[Federal Register Volume 63, Number 55 (Monday, March 23, 1998)]
[Rules and Regulations]
[Pages 13789-13795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7306]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 041-4069; FRL-5977-4]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania Conditional Limited Approval of the Pennsylvania VOC and
NOX RACT Regulation
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is granting conditional limited approval of a State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Pennsylvania. This revision establishes and requires the implementation
of reasonably available control technology (RACT) on all major sources
of volatile organic compounds (VOCs) and nitrogen oxides
(NOX). The intended effect of this action is to grant
conditional limited approval to this Pennsylvania RACT regulation.
EFFECTIVE DATE: This final rule is effective on April 22, 1998.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
841 Chestnut Building, Philadelphia, Pennsylvania 19107; the Air and
Radiation Docket and Information Center, U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460; and Pennsylvania
Department of Environmental Protection, Bureau of Air Quality, P.O. Box
8468, 400 Market Street, Harrisburg, Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, (215) 566-2180, at
the above EPA Region III address.
SUPPLEMENTARY INFORMATION:
Background
On August 12, 1997 (62 FR 43134), EPA published a notice of
proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR
proposed conditional limited approval of the Pennsylvania RACT
regulation for NOX and VOC sources. (Pennsylvania Chapters
129.91 through 129.95). The formal SIP revision was submitted by the
Pennsylvania Department of Environmental Protection (PA DEP, then known
as the Pennsylvania Department of Environmental Resources) on February
4, 1994. This submittal was amended with a revision on May 3, 1994
correcting and clarifying the presumptive NOX RACT
requirements under Chapter 129.93(b)(4). The submittal was again
amended on September 18, 1995 by the withdrawal from EPA consideration
of provisions 129.93(c)(6) and (7) pertaining to best available control
technology (BACT) and lowest achievable emission rate (LAER). A
description of Pennsylvania's SIP revision and EPA's rationale for
granting it conditional limited approval were provided in the NPR and
shall not be restated here.
[[Page 13790]]
Comments Received on EPA's Proposed Action
In response to the August 12, 1997 proposed action, EPA received
comments from PADEP. The PADEP comments were the only ones received.
The comments relevant to the rulemaking and EPA's responses follow
below. A more detailed discussion can be found in the Technical Support
Document (TSD) prepared on this rulemaking. A copy of the TSD may be
obtained from the EPA Regional Office listed in the ADDRESSES section
of this document.
Comment 1
Pennsylvania states that the Clean Air Act (the Act) RACT
requirements do not specify that ``upfront'' emission limitations for
each source or source category must be included in a RACT SIP. The
Pennsylvania RACT regulation requires the submission of RACT plans,
sets forth a requirement to perform a top-down RACT analysis and
requires implementation of RACT by no later than May 31, 1995.
Response 1
The Act requires the State to submit RACT rules for major sources
not covered by a control techniques guideline (CTG) by November, 15,
1992 and for sources to implement RACT by May 31, 1995. Implementation
of RACT would require that specific requirements are set forth,
including appropriate emission limitation requirements and monitoring
and recordkeeping requirements. The Pennsylvania RACT regulation, while
strengthening the SIP by establishing the requirement for sources to
submit RACT plans, general procedures to determine RACT, and a
schedule, does not provide the necessary specific requirements for each
subject source so that RACT can be implemented by May 31, 1995. Nor
does it provide the certainty in terms of emission reductions that will
be achieved to enable the State to perform the analyses required for an
attainment demonstration.
Without certainty as to the control requirements that would apply
to sources, EPA cannot determine at this point in time whether all
major non-CTG sources are subject to appropriate and enforceable RACT
requirements. For that reason, EPA has long taken the position that
RACT rules may not merely be procedural rules that require the source
and the State to later agree to an appropriate level of control; rather
the rules submitted to meet the RACT requirement of the Act must
identify the appropriate level of control for source categories or for
individual sources. EPA does not believe that it can fully approve the
Commonwealth's plan as providing for RACT in accordance with section
182(b) unless and until the Agency can review the State-adopted control
requirements to determine whether such controls are ``reasonably
available.'' EPA was upheld on this interpretation of RACT in State of
Michigan v. Thomas, 805 F.2d 176 (6th Cir. 1986) (interpreting the RACT
requirement in section 172 of the pre-amended CAA). However, although
EPA does not believe that this procedural rule, standing alone, meets
the RACT requirements of section 182(b), EPA does believe that it will
help the State achieve healthier air by requiring sources to identify
and implement control requirements. Therefore, while EPA cannot fully
approve this rule as meeting the section 182(b) RACT requirement, the
Agency does believe that it can and should be approved into the SIP.
Consequently, EPA is granting limited approval to the Pennsylvania RACT
regulation on the basis that it strengthens the SIP.
Comment 2
Pennsylvania states that by accepting the Pennsylvania RACT
regulation as complete, EPA has determined that the case-by-case
process contained within that regulation meets the requirements of the
Act. Pennsylvania further states that the completeness criteria include
a requirement for numeric emission limitations so that if EPA believes
that emission limitations were appropriate for any of the RACT source
categories, it should have found the Pennsylvania RACT submittal
incomplete. By not finding the Pennsylvania submittal incomplete, EPA
has accepted the Pennsylvania regulation as not needing numeric
emission limitations.
Response 2
The completeness review and the approvability determination are two
separate processes as explicitly recognized in the Clean Air Act. The
completeness criteria in 40 CFR Part 51, Appendix V (adopted pursuant
to section 110(k)(1)(A)) provide the means to ensure that the
administrative requirements of SIP submittals are met and that all the
information necessary to judge approvability of the SIP submittal is
included in the submittal. The Act provides that after EPA determines a
submission is complete or it is deemed complete, then it provides for
EPA to approve or disapprove the submission (section 110(k)(2) and
(3)). Consequently, a determination of completeness does not presume
approvability. The criteria used to judge approvability of the
Pennsylvania RACT regulation are not the same as the completeness
criteria. EPA's determination of completeness regarding the
Pennsylvania RACT regulation simply meant that EPA had the materials
necessary to make a decision as to approvability of the regulation. In
the August 12, 1997 proposed rulemaking notice EPA provided the
rationale for its proposed decision regarding the approvability of the
Pennsylvania RACT regulation.
Theoretically, EPA could have found the Pennsylvania RACT SIP
submittal incomplete because the Part 51 Appendix V completeness
criteria at 2.2(g) states that the submittal should contain evidence of
emission limitations, among other elements. There are two compelling
reasons why EPA did not make such a finding and why such a rigid
interpretation of the completeness criteria is counterproductive.
First, the completeness criteria in Appendix V must be applied to all
SIP submittals where numeric emission limitations are not expected or
required. Such SIP submittals include air quality plans (attainment
demonstrations, rate of progress plans) and the maintenance plans that
must accompany requests to redesignate areas. The rigid interpretation
of the completeness criteria could warrant finding these types of SIP
submittals incomplete. It is not the intent of the Appendix V
completeness criteria to reject as incomplete all SIPs that do not
contain numeric emission limitations. Second, it is possible that RACT
for certain sources and source categories could consist of requirements
that do not specifically include numeric emission limitations, but
instead have other kinds of emission limitations. For instance, RACT
can consist of operational requirements therefore, EPA did not apply
the completeness criteria rigidly to exclude from consideration any
RACT submittal that did not contain numeric emission limitations for
every subject source. Furthermore, even if EPA was in error finding the
Pennsylvania submission incomplete, EPA would not be precluded from
finding a deficiency in the submittal package in the approval process.
Comment 3
Pennsylvania states that section 182 of the Act requires provisions
to provide for RACT, but not specifically for numeric emission
limitations. Furthermore, section 110 provides for numeric emission
limitations where
[[Page 13791]]
necessary, indicating that there are times when emission limitations
are not necessary.
Response 3
Numeric emission limitations are not a requirement for every SIP
submittal. For SIPs such as emission inventory SIPs or maintenance
plans, emission limitations do not make sense and are not required.
This, however, does not preclude finding that emission limitations are
appropriate and necessary for certain SIPs such as those establishing
RACT requirements for certain source categories.
Comment 4
EPA's definition and interpretation of RACT expressly authorizes
case-by-case RACT determinations. If EPA has changed its position, it
has an obligation to revoke all prior inconsistent SIP approvals, issue
SIP deficiency notices and subject all other states to the same rules
as being applied in Pennsylvania.
Response 4
EPA's RACT definition recognizes that RACT may be determined on a
case-by-case basis. However, under the Act, EPA is required to issue
CTGs, which establish presumptive RACT requirements for various source
categories. States generally use the CTGs to adopt RACT regulations
that apply based on source categories but may choose to develop source-
specific RACT rules if compelling reasons exist. For source categories
not covered by a CTG, States may develop a general RACT requirement or
they can develop RACT on a source-by-source basis. EPA's acknowledgment
of the appropriateness of case-by-case RACT determinations does not
mean that process-oriented RACT regulations, such as Pennsylvania's,
meet the section 182(b)(2) requirements of the Act. Rather, for the
reasons provided in response 1, above, EPA believes that the case-by-
case RACT submissions must be submitted and approved in order to
determine that the State has met the RACT requirement.
Comment 5
EPA states in its proposal that the Section 129.93 presumptive
requirements for large coal-fired combustion units constitutes RACT for
this source category. Therefore, EPA has accepted a control technology
requirement alone as RACT and Pennsylvania should receive full approval
for submission of RACT for this source category.
Response 5
EPA has stated, and Pennsylvania acknowledged in its September 23,
1996 letter, that even those sources subject to the presumptive
requirement in Pennsylvania's Chapter 129.93 must submit RACT proposals
to EPA for SIP approval. Pennsylvania Chapter 129.93 contains a
presumptive requirement of low-NOX burners with separate
overfired air for coal-fired boilers with rated heat inputs of equal to
or greater than 100 mmBTU/hr, but does not provide any numeric emission
limitations. The condition that Pennsylvania must meet in submitting
all sources subject to the Chapter 129.93 low-NOX burner and
separate overfired air control technology requirement reflects EPA's
consistent position that control technology alone for these kinds of
sources is not RACT. The submittal of these source RACTs as case-by-
case RACT determinations using the procedures contained in
Pennsylvania's RACT regulation (Chapter 129.91 and 129.92), in
conjunction with EPA approval of these RACT proposals, will satisfy the
section 182 RACT requirements of the Act for this group of sources. EPA
and the Pennsylvania regulations define RACT as ``the lowest emission
limit that a particular source is capable of meeting by the application
of control technology that is reasonably available considering
technological and economic feasibility'' (December 9, 1976 memorandum
from Roger Strelow, Assistant Administrator for Air and Waste
Management, to EPA Regional Adminstrators and 25 Pa. Code, Subpart C
Article III, Chapter 121). Installation of control technology alone
does not ensure that the lowest emission limits are being achieved.
Consequently, in the ideal case, RACT for all sources would include
numeric emission limitations and a control technology requirement. The
practical approach, however, warrants obtaining numeric emission
limitations only where technically and economically feasible. Numeric
emission limitations are necessary and appropriate for coal-fired
boilers rated 100 mmBTU/hr. As a source category, these
coal-fired boilers, almost exclusively utility boilers, are some of the
largest NOX emitting sources in the Commonwealth and in the
Northeast United States. Establishment of numeric emission limitations
at emission sources where operating and maintenance conditions can
significantly affect the amount of emissions is prudent. Large coal-
fired combustion units 100 mmBTU/hr, even with emission
controls, can emit NOX at significantly different emission
rates if operation and maintenance of the units is not closely
monitored. Since methods to accurately measure NOX emissions
from these large combustion units exist, compliance with numeric
emission limitations is feasible. The operating circumstances, size and
impact of these large boilers, together with the ability to accurately
measure emissions, warrants the use of numeric emission limitations.
Smaller combustion sources generally do not impact NOX
emissions to as large an extent as the large coal-fired combustion
units. Numeric emission limitations on smaller units would be ideal,
although requiring such numeric emission limitations on small
combustion units is generally difficult because of the lack of accurate
monitoring methods. Consequently, numeric emission limitations are
appropriate to include in the RACT requirements for some sources, but
are potentially infeasible as RACT for other types of sources.
Pennsylvania's Chapter 129.93 (b) does not contain additional
requirements that EPA has determined are appropriate for this source
category, including numeric emission limitations. In the proposed
rulemaking notice EPA clearly identified this deficiency in Section
129.93 (62 FR 43134). As EPA stated in the proposal, a technology
requirement alone for this source category does not constitute RACT.
EPA's conditional limited approval is based on the determination that
Pennsylvania's process-oriented SIP does not fully satisfy the section
182(b)(2) RACT requirement of the Act.
Comment 6
Pennsylvania's large combustion units using continuous emission
monitoring systems will be evaluated by the Department and will have
their emission limitations submitted to EPA and implemented through the
state operating permit program or through the Title V permit program,
making these emission limitations federally enforceable. EPA and the
public will have an opportunity to comment on those emission
limitations at that time.
Response 6
EPA is required to determine through the SIP approval process
whether the state has established emission limitations and other
applicable requirements that meet RACT. The EPA review procedures,
under the permitting process for the state operating permit program or
the Title V program, provide for the federal enforceability of emission
limitations. They are not a substitute for the kind of EPA approval
required by Title I for establishing initial requirements for SIPs.
Opportunity for
[[Page 13792]]
EPA to comment on a permit with a limited time period for veto are not
sufficient for EPA to fulfill its statutory obligation to determine
whether applicable requirements meet the RACT requirements of the Act.
The Title V program is a means to incorporate all of the applicable
requirements and not a mechanism to establish initial requirements.
Process-oriented SIPs such as Pennsylvania's do not contain the
necessary underlying RACT control requirements.
Comment 7
Pennsylvania states that it has submitted RACT proposals to EPA for
all sources subject to the Pennsylvania regulation section 129.93(b)(1)
requirement as of September 23, 1996. Pennsylvania further states that
EPA agreed that if the sources are located in Allegheny or Philadelphia
Counties, the respective local air regulatory agencies are responsible
for these RACT proposals and that EPA would limit the applicability of
Clean Air Act sanctions to those jurisdictions. Pennsylvania states
that if EPA grants conditional as opposed to full approval of the RACT
SIP, then this rulemaking action should reflect the agreements
regarding Philadelphia and Allegheny County.
Response 7
As an initial matter, Pennsylvania is mistaken in its assertion
that it had submitted RACT proposals for all sources subject to section
129.93(b)(1) by September 23, 1996. Section 129.93 (b)(1) pertains to
those coal-fired combustion units rated at greater than or equal to 100
million BTU/hr. Since September 23, 1996, PADEP has made SIP submittals
to EPA for sources subject to section 129.93(b)(1). Further, EPA is
aware that there remain sources in Pennsylvania subject to 129.93(b)(1)
for which PADEP still has not submitted RACT proposals to EPA.
EPA's regulation for the automatic imposition of sanctions pursuant
to section 179(a) of the Act provides that sanctions will be applied in
the ``affected area.'' 40 CFR 52.31; see 59 FR 39832, 39854 (Aug. 4,
1994). The affected area is defined as the geographic area subject to
the relevant Act requirement. 40 CFR 52.31(b)(3). Under section 182(b),
the relevant Act requirement at issue, Pennsylvania must submit RACT
rules for each nonattainment area. Therefore, it is the nonattainment
area as a whole that is the area subject to the relevant Act
requirement. Consequently, if PA DEP fails to complete its SIP
commitments for any portion of the Philadelphia or Pittsburgh
nonattainment areas, EPA must apply section 179 sanctions to the entire
affected nonattainment area.
Comment 8
Pennsylvania disagrees with EPA's proposed de minimis methodology
for purposes of determining when the Pennsylvania RACT regulation can
be converted to a full approval action. Pennsylvania states that many
sources have been added to the 1990 emission inventory since 1990 and
that EPA should allow the Department to use either 1990 or a more
recent inventory for this de minimis calculation.
Response 8
EPA formulated its policy for de minimis (as the term relates to
the conversion of a generic RACT rule to full SIP approval) based on
the 1990 emission inventory because this inventory is public, required
to go through public notice and comment before changes are made to it,
and represents the baseline of emissions used for air quality planning
purposes. The Act specifies the use of the 1990 emission inventory for
air quality planning purposes in order to provide for an established
baseline from which emission reductions can be determined. If
Pennsylvania has discovered additional sources or other inaccuracies in
the 1990 emission inventory, it should correct those omissions and
inaccuracies through the processes required to change the 1990 emission
inventory. Using a later calendar year for the de minimis calculation
raises issues related to the accessibility, verifiability, and
consistency of the data. For purposes of determining whether a de
minimis amount of emissions remain to be covered by specific SIP
approved RACT requirements in converting the rulemaking action from
conditional to limited approval and from limited approval to full
approval, and in order allow for consistent comparison, the baseline of
emissions that is used must be public, verifiable, and consistent.
Comment 9
Pennsylvania states that EPA's failure to address comments
submitted to the January 12, 1995 proposed rulemaking is inappropriate.
Response 9
The August 12, 1997 proposed rulemaking for the Pennsylvania
generic VOC and NOX RACT regulation withdraws the January
12, 1995 proposal and proposes conditional limited approval for the
Pennsylvania RACT regulation. The August 1997 proposal completely
replaces the January 1995 proposal. In the August 1997 notice, EPA
stated that comments made to the January 1995 proposal would not be
addressed and invited all interested parties to submit comments on the
August 1997 proposal. Only Pennsylvania submitted comments on the
August 1997 proposal. In addition, the January 1995 proposed rulemaking
actions were different from the August 1997 rulemaking action. EPA
could not presume that comments made for one type of rulemaking action
would be appropriate for another rulemaking action. If interested
parties that commented on the January 1995 proposal believed that the
same comments applied to the August 1997 proposal, the comments should
have been resubmitted in response to the August 1997 proposal. There is
no statutory obligation for EPA to respond to comments on a proposed
rule where EPA has withdrawn the proposed rule and is not, therefore,
taking final action on that proposal.
Comment 10
Pennsylvania believes that EPA should fully and unconditionally
approve the Pennsylvania RACT regulation. In the alternative, EPA
should grant conditional approval based on Pennsylvania meeting the
conditions of its September 23, 1996 commitment letter to EPA.
Response 10
For the reasons provided in response to the previous comments, EPA
believes it cannot fully approve Pennsylvania submission nor can it
grant a conditional approval. Sections 182(b)(2) and 184(b)(4) of the
Act require that Pennsylvania implement RACT for all major stationary
sources. EPA believes, however, as stated in a November 7, 1996 policy
memo, that it is possible to eventually fully approve the state generic
RACT regulations like Pennsylvania's provided certain criteria are met.
These criteria are described in detail in the August 12, 1997 proposed
rulemaking notice (62 FR 43134) and summarized below in the Terms of
Conditional Approval and Conversion of Limited Approval to Full
Approval sections. This policy provides that such approval does not
exempt any major source from RACT requirements but instead provides for
a de minimis deferral of RACT. EPA fully expects every major VOC and
NOX source to implement RACT as required under sections 182
and 184 of the Act and for the state to submit those rules for approval
into the SIP. Specifically, the November 7, 1996 EPA policy memorandum
from Sally Shaver,
[[Page 13793]]
Director, Air Quality Strategies and Standards Division, to all
Regional Air Division Directors, sets forth the methods for determining
whether all but a de minimis amount of emissions are covered by a RACT
rule. For VOC sources subject to the generic RACT regulation under
consideration (i.e., non-CTG VOC sources), the state would need to
submit, and then EPA must approve, the RACT requirements for all but a
de minimis amount of VOC source emissions. The method used to determine
whether a state has met the VOC de minimis deferral level is to compare
the baseline of 1990 non-CTG VOC emissions with those non-CTG VOC
emissions that have yet to have RACT approved into the SIP. Generally,
EPA does not expect to defer more than 5% of the emissions calculated
in the above manner in order to fully approve a state generic VOC RACT
regulation. For NOX sources, the de minimis deferral level
is determined by using the 1990 NOX emissions, excluding the
utility \1\ NOX emissions. The remaining 1990 non-utility
emissions are then compared with the amount of non-utility
NOX emissions that have yet to have RACT approved into the
SIP. Generally, EPA expects all utility RACTs to be approved prior to
application of this de minimis deferral policy and possible conversion
of the generic RACT conditional approval to full approval. As with VOC
source RACT, EPA does not expect to defer more than 5% of the emissions
calculated in this manner in order to fully approve a state generic
NOX RACT regulation. States that have used a de minimis
argument to exempt certain NOX sources or groups of
NOX sources from RACT requirements, or from making a
demonstration that what is being required is RACT, cannot again apply
the use of a de minimis rationale with respect to conversion of their
generic RACT rules to full approval. For these states, conversion of
the generic RACT rule to full approval requires submittal and approval
of all the remaining RACT subject sources. EPA continues to believe
that the November 1996 policy is appropriate for addressing rulemaking
options for process-oriented SIPs. Consequently, through this rule EPA
is requiring that to receive full approval of its generic
NOX RACT regulation Pennsylvania will need to have had all
utility RACT determinations approved by EPA and all but a de minimis
level of non-utility RACT determinations approved into the SIP. Full
approval of Pennsylvania's generic RACT regulation in accordance with
this policy does not change Pennsylvania's statutory obligation to
implement RACT for all major sources. No major VOC or NOX
source is being exempted from RACT requirements through today's
rulemaking.
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\1\ ``Utility'' is defined as in 40 C.F.R. Part 72.2 (Acid Rain
Program General Provisions--Definitions).
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Terms of the Conditional Approval
The Commonwealth's September 23, 1996 commitment letter includes
the following conditions: Case-by-case RACT proposals for all major VOC
and NOX sources must be submitted as case-by-case SIP
revisions including those sources covered by 25 Pa. Code
Sec. 129.93(b)(1) by no later than [INSERT date 12 months after the
effective date of EPA final conditional approval]. Furthermore, by no
later than [INSERT date 12 months after the effective date of EPA final
conditional approval], Pennsylvania will: (1) certify that it has
submitted case-by-case RACT proposals for all sources subject to the
RACT requirements currently known to PADEP; or (2) demonstrate that the
emissions from any remaining subject sources represent a de minimis
level of emissions, as defined in this rulemaking document.
Once EPA has determined that the Commonwealth has satisfied this
condition, EPA shall remove the conditional nature of this approval and
the Pennsylvania VOC and NOX regulations SIP revision will,
at that time, retain limited approval status. Should the Commonwealth
fail to meet the condition specified above, the final conditional
limited approval of the Pennsylvania VOC and NOX RACT
regulation SIP revision shall convert to a disapproval.
Conversion From Limited Approval to Full Approval
Conversion of the Pennsylvania VOC and NOX RACT
regulation to full approval will occur when EPA has approved all of the
case-by-case RACT proposals as SIP revisions.
As indicated previously, other specific requirements of and the
rationale for EPA's proposed action are explained in the NPR and will
not be restated here. Further details are contained in the TSD which
may be obtained from the EPA Region III office listed in the ADDRESSES
section above.
Final Action
EPA is granting conditional limited approval to the Pennsylvania
VOC and NOX RACT regulation as a revision to the
Pennsylvania SIP.
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.
Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866.
B. Regulatory Flexibility Act
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 and conditional approvals of SIP submittals under
section 110 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, EPA certifies 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).
If the conditional approval is converted to a disapproval under
section 110(k)(3), based on the State's failure to meet the commitment,
it will not affect any existing state requirements applicable to small
entities. Federal disapproval of the state submittal does not affect
its state-enforceability. Moreover, EPA's disapproval of the submittal
does not impose a new Federal requirement. Therefore, EPA certifies
that a conversion of this action to a disapproval action does not have
a significant impact on a substantial number of small entities because
it does not remove existing requirements nor
[[Page 13794]]
does it substitute a new federal requirement.
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under Section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that the approval action being promulgated does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
D. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is a
``major rule'' as defined by 5 U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action, pertaining to the conditional limited
approval of the Pennsylvania VOC and NOX RACT regulation,
must be filed in the United States Court of Appeals for the appropriate
circuit by May 22, 1998. Filing a petition for reconsideration by the
Administrator of this final rule does not affect the finality of this
rule for the purposes of judicial review nor does it extend the time
within which a petition for judicial review may be filed, and shall not
postpone the effectiveness of such rule or action. This action
pertaining to the conditional limited approval of the Pennsylvania
generic VOC and NOX RACT regulation may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2).)
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.
Dated: March 4, 1998.
W. Michael McCabe,
Regional Administrator, Region III.
Chapter I, title 40, of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart NN--Pennsylvania
2. Section 52.2020 is amended by adding paragraph (c)(129) to read
as follows:
Sec. 52.2020 Identification of plan.
* * * * *
(c) * * *
(129) Limited approval of revisions to the Pennsylvania
Regulations, Chapter 129.91 through 129.95, pertaining to VOC and
NOX RACT submitted on February 4, 1994 by the Pennsylvania
Department of Environmental Resources (now known as the Pennsylvania
Department of Environmental Protection):
(i) Incorporation by reference.
(A) Letter of February 4, 1994 from the Pennsylvania Department of
Enviromental Resources transmitting Pennsylvania VOC and NOX
RACT regulations, Chapter 129.91 through 129.95.
(B) Pennsylvania Reasonably Available Control Technology
Requirements for Major Stationary Sources of Volatile Organic Compounds
and Oxides of Nitrogen regulation, Chapter 129.91 through 129.95,
effective on January 15, 1994, except for Chapter 129.93(b)(4).
(C) Letter of May 3, 1994 from the Pennsylvania Department of
Environmental Resources amending the Pennsylvania regulation, Chapter
129.93 (b)(4).
(D) Pennsylvania Reasonably Available Control Technology
Requirements for Major Stationary Sources of Volatile Organic Compounds
and Oxides of Nitrogen regulation, Chapter 129.93 (b)(4), effective
April 23, 1994.
(E) Letter for September 18, 1995 from the Pennsylvania Department
of Environmental Protection amending Pennsylvania's February 4, 1994
submittal to EPA by withdrawing Chapter 129.93(c)(6) and (7) from EPA
consideration.
(ii) Additional material.
(A) Remainder of February 4, 1994 State submittal.
(B) Letter of September 23, 1996 from Pennsylvania Department of
Environmental Protection agreeing to meet certain conditions by no
later than 12 months after the publication of the final conditional
rulemaking. These conditions are:
(1) Pennsylvania certify that it has submitted case-by-case RACT
proposals for all sources subject to the RACT requirements (including
those subject to 25 Pa. Code section 129.93(b)(1)) currently known to
PADEP; or
(2) Demonstrate that the emissions from any remaining subject
sources represent a de minimis level of emissions, as defined in the
final rulemaking.
3. Section 52.2023 is amended by adding paragraph (k) to read as
follows:
Sec. 52.2023 Approval status.
* * * * *
(k) Conditional limited approval of revisions to the Pennsylvania
Regulations, Chapter 129.91 through 129.95, pertaining to VOC and
NOX RACT submitted on February 4, 1994 and amended on May 3,
1994 by the Pennsylvania Department of Environmental Resources (now
known as the Pennsylvania Department of Environmental Protection).
4. Section 52.2026 is amended by adding paragraph (e) to read as
follows:
Sec. 52.2026 Conditional approval.
* * * * *
(e) Revisions to the Pennsylvania Regulations, Chapter 129.91
through 129.95, pertaining to VOC and NOX RACT submitted on
February 4, 1994 and amended on May 3, 1994 by the Pennsylvania
Department of Environmental Resources (now known as the Pennsylvania
Department of Environmental Protection) is conditionally approved.
Pennsylvania must meet the following conditions by no later than 12
months after the
[[Page 13795]]
publication of the final conditional rulemaking. These conditions are:
(1) Pennsylvania certify that it has submitted case-by-case RACT
proposals for all sources subject to the RACT requirements (including
those subject to 25 Pa. Code section 129.93(b)(1)) currently known to
PADEP; or
(2) Demonstrate that the emissions from any remaining subject
sources represent a de minimis level of emissions, as defined in the
final rulemaking.
[FR Doc. 98-7306 Filed 3-20-98; 8:45 am]
BILLING CODE 6560-50-P
