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Federal Register / Vol. 86, No. 208 / Monday, November 1, 2021 / Rules and Regulations preserve status quo air quality is generally sufficient to demonstrate noninterference through this alternative approach. Courts have upheld EPAs approval of a SIP revision based on a states use of substitute measures.
Kentucky Resources Council, Inc. v.
EPA, 467 F.3d 986 6th Cir. 2006;
Indiana v. EPA, 796 F. 3d 803 7th Cir.
2015.
Both the Kentucky Resources and Indiana cases involved circumstances where a state sought to revise provisions within its SIP related to its vehicle emissions testing program. In both situations, the petitioners were concerned with increased emissions that might occur due to the changes to the testing program. In both cases, the state justified its SIP revision, in part, by demonstrating that it had substitute emission reductions that would fully compensate for the expected emissions increase caused by the modifications to the testing program. In both Kentucky Resources and Indiana, the court upheld EPAs interpretation of section 110l, which allows states to substitute equivalent emissions reductions to compensate for any change to a plan to ensure actual emissions to the air are not increased and thus preserve status quo air quality. However, again, these two cases are most relevant in circumstances where an existing SIP
standard is being weakened or a net emissions increase is expected, which are not the circumstances presented by the SIP revisions that EPA is approving here.
In a more analogous case to the situation presented here, EPAs interpretation of section 110l was upheld in WildEarth Guardians v. EPA, 759 F.3d 1064 9th Cir. 2014. There, the court rejected a challenge to an EPA
action approving a regional haze plan and concluded that WildEarth Guardians had identified nothing in the SIP that weakens or removes any pollution controls. And even if the SIP
merely maintained the status quo, that would not interfere with the attainment or maintenance of the NAAQS. 9 For that reason, the court concluded that WildEarth Guardians failed to show that EPAs approval of the SIP contravened section 110l. The courts holding demonstrates that a SIP approval that does not weaken or remove pollution controls would not violate section 110l. The WildEarth Guardians decision informs the approach to section 110l EPA is taking to approve the Pennsylvania CbC RACT SIP
revisions. Here, contrary to the commenters characterization, AMS is 9 759

F.3d at 1074.

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not relaxing standards or eliminating a program; rather, AMS is only reevaluating the technical and economic feasibility of air pollution controls for subject air pollution sources as required by implementation of the 2008 8-hour NAAQS. Based on that review, AMS, as explained in more detail below, has made determinations that either retain or make more stringent existing NOX
emissions limits. Emissions are not expected to increase, and will likely decrease, as a result of AMS RACT II
NOX CbC determinations and EPAs approval hereof. Under these circumstances, AMS demonstration to meet the requirements of section 110l for its source-specific RACT II
determinations is not one of modeling or identifying equivalent emissions reductions to compensate for or offset an emissions increase because the revisions are not resulting in emissions increases, but rather to establish that its new source-specific NOX RACT
determinations are preserving the status quo air quality or achieving additional reductions beyond the status quo.
With this rule action, EPA is only approving revisions that add specific NOX and VOC source-specific RACT II
determinations to the Pennsylvania SIP.
In the subject RACT II source-specific determinations, AMS has made an adequate showing that its sourcespecific determinations for individual sources at the nine facilities at issue not only preserve the status quo air quality, but likely reduce the cumulative NOX
emissions from the subject sources. As described in its technical review memoranda and related documents, which are included in the docket for this rule, AMS evaluated both the technical and economic feasibility of various control equipment for these sources and used that evaluation to determine the RACT II requirements.
AMS also considered the prior RACT I
requirements to determine whether the RACT II requirements were as stringent as the previously established standards.
In circumstances where the RACT I
requirements were more stringent, they were retained and remain effective.
Contrary to the commenters assertion, this demonstration included in the documents in the docket satisfies the requirements of 40 CFR part 51, appendix V. The record supporting EPAs approval of AMS source-specific RACT II SIP revisions is sufficient, so there is no need to supplement the record. As such, commenters reference to EPAs inability to supplement the record, and to Ober v. U.S. EPA, 84 F.3d 304,312 9th Cir. 1996, is not applicable to EPAs current action.

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The facilities in this rule identified as objectionable in the comment break down into the categories listed below.
As explained in the proposed rulemaking document, EPA views each facility as a separable SIP revision, and that should it receive comment on one facility but not others, EPA may take separate, final action on the remaining facilities.
Facilities with only VOC sources Kinder Morgan Liquid Terminals, LLC
is a major source VOC emitting facility that is a minor source of NOX. As such, individual VOC sources at this facility must comply with RACT II
requirements. EPAs approval in this rule for this facility only relates to specific CbC VOC RACT II
determinations. EPAs approval of the Pennsylvania CbC RACT II SIP revision for sources at for this facility does not involve NOX emissions, maintains the status quo in VOC emissions, and does not result in an increase in VOC or NOX
emissions. Therefore, as explained previously, EPA has determined this SIP
revision will not interfere with any applicable requirement concerning attainment, reasonable further progress, or any other applicable requirement of the CAA pursuant to section 110l.
Facilities with CbC NOX Sources The following facilities are major NOX
emitting sources and contain individual sources subject to CbC NOX
requirements that EPA is taking final action on here. More specific information on those individual facilities follows:
Exelon Generation Company Richmond Generating StationEPA
proposed to approve AMS RACT II CbC
NOX determination for two combustion turbines at this facility. After determining that there were no new technically and economically feasible NOX controls for these sources, AMS
has determined that the RACT II NOX is continuing to comply with the existing NOX emissions limits and capacity factor.10 Through retention of the existing emissions limits and restrictions, AMS has demonstrated that the status quo in NOX emissions has been maintained. As such, EPAs approval of the Pennsylvania SIP
revision for the individual sources at this facility is adequately justified under section 110l.
Grays Ferry Cogeneration PartnershipSchuylkill Station GFCP
and Vicinity Energy Philadelphia Schuylkill Station VicinityThe two facilities hold separate operating permits, but they share a geographic 10 See AMS InterOffice Memo, dated April 20, 2020, which is part of the docket for this rule.

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