[Federal Register Volume 60, Number 8 (Thursday, January 12, 1995)]
[Proposed Rules]
[Pages 2912-2917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-822]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 41-1-6288; FRL-5133-5]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Limited Approval/Limited Disapproval of Reasonably
Available Control Technology Requirements for Major Sources of VOC and
NOX
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing three alternative actions in today's notice
concerning Pennsylvania's State Implementation Plan (SIP) revision,
which contains regulations requiring major sources of volatile organic
compounds (VOC) and nitrogen oxides (NOX) to implement reasonably
available control technology (RACT). The intended effect of this action
is to propose and solicit comment on the range of alternative actions
regarding the Pennsylvania RACT submittal (Pennsylvania Chapters 129.91
through 129.95 and the associated definitions in Chapter 121). The
three alternatives propose either limited approval/limited disapproval
or full disapproval of the Pennsylvania regulations. In addition to the
specific issues related to the Pennsylvania submittal, EPA is also
specifically taking public comment on the general issue of whether RACT
submittals of regulations which allow for future case-by-case SIP
revisions meet the RACT requirements of the Clean Air Act and should be
approved now, for Pennsylvania, and can be approved in the future for
submittals by any state to EPA. EPA's resolution of this issue in this
rulemaking will affect its completeness and approvability
determinations in future case-by-case SIP revisions meet the RACT
requirements of the Clean Air Act and should be approved now, for
Pennsylvania, and can be approved in the future for submittals by any
state to EPA. EPA's resolution of this issue in this rulemaking will
affect its completeness and approvability determinations in future
rulemaking on SIP submittals by other states. These actions are being
taken under section 110 of the CAA.
DATES: Comments must be received on or before February 13, 1995.
ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air,
Radiation, and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at the Air, Radiation,
and Toxics Division, U.S. Environmental Protection Agency, Region III,
841 Chestnut Building, Philadelphia, Pennsylvania 19107; Pennsylvania
Department of Environmental Resources, Bureau of Air Quality Control,
P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, (215) 597-9337, at
the EPA Region III address.
SUPPLEMENTARY INFORMATION: On February 4, 1994, the Pennsylvania
Department of Environmental Resources (PA DER) submitted a revision to
its State Implementation Plan (SIP) for the control of VOC and NOX
emissions from major sources (Pennsylvania Chapters 129.91 through
129.95 and the associated definitions in Chapter 121). This submittal
was amended with a revision on May 3, 1994 correcting and clarifying
the presumptive NOX RACT requirements under Chapter 129.93. The
Pennsylvania SIP revision consists of new regulations which would
require sources which emit or have the potential to emit 25 tons or
more of VOC or NOX per year in Philadelphia or 50 tons or more of
VOC per year in the remainder of the Commonwealth to comply with
reasonably available control technology requirements by May 31, 1995.
Outside of the Philadelphia ozone nonattainment area, sources of
NOX which emit or have the potential to emit 100 tons or more per
year are required to comply with RACT by no later than May 31, 1995.
While the Pennsylvania regulations contain specific provisions
requiring major VOC and NOX sources to implement RACT, the
regulations under review do not contain specific emission limitations
in the form of a specified overall percentage emission reduction
requirement or other numerical emission standards. Instead, the
Pennsylvania regulations contain technology-based or operational
``presumptive RACT emission limitations'' for certain major NOX
sources. For other major NOX sources, and all covered major VOC
sources, the submittal contains a ``generic'' RACT provision. A generic
RACT regulation is one which does not impose specific upfront emission
limitations but instead allows for future case-by-case determinations.
This regulation allows DER to make case-by-case RACT determinations
which are then submitted to EPA as revisions to the Pennsylvania SIP.
This proposed rulemaking is intended to take comment on whether a
generic RACT submittal, such as Pennsylvania's, meets the requirements
of sections 172(c), 182(b)(2), and 182(f) of the Clean Air Act. This
rulemaking is designed to clarify whether EPA will approve RACT
submittals that allow the SIP to be revised with future case-by-case
RACT determinations, or will instead require specific and immediately
ascertainable emission limitations.
Background
Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act
(CAA), Pennsylvania is required to implement RACT for all major VOC and
NOX sources by no later than May 31, 1995. The major source size
is determined by its location, the classification of that area and
whether it is located in the ozone transport region (OTR) which is
established by the CAA. The Pennsylvania portion of the Philadelphia
ozone nonattainment area consists of Bucks, Chester, Delaware,
Montgomery, and Philadelphia Counties and is classified as severe. The
remaining counties in Pennsylvania are classified as either moderate or
marginal nonattainment areas or are designated attainment for ozone.
However, under section 184 of the CAA, at a minimum, moderate ozone
nonattainment area [[Page 2913]] requirements (including RACT as
specified in sections 182(b)(2) and 182(f)) apply throughout the OTR.
Therefore, RACT is applicable statewide in Pennsylvania.
Summary of Regulations
The SIP submittal under review consists of Pennsylvania regulations
codified at 25 Pa. Code Chapters 129.91 through 129.95, and the
associated definitions in Chapter 121.
I. Chapter 121 (Definitions)
The Pennsylvania submittal includes the following new definitions
in Chapter 121: Lowest Achievable Emission Rate (LAER), low NOX
burner with separated overfire air, major NOX emitting facility,
major VOC emitting facility, marginal ozone nonattainment area,
moderate ozone nonattainment area, National Ambient Air Quality
Standard (NAAQS), Oxides of Nitrogen (NOX), serious ozone
nonattainment area, and severe ozone nonattainment area.
II. Chapter 129.91
Chapter 129.91 contains the applicability section, and requires
owners and operators of covered sources (i.e. all major NOX
sources and major VOC sources not covered by the source-specific and
mobile source RACT requirements of 25 Pa. Code Secs. 129.51-129.72,
129.81 and 129.82) to provide PA DER with identification and emission
information by May 16, 1994. Covered sources must submit a written RACT
proposal to PA DER by July 15, 1994. PA DER is to approve, deny or
modify each RACT proposal. Upon notification of approval, covered
sources must implement RACT ``as expeditiously as practicable'' but no
later than May 31, 1995.
Following implementation of RACT, certain large combustion units
are required to determine emission rates through continuous emissions
monitoring or a PA DER approved source testing or modeling program. 25
Pa. Code 129.91(d) provides for the case-by-case RACT determinations to
be approved through the SIP revision process.
III. Chapter 129.92
Chapter 129.92 details the information required in RACT proposals
submitted by these major VOC and NOX sources. Except for sources
that opt for the presumptive RACT emission limitations, the proposal
must include a RACT analysis. The RACT analysis must rank the available
control options in descending order of control effectiveness, provide
information on baseline emissions and emission reduction, and evaluate
the cost effectiveness of each control option. Cost effectiveness of
each control option is required to be calculated using the ``OAQPS
Control Cost Manual'' (Fourth Edition), EPA 450/3-90-006 January 1990
and subsequent revisions. This provision clearly requires sources to
provide relevant information in their RACT proposal, including cost
factors, but does not limit the consideration of factors which
determine what control option is chosen as RACT to cost factors alone.
The Pennsylvania regulation also properly does not specify a dollar per
ton figure as a threshold over which control options are ineligible for
consideration from RACT.
IV. Chapter 129.93 (Presumptive NOX RACT Requirements)
Chapter 129.93 provides certain major NOX sources with an
alternative to case-by-case RACT determinations. Chapter 129.93(b)(1)
specifies that presumptive RACT for coal-fired combustion units with a
rated heat input equal to or greater than 100 million British thermal
units per hour (mmBtu/hr) is the installation of low NOX burners
with separated overfire air. Chapter 129.93(b)(2) provides that
presumptive RACT for combustion units with a rated heat input between
20 mmBtu/hr and 50 mmBtu/hr is an annual adjustment or tuneup of the
combustion process. Chapter 129.93(b)(4) and (5) provides that owners
and operators of oil, gas and combination oil/gas-fired units are
required to keep records of fuel certification and to perform annual
adjustment in accordance with the EPA document ``Combustion Efficiency
Optimization Manual for Operators of Oil and Gas-fired Boilers'',
September 1983, EPA-340/1-83-023, or equivalent PA DER procedures.
For the following groups of sources, Pennsylvania proposes that
RACT is the installation, maintenance and operation of the sources in
accordance with manufacturers specifications. These groups as listed in
Chapter 129.93(c)(1) through (7), are as follows: (1) boilers and
combustion sources with individual rated gross heat inputs of less than
20 mmBtu/hr; (2) combustion turbines with individual heat input rates
of less than 25 mmBtu/hr which are used for natural gas distribution;
(3) internal combustion engines rated at less than 500 brake horsepower
(bhp) which are set and maintaining 4 deg. retarded relative to
standard timing; (4) incinerators or thermal/catalytic oxidizers used
primarily for air pollution control; (5) any fuel burning equipment,
gas turbine or internal combustion engine with an annual capacity
factor of less than 5%, or an emergency standby engine operating less
than 500 hours in a consecutive 12-month period; (6) sources that have
been approved as meeting LAER for NOX emissions since November 15,
1990 with federally enforceable emission limitations; and (7) sources
which have been approved as meeting BACT for NOX emissions since
November 15, 1990 with federally enforceable emission limitations. The
last group of sources are required, however, to meet any more stringent
category-wide RACT emission limitation promulgated by EPA or
Pennsylvania.
V. Chapter 129.94 (NOX Averaging Provisions)
Chapter 129.94 permits major NOX sources to submit a RACT
proposal which includes the averaging of emissions at two or more
facilities provided several conditions are met and the proposal is
approved by EPA as a revision to the Pennsylvania SIP. Among other
conditions, the averaging scheme must require emission caps and
enforceable emission rates at each participating source, telemetry
links between the participating sources, and an agreement that a
violation at one of the participating sources is considered a violation
at all of the participating sources.
VI. Chapter 129.95
Chapter 129.95 is the recordkeeping provision which is applicable
to all VOC and NOX sources in the Commonwealth. This section
clearly requires that records be kept for a period of at least 2 years
and that such records must provide sufficient data and calculations so
that compliance with the applicable RACT requirements can be
demonstrated. This section also requires that sources of VOC and
NOX which claim exemptions from the RACT requirement maintain
records clearly demonstrating their exempt status.
EPA Analysis
I. Definitions
The definitions associated with the Pennsylvania VOC and NOX
RACT regulation and contained in Chapter 121, with the exception of the
definition of low NOX burner with separated overfire air, conform
to the definitions in the Act and to EPA's existing requirements
located in 40 CFR Part 52. Pennsylvania's proposed definition of low
NOX burner with separated overfire air makes the applicability of
this technology to the group of sources specified in the regulation as
``coal-fired [[Page 2914]] combustion units'' unclear. The sources
covered by this requirement include stoker and cyclone combustion units
which do not have ``burners'' as such. It is unclear how the low
NOX burner requirement would apply to these sources. Pennsylvania
may correct this deficiency by clarifying the language in Chapter
129.93 pertaining to ``coal-fired combustion units'' or by amending its
definition (in Chapter 121) of low NOX burners with separated
overfire air to describe the applicable requirements in the situation
where a combustion unit does not have burners.
II. RACT Proposal Requirements
Chapter 129.92 requires sources to provide information on the
emission reduction, technological feasibility, and cost of control
option. This requirement is consistent with EPA's definition of RACT as
the lowest emission limitation that a source is capable of meeting by
the application of control technology that is reasonably available
considering technological and economic feasibility. See NOX
Supplement to the General Preamble on Title I, 57 FR 55620, 55622-23
(Nov. 25, 1992); CTG Supplement to General Preamble on SIP revisions in
Nonattainment areas, 44 FR 53761, 53762 (Sept. 17, 1979); ``Guidance
for Determining Acceptability of SIP regulations in Non-Attainment
Areas,'' Memorandum of Roger Strelow, Assistant Administrator for Air
and Waste Management, December 9, 1976). As noted below, however, the
agency believes that there is a significant issue as to whether
Pennsylvania's generic RACT provision complies with Clean Air Act
requirements.
III. Generic VOC and NOX RACT Requirements
Chapter 129.91 contains Pennsylvania's generic, or ``case-by-
case,'' RACT provisions. Under this approach, the covered sources are
not subject to specific, ``upfront'' (i.e., immediately ascertainable)
emission limitations. Instead, the regulations establish a process for
the state to review and approve individual RACT emission limitations
proposed by the sources, which are then to be submitted to EPA as SIP
revisions. Since the wood furniture emission standards contained in the
existing Pennsylvania regulation have not been federally approved,
Chapter 129.91 states that wood furniture sources are required to
comply with the RACT requirements of Chapter 129.91.
Pennsylvania believes that the case-by-case approach is consistent
with the RACT requirements of the Clean Air Act. Pennsylvania notes
that section 172(c)(1) requires that nonattainment plan provisions
``shall provide for the implementation of [RACT] as expeditiously as
practicable * * *'' Section 182(b)(2) provides that SIP submittals for
moderate ozone nonattainment areas shall ``include provisions to
require the implementation of [RACT],'' and further requires that that
the submittals ``provide for the implementation of required measures as
expeditiously as practicable, but no later than May 31, 1995.''
(Emphasis added.) Pennsylvania asserts that its submittal satisfies
these requirements, as its generic RACT provision requires approved
RACT programs to be implemented by May 31, 1995. Pennsylvania also
believes that its case-by-case approach complies with EPA's definition
of RACT, which directs states to consider the economic and
technological circumstances of the regulated sources.
However, EPA believes that the more reasonable interpretation of
the statutory requirements, and the one that accords with EPA's
longstanding definition of RACT, is that RACT submittals must include
specific, upfront emission limitations for all covered sources, rather
than a process leading to the development of emission limitations at
some later date. EPA defines RACT as the lowest emission limitation
that a source is capable of meeting by the application of control
technology that is reasonably available considering technological and
economic feasibility. See Memorandum of Roger Strelow, Assistant
Administrator for Air and Waste Management, December 9, 1976); NOX
Supplement to the General Preamble on Title I, 57 FR 55620, 55622-23
(Nov. 25, 1992). Section 302 of the Act in turn defines ``emission
limitation'' as ``a requirement * * * which limits the quantity, rate,
or concentration of air pollutants on a continuous basis, * * *, and
any design, equipment, work practice or operational standard
promulgated under this chapter.'' Under Sections 110(a)(2)(A) and
172(c)(6) of the Act, emission limitations must be ``enforceable,'' and
Section 107(d)(3)(E)(iii) further requires that emission reductions be
``permanent and enforceable'' in order to be creditable for attainment
demonstration. Process-oriented generic RACT submittals such as
Pennsylvania's, which do not include specific and ascertainable
emission limitations, do not by themselves provide enforceable
standards. The source becomes subject to federally enforceable
requirements only after EPA approves a subsequent SIP revision
incorporating the source-specific RACT regulations promulgated by the
state.
Furthermore, EPA believes that the May 31, 1995 RACT implementation
deadline specified in Section 182(b)(2) of the Act does not authorize
states to delay the promulgation of RACT standards beyond the SIP
submittal deadline of November 15, 1992. To the contrary, EPA believes
that the extended implementation deadline was designed to give sources
an adequate opportunity to understand and comply with newly-promulgated
RACT standards, and to give EPA an opportunity to review RACT
submittals prior to the implementation date. These objectives may not
be served by Pennsylvania's generic RACT provisions, under which the
Commonwealth will not be in a position to submit case-by-case RACT
emission limitations as SIP revisions until some months after July 15,
1994 (the date that sources are required to submit RACT proposals to PA
DER).
IV. Presumptive NOX RACT Requirements
Pennsylvania gives major NOX sources the option of complying
with the ``presumptive RACT emission limitations'' of Chapter 129.93 as
an alternative to developing and implementing a RACT limit on a case-
by-case basis. The proposed presumptive RACT in Chapter 129.93(c)(3)
for internal combustion engines, which requires the engines to be set
and maintained at 4 deg. retarded relative to standard timing is
acceptable to EPA. Standard timing is typically defined as 2 to 6 deg.
before top dead center. EPA agrees with Pennsylvania's proposal for
internal combustion engines, which is an operation and maintenance
requirement and applicable recordkeeping requirement, and believes that
this may constitute RACT for these sources. Pennsylvania's operation
and maintenance requirements for internal combustion engines, coupled
with the applicable recordkeeping requirements, is acceptable to EPA as
RACT.
EPA has identified deficiencies in the other presumptive RACT
emission limitations of Chapter 129.93. For coal-fired combustion units
(100mmBTU/hour or greater), Chapter 129.93(b)(1) provides that
presumptive RACT is low NOX burners with separated overfire air
control technology. Although EPA accepts Pennsylvania's determination
that this technology constitutes RACT for this source category, the
agency believes it is necessary and appropriate to quantify the
emission reduction required to be obtained through this
[[Page 2915]] technology. Pennsylvania may correct this deficiency with
an additional SIP submittal including enforceable, numerical emission
limitations to be met through the installation of the low NOX
burner and separated overfire air control technology. Coal-fired
combustion units greater than or equal to 100 mmBTU/hr represent a
significant portion of the NOX emission inventory in Pennsylvania.
Establishing specific emission limitations for these sources in the SIP
will allow Pennsylvania to quantify and rely on the expected emission
reductions from these sources for air quality planning purposes. The
proposed presumptive RACT determinations contained in Chapters
129.93(b)(2) and 129.93(c) (1), (2), (4), and (5) are not acceptable to
EPA because Pennsylvania has not provided sufficient technical support
to justify these presumptions as RACT. With proper technical support
and justification, EPA may determine for some sources and source
categories that operation and maintenance requirements alone constitute
RACT. It is not acceptable, however, for the RACT to be defined,
without further elaboration, as ``installation, maintenance and
operation of the source in accordance with manufacturers
specifications.'' Once approved by EPA, a RACT standard cannot be
relaxed by action of a private party. Such a result might occur if RACT
is defined simply as compliance with manufacturer's specifications. In
order to correct these deficiencies in Chapter 129.93(b)(2), (c)(1),
(2), (4), and (5), Pennsylvania must propose and provide adequate
technical support for an emission limitation (which may be an operation
and maintenance requirement, if appropriate) for these sources.
In Chapter 129.93(c) (6) and (7), Pennsylvania is proposing that
for NOX sources for which the state has approved NOX LAER and
BACT determinations since November 15, 1990, the presumptive RACT
emission limitation shall be the approved LAER or BACT determinations.
These provisions allowing sources with approved NOX LAER and BACT
determinations are not acceptable because EPA cannot delegate the
responsibility of approving RACT determinations to a state. Chapter
129.93(c) (6) and (7) allows all NOX sources receiving LAER
determinations since November 1990 and all future LAER determinations
to be declared RACT without EPA approval via the SIP process. RACT
determinations cannot be approved through a permit but rather must be
approved through a SIP revision. EPA cannot agree to LAER
determinations as RACT since those determinations are not now before
the agency for review. Therefore, Pennsylvania must delete the
provisions in Chapter 129.93(c) (6) and (7) pertaining to LAER and BACT
determinations in order to correct this deficiency. The presumptive
RACT proposals in Chapter 129.93 (b) and (c) which require only annual
tune-ups or maintenance procedures simply allow these sources, without
adequate technical justification, to maintain the status quo. The CAA
requires that states in moderate and worse ozone nonattainment areas
and in the OTR control its major NOX sources to RACT levels. Since
the operation and maintenance and tune-up requirements located in
Chapter 129.93 are unsupported, they serve as exemptions from the
NOX RACT requirement in sections 182 and 184 of the CAA.
The provisions in the CAA for NOX exemptions are contained in
section 182(f). In order to exempt major NOX sources from RACT
requirements, Pennsylvania must petition EPA, and receive EPA approval,
for such an exemption under 182(f). EPA's guidance on the criteria for
approval of NOX exemptions under section 182(f) is contained in
the EPA document, ``Guideline for Determining the Applicability of
Nitrogen Oxide Requirements under Section 182(f)'', December 1993.
Pennsylvania has not submitted a petition under section 182(f) but,
even if it had, EPA could not approve the exclusion of major NOX
sources from RACT requirements until approval of such petition under
section 182(f) is granted.
V. NOX Averaging Provision
The NOX averaging provision in Chapter 129.94 is acceptable to
EPA since there is the opportunity for further refinement of the
averaging scheme conditions, and assurance of enforceability, when the
individual averaging proposals are submitted to EPA as SIP revisions.
VI. Recordkeeping
The recordkeeping requirements of Chapter 129.95 are consistent
with EPA requirements.
Proposed Action
As noted above, there is considerable controversy about whether
generic RACT provisions, such as the one under review, comply with the
requirements of Sections 172 (c)(1) and 182 (b)(2). EPA believes that
this notice and comment rulemaking would be an appropriate vehicle to
announce a clear agency position on this issue. Accordingly, EPA is
proposing three alternative actions in today's notice: two forms of
limited approval/limited disapproval, and a full disapproval. Under
Options #1 and #2, the limited approval/limited disapproval options,
EPA has identified certain deficiencies which prevent granting full
approval of this rule under section 110(k)(3) and Part D. Because the
submitted rule is not composed of separable parts which meet all the
applicable requirements of the CAA, EPA cannot grant partial approval
of the rule(s) under section 110(k)(3). However, EPA may grant a
limited approval of the submitted rules under section 110(k)(3) in
light of EPA's authority pursuant to section 301(a) to adopt
regulations necessary to further air quality by strengthening the SIP.
The approval is limited because EPA's action also contains a
simultaneous limited disapproval, due to the fact that the rule does
not meet the section 182 and 184 requirements of Part D due to the
noted deficiencies. EPA is soliciting public comment on each
alternative.
In addition, EPA is soliciting public comment on the approvability
of generic RACT provisions generally. The outcome of this rulemaking
will affect the determination of the completeness and approvability of
generic RACT submittals in future rulemaking actions.
Option #1
The first proposed action, and EPA's preferred option, is a
proposed limited approval/limited disapproval of Pennsylvania VOC and
NOX RACT regulations, Chapters 129.91 through 129.95 with the
associated definitions in Chapter 121. The limited approval would be
for the limited purpose of strengthening the SIP, as the Pennsylvania
regulation imposes requirements on previously unregulated sources.
The limited disapproval would be based on two separate grounds:
(1) A determination that the presumptive NOX emission
limitations cannot be approved as RACT for the reasons described above;
and
(2) A determination that Pennsylvania's generic VOC and NOX
provisions are deficient because they do not contain specific,
immediately ascertainable emission limitations (as defined in Section
302(k) of the CAA) for all applicable sources.
Under Option #1, to correct the deficiencies in the presumptive
NOX RACT emission limitation provisions, EPA believes that
Pennsylvania would have to do the following: [[Page 2916]]
(1) Clarify, and submit as a SIP revision, the applicability of the
presumptive RACT requirement for coal-fired combustion units,
(2) Submit SIP revisions to EPA including the specific emission
limitations resulting from the application of low NOX burners with
separated overfire air for those sources choosing to meet RACT
requirements through Chapter 129.93(b), and,
(3) Submit SIP revisions to EPA, with adequate technical support,
correcting the deficiencies identified in Chapters 129.93 (b)(2),
(c)(1), (2), (4), (5), (6) and (7). To the extent that Pennsylvania
proposes operation and maintenance requirements for these sources, the
state must provide technical support showing that specific numerical
emission limitations are impractical, and demonstrating that the
proposed operation and maintenance requirements qualify as RACT.
To correct the deficiency with the generic RACT provision under
Option #1, Pennsylvania must provide emission limitations, compliance
and monitoring requirements (along with adequate technical
justification for these requirements) for all major VOC and NOX
sources required to implement RACT. To ensure that all sources are
subject to RACT requirements, Pennsylvania must either (1) submit all
case-by-case RACT proposals for all covered sources to EPA for approval
as SIP revisions and certify that there are no other sources required
to implement RACT, or (2) submit a ``default'' RACT emission limitation
that would apply to all sources subject to the generic provision until
EPA approval of a source-specific RACT SIP revision.
EPA has preliminarily determined that this option is correct, but
will review public comment on this and other outcomes before making a
final determination.
Option #2
Under the limited approval/limited disapproval option #2, EPA would
be determining, for the reasons stated above, that the Pennsylvania
regulation with the presumptive control technology requirements can be
approved and disapproved in a limited fashion for the same reasons
given under option #1. However, EPA would be determining under option
#2 that the case-by-case SIP revision provision of the Pennsylvania
submittal meets the RACT requirements of section 182(b)(2) of the CAA
and provides sufficient safeguards to ensure that RACT is implemented
by May 31, 1995. The difference between this option and the first
option is that EPA, while expecting to receive the case-by-case RACT
proposals as specified by the Pennsylvania regulation, would not
consider the lack of submittal of these proposals at this time to be
reason for limited disapproval of the submitted Pennsylvania
regulation. Therefore, under this option, Pennsylvania may correct the
deficiencies in the regulation by:
(1) Clarifying, and submitting as a SIP revision, the applicability
of the presumptive RACT requirement for coal-fired combustion units,
(2) Submitting SIP revisions to EPA including the specific emission
limitations resulting from the application of low NOx burners with
separated overfire air for those sources choosing to meet RACT
requirements through Chapter 129.93(b), and
(3) Submitting SIP revisions to EPA, with adequate technical
support, correcting the deficiencies identified in Chapters
129.93(b)(2), (c)(1), (2), (4), (5), (6) and (7). To the extent that
Pennsylvania proposes operation and maintenance requirements for these
sources, the state must provide technical support showing that specific
numerical emission limitations are impractical, and demonstrating that
the proposed operation and maintenance requirements qualify as RACT.
Option #3
In its third alternative, EPA is proposing to fully disapprove
Chapter 129.91, pertaining to applicability, Chapter 129.92, pertaining
to VOC and NOX RACT submittals, Chapter 129.93, pertaining to
presumptive RACT control technology requirements, Chapter 129.94,
pertaining to NOX RACT averaging provisions, and Chapter 129.95,
pertaining to VOC and NOX source recordkeeping requirements. The
rationale for full disapproval would be that the deficiencies outlined
above pertaining to the presumptive control technology requirements and
the case-by-case SIP revision provisions of the Pennsylvania regulation
are so significant that limited approval/limited disapproval of the
submittal, on the grounds that it strengthens the SIP, is not
warranted.
Under section 179(a)(2), if the Administrator disapproves a
submission under section 110(k) for an area designated nonattainment,
based on the submission's failure to meet one or more of the elements
required by the Act, the Administrator must apply one of the sanctions
set forth in section 179(b) unless the deficiency has been corrected
within 18 months of such disapproval. Section 179(b) provides two
sanctions available to the Administrator: highway funding and offsets.
The 18 month period referred to in section 179(a) will begin on the
effective date of a final disapproval. Moreover, the final disapproval
triggers the federal implementation plan (FIP) requirement under
section 110(c). The sanctions will apply if the Pennsylvania submittal
is disapproved fully or in a limited fashion.
If EPA decides to issue a limited approval/limited disapproval
pursuant to Options #1 or #2, EPA intends to conduct final limited
approval/limited disapproval rulemaking on the Pennsylvania regulation
without further proposal. If Pennsylvania chooses to make modifications
to their RACT regulation, by correcting definitions and adding default
emission limitation requirements for all major VOC and NOX
sources, EPA will conduct rulemaking appropriate to our preliminary
judgment on the approvability of the substance of any subsequent
submittal. Under the limited approval/limited disapproval options, to
the extent that any subsequent Pennsylvania submittal modifying the
February 10, 1994 submittal is made, EPA intends to finalize, without
further proposal, limited approval/limited disapproval of the
regulation that remains unaffected by the subsequent submittal.
If EPA decides to fully disapprove the regulation pursuant to
Option #3, EPA intends to disapprove the submittal without further
proposal unless Pennsylvania either (a) submits all case by-case RACT
determinations to EPA and certifies that there are no other subject
sources, or (b) modifies their regulation to add default emission
limitations for all major VOC and NOX sources.
If Pennsylvania submits a regulation subsequent to this notice and
withdraws the present submittal, EPA intends to propose action on the
new submittal.
EPA has proposed three actions and is specifically soliciting
comment on these actions and the rationale provided as the basis for
each of those actions. A consequence of adopting options #1 or #3 in
the final rulemaking is that future RACT submittals with generic
provisions may be deemed inadequate to meet the RACT requirements of
section 182(b)(2). Such a decision will significantly impact future
determinations as to whether such generic RACT regulation submittals
meet the completeness criteria in 40 CFR Part 51 Appendix V. Further
discussion of the Pennsylvania submittal and rationale for these
proposals is contained in the [[Page 2917]] accompanying technical
support document.
Through the first two proposal options, EPA is proposing a limited
approval of Chapters 129.91 through 129.95 and the associated
definitions in Chapter 121 which was submitted on February 10, 1994,
including the corrective revision submitted on May 3, 1994.
As noted, EPA's preliminary review of this submittal indicates that
the Pennsylvania generic VOC and NOx RACT regulation submitted on
February 10, 1994 and the corrective revision submitted on May 3, 1994
should be approved/disapproved in a limited fashion, under the
rationale for option #1; to strengthen the Pennsylvania SIP and to
allow Pennsylvania to correct the deficiencies in the RACT regulation
cited above. EPA has proposed three actions and is specifically
soliciting comment on these actions and the rationale provided as the
basis for each of those actions. Public comments on the issues
discussed in this notice or on other relevant matters will be
considered before taking final action. Interested parties may
participate in the Federal rulemaking procedure by submitting written
comments to the EPA Regional office listed in the Addresses section of
this notice.
Under the limited approval/limited disapproval options, EPA has
identified certain deficiencies which prevent granting full approval of
this rule under section 110(k)(3) and Part D. Also, because the
submitted rule is not composed of separable parts which meet all the
applicable requirements of the CAA, EPA cannot grant partial approval
of the rule(s) under section 110(k)(3). However, EPA may grant a
limited approval of the submitted rule(s) under section 110(k)(3) in
light of EPA's authority pursuant to section 301(a) to adopt
regulations necessary to further air quality by strengthening the SIP.
The approval is limited because EPA's action also contains a
simultaneous limited disapproval, due to the fact that the rule does
not meet the section 182 and 184 requirements of Part D because of the
noted deficiencies. Thus, in order to strengthen the SIP, EPA is
proposing a limited approval of Pennsylvania's submitted Chapters
129.91 through 192.95 and associated definitions in Chapter 121 under
section 110(k)(3) and 301(a) of the CAA.
At the same time, EPA is also proposing a limited disapproval of
this rule because it contains deficiencies, and, as such, the rule does
not fully meet the requirements of Part D of the Act. Under section
179(a)(2), if the Administrator disapproves a submission under section
110(k) for an area designated nonattainment, based on the submission's
failure to meet one or more of the elements required by the Act, the
Administrator must apply one of the sanctions as discussed above.
Except to the extent that EPA proposes to use this rulemaking as a
vehicle to announce an agency policy on generic RACT submittals,
nothing in this action should be construed as permitting or allowing or
establishing a precedent for any future request for revision to any
state implementation plan. Each request for revision to the state
implementation plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under sections 110 and 301, and subchapter I, part D
of the CAA do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-State relationship
under the CAA, preparation of a flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).
EPA's disapproval of the State request under section 110 and
subchapter I, part D of the CAA does not affect any existing
requirements applicable to small entities. Any pre-existing federal
requirements remain in place after this disapproval. Federal
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not
impose any new Federal requirements. Therefore, EPA certifies that this
disapproval action does not have a significant impact on a substantial
number of small entities because it does not remove existing
requirements and impose any new Federal requirements.
This action has been classified as a Table 2 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by
an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant
Administrator for Air and Radiation. The OMB has exempted this
regulatory action from E.O. 12866 review.
The Administrator's decision to approve or disapprove the
Pennsylvania SIP revisions, pertaining to the VOC and NOX RACT
regulations, will be based on whether it meets the requirements of
section 110(a)(2)(A)-(K) and part D of the Clean Air Act, as amended,
and EPA regulations in 40 CFR Part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 27, 1994.
W.T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. 95-822 Filed 1-11-95; 8:45 am]
BILLING CODE 6560-50-P
