[Federal Register Volume 80, Number 13 (Wednesday, January 21, 2015)]
[Proposed Rules]
[Pages 2841-2846]
[FR Doc No: 2015-00742]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0342; FRL-9921-64-Region 3]

Approval and Promulgation of Implementation Plans; Pennsylvania;
Pennsylvania Regional Haze State Implementation Plan Revision: Sulfur
Dioxide and Nitrogen Oxide Best Available Retrofit Technology Limits
for the Cheswick Power Plant

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing limited
approval and limited disapproval of a revision to the Pennsylvania
State Implementation Plan (SIP) submitted by the Commonwealth of
Pennsylvania through the Pennsylvania Department of Environmental
Protection (PADEP). This SIP revision addresses the sulfur dioxide
(SO2) and nitrogen oxide (NOX) Best Available
Retrofit Technology (BART) requirements for Boiler Number 1 of the
Cheswick Generating Station (Cheswick) in Allegheny County. EPA is
proposing a limited approval of the SIP revision for Cheswick's
SO2 and NOX BART requirements on the basis that
the revision corrects an error in the SIP and strengthens the
Pennsylvania SIP, while EPA is also proposing a limited disapproval of
this part of the SIP revision because the SIP revision relies on the
Clean Air Interstate Rule (CAIR) and not the Cross-State Air Pollution
Rule (CSAPR) which has replaced CAIR. EPA is proposing limited approval
and limited disapproval of the Pennsylvania SIP revision addressing the
SO2 and NOX BART requirements in accordance with
the requirements of the Clean Air Act (CAA) and EPA's rules for BART.

DATES: Comments must be received on or before February 20, 2015.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0342, by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
    B. Email<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2014-0342, Cristina Fernandez, Associate
Director, Office of Air Program Planning, Mailcode 3AP30, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2014-0342. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Pennsylvania Department of Environmental
Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market
Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Irene Shandruk,<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Summary of SIP Revision
III. EPA's Analysis of SIP Revision
IV. EPA's Analysis of 110(l)
V. EPA's Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    Regional haze is visibility impairment that is produced by a
multitude of sources and activities which are located across a broad
geographic area and emit fine particles (e.g., sulfates, nitrates,
organic carbon, elemental carbon, and soil dust) and their precursors
(e.g., SO2, NOX, and in some cases, ammonia
(NH3) and volatile organic compounds (VOC)). Fine particle
precursors react in the atmosphere to form fine particulate matter
(PM2.5), which impairs visibility by scattering and
absorbing light. Visibility impairment reduces the clarity, color, and
visible distance that one can see. Section 169A of the CAA establishes
as a national goal the ``prevention of any future, and the remedying of
any existing, impairment of visibility in mandatory class I Federal
areas which impairment results from manmade air pollution'' and
requires SIPs for states whose emissions may reasonably be anticipated
to cause or contribute to visibility impairment in Class I areas to
contain emission limits, compliance schedules and other measures as may
be necessary to make reasonable progress toward the national goal of
achieving natural visibility conditions in Class I areas.\1\ A regional
haze SIP generally must include, among other measures, source-specific
BART emission limits for each source subject to BART. A detailed
discussion of the requirements of the regional haze program can be
found in our earlier notice proposing action on Pennsylvania's regional
haze SIP. See 77 FR 3984 (January 26, 2012).
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    \1\ EPA's regulations implementing CAA section 169A are located
at 40 CFR 51.308 and require states to establish long-term
strategies for making reasonable progress toward meeting the
national goal in CAA section 169A.
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    Rather than requiring source-specific BART controls, states also
have the flexibility to adopt an emissions trading program or other
alternative program as long as the alternative provides greater
reasonable progress towards improving visibility than BART. 40 CFR
51.308(e)(2). EPA made such a

demonstration for the CAIR.\2\ 70 FR 39104 (July 6, 2005). EPA's
regulations provided that states participating in the CAIR cap and
trade program under 40 CFR part 96 pursuant to an EPA-approved CAIR SIP
or which remain subject to the CAIR Federal Implementation Plan (FIP)
in 40 CFR part 97, do not require affected BART eligible electric
generating units (EGUs) to install, operate, and maintain BART for
emissions of SO2 and NOX. See 40 CFR
51.308(e)(4). EPA subsequently determined that the trading programs in
the CSAPR, which was promulgated to replace CAIR, would achieve greater
reasonable progress towards the national goal than would BART and could
also serve as an alternative to source-by-source BART. See 77 FR 33641
(June 7, 2012).\3\
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    \2\ CAIR required certain states like Pennsylvania to reduce
emissions of SO2 and NOX that significantly
contribute to downwind nonattainment of the 1997 NAAQS for
PM2.5 and ozone. See 70 FR 25162 (May 12, 2005). CAIR was
later found to be inconsistent with the requirements of the CAA and
the rule was remanded to EPA. See North Carolina v. EPA, 550 F.3d
1176 (D.C. Cir. 2008). The court left CAIR in place until replaced
by EPA with a rule consistent with its opinion. Id.
    \3\ CSAPR was proposed by EPA to replace CAIR and to help states
reduce air pollution and attain CAA standards. See 75 FR 45210
(August 2, 2010) (proposal) and 76 FR 48208 (August 8, 2011) (final
rule). The United States Court of Appeals for the D.C. Circuit
issued a decision in EME Homer City Generation, L.P. v. EPA, 696
F.3d 7 (D.C. Cir. 2012), vacating CSAPR and keeping CAIR in place
pending the promulgation of a valid replacement rule. Subsequently,
on April 29, 2014, the United States Supreme Court reversed the
August 21, 2012 opinion of the D.C. Circuit which had vacated CSAPR
and remanded the matter to the D.C. Circuit for further proceedings.
EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014).
After the Supreme Court's decision, EPA filed a motion to lift the
stay of CSAPR and asked the D.C. Circuit to toll CSAPR's compliance
deadlines by three years, so that the Phase 1 emissions budgets
apply in 2015 and 2016 (instead of 2012 and 2013), and the Phase 2
emissions budgets apply in 2017 and beyond (instead of 2014 and
beyond). On October 23, 2014, the D.C. Circuit granted EPA's motion
and lifted the stay on CSAPR. EME Homer City Generation, L.P. v.
EPA, No. 11-1302 (D.C. Cir. Oct. 23, 2014), Order at 3. EPA views
the D.C. Circuit's October 23, 2014 Order as also granting EPA's
request to toll CSAPR's compliance deadlines and will therefore
commence implementation of CSAPR on January 1, 2015. 79 FR 71663
(Dec. 3, 2014) (interim final rule revising CSAPR compliance
deadlines).
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    On December 20, 2010, PADEP submitted revisions to the Pennsylvania
SIP to address regional haze as required by the CAA and 40 CFR 51.308.
At the time of the development and submission of Pennsylvania's
December 20, 2010 regional haze SIP submission, EPA had not yet
promulgated CSAPR to replace CAIR. On July 13, 2012, EPA finalized a
limited approval of the Pennsylvania regional haze SIP. 77 FR 41279.
Our approval was limited due to Pennsylvania's reliance upon CAIR for
certain regional haze requirements including BART for EGUs. On June 7,
2012, EPA had also finalized the limited disapproval of Pennsylvania's
regional haze SIP (and other states' regional haze SIPs that relied
similarly on CAIR) due to its reliance on CAIR as EPA had issued the
CSAPR to replace CAIR at that time. 77 FR 33641. On June 7, 2012, EPA
also finalized a limited FIP for Pennsylvania and other states, which
merely substituted reliance on EPA's more recent CSAPR NOX
and SO2 trading programs for EGUs for the SIP's reliance on
CAIR.\4\ See 77 FR 33641.
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    \4\ In response to a petition for review of EPA's limited
approval of the Pennsylvania regional haze SIP in the United States
Court of Appeals for the Third Circuit, EPA successfully moved for a
voluntary remand without vacatur. On April 30, 2014, EPA reissued
its final limited approval of the Pennsylvania SIP to implement the
Commonwealth's regional haze program for the first planning period
through 2018. 79 FR 24340.
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    For the December 20, 2010 regional haze SIP, the Allegheny County
Health Department (ACHD) had performed a BART analysis for Cheswick, a
Pennsylvania EGU. In the May 4, 2009 Cheswick BART review memo, ACHD
stated it performed its BART analysis in accordance with 40 CFR
51.308(e) and 40 CFR part 51, Appendix Y, Guidelines for BART
Determinations Under the Regional Haze Rule (BART Guidelines).\5\ The
May 4, 2009 Cheswick BART review memo was included in Pennsylvania's
December 20, 2010 regional haze SIP (in Appendix J) and specifically
stated that SO2 and NOX limits were not
considered in the memo since the source was participating in CAIR. The
May 4, 2009 BART Review Memo for Cheswick and the December 20, 2010
regional haze SIP submission also contained an error concerning the
recommended particulate matter (PM) BART for Cheswick. EPA has proposed
to correct that error in a separate rulemaking and is not taking public
comment on Cheswick's revised PM BART in this action. See 79 FR 64539
(October 30, 2014).\6\
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    \5\ The BART Guidelines provide a process for making BART
determinations that states and local agencies can use in
implementing the regional haze BART requirements on a source-by-
source basis, as provided in 40 CFR 51.308(e)(1).
    \6\ Detailed information regarding EPA's rationale for proposing
to correct the PM BART for Cheswick is available at 79 FR 64539.
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    The December 20, 2010 regional haze SIP submission explicitly
provided that BART for Pennsylvania EGUs was participation in CAIR;
however, the SIP submission incorrectly identified SO2 and
NOX BART emission limits for Cheswick in error.\7\ After EPA
proposed limited approval of the Pennsylvania regional haze SIP on
January 26, 2012 (77 FR 3984), the owner of Cheswick commented that
Cheswick's BART emission limits proposed by PADEP were in error
including the SO2 and NOX limits because PADEP
had intended to rely on CAIR for SO2 and NOX BART
limits for EGUs.\8\
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    \7\ The December 20, 2010 regional haze SIP submission included
the following BART emission limits for Cheswick: 67,452 tons per
year (tpy) of SO2, 10,840 tpy of NOX, and 361
tpy of coarse PM (PM10). According to Pennsylvania and
explained in its March 25, 2014 SIP submittal, these emission limits
were included in error. The May 4, 2009 Cheswick BART review memo
identified the 67,452 tpy of SO2 and 10,840 tpy of
NOX as Cheswick's potential to emit SO2, and
NOX.
    \8\ The comments from the owner of Cheswick on the proposed
Cheswick BART are available in the rulemaking docket from our
approval of the Pennsylvania regional haze SIP, docket number EPA-
R03-OAR-2012-0002, at www.regulations.gov.
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II. Summary of SIP Revision

    On March 25, 2014, the Commonwealth of Pennsylvania through PADEP
submitted a SIP revision to revise the incorrect PM BART emission limit
for Cheswick's Boiler No. 1 and to remove the errant inclusion of the
SO2 emission limit of 67,452 tons per year (tpy) and the
NOX emission limit of 10,840 tpy for Cheswick's Boiler No. 1
from the regional haze SIP because Pennsylvania intended CAIR as
SO2 and NOX BART for all EGUs including
Cheswick.\9\ PADEP submitted this SIP revision in accordance with the
visibility and regional haze provisions of Sections 169A and 169B of
the CAA and the regional haze rule at 40 CFR 51.308.\10\
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    \9\ As stated previously, EPA has proposed to approve the
revision to Cheswick's PM BART emission limit in a separate
rulemaking. See 79 FR 64539.
    \10\ The March 25, 2014 SIP revision also updates the owner's
name of Cheswick from Orion Power to GenOn Power Midwest LP and
updates the permit numbers and dates of issuance for Cheswick's
Boiler No. 1. However, the present owner of Cheswick is now NRG
Energy.
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    PADEP stated in its submittal that the SO2 and
NOX BART emission limits for Cheswick were included in the
BART table in its December 10, 2010 regional haze SIP in conflict with
the ACHD Cheswick BART review memo and the narrative portion of the
December 20, 2010 SIP submittal which discussed CAIR as satisfying
SO2 and NOX BART for BART-eligible EGUs in
Pennsylvania. In the March 25, 2014 SIP revision submittal, PADEP
stated the SO2 and NOX BART emission limits for
Cheswick were included in error. The analysis included in the December
20, 2010 regional haze SIP relied upon all Pennsylvania EGUs complying
with CAIR for BART for SO2 and NOX. Therefore,
PADEP concluded that the removal of the limits included in the December
20, 2010 regional haze SIP in

error will not interfere with visibility improvement, with
Pennsylvania's reasonable progress to achieving natural visibility
conditions as required by the CAA, nor with any applicable requirement
under the CAA.
    ACHD had updated the BART analysis for Boiler No. 1 at Cheswick
with a new memo on November 7, 2012 which retained the recommendation
of CAIR as SO2 and NOX BART for Cheswick and
recommended a new PM BART emissions limit. The November 7, 2012 BART
review memo explained that Cheswick has stringent pollution controls
installed including flue gas desulfurization (FGD) for SO2
control, selective catalytic reduction (SCR) for NOX
control, and an electrostatic precipitator (ESP) for PM control. The
November 7, 2012 BART review memo also indicated that two separate
modeling studies show that visibility impacts from Cheswick are
minimal.

III. EPA's Analysis of SIP Revision

    EPA proposes a limited approval to the March 25, 2014 SIP revision
to the Cheswick SO2 and NOX BART limits included
in the Pennsylvania regional haze SIP because the removal of the
specific SO2 and NOX emission limits corrects an
error in the regional haze SIP and strengthens the Pennsylvania SIP
overall through replacing the incorrect BART limits with an emission
trading program which should reduce SO2 and NOX
emissions more than the limits approved in the regional haze SIP in
error.\11\ EPA proposes a limited disapproval to the portion of the SIP
revision addressing SO2 and NOX BART for Cheswick
because the revision relies on replacing the specific SO2
and NOX limits with CAIR which the D.C. Circuit remanded to
EPA and which EPA replaced with CSAPR. Although certain issues
regarding CSAPR remain for resolution in the D.C. Circuit, the D.C.
Circuit has lifted the stay on CSAPR which will enable EPA to commence
forthwith the implementation of CSAPR to replace CAIR as the emissions
trading program for SO2 and NOX for EGUs in
certain states including Pennsylvania. See EME Homer City Generation,
L.P. v. EPA, No. 11-1302 (D.C. Cir. Oct. 23, 2014), Order at 3.
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    \11\ The SO2 and NOX BART emission limits
recommended in error in the December 20, 2010 regional haze SIP
submission by PADEP are Cheswick's potentials to emit SO2
and NOX. See the May 4, 2009 Cheswick BART review memo in
Appendix J to the Pennsylvania December 20, 2010 regional haze SIP
which is available in the rulemaking docket from our approval of the
Pennsylvania regional haze SIP, docket number EPA-R03-OAR-2012-0002,
at www.regulations.gov. CAIR and CSAPR set allowance numbers for
emissions of SO2 and NOX from certain EGUs
including Cheswick, reflecting emission reductions which would be
below a source's potential to emit. See 70 FR 39104 (CAIR) and 76 FR
48208 (CSAPR).
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    For Cheswick's SO2 and NOX BART requirements,
EPA finds Pennsylvania intended in its December 20, 2010 regional haze
SIP to rely on CAIR as an alternative to source-specific BART emission
limits for EGUs for SO2 and NOX. In its December
20, 2010 regional haze SIP submission, PADEP clearly explained that
BART determinations for EGUs were conducted for PM emissions only
because BART-eligible EGUs located in Pennsylvania are subject to the
Federal CAIR program for SO2 and NOX. See Section
8.2 ``EGUs and CAIR'' in Pennsylvania's December 20, 2010 regional haze
SIP.\12\ In addition, the May 4, 2009 and November 7, 2012 BART review
memos by ACHD for Cheswick also clearly stated that EPA has determined
that BART requirements for EGUs covered by CAIR are satisfied by the
CAIR requirements for NOX and SO2 so a BART
engineering analysis was not required for these pollutants.\13\
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    \12\ The December 20, 2010 Pennsylvania regional haze SIP
submission is available in the EPA rulemaking docket for our
approval of the Pennsylvania regional haze SIP, docket number EPA-
R03-OAR-2012-0002, at www.regulations.gov.
    \13\ The May 4, 2009 BART memo for Cheswick was included in
Appendix J to the December 20, 2010 regional haze SIP, available in
the EPA rulemaking docket for our approval of the Pennsylvania
regional haze SIP, docket number EPA-R03-OAR-2012-0002, at
www.regulations.gov. The November 7, 2012 BART memo for Cheswick is
included with the March 25, 2014 regional haze SIP revision in the
rulemaking docket for this action.
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    EPA finds our prior approval of the source specific SO2
and NOX BART limits for Cheswick was in error. According to
explicit statements in its December 20, 2010 SIP submittal,
Pennsylvania clearly relied on CAIR as an alternative to SO2
and NOX BART emission limits for all EGUs in its regional
haze SIP and therefore intended Cheswick, an EGU, to have CAIR for
SO2 and NOX BART. Thus, EPA finds the
SO2 and NOX BART limits for Cheswick were
inadvertently included in the December 20, 2010 regional haze SIP
submittal and therefore approved by EPA as part of the regional haze
SIP in error.\14\ EPA finds no further analysis is needed for the
removal of the specific SO2 and NOX BART emission
limits at Cheswick's Boiler No. 1 and replacement with a Federally
enforceable emissions trading program as BART for SO2 and
NOX. See CAA section 110(k)(6) (providing EPA authority to
correct SIPs when EPA finds an error). Pennsylvania's analysis and
conclusions, including related modeling and technical support documents
regarding its regional haze SIP containing sufficient limits and
measures so as to not interfere with reasonable progress and visibility
improvement generally and not to interfere with other states achieving
their reasonable progress goals (RPGs) at Class I areas, specifically
were based on Pennsylvania EGUs complying with CAIR for BART and other
regional haze requirements not relevant here.15 16 Thus, EPA
proposes its limited approval of this SIP revision to remove the
specific Cheswick SO2 and NOX BART limits in
accordance with sections 110(k)(6) and 169A of the CAA because EPA
determined the prior limited approval of the regional haze SIP was in
error relating to Cheswick's BART limits for SO2 and
NOX. EPA proposes a limited disapproval of this SIP revision
for Cheswick's SO2 and NOX BART limits in
accordance with section 169A of the CAA because Pennsylvania relied
upon CAIR for SO2 and NOX BART for Cheswick (and
all Pennsylvania EGUs) and CSAPR is replacing CAIR as the emissions
trading program for SO2 and NOX. Upon final
action on this limited disapproval, Cheswick will be subject to EPA's
June 7, 2012 FIP which replaced CAIR with CSAPR as SO2 and
NOX BART for Pennsylvania EGUs.
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    \14\ EPA believes the evidence discussed in Pennsylvania's March
25, 2014 SIP revision submittal and in this rulemaking clearly
support that neither Pennsylvania nor ACHD intended to set source-
specific BART emission limits for Cheswick for SO2 or
NOX and that the inclusion of those limits in the
regional haze SIP submittal and in EPA's limited approval of the
regional haze SIP was inadvertent and in error.
    \15\ PADEP concluded in its December 20, 2010 regional haze SIP
that its long term strategy and BART determinations provide
sufficient reductions to mitigate impacts of emissions from sources
located in Pennsylvania on affected Class I areas. See Section 3.0
of the December 20, 2010 regional haze SIP.
    \16\ As explained further in this proposed rulemaking, once
CSAPR is implemented, EPA believes the reliance upon CAIR for
SO2 and NOX BART at Cheswick, a Pennsylvania
EGU, will be replaced by reliance upon CSAPR for SO2 and
NOX BART through the June 7, 2012 FIP which replaced
CSAPR for CAIR for all Pennsylvania EGU's SO2 and
NOX BART.
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    EPA's 2012 limited approval and disapproval of the Pennsylvania
regional haze SIP was based on Pennsylvania EGUs having CAIR as an
alternative to SO2 and NOX specific BART emission
rates. EPA finds that Cheswick has installed controls for
SO2 and NOX, including a FGD and SCR, to comply
with CAIR and CSAPR which will limit emissions from Cheswick of
visibility-impairing pollutants and minimize visibility impacts from
the

plant.\17\ EPA finds the removal of these source-specific limits and
the replacement with CSAPR when implemented, will not interfere with
visibility improvement or with any applicable requirement under the
CAA, particularly the visibility and regional haze provisions of
sections 169A and 169B of the CAA and 40 CFR 51.308. EPA believes this
removal and replacement with CSAPR strengthens the Pennsylvania SIP
because EPA found CSAPR is ``Better than BART'' and provides greater
reasonable progress towards natural visibility conditions than source-
specific BART limits for EGUs. See 77 FR 33641.\18\
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    \17\ According to the Cheswick BART review memos prepared by
ACHD, Cheswick also installed a new, shorter stack with installation
of its FGD and SCR.
    \18\ Before CAIR was remanded by the D.C. Circuit, EPA had found
CAIR provides greater reasonable progress than source-specific BART,
and the D.C. Circuit specifically upheld CAIR as an alternative to
BART in accordance with the requirements of Section 169A of the CAA.
Utility Air Regulatory Group v. EPA, 471 F.3d 1333, 1340 (D.C. Cir.
2006) (finding EPA's conclusion that CAIR provides greater
reasonable progress reasonable and citing 40 CFR 51.308(e)(4) and 70
FR 39104, 39136 (July 6, 2005)).
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    EPA does not believe that the status of CAIR or CSAPR limits EPA's
ability to propose the limited approval of this SIP revision for
SO2 and NOX BART for Cheswick. In August 2011
after Pennsylvania had developed and submitted its regional haze SIP to
EPA with its reliance upon CAIR, EPA replaced CAIR with CSAPR (76 FR
48208 (August 8, 2011)) to address issues raised in North Carolina v.
EPA by the D.C. Circuit. See 531 F.3d 896 (D.C. Cir. 2008). CSAPR
requires substantial reductions of SO2 and NOX
emissions from EGUs in 28 states in the Eastern United States that
significantly contribute to downwind nonattainment of the 1997
PM2.5 and ozone NAAQS and 2006 PM2.5 NAAQS.
Implementation of the rule was scheduled to begin on January 1, 2012,
when CSAPR's cap-and-trade programs would have superseded the CAIR cap-
and-trade programs. However, numerous parties filed petitions for
review of CSAPR, and on December 30, 2011, the D.C. Circuit issued an
order staying CSAPR pending resolution of the petitions and directing
EPA to continue to administer CAIR. EME Homer City Generation, L.P. v.
EPA, No. 11-1302 (D.C. Cir. Dec. 30, 2011), Order at 2.
    Nevertheless, on June 7, 2012, EPA issued a FIP for Pennsylvania,
which substituted Pennsylvania's reliance on CAIR for SO2
and NOX BART for EGUs with CSAPR's NOX and
SO2 trading programs for BART for the Pennsylvania EGUs as
EPA expected CSAPR to replace CAIR pending the conclusion of litigation
in the DC Circuit. See 77 FR 33641. Following EPA's actions for
Pennsylvania's regional haze requirements, the DC Circuit issued a
decision in EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C.
Cir. 2012), vacating CSAPR and ordering EPA to continue administering
CAIR. On April 29, 2014, the United States Supreme Court reversed the
DC Circuit's decision and remanded the matter, including CSAPR, to the
DC Circuit for further proceedings in accordance with its ruling. EPA
v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). EPA had
filed a motion to lift the stay on CSAPR in light of the Supreme
Court's decision and also asked the DC Circuit to toll CSAPR's
compliance deadlines by three years, so that the Phase 1 emissions
budgets apply in 2015 and 2016 (instead of 2012 and 2013), and the
Phase 2 emissions budgets apply in 2017 and beyond (instead of 2014 and
beyond). On October 23, 2014, the DC Circuit granted EPA's motion to
lift the stay on CSAPR. EME Homer City Generation, L.P. v. EPA, No. 11-
1302 (D.C. Cir. Oct. 23, 2014), Order at 3. EPA views the DC Circuit's
October 23, 2014 Order as also granting EPA's request to toll CSAPR's
compliance deadlines and will therefore commence implementation of
CSAPR on January 1, 2015. 79 FR 71663 (December 3, 2014) (interim final
rule revising CSAPR compliance deadlines). Therefore, the CAIR
provisions will sunset on December 31, 2014 and be replaced by CSAPR.
CSAPR will be implemented as a FIP by EPA, until such time as
Pennsylvania adds the provisions of CSAPR to its SIP.\19\
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    \19\ CSAPR requires substantial reductions of SO2 and
NOX emissions from EGUs in 28 states in the Eastern
United States that significantly contribute to downwind
nonattainment or interfere with maintenance of the 1997
PM2.5 and ozone NAAQS and 2006 PM2.5 NAAQS.
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    EPA does not believe that the status of EME Homer City, or CAIR and
CSAPR in particular, limits EPA's ability to propose action on this SIP
revision to Cheswick's BART for SO2 and NOX
limitations for several reasons. First, EPA will commence
implementation of CSAPR forthwith, and Pennsylvania EGUs including
Cheswick are subject to CSAPR pursuant to the CSAPR FIP (76 FR 48208)
in general. Thus, EGUs in Pennsylvania, including Cheswick, will be
subject to the Federally enforceable requirements of CSAPR upon its
imminent implementation. Pursuant to the June 7, 2012 FIP for
Pennsylvania for certain regional haze requirements, EGUs in the
Commonwealth are subject to CSAPR as their BART requirement for
SO2 and NOX. See 77 FR 33641. Nothing in EPA's
June 7, 2012 FIP (77 FR 33641) excludes Cheswick, an EGU otherwise
subject to Federal CSAPR requirements, from the June 7, 2012 FIP
replacing Pennsylvania's reliance upon CAIR with reliance upon CSAPR
for EGU BARTs. Therefore, upon final approval of this rulemaking
proposing limited approval and limited disapproval of the March 25,
2014 SIP revision, Cheswick's SO2 and NOX BART
limits will be subject to CSAPR like every other EGU in Pennsylvania.
Because EPA determined CSAPR achieves greater reasonable progress
towards the national goal of achieving natural visibility conditions in
Class I areas than source-specific BART in those states covered by
CSAPR, EPA expects greater emissions reductions of SO2 and
NOX from Pennsylvania EGUs subject to CSAPR than from
Cheswick's prior limits or from CAIR. See 77 FR 33641 (concluding CSAPR
was better than BART) and 76 FR 48208 (promulgating CSAPR).
    EPA therefore proposes its limited approval and limited disapproval
of this portion of the March 25, 2014 SIP revision addressing
SO2 and NOX BART. CAA section 110(c)(1) provides
that EPA must promulgate a FIP within two years after disapproving a
SIP submission in whole or in part, unless EPA approves a SIP revision
correcting the deficiencies within that two-year period. EPA believes
our limited disapproval of the March 25, 2014 SIP submission does not
result in any new FIP obligation for EPA because EPA already
promulgated a FIP on June 7, 2012 to address the identified deficiency
(replacing CAIR with CSAPR for SO2 and NOX BART
for Pennsylvania EGUs), and thus that FIP fully addresses Cheswick's
SO2 and NOX BART. Under section 179(a) of the
CAA, final disapproval of a submittal that addresses a requirement of
part D of title I of the CAA (CAA sections 171-193) or is required in
response to a finding of substantial inadequacy as described in CAA
section 110(k)(5) (SIP Call) starts a sanctions clock. Pennsylvania's
March 25, 2014 SIP revision submittal for revising Cheswick's BART was
not submitted to meet either of these requirements. Therefore, EPA's
limited disapproval of Pennsylvania's SIP submission concerning
Cheswick's SO2 and NOX BART does not trigger
mandatory sanctions under CAA section 179.
    In summary, EPA finds the SIP revision for the SO2 and
NOX BART for Cheswick removes an error in the

Pennsylvania SIP and strengthens the Pennsylvania SIP. EPA proposes a
limited approval for the Cheswick SO2 and NOX
BART SIP revision in accordance with sections 110(k)(6), 169A and 169B
of the CAA. EPA proposes a limited disapproval because the SIP revision
relies upon CAIR and not CSAPR for Cheswick's SO2 and
NOX BART. However, EPA finds Cheswick is subject to EPA's
June 7, 2012 FIP which replaced CSAPR for CAIR for SO2 and
NOX BART for Pennsylvania EGUs.

IV. EPA's Analysis of 110(l)

    Section 110(l) of the CAA states that ``[t]he Administrator shall
not approve a revision of a plan if the revision would interfere with
any applicable requirement concerning attainment and reasonable further
progress or any other applicable requirement of this chapter.'' EPA
does not interpret section 110(l) to require a full attainment or
maintenance demonstration before any changes to a SIP may be approved.
Generally, a SIP revision may be approved under section 110(l) if the
EPA finds that it will at least preserve status quo air quality,
particularly where the pollutants at issue are those for which an area
has not been designated nonattainment. EPA does not believe the
proposed limited approval and limited disapproval of the SO2
and NOX BART emission limitations will interfere with the
CAA requirements for BART or for preventing interference with other
states' programs to protect visibility because this proposal is
supported by an evaluation that those CAA requirements are met. This
SIP revision will correct errors from PADEP in the BART limits
determined for Cheswick and will replace BART emission limitations with
limits intended by Pennsylvania which EPA finds reasonable. This SIP
revision will not result in any substantive changes to other CAA
requirements. Cheswick will continue to be subject to CAA requirements
for BART.
    The SIP revision replaces a prior determination that was in error
for SO2 and NOX as Pennsylvania intended EGUs to
have CAIR for SO2 and NOX BART. As discussed
above, Pennsylvania's analysis supporting its regional haze SIP was
based on EGUs having CAIR for SO2 and NOX
BART.\20\ Thus, EPA does not anticipate the revisions to Cheswick's
BARTs to interfere with neighboring states' ability to achieve RPGs
given Cheswick's minimal visibility impact, Cheswick's SO2,
NOX and PM controls and newer shorter stack, Cheswick's
current compliance with CAIR, and recent monitored data from
neighboring states showing progress towards RPGs.\21\
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    \20\ As discussed previously, EPA expects this SIP revision if
finalized will replace Cheswick's specific SO2 and
NOX BART emission limitations with reliance upon CSAPR
for BART based on EPA's June 7, 2012 FIP for Pennsylvania EGU
SO2 and NOX BARTs.
    \21\ For further discussion of progress towards RPGs and current
visibility conditions in nearby Federal Class I areas based on the
latest available Interagency Monitoring of Protected Visual
Environments (IMPROVE) monitoring data, see EPA's approvals of
Virginia's and Delaware's five-year progress reports on regional
haze at 79 FR 25019 (May 2, 2014) (Virginia) and 79 FR 25506 (May 5,
2014) (Delaware). See also 79 FR 10451 (February 25, 2014) (proposed
approval of Virginia's progress report) and 79 FR 10442 (February
25, 2014) (proposed approval of Delaware's progress report). EPA's
proposed approval of West Virginia's five-year progress report on
regional haze is at 79 FR 14460 (March 14, 2014). EPA has reviewed
Cheswick's compliance with CAIR through data at EPA's Clean Air
Markets Division (CAMD) database at http://www.epa.gov/airmarket/.
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    EPA also believes that approval of the submitted SIP revision will
not interfere with attainment and maintenance of the NAAQS. Cheswick's
previous SO2 BART limit in the regional haze SIP was 67,452
tpy. Cheswick is not located in an area designated nonattainment for
any SO2 NAAQS, Cheswick's actual SO2 emissions
for 2012 and 2013 are well below the BART limit according to data from
EPA's CAMD Web site,\22\ and Cheswick's SO2 allowances
through CAIR and now CSAPR, which is replacing CAIR, will be lower than
the prior SO2 BART established previously for Cheswick. In
general, EPA expects CSAPR allowances for EGUs such as Cheswick to be
less than the CAIR emission allowances.\23\ As Cheswick has been
subject to CAIR since 2009, EPA does not anticipate the BART revision
for SO2 to interfere with the 2010 SO2 NAAQS in
the area near Cheswick as Cheswick has been in compliance with CAIR and
Cheswick's new BART limit replaces the facility's prior limit which was
its potential to emit SO2.
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    \22\ Cheswick's emissions data is available at EPA's CAMD
database at http://www.epa.gov/airmarket/. EPA has reviewed
preliminary SO2 data for Cheswick for 2014 and finds it
consistent with 2012-13 data and with CAIR requirements.
    \23\ For a discussion of CSAPR and CSAPR allowances as
promulgated, see 76 FR 48208.
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    Cheswick's prior NOX BART limit was 10,840 tpy. Cheswick
is not located in an area designated nonattainment for the 2010
NO2 NAAQS, but Cheswick is located in an area designated
marginal nonattainment for the 2008 ozone NAAQS.\24\ However,
Cheswick's actual NOX emissions for 2012 and 2013 are well
below the prior BART limit according to data from EPA's CAMD Web site,
and Cheswick's NOX allowances through CAIR and CSAPR are
also lower than the prior NOX BART established previously
for Cheswick. As stated previously, Cheswick has complied with CAIR
since 2009. Therefore, EPA does not anticipate the NOX BART
revision for Cheswick will interfere with or delay Pennsylvania's
ability to reach attainment in the Pittsburgh-Beaver Valley
nonattainment area for the 2008 ozone NAAQS.\25\
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    \24\ The Pittsburgh-Beaver Valley area was designated moderate
nonattainment for the 1997 eight-hour ozone NAAQS. However, EPA
found the Pittsburgh-Beaver Valley area attained the 1997 ozone
NAAQS by its June 15, 2010 attainment date and also found previously
that the area continued to attain the 1997 ozone NAAQS with
monitored data from 2009-2011 and preliminary data for 2012. 78 FR
20244 (April 4, 2013). During this time, Cheswick operated with its
CAIR requirements. Therefore, EPA does not find the SIP revision for
Cheswick's NOX BART will interfere with the Pittsburgh-
Beaver Valley area's continued attainment and maintenance of the
1997 ozone NAAQS.
    \25\ EPA notes the preliminary 2012-2014 design value for the
Pittsburgh-Beaver Valley nonattainment area shows improving ozone
air quality and reflects the area's ozone air quality approaching
attainment with the 2008 ozone NAAQS. The 2014 data is not complete,
quality assured or certified at this time. During this time,
Cheswick has been complying with CAIR. EPA has reviewed preliminary
2014 NOX data for Cheswick and finds it consistent with
2012-13 data and with CAIR requirements.
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    In addition, EPA does not anticipate any increase in emissions of
SO2 or NOX from the submitted SIP revision which
replaces prior BART limits set in error with CSAPR based on our review
of Cheswick's recent emissions data indicating Cheswick has complied
with CAIR requirements and because CSAPR should produce equivalent or
greater reductions than CAIR. EPA believes the limited approval and
limited disapproval of Pennsylvania's revision will not contribute to
conditions of nonattainment or interfere with maintenance of any
standard. Thus, EPA finds this SIP revision to Cheswick's BARTs
complies with section 110(l) of the CAA and will not interfere with any
applicable requirements concerning attainment and reasonable further
progress or any other applicable requirement of the CAA, such as the
visibility and regional haze provisions of sections 169A and 169B of
the CAA.

V. EPA's Proposed Action

    EPA is proposing a limited approval of the portion of the
Pennsylvania March 25, 2014 revision to its regional haze SIP which
removes specific SO2 and NOX BART emission
limitations for Cheswick set in error and is proposing a limited
disapproval of the SIP revision due to its reliance upon CAIR which has
been replaced with CSAPR. As EPA issued a FIP for SO2 and
NOX BART

emission limitations for EGUs in Pennsylvania which includes Cheswick,
no further action by EPA would be required to address the limited
disapproval if finalized. This conclusion is based on our review of the
March 25, 2014 SIP revision as well as Pennsylvania's December 20, 2010
regional haze SIP submission including technical data and supporting
analysis. Upon final action on this SIP revision, CSAPR for
SO2 and NOX BART will supercede the previous
SO2 and NOX BART determinations for Cheswick
included in Pennsylvania's regional haze SIP as EPA will implement
CSAPR beginning January 1, 2015.

VI. Statutory and Executive Order Reviews

    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
proposed action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule revising Pennsylvania's regional
haze SIP pertaining to BART requirements for Cheswick does not have
tribal implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is not approved to apply in Indian
country located in the state, and EPA notes that it will not impose
substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Particulate
matter, Reporting and recordkeeping requirements, Sulfur dioxide,
Volatile organic compounds.

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

    Dated: December 23, 2014.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2015-00742 Filed 1-20-15; 8:45 am]
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