1

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

 1650 Arch Street

 Philadelphia, Pennsylvania 19103-2029

 DATE: 11/17/2014

SUBJECT: Pennsylvania State Implementation Plan Revision Request– Revisions

to Allegheny County Health Department Regulations incorporating 

Nonattainment New Source Review (NNSR) requirements

 FROM: Paul T. Wentworth, P.E

 Office of Permits and Air Toxics Review

 TO: Andrew Kreider, Acting Associate Director

 Office of Permits and Air Toxics Review

TECHNICAL SUPPORT DOCUMENT

EPA-R03-OAR-2013-0636

APPROVAL AND PROMULGATION OF AIR QUALITY IMPLEMENTATION 

PLANS; PENNSYLVANIA; REVISION TO ALLEGHENY COUNTY RULES;

PRECONSTRUCTION PERMIT REQUIREMENTS- NONATTAINMENT NEW 

SOURCE REVIEW 

I. BACKGROUND

The Pennsylvania Department of Environmental Protection (PADEP) on behalf of the Allegheny 

County Health Department (ACHD) submitted a revision to the Allegheny County portion of the 

Pennsylvania State Implementation Plan (“PA SIP”). This submittal (“June 2012 submittal”) 

contains revisions to ACHD’s nonattainment New Source Review (NNSR) preconstruction 

permit regulations. The purpose of this submittal is to incorporate by reference PA’s NNSR 

provisions under 25 PA Code Chapter 127, correct a citation error in ACHD’s NNSR regulations

and incorporate the federal NSR Reform rules and the federal program for implementing 

preconstruction permit review for the PM2.5 National Ambient Air Quality Standards (NAAQS) 

known as the “2008 NSR PM2.5 Rule”. 
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II. SUMMARY OF ACTION

On June 25, 2012, PADEP submitted this SIP revision pertaining to revisions of the following 

sections in Allegheny County’s (ACHD’s) Rules and Regulations, Article XXI: 2102.20 

(Definitions); 2102.04 (Installation permits); 2102.06 (Major sources Locating in or Impacting a 

Nonattainment Area); and 2102.08 (Emissions Offset Registration). The effect of these revisions 

is to harmonize ACHD’s NNSR provisions with PA’s NNSR program provisions under 25 PA 

Code Chapter 127. ACHD’s NNSR regulations were previously approved into the Pennsylvania 

SIP on November 14, 2002 (67 FR 68935). 

EPA has determined that the June 2012 submittal satisfies both the required SIP elements of the 

nonattainment portion of the 2002 NSR reform rules at 40 CFR 51.165 and the 2008 NSR PM2.5

Rule requirements for preconstruction permitting of major PM2.5 sources in PM2.5 nonattainment 

areas in Allegheny County. There are certain deficiencies in the June 2012 submittal that reflect 

deficiencies identified by the United States Court of Appeals for the District of Columbia Circuit 

(the D.C. Circuit Court) in its January 4, 2013 decision on the 2008 NSR PM2.5 Rule. However 

EPA has signed a rule resetting the deadline for states including ACHD that are subject to the 

Court’s ruling to submit SIP revisions to address the deficiencies identified by the Court. This 

makes it possible for EPA to fully approve this SIP submission. EPA is therefore proposing a 

full approval for reasons described in its analysis of the June 2012 submittal below.

III. ANALYSIS

The analysis of the June 2012 submittal is broken down into (2) sections. Section (A) explains 

why the June 2012 submittal addresses all of the requirements of the 2002 Reform Rules and 

section (B) evaluates whether the submittal addresses the requirements of the 2008 NSR PM2.5 

Rule

A. NSR Reform

History

On December 31, 2002 (67 FR 80186), EPA published final rule changes to 40 CFR parts 51 and 

52, regarding the Clean Air Act's Prevention of Significant Deterioration (PSD) and NNSR 

programs. On November 7, 2003 (68 FR 63021), EPA published a notice of final action on the 

reconsideration of the December 31, 2002, final rule changes. The December 31, 2002, and the 

November 7, 2003, final actions are collectively referred to as “NSR Reform.”

The 2002 NSR Reform Rules are part of EPA's implementation of parts C and D of title I of the 

CAA. Part C of title I of the CAA is the PSD program, which applies in areas that meet the 

NAAQS (“attainment” areas), as well as in areas for which there is insufficient information to 

determine whether the area meets the NAAQS (“unclassifiable” areas). Part D of title I of the 

CAA is the nonattainment NSR program, which applies in areas that are not in attainment of the 

NAAQS (“nonattainment” areas). Collectively, the PSD and nonattainment NSR programs are 
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referred to as the “New Source Review” or NSR programs. EPA regulations implementing these 

programs are contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and part 51, appendix S.

The 2002 NSR Reform Rules made changes to five areas of the NSR programs. In summary, the 

2002 Rules: (1) provided a new method for determining baseline actual emissions; (2) adopted 

an actual-to-projected-actual methodology for determining whether a major modification has 

occurred; (3) allowed major stationary sources to comply with a Plantwide Applicability Limit 

(PAL) to avoid having a significant emissions increase that triggers the requirements of the 

major NSR program; (4) provided a new applicability provision for emissions units that are 

designated clean units; and (5) excluded pollution control projects (PCPs) from the definition of 

“physical change or change in the method of operation.” On November 7, 2003 (68 FR 63021), 

EPA published a notice of final action on its reconsideration of the 2002 NSR Reform Rules, 

which added a definition for “replacement unit” and clarified an issue regarding PALs. 

After the 2002 NSR Reform Rules were finalized and effective (March 3, 2003), industry, state, 

and environmental petitioners challenged numerous aspects of the 2002 NSR Reform Rules, 

along with portions of EPA’s 1980 NSR Rules (45 FR 52676, August 7, 1980). On June 24, 

2005, the United States Court of Appeals for the District of Columbia (D.C. Circuit Court) issued 

a decision on the challenges to the 2002 NSR Reform Rules. New York v. United States, 413 

F.3d 3 (New York I). In summary, the D.C. Circuit Court vacated portions of the rules 

pertaining to clean units and PCPs, remanded a portion of the rules regarding recordkeeping and 

the term “reasonable possibility” found in 40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and 

either upheld or did not comment on the other provisions included as part of the 2002 NSR 

Reform Rules. On June 13, 2007 (72 FR 32526), EPA took final action to revise the 2002 NSR 

Reform Rules to remove from federal law all provisions pertaining to clean units and the PCP 

exemption that were vacated by the D.C. Circuit Court.

 

With regard to the remanded portions of the 2002 NSR Reform Rules related to recordkeeping, 

on December 21, 2007, EPA took final action to establish that a “reasonable possibility” applies 

where source emissions equal or exceed 50 percent of the CAA NSR significance levels for any 

pollutant (72 FR 72607). The “reasonable possibility” provision identifies for sources and 

reviewing authorities the circumstances under which a major stationary source undergoing a 

modification that does not trigger major NSR must keep records.

Finally, on January 19, 2010, EPA denied a petition from the Natural Resources Defense Council 

(NRDC) and Sierra Club requesting EPA to reconsider and stay the Wisconsin Department of 

Natural Resources SIP revision that incorporated EPA’s New Source Review Reforms of 2002. 

Petitioners submitted comments arguing that these NSR Reform provisions were “backsliding”, 

and thus prohibited under CAA sections 110(l) and 193. EPA approved the Wisconsin SIP 

revisions and addressed Petitioners’ arguments about backsliding by (1) noting that the 

provisions had been upheld by the New York I court, (2) that the general analysis that EPA had 

done to support the 2002 rule supported NSR Reform in Wisconsin, and (3) Petitioners had not 

provided any information or arguments demonstrating that the general analysis did not apply in 

Wisconsin, and that information in the record countered Petitioners’ specific arguments that the 

revisions would be backsliding. Additionally, in response to comments, EPA performed an 
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analysis specific to Wisconsin to examine the impacts of applying reform in that State. Our 

findings were consistent with those of the supplementary environmental analysis (SEA) for the 

2002 Reform Rule (neutral).

NRDC v. Jackson: On June 16, 2011, the U.S. Court of Appeals for the Seventh Circuit (Seventh 

Circuit) denied the petitions for review filed by NRDC and Sierra Club challenging EPA's 

approval of the 2002 NSR Reform provisions into the Wisconsin SIP. The primary issue 

addressed in the opinion was whether EPA's approval of Wisconsin’s NSR SIP was backsliding 

prohibited by CAA sections 110(l) and 193. The Court held that EPA's decision was not 

contrary to these provisions. First, the Court found that Petitioners’ arguments were a repeat of 

the arguments that they had made and lost in New York I. Second, the Court held that the 

general analysis that supported the NSR Reform provisions when they were challenged after 

promulgation “supply substantial evidence for the EPA’s decision [with respect to the Wisconsin 

SIP] and show that it is neither arbitrary nor capricious.” But, the Court did note that some states 

have implemented the NSR Reform provisions and that the experience in those states might 

support or refute EPA’s conclusions and that “[a]t some point, preferring predictions over facts is 

no longer rational.”

Analysis

On November 14, 2002 (67 FR 68935) ACHD’s NNSR program was established by approval of 

a revision to PA’s SIP. This revision also included a reference to a provision under PADEP’s 

NNSR program at 25 PA Code 127.211 on which part of ACHD’s NNSR program relied. 

ACHD’s federally approved NNSR program was in place until PA revised its NNSR program,

deleting the provision at 25 PA Code 127.11and recodifiying it at 25 PA Code 127.203. PA’s 

revised NNSR program was approved into the PA SIP on May 14, 2012 (77 FR 28261). As a 

result, ACHD’s NNSR provisions were now made deficient because it referred to a nonexistent 

PA regulation: 127.211. ACHD has now revised its regulations to cite the actual PADEP NNSR 

Program regulations in the June 2012 submission. ACHD has also incorporated by reference, all 

the provisions under 25 PA Code Chapter 127. As mentioned above, EPA has already approved 

PA’s revised NNSR program so there is no need to re-evaluate the June 2012 submission in 

terms of meeting the requirements of NSR Reform.

EPA has determined that the June 2012 submission has incorporated all of PADEP’s NNSR 

construction, modification, reactivation, and operating permit program provisions at 25 PA Code 

Section 121.1 and 25 PA Code Chapter 127 ( PADEP’s NNSR program) and should be approved 

as meeting the requirements of the NNSR portion of the NSR Reform rule, whose provisions 

were upheld by the D.C. Circuit in 2005, and reaffirmed in the Seventh Circuit’s denial of the 

petition to reconsider EPA’s approval of NSR Reform into Wisconsin’s SIP (NRDC v. Jackson). 

B. Implementation of PM 2.5 NSR requirements in Nonattainment Areas

History
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On May 16, 2008, EPA finalized the “Implementation of the New Source Review (NSR) 

Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (the 2008 NSR PM2.5 Rule) 

to implement the 1997 PM2.5 NAAQS, including changes to the NSR program (See, 73 FR 

28321). The 2008 NSR PM2.5 Rule revised the NSR program requirements to establish the 

framework for implementing preconstruction permit review for the PM2.5 NAAQS in both 

attainment and nonattainment areas. 

The 2008 NSR PM2.5 Rule established the following requirements to implement the PM2.5

NAAQS: (1) Require NSR permits to address directly emitted PM2.5 and precursor pollutants; 

(2) establish significant emission rates for direct PM2.5 and precursor pollutants (including sulfur 

dioxide (SO2) and oxides of nitrogen (NOX); (3) establish PM2.5 emission offsets; and (4) require 

states to establish PM2.5 emission limits that account for gases that condense to form particles 

(condensables). 

The 2008 NSR PM2.5 Rule, as well as the 2007 “Final Clean Air Fine Particle Implementation 

Rule” (2007 PM2.5 Implementation Rule)1 were subsequently challenged before the United States 

Court of Appeals for the D.C. Circuit (the Court) in Natural Resources Defense Council v. EPA.2

On January 4, 2013, the Court remanded to EPA both the 2007 PM2.5 Implementation Rule and 

the 2008 NSR PM2.5 Rule. The Court found that in both rules EPA erred in implementing the 

1997 PM2.5 NAAQS solely pursuant to the general implementation provisions of subpart 1 of 

part D of title I of the CAA, rather than pursuant to the implementation provisions specific to 

particulate matter in subpart 4 of part D of title I.3 Relative to subpart 1, subpart 4 is more 

specific about what states must do to bring areas into attainment through the establishment of a 

two tier classification system for nonattainment areas (Moderate or Serious). Additionally, 

subpart 4 does not provide for the presumptive exclusion of VOCs and ammonia as regulated 

precursors to PM2.5. As a result, the Court remanded both rules and instructed EPA “to repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” On April 25, 2014, 

the Administrator signed a final rulemaking that begins to address the remand (see 

http://www.epa.gov/airquality/particlepollution/actions.html). Upon its effective date, the final 

rule classifies all existing PM2.5 nonattainment areas as "Moderate" nonattainment areas and sets 

a deadline of December 31, 2014, for states to submit any SIP submissions, including 

nonattainment NSR SIPs that may be necessary to satisfy the requirements of subpart 4 with 

respect to PM2.5 nonattainment areas.

In a separate rulemaking process that will follow the April 2014 rule, EPA is evaluating the 

requirements of subpart 4 as they pertain to, among other things, nonattainment NSR for PM2.5

emissions. With respect to nonattainment NSR in particular, subpart 4 includes section 189(e) of 

the CAA, which requires the control of major stationary sources of coarse particulate matter 

(PM10) precursors "except where the Administrator determines that such sources do not 

 

1 72 FR 20586 (April 25, 2007)

2 706 F.3d 428 (D.C. Cir. 2013)

3 The Court’s opinion did not specifically address the point that implementation under subpart 4 requirements would 

still require consideration of subpart 1 requirements, to the extent that subpart 4 did not override subpart 1. EPA 

assumes that the Court presumed that EPA would address this issue of potential overlap between subpart 1 and 

subpart 4 requirements in subsequent actions
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contribute significantly to PM10 levels which exceed the standard in the area." Under the D.C. 

Circuit's decision in NRDC, section 189(e) of the CAA also applies to PM2.5.

Additionally, the 2008 NSR PM2.5 Rule authorized states to adopt provisions in their 

nonattainment NSR rules that would allow major stationary sources locating in areas designated 

nonattainment for PM2.5 and major modifications at stationary sources located in areas 

designated nonattainment for PM2.5 to offset emissions increases of direct PM2.5 emissions or 

PM2.5 precursors with reductions of either direct PM2.5 emissions or PM2.5 precursors in 

accordance with offset ratios contained in the approved SIP for the applicable nonattainment 

area. The inclusion, in whole or in part, of the interpollutant offset provisions for PM2.5 is 

discretionary on the part of the states. In the preamble to the 2008 NSR PM2.5 Rule, EPA 

included preferred or presumptive offset ratios, applicable to specific PM2.5 precursors that a 

state may adopt in conjunction with the new interpollutant offset provisions for PM2.5, and for 

which a state could rely on the EPA's technical work to demonstrate the adequacy of the ratios 

for use in any PM2.5 nonattainment area. Alternatively, the preamble indicated that states may 

adopt their own ratios, subject to the EPA's approval, that would have to be substantiated by 

modeling or other technical demonstrations of the net air quality benefit for ambient PM2.5

concentrations. The preferred ratios were subsequently the subject of a petition for 

reconsideration, which the Administrator granted. EPA continues to support the basic policy that 

sources may offset increases in emissions of direct PM2.5 or of any PM2.5 precursor in a PM2.5

nonattainment area with actual emissions reductions in direct PM2.5 or PM2.5 precursors in 

accordance with offset ratios as approved in the SIP for the applicable nonattainment area. 

However, EPA no longer considers the preferred ratios set forth in the preamble to the 2008 

PM2.5 NSR Rule for PM2.5 NSR implementation to be presumptively approvable. Instead, any 

ratio involving PM2.5 precursors adopted by the state for use in the interpollutant offset program 

for PM2.5 nonattainment areas must be accompanied by a technical demonstration that shows the 

net air quality benefits of such ratio for the PM2.5 nonattainment area in which it will be applied.

Analysis

In light of the signing of the April 2014 final rule that begins to address the subpart 4 deficiency, 

EPA can grant full approval to the June 2012 submittal, because this submittal contains all the 

elements that are contained in the 2008 PM2.5 rule and ACHD will be able to address the 

deficiencies identified by the Court in a separate SIP revision in response to the April 2014 rule 

by December 31, 2014. In particular, subpart 4 includes section 189(e) of the CAA, which 

requires the control of major stationary sources of PM10 precursors (and hence under the court 

decision, PM2.5 precursors) “except where the Administrator determines that such sources do not 

contribute significantly to PM10 levels which exceed the standard in the area.” The evaluation of 

which precursors need to be controlled to achieve the standard in a particular area is typically 

conducted in the context of the state’s preparing and the EPA’s reviewing of an area’s attainment 

plan SIP. While the June 2012 submittal does contain the same deficiencies identified by the 

Court in the remanded Federal regulations, the proposed revisions do establish preconstruction 

permit review for the PM2.5 NAAQS in Allegheny County’s nonattainment areas and so 

represents a considerable strengthening of the ACHD’s existing NNSR program as currently 
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approved in PA SIP4. Furthermore, we note that Appendix S to 40 CFR part 51 governs in cases

where a permitting authority does not have SIP approved nonattainment NSR regulations that 

satisfies all the required federal provisions (as characterized by ACHD’s existing program). In 

the case here, Appendix S only regulates SO2 as a precursor to PM2.5, and does not provide for 

the regulation of additional precursors (i.e. NOx, VOC, ammonia) even if a demonstration can be 

made that emissions of such pollutants from sources in a specific area contribute significantly to 

that area’s ambient PM2.5 concentrations. In contrast, ACHD’s revised program does provide for 

the regulation of additional precursors based on an appropriate demonstration of a significant 

impact to ambient PM2.5 concentrations. For the reasons previously discussed, EPA is not 

evaluating at this time whether ACHD’s submittal will require additional revisions to satisfy the 

subpart 4 requirements. Furthermore, in a June 2, 2014 final rulemaking entitled “Identification 

of Nonattainment Classification and Deadlines for Submission of State Implementation Plan 

(SIP) Provisions for the 1997 Fine Particle (PM2.5) National Ambient Air Quality Standard 

(NAAQS) and 2006 PM2.5 NAAQS; Final Rule,” (79 FR 31566), EPA identified the 

classification under subpart 4 for areas currently designated nonattainment for the 1997 and 2006 

PM2.5 NAAQS. These areas include the Liberty-Clairton and Pittsburgh nonattainment 

attainment areas, portions of which are regulated by ACHD and therefore subject to the 

regulatory revisions being proposed for approval in this action. That rulemaking also established 

a December 31, 2014 deadline for the submission of any additional attainment-related SIP 

elements that may be needed to meet the applicable requirements of subpart 4. Therefore, those 

requirements are not yet due. EPA believes that it is appropriate for the EPA to take into 

consideration the timing and sequence of related SIP submissions as part of determining what it 

is reasonable to expect a State to have addressed in a SIP for a NAAQS at the time when the 

EPA acts on such submission. Such an approach is reasonable, and to adopt a different approach 

by which the EPA could not approve a SIP, whenever there was any impending or future 

revision to the SIP that will be required by another collateral rulemaking action would result in 

regulatory gridlock. The EPA believes that such an outcome would be an unreasonable reading 

of the statutory process for the SIPs contemplated in section 110(a) (1) and (2). 

Therefore, EPA is proposing to approve both the nonattainment NSR provisions in ACHD’s June 

2012 submittal in the same way it did with PA’s NNSR program in May 2012. EPA is also 

proposing approval of the remainder of the NNSR provisions that pertain to the implementation 

of PM2.5 requirements. ACHD will be required to respond to the April 2014 rule in a separate 

SIP submission that addresses the subpart 4 deficiency pointed out by the court by December 31 

2014.

C. Automatic Incorporation by Reference

By letter dated June 27, 2014, PADEP modified their request for approval of the June 2012 SIP 

revision withdrawing specific language from portions of ACHD’s revised NNSR regulations 

before EPA for approval into the SIP. The withdrawn language would allow any additions, 

revisions, or deletions to PADEP’s NNSR regulations to be automatically incorporated into 

 

4 ACHD’s submittal does contain the same deficiencies identified in the January 4, 2013, D.C. Circuit Court 

decision, since PA’s NNSR program contains provisions of 2008 NSR PM2.5 Rule which were approved into the PA 

SIP on August 13, 2012 (see Docket No. EPA-R03-OAR-2011-0925) and these provisions are also incorporated into 

the June 2012 submission.
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ACHD’s SIP effective on the date established by PADEP’s regulation revision. This withdrawal 

means that this language is no longer considered as part of the ACHD SIP submittal and is not 

being approved as part of this action.

IV. SUMMARY OF CHANGES

The revisions in the June 2012 submittal update the NNSR program in Allegheny County which 

through amendment and incorporation by reference reflects all the changes in PA’s SIP revision 

as approved on May 14, 2012. 

A. SIP Revision #66

Article XXI Air Pollution Control

The following is a brief summary of the changes.

Section 2102.20: Definitions

Section Status Description

2102.20 Added Text Clarified the definition of “Major Source.” 

2102.20 Added Text Clarified the definition of “Major modification”. Added text 

identifying 25 PA Code §127.203 and 25 PA Code §127.204 

as the requirements used to determine if modification is 

major. 

Section 2102.04: Installation Permits

Section Status Description

2102.04.g Modified Text Clarified construction permit term requirements. 

Section 2102.06: Major Sources Locating in or Impacting a Nonattainment Area
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Section Status Description

2102.06.a Modified Text Replaced the term “major New Source” with “new major 

facility as defined by 25 PA Code §121.1.”

Modified Text Replaced text describing the applicability of this section with 

text referring to 25 PA Code §127.203a to be followed to 

determine if a modification at a major source is a major 

modification.

2102.06.a.1 Modified Text Deleted reference to 25 PA Code §127.211 and added 

incorporated by reference language as modified by the July 

1, 2014 letter from PADEP to EPA withdrawing specific 

language from portions of ACHD’s revised NNSR 

regulations. Clarified terms.

2102.06.a.2 Modified Text Replaced text with “Department and “Plan Approval”

definitions.

2102.06.a.3 Modified Text Reordered subsection. Replaced original text with 

Circumvention provision.

2102.06.b Modified Text Replaced first 3 sub paragraphs with incorporation by 

reference language. 

2102.06.b.3 Reordered and 

Modified

“Emissions Offsets” original text at b.4. Replaced all text at 

b.4.B through b.4.D with incorporation by reference 

language as modified by the July 1, 2014 letter from PADEP 

to EPA withdrawing specific language from portions of 

ACHD’s revised NNSR regulations. Additional replacements 

include “plan approval” and “department” definitions .

2102.06.c Modified Text Corrected “temporary sources” requirements.

2102.06.d Modified Text Corrected “fuel switch” requirements.

2102.06.e Modified Text Replaced original text with “portable facilities”

requirements.

2102.06.f Modified Text Replaced original text with modeling requirements language 

relocated from original location at 2102.06.g.

2102.06.g Added Text “Plantwide Applicability Limit” requirements.

Section 2102.08: Emission Offset Registration

2102.08.a & b Modified Text Replaced all text with incorporation by reference language 

and “plan approval” and “department definitions.” 

2102.08.c Re-orded Formerly at 2102.08.d.

2102.08.d Re-orded Formerly at 2102.08.a.3. text modified.

2102.08.a.4 Deleted text Entire text deleted.

2102.08.e Re-orded Formerly at 2102.08.a.5.

2102.08.f Re-orded Formerly at 2102.08.a.6 Text unchanged.

2102.08.g Re-orded Formerly at 2102.08.a.7 Text unchanged.
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2102.08.h Re-orded Formerly at 2102.08.e Text unchanged.

V. RECOMMENDED AGENCY ACTION

By correcting the citation error, incorporating the federal NNSR Reform elements and provisions 

for implementing NNSR for PM2.5 in Allegheny County, the June 12 submission significantly

strengthens the SIP. EPA is proposing approval revisions to ACHD’s NNSR program which 

include the elements of the 2008 PM2.5 rule. EPA is not acting on ACHD’s submittal for 

purposes of determining compliance with the subpart 4 requirements relating to PM2.5. In light 

of the signing of the April 2014 final rule that begins to address the subpart 4 deficiency, EPA 

can grant full approval to the June 2012 submittal. ACHD will be able to address the 

deficiencies identified by the Court in a separate SIP revision in response to the April 2014 rule 

by December 31, 2014.