the monitoring network between formal network design submissions. As needed, details of these changes are communicated to and approved by EPA.  Data from these monitors are assessed and reported to the EPA Air Quality System (AQS) in accordance with 40 CFR Part 58 and are reviewed and analyzed by PADEP to verify attainment status or progress.

On November 21, 2014, EPA approved the PADEP and ACHD network design plans which were submitted to EPA on June 27, 2014 and July 3, 2014 respectively.  EPA approved the AMS network design plan on December 3, 2014 which was submitted to EPA on June 30, 2014.  All three network design plans and approval letters are included in the docket for this rulemaking action for information purposes.

Based upon EPA's review of the infrastructure SIP submittals for all four NAAQS, EPA finds the SIP submittals meet requirements in CAA section 110(a)(2)(B) for the four NAAQS.

3.  Section 110(a)(2)(C)

Section 110(a)(2)(C) requires a state's plan to include a program to provide for enforcement of measures in 110(a)(2)(A) and for regulation of modification and construction of stationary sources, including a permit program as required in parts C and D of title I of the CAA.

Enforcement

According to the above referenced infrastructure SIP submittals, sections 4 and 8 of the APCA, 35 P.S. §§ 4004 and 4008, provide adequate authority for PADEP to enforce appropriate limitations and other control measures.  Section 6.1(k) of the APCA, 35 P.S. § 4006.1(k), provides that PADEP shall require revisions to any permit to incorporate applicable standards and regulations promulgated under the CAA after issuance of a Title V permit.

Also according to the submittals, Section 9.1 of the APCA, 35 P.S. § 4009.1, provides that PADEP may assess civil penalties for violations of the APCA, regulations adopted under the APCA, Department orders or terms, and conditions of plan approvals and operating permits.  Additionally, Section 7.1 of the APCA, 35 P.S. § 4007.1, authorizes PADEP to withhold plan approvals, state operating permits, or Title V permits where an applicant or related party has shown a lack of ability or intention to comply with the APCA.      According to the infrastructure SIP submittals, SIP provisions approved by EPA in 40 CFR 52.2020 such as maintenance plans often include enforceable emission limits, control measures, fees, and compliance schedules by describing regulations upon which the plans rely.  Further the Commonwealth's enforceable emission limitations and other control measures are covered in those provisions of the APCA and Pennsylvania Code, Title 25, Environmental Protection, Article III, Chapters 121-145 (25 Pa. Code Chs. 121-145); Title 67, Chapters 175  -  177 that are listed in 40 CFR §52.2020(c)(1); ACHD Regulations, Parts A through I to Articles XX and XXI that are listed in 40 CFR 52.2020(c)(2); Philadelphia Title 3 Air Management Code and Philadelphia AMS Regulations I, II, III, IV, V, VII, VIII, XI, and XIII that are listed in 40 CFR 52.2020(c)(3); and source specific provisions codified at 40 CFR 52.2020(d)(1).

According to the infrastructure SIP submittals, elements of the Commonwealth's program for enforcement of such measures are found in the monitoring, recordkeeping and reporting requirements for sources in these specific control measures such as maintenance plans as well as those provisions of:  25 Pa. Code Chapter 127, subchapters D and E that are listed in 40 CFR 52.2020(c)(1); those provisions of ACHD Regulations, Parts H and I to Articles XX and XXI that are listed in 40 CFR 52.2020(c)(2); and those provisions of the Philadelphia Title 3 Air Management Code and Philadelphia AMS Regulation I that are listed in 40 CFR 52.2020(c)(3).

EPA finds Pennsylvania provides a program for enforcement of measures for 110(a)(2)(A), including the approved provisions of the Pennsylvania SIP for PADEP, AMS and ACHD.

Permitting Program

All areas of the Commonwealth have a SIP approved permitting program in 40 CFR 52.2020.  Pennsylvania incorporated by reference into its SIP 40 CFR 52.21 for its prevention of significant deterioration (PSD) permitting program as required by part C of title I of the CAA.  49 FR 33,127 (August 21, 1984).  EPA recently approved the Part C permitting program for Allegheny county into the SIP on February 28, 2013 (78 FR 13493) and approved a SIP revision pertaining to the PSD Program in Philadelphia County on March 28, 2003 (68 FR 15060).  These programs address construction and modification of major stationary sources.

According to the infrastructure SIP submittals, the Commonwealth also has an EPA SIP approved air permitting program for the preconstruction, construction, and operation of minor as well as major facilities, which ensures all applicable requirements are included in federally enforceable plan approvals, operating permits, general plan approvals, and general operating permits.  The relevant provisions are located at 40 CFR 52.2020(c)(1), 52.2020(c)(2), 52.2020(c)(3), 52.2020(d), 52.2061, 52.2062, 52.2063 and 40 CFR Part 70, Appendix A (which identifies Pennsylvania's approved title V operating permit program).

EPA finds that the infrastructure SIP submittals for all four NAAQS demonstrate Pennsylvania has in its SIP provisions for the regulation of the modification and constructions of any stationary source, including a permit program required by part C of title I of the CAA.

With respect to 110(a)(2)(C), EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants.  The Commonwealth of Pennsylvania and permitting localities have shown that the PSD program currently in place covers all regulated NSR pollutants, including greenhouse gases (GHGs) as appropriate.

On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427.  The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit.  The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).  In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, the EPA is not continuing to apply EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible.  Specifically, EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g. 40 CFR 51.166(b)(48)(v)).  EPA anticipates a need to revise federal PSD rules in light of the Supreme Court opinion.  In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision.  The timing and content of subsequent EPA actions with respect to the EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the United States Court of Appeals for the District of Columbia Circuit.  At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.        At present, EPA has determined the Commonwealth's SIP is sufficient to satisfy Element C, with respect to GHGs because the  PSD permitting program previously-approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of  pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT.  Although the approved Commonwealth's PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate to satisfy Element C.  Pennsylvania incorporates by reference 40 CFR 52.21 for its PSD permitting program, so the Pennsylvania SIP will automatically update when or if EPA updates 40 CFR 52.21.

The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision.  Accordingly, the Supreme Court decision does not affect our determination that the Pennsylvania SIP meets requirements for a PSD permit program as required by 110(a)(2)(C) and part C of title I of the CAA.

Based upon EPA's review of the infrastructure SIP submittals for all four NAAQS, EPA finds that the Pennsylvania SIP meets the obligations in section 110(a)(2)(C) (for a program to enforce measures in 110(a)(2)(A) and for regulation of the construction and modification of stationary sources) for all four NAAQS.   4. Section 110(a)(2)(D)

Section 110(a)(2)(D)(i)(II)(PSD)

For all areas of Pennsylvania, a SIP approved PSD program is in place in accordance with requirements in part C of title I of the CAA.  The permitting program is codified at 40 CFR 52.2020(c) and incorporates by reference 40 CFR 52.21.  See additional discussion under 110(a)(2)(C) for how Pennsylvania's SIP approved PSD program addresses requirements in part C of title I of the CAA.  Based upon EPA's review of the four July 15, 2014 infrastructure SIP submittals, EPA finds that the Commonwealth has met its obligations pursuant to 110(a)(2)(D)(i)(II) for the part C permit program for all four NAAQS.

Section 110(a)(2)(D)(ii)

Section 110(a)(2)(D)(ii) requires the SIP to contain adequate provisions to insure compliance with applicable requirements of sections 115 and 126 of the CAA relating to interstate and international pollution abatement.   Except for the 2010 SO2 NAAQS, the Commonwealth has no current or pending obligations pursuant to CAA sections 126 and 115 for the 2008 ozone, 2010 NO2 or 2012 PM2.5 NAAQS.

Pursuant to section 126 of the CAA, on November 7, 2011, EPA promulgated SO2 emission limitations and reporting requirements for the coal-fired boilers (Units 1 and 2) at the Portland Generating Station located in Northampton County, Pennsylvania (Portland Facility) after EPA made a finding that the coal-fired units at the Portland Facility significantly contribute to nonattainment for the 1-hour 2010 SO2 NAAQS in New Jersey.  See 76 FR 69052 (relating to final response to petition from New Jersey regarding SO2 emissions from the Portland Facility). The federally enforceable SO2 emission limitations and reporting requirements for the coal-fired boilers (Units 1 and 2) at the Portland Facility are established in 40 CFR § 52.2039.

The limits and requirements in 40 CFR § 52.2039, are "applicable requirements" as defined in 25 Pa. Code § 121.1 (which is included in the federally enforceable Pennsylvania SIP) because they have been promulgated or approved by the EPA under the CAA or the regulations adopted under the CAA through rulemaking.  As applicable requirements, they must therefore be included in a Title V operating permit pursuant to 25 Pa. Code § 127.502.  However a revision will not be required if, among other things, less than three years remain in the permit term. 25 Pa. Code § 127.463(c).  In the case of the Portland Facility, whose Title V permit expired on January 31, 2005, the terms and conditions of that permit are automatically continued pending issuance of the new permit.  25 Pa. Code § 127.446(c).  Regardless of whether a revision is required under 25 Pa. Code § 127.463, the permittee of the Portland Facility is required to meet the applicable standards in 40 CFR § 52.2039 by the Pennsylvania SIP, within the timeframe required by those standards.  25 Pa. Code § 127.463(e).  Pennsylvania's Title V program is an approved Title V program.  PADEP has authority to enforce compliance with the terms of any Title V operating permit through 25 Pa. Code § 127.513.  Each Title V permit must contain provisions to, among other things, allow PADEP to sample or monitor at reasonable times substances or parameters for the purpose of assuring compliance with the permit or applicable requirements authorized by the CAA. 25 Pa. Code § 127.513(2)(iv).  Therefore, the Pennsylvania SIP contains provisions in 25 Pa. Code §§ 121.1 and 127.463 (in addition to its federally approved Title V operating permit program) which insure compliance with the emission limits and reporting requirements EPA established for the Portland Facility because the limits and requirements are applicable requirements, subject to inclusion in the Portland Facility's Title V permit, and directly enforceable by PADEP through the federally approved SIP provision at 25 Pa. Code 127.463.  EPA discussed in section 110(a)(2)(C) above Pennsylvania's SIP program which provides for enforcement of emission limitations and control measures, such as the SO2 limits for the Portland Facility applicable through 25 Pa. Code § 127.463.

Therefore, EPA finds the infrastructure SIP submissions for all four NAAQS meet obligations pursuant to 110(a)(2)(D)(ii) to insure compliance with applicable requirements of sections 115 and 126 for all four NAAQS.

5.  Section 110(a)(2)(E)

Pursuant to section 110(a)(2)(E), a SIP should provide:  (1) necessary assurances the state has adequate personnel, funding and authority to carry out the SIP; (2) requirements that the state complies with section 128 of the CAA regarding state boards; and (3) necessary assurances the state has responsibility to ensure adequate implementation of the SIP where the state relies on a local or regional government or agency for implementing any SIP provision.

According to the infrastructure SIP submittals, Section 6.3 of APCA (35 P.S. § 4006.3) authorizes PADEP to establish fees sufficient to cover the indirect and direct costs of administering the plan approval and operating permit program including Title V and costs of administering certain committees.  25 Pa. Code §127.701, as currently approved in the SIP, establishes fees to cover the direct and indirect costs of administering the air pollution control planning process, operating permit program, certain committee operation and to support the air pollution control program authorized by state statute.  The APCA also authorizes the establishment of fees to cover non-Title V costs.  The air quality program in Pennsylvania also receives revenue from fines and penalties for violations of the APCA (which are deposited into the Commonwealth's Clean Air Fund for elimination of air pollution), from federal funds under sections 105 and 103 of the CAA, from special federal funds for PM2.5, and from state general appropriations.  PADEP also indicated that it has adequate personnel along with funding and authority to carry out the SIP.  The local agencies (AMS and ACHD) also receive sections 105 and 103 funds directly from EPA, have their own authority to collect Title V and other permit fees, and also receive revenue from fines and penalties that are restricted for air quality program purposes.  PADEP's agreements with ACHD and AMS assure that these local agencies similarly have the personnel, funding and authority to carry out their respective obligations under the SIP.

According to the infrastructure SIP submittals, the Commonwealth's enforceable emission limitations and other control measures are covered in:  a) the APCA and those provisions of Pennsylvania Code Title 25, Environmental Protection, Article III, Chapters 121-145 (25 Pa. Code Chs. 121-145) and Title 67, Chapters 175-177 that are listed in 40 CFR § 52.2020(c)(1); b) those provisions of ACHD Regulations, Parts A through I to Articles XX and XXI that are listed in 40 CFR §52.2020(c)(2); c) those provisions of Philadelphia Title 3 Air Management Code and Philadelphia AMS Regulations I, II, III, IV, V, VII, VIII, XI, and XIII that are listed in 40 CFR 52.2020(c)(3); and, d) source specific provisions codified at 40 CFR 52.2020(d)(1).  The regulations in the Pennsylvania Code are duly adopted by the Environmental Quality Board.  Those adopted by the local air agencies, namely ACHD and Philadelphia AMS, are duly adopted by the county Board of Health, enacted by the County Council and approved by the Chief Executive and the Air Pollution Control Board, respectively, pursuant to section 12 of the APCA  (35 P.S. § 4012). Where these provisions relate to section 110 requirements, SIP revisions have been submitted to and approved by EPA.  EPA-approved SIP revisions are codified at 40 CFR part 52, subpart NN.

According to the infrastructure SIP submittals, Section 12 of APCA (35 P.S. § 4012) establishes the ability of the two pre-existing local air agencies to continue to operate their own programs.  Authority for AMS is provided by Title 3, Air Management Code and for ACHD by Article XXI and County Ordinance 16782.

EPA approved a SIP revision for Pennsylvania on October 16, 2014 (79 FR 62003) that addresses requirements in section 128 of the CAA and 110(a)(2)(E)(ii) regarding state boards.  Therefore, as indicated in the Commonwealth's submittals, the requirements for E(ii) have been met for all four NAAQS.

Finally, the above referenced infrastructure SIP submittals indicate that Section 12 of the APCA reserved powers to political subdivisions to enact air pollution control ordinances, which are not less stringent than the requirements of the CAA, APCA, and regulations adopted under the acts.  The APCA authorizes only two local air pollution control programs in the Commonwealth, which are administered by Philadelphia AMS and ACHD.  PADEP maintains agreements with the two local air agencies that PADEP relies on for implementation of the SIP in Allegheny and Philadelphia counties.  PADEP has approved the local programs in the areas of financial assistance, annual workload projection, emissions reporting, source monitoring and reporting, enforcement, ambient air monitoring and reporting, and air quality permitting.  PADEP has responsibility for ensuring adequate implementation of SIP provisions by local authorities under Section 12 of the APCA, 35 P.S. § 4012. The submission of a description of the implementation of the local air pollution control program along with a detailed accounting of the costs of implementation is required on an annual basis.

Based upon EPA's review of the above referenced infrastructure SIP submittals and the Infrastructure Guidance, EPA finds the Commonwealth has met its obligations pursuant to 110(a)(2)(E) for the four July 15, 2014 infrastructure SIP submittals for all four NAAQS.

6.  Section 110(a)(2)(F)

According to section 110(a)(2)(F), a SIP shall require as prescribed by EPA the installation, maintenance and replacement of equipment to monitor emissions by owners or operators of stationary sources, periodic reports on emissions from such sources, and correlation of such emission reports by the state with emission limitations established by the CAA.

According to the above referenced infrastructure SIP submittals, regulatory requirements related to sampling, testing and monitoring have been codified in 25 Pa. Code Chapter 139 and requirements in 25 Pa. Code Section §135.3 provide for the reporting of emissions inventories in a format established by PADEP on a schedule set forth in the section.  In addition, 25 Pa. Code § 135.21 requires the submission of emission statements as required by the CAA.  The provisions in 25 Pa. Code Chapters 135 and 139 are in the approved Pennsylvania SIP.  Area, mobile, and non-road data are reported on a 3-year cycle consistent with 40 CFR Part 51.

In accordance with 25 Pa. Code §§ 127.12b(c) and 127.441(c), plan approvals and operating permits (including Title V Operating Permits) issued by PADEP incorporate the monitoring, recordkeeping and reporting provisions required by 25 Pa. Code Chapter 139 (relating to sampling and testing) and other monitoring, recordkeeping or reporting requirements and additional requirements related to monitoring, recordkeeping and reporting required by the CAA the regulations thereunder, including, if applicable, the enhanced monitoring requirements of 40 CFR Part 64 (relating to enhanced monitoring). These provisions, which assure compliance with applicable requirements including the Compliance Assurance Monitoring (CAM) requirements of 40 CFR Part 64 are part of the approved Pennsylvania SIP.

The Pennsylvania SIP, applicable laws and regulations do not contain any provisions that prevent the use of any credible evidence (including continuous emissions monitoring data) to establish violations of applicable requirements.    Also, the Commonwealth's enforceable emission limitations and other control measures are covered in the APCA and those provisions of Pennsylvania Code Title 25, Environmental Protection, Article III, Chapters 121-145 (25 Pa. Code Chs. 121-145),  listed in 40 CFR §52.2020(c)(1),  ACHD Regulations, Parts A through I to Articles XX and XXI listed in 40 CFR 52.2020(c)(2), Philadelphia Title 3 Air Management Code, Philadelphia AMS Regulations I, II, III, IV, V, VII, VIII, XI, and XIII listed in 40 CFR 52.2020(c)(3), and, source specific provisions codified at 40 CFR 52.2020(d)(1) and (2).  Elements of the program for enforcement are found in the monitoring, recordkeeping and reporting requirements for sources in these control measures as well as 25 PA Code §127, subchapters D and E, ACHD Regulations, Parts H and I to Articles XX and XXI and Philadelphia AMS Regulation I.

Also, according to the above referenced infrastructure SIP submittals, the Commonwealth has the responsibility of making all records, reports or information obtained by PADEP or referred to at public hearings under the provisions of the APCA available to the public, except to the extent the records, reports or information are protected by confidentiality pursuant to APCA section 13.2, 35 P.S. § 4013.2.  The types of records PADEP routinely provides access to include notifications, inspection reports, notices of violation, enforcement orders, applications, permit review letters, sample results, monitoring reports, permits, approvals and denials that would relate to §110(a)(2)(F).  PADEP generally makes information available for public access through its website, but also makes hard copy reports available upon written request.

The infrastructure SIP submittals also provide that stationary facilities are required to submit an Annual Emission Statement (AES) with NOx, sulfur oxides (SOX), VOC, course particulate matter (PM10), PM2.5, ammonia (NH3), and carbon monoxide (CO) emissions of 1.0 ton per year or more per sub facility on a sub facility by sub facility basis. PADEP supplies facilities with reporting instructions in the document "Instructions for Completing the Annual Emission Statement Reporting Forms  -  rev 11/2007" (DEP Document #2700-BK-DEP1936).  All emissions reported on the AES are entered into PADEP's computer system: Air Information Management System/environment, Facility, Application, Compliance Tracking System (AIMS/eFACTS).  The public can search the eFACTS system online at the website http://www.ahs.dep.pa.gov/eFACTSWeb/default.aspx to find facility specific reports or reports of all facilities emitting a specific pollutant.  The public can request copies of permits or other non-confidential information by contacting PADEP directly. Additionally, AIMS/eFACTS data is provided to the federal National Emission Inventory (NEI) database and to other state agencies and the public upon request.

Based upon EPA's review of the infrastructure SIP submittals and upon the Infrastructure Guidance, EPA finds the infrastructure SIP submittals meet obligations and requirements in section 110(a)(2)(F) for all four NAAQS.

7.  Section 110(a)(2)(G)

Section 110(a)(2)(G) requires states to provide authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement emergency episode provisions in their SIPs if applicable.

According to the infrastructure SIP submittals for the four NAAQS, the Commonwealth has adequate general emergency powers to address Ozone, NO2, SO2, and PM2.5 air pollution episodes, as appropriate and necessary.  Enabling authority comparable to Section 303 of the CAA  for the Commonwealth's "Emergency Powers" is contained in Sections 4, 5(a)(5) and 6.2 of the APCA (35 P.S. §§ 4004, 4005(a)(5) and 4006.2).  Criteria for Pennsylvania's "Emergency Episodes" and related plans are found in 25 Pa. Code Chapter 137 which are included in the Pennsylvania SIP and codified at 40 CFR Part 52 Subpart NN.

The ACHD has adopted Part F to Article XXI and Philadelphia AMS has adopted Regulation IV, both of which cover air pollution episodes and the occurrence of an emergency due to the effects of pollutants on public health.  The state and local requirements included in 25 Pa. Code Chapter 137, ACHD's Part F to Article XXI, and Philadelphia AMS Regulation IV are codified in Pennsylvania's SIP at 40 CFR 52.2020(c).  Pennsylvania's contingency plans meet the requirements in 40 CFR Part 51 subpart H.

EPA has not set levels for the priority areas and has not set a significant harm level for any PM2.5 NAAQS.  However, for the 24-hour 2006 PM2.5 NAAQS, EPA recommended these levels through guidance.  In the  September 25, 2009 Guidance for the 2006 PM2.5 NAAQS, EPA suggested that states that had monitored and recorded 24-hour PM2.5 levels greater than 140.4 ug/m[3], using the most recent three years of data, should develop emergency episode plans for the areas with the monitored values.  EPA also suggested that, if these levels had not been exceeded, states could certify that they had adequate general emergency authority to address PM2.5 episodes.  Based on a review of the most recent certified data for four years 2010-2013, the Commonwealth continues to meet this recommended criteria for PM2.5.  The maximum 24 hour level of PM2.5 during that time period was 69.9 ug/m3 which occurred at the Liberty monitor in 2010.  Since the Commonwealth has sufficient emergency powers in the APCA, it does not need specific emergency episode plans for the 2012 PM2.5 NAAQS.

Based upon EPA's review of the above referenced infrastructure SIP submittals, and air quality data (put into record), EPA finds that the Commonwealth's infrastructure SIP submissions for the four NAAQS meet requirements in 110(a)(2)(G) for the four NAAQS.

8.  Section 110(a)(2)(H)

Section 110(a)(2)(H) requires that SIPs provide for revision of the plan from time to time as may be necessary to take account of revisions of the NAAQS or the availability of improved or more expeditious methods of attaining the standards and to revise the plan whenever EPA finds that the SIP is substantially inadequate to attain the NAAQS or to otherwise comply with any additional requirements under the CAA.

According to the above referenced infrastructure SIP submittals, Section 4(1) of the APCA, 35 P.S. § 4004(1), empowers PADEP to implement the provisions of the CAA.  Section 5 of the APCA, 35 P.S. § 4005, authorizes the Environmental Quality Board (EQB) to adopt rules and regulations for the prevention, control, reduction and abatement of air pollution.  In addition, 25 Pa. Code §131.2 adopts and incorporates the federal NAAQS by reference and is part of the approved Pennsylvania SIP.  The revised standards are effective in Pennsylvania on the same effective date set forth in the Federal Register for each new or revised NAAQS.  PADEP states in the infrastructure SIP submittals that it has revised and will continue to revise the SIP as may be necessary whenever EPA revises the primary or secondary NAAQS and when, if ever, EPA finds the SIP is substantially inadequate to attain the NAAQS or otherwise to comply with the CAA.  PADEP states that it has revised and will continue to revise the SIP to take advantage of improved or more expeditious methods to attain the NAAQS.

Based upon EPA's review of the above referenced infrastructure SIP submittals and the Infrastructure Guidance, EPA finds the infrastructure SIP submittals for the four NAAQS meet obligations pursuant to 110(a)(2)(H) for all four NAAQS.

9.  Section 110(a)(2)(J)

According to section 110(a)(2)(J), a SIP shall meet the applicable requirements of section 121 of the CAA (relating to consultation), section 127 of the CAA (relating to public notification), and part C of title I of the CAA (relating to PSD and visibility protection).

Consultation and Public Notification

According to the above referenced infrastructure SIP submittals, the APCA provides general enabling authority for interaction with the public, Federal land managers and local government. Section 4, 35 P.S. § 4004, provides adequate authority for PADEP's public participation process for the review of proposed SIP revisions, as required under CAA Section 121, and notification of NAAQS violations, as required in CAA Section 127.  The APCA also provides authority for the public education efforts described in CAA Section 127. Section 4 of the APCA provides general enabling authority for interaction with the public and local government.

Section 7 of the APCA (relating to public hearings), 35 P.S. § 4007, requires the EQB, or PADEP, acting on behalf of the EQB, to conduct public hearings in any region of the Commonwealth affected before any rules or regulations with regard to the control, abatement, prevention or reduction of air pollution are adopted for that region.  Section 7 also requires notice to the public, published in newspapers of general circulation, of the time and place of any public hearing at least thirty days prior to the scheduled date of the hearing.  Section 7.5 of the APCA (relating to public review of SIPs), 35 P.S. § 4007.5, requires notice of a proposed SIP to be published in the Pennsylvania Bulletin and in newspapers of general circulation for the area affected by the proposed SIP.  Pennsylvania does not have any laws and PADEP does not have any regulations, applicable to PADEP's Bureau of Air Quality, that specifically require direct consultation and participation by local political subdivisions affected by a SIP.  Local political subdivisions affected by a SIP are provided with the same opportunity as all other members of the public to review and comment on a SIP during the public comment period.

PADEP uses its Web site to fulfill the requirement for public notification under section 127.  PADEP makes real-time monitoring data for all four NAAQS available at http://www.ahs2.dep.state.pa.us/aq_apps/aadata/.  ACHD makes monitoring data available to the public on its Web site at http://www.achd.net/air/monitor-data.html.  AMS makes monitoring data available on its Web site at http://www.phila.gov/aqi/realtime.aspx.  PADEP's website therefore provides information for the public when a NAAQS is exceeded by providing access to monitoring data which enhances public awareness.

EPA finds the infrastructure SIP submittals for the four NAAQS address requirements in 110(a)(2)(J) for consultation and notification as required in sections 121 and 127 of the CAA.

Part C Requirements- PSD

As discussed in more detail for section 110(a)(2)(C) requirements, Pennsylvania's SIP incorporates by reference the Federal PSD provisions in 40 CFR 52.21 for the Commonwealth's PSD permitting program as required by part C of title I of the CAA.  Whenever EPA promulgates any PSD amendments for the four NAAQS, the provisions will automatically be adopted and incorporated in the Pennsylvania Code through the incorporation by reference mechanism. ACHD SIP revision for PSD was approved by EPA on February 28, 2013 (78 FR 13493), and an AMS SIP Revision for PSD was approved by EPA on March 28, 2003 (68 FR 15060).  All of the PSD SIP revisions are codified in 40 CFR 52.2020.

With respect to element (J) in section 110(a)(2) of the CAA, EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants.  The requirements of element D(i)(II) in section 110(a)(2) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants.  The Commonwealth has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including GHGs.      On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions.  Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427.  The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit.  The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of BACT.  In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, the EPA is not continuing to apply EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible.  Specifically, EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g. 40 CFR 51.166(b)(48)(v)).  EPA anticipates a need to revise federal PSD rules in light of the Supreme Court opinion.  In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision.  The timing and content of subsequent EPA actions with respect to the EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the United States District Court for the District of Columbia Circuit.  At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision. At present, EPA has determined the Pennsylvania SIP is sufficient to satisfy elements C, D(i)(II), and J of Section 110(a)(2) with respect to GHGs because the PSD permitting program previously-approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT.  Although the approved Pennsylvania PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate to satisfy elements C, (D)(i)(II), and J in section 110(a)(2) of the CAA.  The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision.  Accordingly, the Supreme Court decision does not affect EPA's proposed approval of Pennsylvania's infrastructure submittals as to the requirements of element J for PSD for section 110(a)(2).   Part C Requirements- Visibility Protection

All four of Pennsylvania's July 15, 2014 infrastructure SIP submittals state that these submitted SIP revisions do not address requirements under section 110(a)(2)(J) relating to visibility.  The SIP submittals cite to EPA's September 2013 Infrastructure Guidance which provided that air agencies do not need to address the visibility sub-element of section 110(a)(2)(J) in infrastructure SIP submissions because there are no new applicable visibility protection obligations under part C of title I of the CAA triggered upon promulgation of a new or revised NAAQS.

EPA has reviewed the four infrastructure SIP submittals and the Infrastructure Guidance.  When EPA establishes or revises a NAAQS, the visibility requirements in part C of title I of the CAA (for RAVI, new source review for possible impacts on air quality related values in Class 1 areas, and regional haze planning) do not change.  Therefore, EPA concludes that there are no new applicable visibility protection obligations under 110(a)(2)(J) from any of the four NAAQS relevant to this TSD.  Pennsylvania followed our Infrastructure Guidance which provided that Air agencies did not need to address the visibility sub-element of 110(a)(2)(J) for an infrastructure SIP submission.

Based upon EPA's review of the above referenced infrastructure SIP submittals and upon review of the Infrastructure Guidance,  EPA finds that the Commonwealth  has met its obligations pursuant to CAA section 110(a)(2)(J) for all four July 15, 2014 infrastructure SIP submittals for all four NAAQS.

10.  Section 110(a)(2)(K)

Section 110(a)(2)(K) requires that each SIP provide for: (i) the performance of such air quality modeling as EPA may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which EPA has established a NAAQS; and (ii) the submission, upon request, of data related to such air quality modeling to EPA.

According to the above referenced infrastructure SIP submittals, Section 4(1) of the APCA provides that it is the power and duty of PADEP to implement the provisions of the CAA in the Commonwealth.  35 P.S. § 4004 (1).  Inherent in this grant of power and duty is the obligation to meet the NAAQS established under the CAA.  Section 4(15) of the APCA provides that it is the power and duty of PADEP to conduct or cause to be conducted studies and research with respect to air contaminants, their nature, causes and effects, and with respect to the control, prevention, abatement and reduction of air pollution and air contamination. 35 P.S. § 4004 (15).  This power and duty include the power and duty to perform air quality modeling and data submissions prescribed by EPA under section 110(a)(2)(K) of the CAA.

The Commonwealth's SIP approved PSD program contains appropriate modeling requirements because the Commonwealth incorporates by reference the Federal PSD requirements including those for modeling.

In addition, according to the above referenced infrastructure SIP submittals, inherent in Pennsylvania's obligation to meet the NAAQS and to conduct or cause to be conducted studies and research is the authority and obligation for PADEP to perform modeling as required under the CAA to demonstrate attainment of the NAAQS.  Pennsylvania will continue to perform modeling as authorized by the APCA and as required under the CAA to demonstrate attainment.  Pennsylvania will continue to submit the air quality modeling data as part of its relevant SIP submissions and through federal grant commitments or in other ways that EPA may request.

Based upon EPA's review of the above referenced infrastructure SIP submittals for the four NAAQS and upon the Infrastructure Guidance, EPA finds the infrastructure SIP submittals meet obligations pursuant to 110(a)(2)(K) for all four NAAQS.

11.  Section 110(a)(2)(L)

Section 110(a)(2)(L) requires SIPs to require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit by the CAA, a fee sufficient to cover: (i) the reasonable costs of reviewing and acting upon any application for such a permit; and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit, until such fee requirement is superseded with respect to such sources by EPA's approval of a fee program under title V of the CAA.

According to the above referenced infrastructure SIP submittals, fee requirements of 25 Pa. Code Chapter 127, Subchapter I, were approved by EPA as meeting the CAA requirements and were incorporated into the Commonwealth's SIP.  The Commonwealth's Title V operating permit program and permit fees in 25 Pa Code Chapter 127, Subchapter G, was approved by EPA in 1996 (61 FR 39597).  Fee requirements are codified at  40 CFR 52.2020(c)(1), Appendix A  -- Approval Status of State and Local Operating Permits Programs to 40 CFR Part 70, approved by EPA at 61 FR 39597 (July 30, 1996).

According to the infrastructure SIP submittals, while permit fees are standardized for the entire Commonwealth, collection of fees and title V permitting activities are shared by PADEP, ACHD and Philadelphia AMS.  ACHD and Philadelphia AMS collect title V fees within their respective jurisdictions, and use the fees to fund the title V permitting program for each agency. PADEP collects permit fees and administers the title V permitting program for the rest of the state. PADEP is also authorized by 25 Pa. Code § 127.706 to transfer additional funds to the local agencies, if needed, to operate the title V permitting program.  Pennsylvania states in its infrastructure SIP submittals that the permitting fees in its approved SIP and in the approved title V program cover reasonable costs of reviewing and acting upon permit applications and reasonable costs of implementing and enforcing permit terms.       Based upon EPA's review of the above referenced infrastructure SIP submittals and upon the Infrastructure Guidance, EPA finds the infrastructure SIP submittals for the four NAAQS meet obligations pursuant to 110(a)(2)(L) for all four NAAQS.

12.  Section 110(a)(2)(M)

Section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

According to the above referenced infrastructure SIP submittals, the APCA provides adequate authority for PADEP's practices of consultation and participation in SIPs with local governments, the public and Federal land managers, as required under sections 121 and 127 of the CAA and notification of NAAQS violations as required in section 127.  It also provides authority for the public education efforts described in section 127.  Section 4 of APCA, 35 P.S. § 4004, provides general enabling authority for interaction with the public and local government.  Also section 7 of the APCA which pertains to public hearings requires input on rules and regulations that pertain to air pollution.  Additional discussion of Pennsylvania's provisions for consultation and participation is provided above in the analysis for 110(a)(2)(J).

According to the above referenced infrastructure submittals, PADEP and local agencies, ACHD and AMS, make real-time and historical air quality information available on their web sites.  Based upon EPA's review of the above referenced infrastructure SIP submittals and the Infrastructure Guidance, EPA finds that the infrastructure SIP submittals for the four NAAQS meet the Commonwealth's obligations pursuant to 110(a)(2)(M) for all four NAAQS.

F.  CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA's analysis of Pennsylvania's infrastructure submittals for the four NAAQS concludes that Pennsylvania's submittals meet the requirements for section 110(a)(2)(A), (B), (C), (D)(i)(II)(PSD), D(ii), (E), (F), (G), (H), (J), (K), (L), and (M) as described above.  It is recommended that a rulemaking be prepared proposing approval of Pennsylvania's infrastructure submittals for the four NAAQS for the elements identified above.