Air Plan Approval; Pennsylvania; Interim Final Determination To Stay and Defer Sanctions Related to Reasonably Available Control Technology Requirements for Keystone, Conemaugh, Homer City and Montour Generating Facilities for the 1997 and 2008 Ozone National Ambient Air Quality Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Interim final determination.

SUMMARY:

The Environmental Protection Agency (EPA) is making an interim final determination (IFD) that Pennsylvania has submitted revisions to the SIP that satisfy the requirements under the Clean Air Act (CAA) to implement RACT for these EGUs for the 1997 and 2008 ozone NAAQS. The effect of this IFD is to stay emission offset sanctions and defer the imposition of highway funding sanctions triggered by an August 2022 EPA partial disapproval of a prior Pennsylvania SIP addressing RACT for these EGUs. Proposed elsewhere in this issue of the Federal Register , EPA is proposing approval of a revision to Pennsylvania's State implementation plan (SIP), as submitted April 10, 2024, to address reasonably available control technology (RACT) nitrogen oxides (NO_X) emission limits and requirements for the coal-fired electric generating units (EGUs) equipped with selective catalytic reduction (SCR) at the Keystone, Conemaugh, Homer City, and Montour facilities for the 1997 and 2008 ozone national ambient air quality standards (NAAQS).

DATES:

This interim final determination is effective on July 10, 2024. However, comments will be accepted until August 9, 2024.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R03-OAR-2024-0302 at www.regulations.gov, or via email to goold.megan@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit www.epa.gov/dockets/commenting-epa-dockets. EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2024-0302. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (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 through www.regulations.gov , or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

FOR FURTHER INFORMATION CONTACT:

Sean Silverman, Planning & Implementation Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1600 John F Kennedy Boulevard, Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-5511. Mr. Silverman can also be reached via electronic mail at silverman.sean@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On August 16, 2022, EPA took final action to disapprove portions of a Pennsylvania SIP revision submitted May 16, 2016 that, among other things, established NO_X emission limitations for the coal-fired EGUs equipped with SCR at the Keystone, Conemaugh, Homer City, and Montour facilities, to satisfy RACT obligations for the 1997 and 2008 ozone NAAQS. 87 FR 50257. EPA's August 16, 2022 final disapproval started a sanctions clock under CAA section 179 and 40 CFR 52.31. The two-to-one new source emissions offset sanction took effect on March 15, 2024 (18 months following the September 15, 2022 effective date of the August 16, 2022 disapproval), while highway funding sanctions will take effect September 15, 2024 unless the state submits, and EPA approves, SIP revisions that correct the deficiencies identified in the August 16, 2022 disapproval action.

On August 31, 2022, EPA issued a Federal implementation plan (FIP) addressing these same RACT obligations. 87 FR 53381. On May 2, 2024, the Third Circuit issued a decision upholding the RACT limits and other requirements in EPA's August 31, 2022 FIP. Keystone-Conemaugh Projects LLC v. EPA, et al., No. 22-3026. The court decided and resolved all issues raised by the Petitioners in EPA's favor.

On April 10, 2024, PADEP submitted two SIP revisions which adopt the NO_X limits and other requirements in EPA's final August 31, 2022 FIP for Keystone, Conemaugh, Homer City, and Montour. Proposed elsewhere in this issue of the Federal Register , EPA has proposed to approve Pennsylvania's April 10, 2024 SIP revisions. There, EPA proposes to find that the incorporation of title V permits containing the FIP requirements into Pennsylvania's SIP addresses the deficiencies identified in EPA's August 16, 2022 partial disapproval, which started the sanctions clock for offset and highway sanctions in Pennsylvania.

II. What action is EPA taking?

We are making an interim final determination to stay the application of the offset sanction and defer the application of the highway sanction associated with our August 16, 2022 disapproval of certain RACT requirements for the 1997 and 2008 ozone NAAQS for Pennsylvania. This determination is based on our concurrent proposal to approve the Pennsylvania SIP revisions regarding RACT limits for the 1997 and 2008 Ozone NAAQS for Keystone, Conemaugh, Homer City, and Montour generating facilities, which resolve the deficiencies that triggered sanctions under section 179 of the CAA.

Because EPA has preliminarily determined that the submission of the Pennsylvania RACT SIP revisions address the deficiencies identified in the August 16, 2022 disapproval action and is likely approvable, relief from sanctions should be provided as quickly as possible. Therefore, EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect (5 U.S.C. 553(b)(B)). However, by this action, EPA is providing the public with an opportunity to comment on the EPA's determination after the effective date, and EPA will consider any comments received in determining whether to reverse the interim final determination.

Section 553(b)(B) of the APA provides that the notice and opportunity for comment requirements do not apply when the Agency finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” In this instance, EPA believes it would be both impracticable and contrary to the public interest to have to propose and provide an opportunity to comment before any relief is provided from the effect of sanctions. EPA has reviewed Pennsylvania's SIP submissions addressing the August 16, 2022 disapproval and, through its proposed action, is indicating that it is more likely than not that the SIP submissions correct the deficiency that was the basis for the disapproval action that started the sanctions clock. Therefore, it is not in the public interest to apply sanctions. EPA believes that it is necessary to use the interim final rulemaking process to stay the application of the offset sanction and defer the application of the highway funding sanction while we complete our rulemaking process on the approvability of Pennsylvania's SIP revision intended to address the RACT requirements for the EGUs at the four sources for the 1997 and 2008 ozone NAAQS.

Consistent with 5 U.S.C. 553(d)(1) of the APA, EPA finds there is good cause for this action to become effective immediately upon publication. Section 553(d)(1) of the APA provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . a substantive rule which grants or recognizes an exemption or relieves a restriction.” The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). However, when the agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. Because this action relieves a restriction, EPA finds good cause under 5 U.S.C. 553(d)(1) for this action to become effective on the date of publication of this action.

As noted above, proposed elsewhere in this issue of the Federal Register , EPA has proposed to find that Pennsylvania's April 10, 2024 SIP revisions address the deficiencies identified by EPA in our August 16, 2022 final disapproval. In accordance with 40 CFR 52.31(d)(2)(ii), when a State has submitted a revised plan to correct the deficiency, and EPA proposes to approve the plan and issues an interim final determination that the revised plan corrects the deficiency, application of the new source emission offset sanction shall be stayed and application of the highway sanction shall be deferred. However, if issues are raised during the public comment period of the proposed plan approval which cannot be addressed and the revised plan is ultimately disapproved, the new source offset sanction shall reapply immediately and the highway sanction shall apply immediately on the date of the final disapproval if that date is more than six months after the date the offset sanctions became effective, which was March 15, 2024.

III. Statutory and Executive Order Reviews

This action defers sanctions and imposes no additional requirements. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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 inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive 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 Clean Air Act; and
• Is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the action does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified byExecutive Order 13175 (65 FR 67249, November 9, 2000).
• Is subject to the Congressional Review Act (CRA),5 U.S.C. 801 et seq., and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this action as discussed in section II of this preamble, including the basis for that finding.

Executive Order 12898 (59 FR 7629, February 16, 1994), directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color and/or Indigenous peoples) and low-income populations.

This interim final determination does not concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on people of color, low-income populations and/or Indigenous peoples. This action stays emission offset sanctions and defers the imposition of highway funding sanctions triggered by an August 2022 EPA partial disapproval of a prior Pennsylvania SIP addressing RACT for these EGUs. This action therefore does not directly address emission limits or otherwise directly affect any human health or environmental conditions in Pennsylvania. In addition, EPA is providing meaningful involvement on this rulemaking through the notice and comment process.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 9, 2024. Filing a petition for reconsideration by the EPA Administrator of this final determination does not affect the finality of this action for the purpose of judicial review nor does it extend the time within which petition for judicial review may be filed, and shall not postpone the effectiveness of such action. This action may not be challenged later in proceedings to enforce its requirements (see CAA section 307(b)(2)).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements