[Federal Register Volume 63, Number 83 (Thursday, April 30, 1998)]
[Rules and Regulations]
[Pages 23668-23673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11507]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA058-4070; FRL-5997-8]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Disapproval of the NOX RACT Determination for
Pennsylvania Power Company
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is disapproving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Pennsylvania. The intended effect of
this action is to disapprove the nitrogen oxide (NOX)
reasonably available control technology (RACT) determination submitted
by the Pennsylvania Department of Environmental Protection (PADEP for
Pennsylvania Power Company--New Castle plant (PPNC), located in
Lawrence County, Pennsylvania.
DATES: This final rule is effective on June 1, 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; 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 EPA Region III address above.
SUPPLEMENTARY INFORMATION: On August 18, 1997 (62 FR 43959), EPA
published a notice of proposed rulemaking (NPR) for the Commonwealth of
Pennsylvania. The NPR proposed disapproval of the NOX RACT
determination for Pennsylvania Power's New Castle plant (PPNC), located
in Lawrence County. The formal SIP revision was submitted by
Pennsylvania Department of Environmental Resources (now the
Pennsylvania Department of Environmental Protection or PADEP) on April
19, 1995. EPA is now taking final action to disapprove the RACT
determination submitted by PADEP for PPNC. This action is being taken
under section 110 of the Clean Air Act.
I. Background
On April 9, 1996 EPA originally published a direct final rulemaking
approving this RACT determination. Opportunity for public comment was
provided, however, and on May 8, 1996, the New York Department of
Environmental Conservation (NYDEC) submitted a letter stating that it
intended to adversely comment on EPA's proposed approval of PADEP's
RACT determination for PPNC. Because of New York's letter of intent,
the direct final action converted to a proposed action in accordance
with established Federal rulemaking procedures. On June 11, 1996, EPA
published a notice
[[Page 23669]]
withdrawing the effective date of the original direct final rule for
Pennsylvania Power--New Castle, among other facilities. (61 FR 29483).
The NYDEC submitted adverse comments to EPA on June 28, 1996 in
response to the converted proposed rulemaking notice published on April
9, 1996. The NYDEC stated that they disagreed with EPA's RACT
determination for the boilers at PPNC and believe that there are
technically and economically feasible controls for those boilers that
should be determined to be RACT. As requested, EPA extended the comment
period on its original April 9, 1996 proposed approval twice; the last
time until August 2, 1996 (61 FR 29483 and 61 FR 37030). On July 15,
1996 and August 1, 1996, PPNC submitted comments to EPA addressing
issues raised by NYDEC. On August 2, 1996, Pennsylvania DEP submitted
comments to EPA stating that EPA should proceed with final approval of
the PPNC RACT determination.
After considering all the comments submitted, EPA withdrew the
proposed approval and instead, on August 18, 1997, proposed disapproval
of the operating permit submitted by PADEP on April 19, 1995 intended
to impose RACT for PPNC.
II. Comments Received on the August 18, 1997 Proposed Disapproval
In response to the August 18, 1997 proposed disapproval of PADEP's
RACT determination for PPNC, comments were received from NYDEC and
Paul, Hastings, Janofsky & Walker LLP, attorneys for PPNC. NYDEC's
comments fully supported EPA's proposed rulemaking action. The comments
from Paul, Hastings, Janofsky & Walker LLP are summarized below.
Comment 1--EPA has not articulated its legal standard to make RACT
determinations. Case-by-case RACT is not a legal standard.
Response 1--EPA articulated its rationale and the criteria by which
the PPNC submittal was being judged in the August 18, 1997 NPR. EPA's
policies regarding RACT and how RACT determinations are made were
discussed in the NPR. Since EPA's definition of RACT allows for the
consideration of source-specific factors (i.e. case-by-case) in the
determination of RACT-specific applications of policy or guidance are
described in the applicable NPR.
Comment 2--By stating that the proposed PPNC RACT limits are too
high, EPA has used legal standards that have yet to be defined by
regulation.
Response 2--EPA used, as a basis to support its statement, the
monitoring data that was available for the PPNC boilers. 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 Administrators and 25 Pa. Code, Subpart C
Article III, Chapter 121). Since RACT is the lowest emission limit
achievable considering technological and economic feasibility, it
appeared to be unreasonable that the emission rates requested by PPNC
for RACT were higher than those actually monitored at those boilers. It
is unnecessary that a legal standard for RACT be established by
regulation prior to an action on a case-by-case RACT determination
proposal; the Clean Air Act contemplates establishing enforceable legal
standards through notice and comment rulemaking such as that being
conducted for case-by-case RACT proposals.
Comment 3--EPA has not promulgated a definition for RACT to be used
in NOX determinations and cannot rely on Pennsylvania's
definition of RACT since EPA had not approved it until August 12, 1997.
EPA has misapplied the RACT definition in the Strelow Memorandum to the
PPNC determination since the Strelow Memorandum is guidance for SIP
approvals by EPA and not to make individual RACT determinations. The
Strelow Memorandum recognized that individual RACT determinations would
be made using future guidance. The RACT definition contained in the
Strelow Memorandum was not issued by notice and comment rulemaking and
therefore is not binding. Furthermore, EPA expanded this definition of
RACT without notice and without record.
Response 3--The Clean Air Act give EPA authority to define RACT for
all regulated pollutants, including NOX. EPA defined RACT in
the Strelow memorandum dated December 9, 1997. In a Federal Register
published on September 17, 1979 (44 FR 53761), EPA discussed the Clean
Air Act statutory requirements including the definition of RACT and
stated there that the Strelow memorandum was published in BNA
Environmental Reporter, Current Developments, pp. 1210-12 (1976). EPA's
definition of RACT is consistent with the statutory intent and
Pennsylvania's definition of RACT is consistent with the Strelow
memorandum. Congress expressly cites to EPA's RACT guidance and
endorses it in section 182(a)(2)(4) as the appropriate guide for state
submittals. This guidance was published and made available to the
public in the House Energy and Commerce Committee Reports, Rept. 101-
490 Part 1 at page 235. Therefore, EPA's statutory authority to approve
RACT determinations is clear. EPA has consistently applied the
definition of RACT to the PPNC RACT submittal.
Comment 4--EPA is inappropriately using 1993 as a baseline and has
not provided record support to use 1993 instead of 1990 as baseline.
Response 4--The commenter concludes that EPA has used 1993 as a
baseline instead of 1990 and yet does not provide a discussion of the
reason for this comment. EPA has not established any baseline year but
rather has used emissions data that available for 1993 to illustrate
the feasibility of achieving emission rates lower than those proposed
by PPNC as RACT. These emission rates were achieved without the use of
low-NOX burners or other add-on controls; leading to the
conclusion that more stringent emission limitations that those proposed
by the Company should be considered RACT.
Comment 5--EPA is using ad hoc reasons, such as averages of
emissions data from similar sources, acid rain information,
NOX Memorandum of Understanding (MOU) status, and Ozone
Transport Assessment Group (OTAG), to support its RACT determination.
EPA has not defined what a ``similar boiler'' is.
Response 5--The discussion in the EPA NPR regarding average
emission rates achieved for boilers similar to PPNC, requirements under
the acid rain program that the PPNC boilers agreed to, etc. were
included in order to provide a context for EPA's proposed disapproval
of the PPNC RACT submittal. The reasonableness of the proposed PPNC
emission limits must be determined in the context of what other similar
sources are able to achieve and what PPNC itself agreed to achieve in
order to meet its other statutory obligations. NOX emissions
are regulated by several programs but the control technology and
methods to achieve NOX emission reductions are not limited
to meeting the obligations in any one program. EPA also clarified the
use of the term ``similar boilers'' by stating that the comparisons
with similar boilers were made by size and type (dry-bottom, wall-
fired, coal burning). The data used came from the acid rain database,
which only includes those boilers subject to the acid rain
requirements. The boilers subject to the acid rain requirements are
utility units larger than 250 mmBTU/hr, rated heart
[[Page 23670]]
input. EPA's determination is also based on its recognition that there
may be technical similarities that would facilitate the use of similar
emission controls even among boilers of different sizes and types. The
NPR makes clear the bases of comparison between PPNC's boilers and
other combustion units.
Comment 6--In making the PPNC RACT determination now, EPA is
retroactively applying criteria that did not exist when PPNC prepared
its proposal, when PADEP conducted its review, or when EPA approved the
PPNC RACT proposal.
Response 6--EPA's definition of RACT has been that contained in the
Strelow memo since it was issued in the late 1970s and EPA has used
that definition as the basis for its RACT rulemaking actions since that
time. EPA's reliance on guidance documents is clearly stated in its
proposed rulemaking actions that would result in binding enforceable
requirements such as those in case-by-case RACT determinations.
Interested parties are welcome to comment specifically on the RACT
rulemaking actions as well as on the criteria that EPA used to conduct
those rulemaking actions. Binding criteria do not have to exist prior
to conducting a proposed rulemaking action. The criteria that EPA
applies to all RACT proposals, including the PPNC proposal, is the
definition of RACT, any guidance in the form of memos or guidance
documents pertinent to the source category or source that is subject to
the RACT requirement, and any specific data applicable to the source
category or source that is subject to the RACT requirement. This has
been EPA's criteria for RACT determinations since the statutory
requirement was imposed. The source category or source specific
guidance documents to be used are those that are available at the time
the RACT determination is being evaluated and proposed. For example,
the NOX Supplement to the Title I General Preamble published
in the November 25, 1992 Federal Register re-states our practice for
determining RACT and states that much of EPA's guidance for VOC RACT is
also applicable to NOX RACT (57 FR 55620). In the case of
PPNC, PADEP prepared its RACT proposal and supporting documents in the
late summer and fall of 1994. The public hearing for the PPNC RACT
proposal was held on November 17, 1994. EPA submitted comments for the
record on December 5, 1994. EPA's comments regarding the PPNC RACT
proposal included comments questioning the cost factors and asserting
that, in general, the information in the package did not support the
conclusions arrived at by PPNC. The record is clear that EPA has
consistently maintained its position on this RACT proposal since it was
first proposed at the state level. The use of the federal definition of
RACT even where such a definition has not been specifically approved
into a state's SIP ensures that consistent criteria are applied in
imposing RACT requirements.
Comment 7--EPA cannot use PPNC's acid rain permit limits or
Pennsylvania's participation in the Ozone Transport Commission (OTC)
NOX MOU as criteria to determine whether PPNC's proposal is
RACT.
Response 7--EPA did not use PPNC's acid rain permit limits or
Pennsylvania's participation in the OTC NOX MOU as criteria
to determine whether PPNC's proposal is RACT. Instead, EPA applied
criteria using the definition of RACT, information from available,
appropriate guidance documents, and available information regarding
PPNC's boilers. The test of reasonableness in the definition of RACT
warrants investigating the availability of controls and the ability to
meet other emission limitations among similar sources. EPA's evaluation
of the PPNC RACT proposal investigated all relevant information that
would indicate technical and economic feasibility of achieving lower
emission limits as required by the definition of RACT. See also
Response 6.
Comment 8--EPA is using different criteria documents than required
to be used such as those used in the approval of three NOX
RACT determinations for sources in New York (September 23, 1997, 62 FR
49617). None of the documents referenced by EPA in the PPNC docket are
listed in the March 1996 NOX Policy Documents for the Clean
Air Act of 1990 (EPA-452/R-96-005). EPA has not provided record support
to explain its deviation from not using the policy documents listed in
EPA-452/R-96-005.
Response 8--The criteria documents in the PPNC RACT docket are
those that were determined to be relevant to the evaluation of the
types of boilers at PPNC. The three NOX RACT determinations
referred to by the commenter pertained to NOX sources unlike
those at PPNC. These New York NOX sources are the University
of Rochester, with two non-utility oil-fired boilers (90 mmBTU/hr and
122 mmBUT/hr rated capacity), Morton International, Incorporated, with
one gas-fired boilers smaller than 100 mmBTU/hr rated capacity and
Algonquin Gas Transmission Company with four gas-fired internal
combustion engines. It is to be expected that the documents used to
evaluate the New York sources would be different than those used to
evaluate the five coal-fired utility boilers at PPNC. As stated by
PPNC, the rated capacity of the PPNC boilers are 119 mmBTU/hr (35 MW),
164 mmBTU/hr (48 MW), 335 mmBTU/hr (98MW), 335mmBTU/hr (98MW), and 468
mmBTU/hr (137 MW). The documents listed in the March 1996 EPA document
(EPA-452/R-96-005) are those related to ozone policy. EPA's
Introduction to the March 1996 document does not purport to
exhaustively list all applicable or relevant NOX RACT
guidance. Indeed, it states that it includes, along with the
NOX Supplement to the General Preamble, ``several other
guidelines and policy memorandum'' (sic). These items include primarily
documents regarding SIP attainment demonstrations, section 182(f)
NOX waivers, emissions trading, fuel switching, compliance
schedules, de minimis values for gas turbines and internal combustion
engines, NOX substitution in air quality plans, conformity,
and new source review--issues that do not pertain to the PPNC RACT
submittal. The relevant documents in the March 1996 list that pertained
to PPNC were used and included in the PPNC docket along with other
relevant and appropriate pieces of information. No applicable
regulation, policy or guidance limits EPA's consideration in evaluating
RACT submittals to only those documents that are contained in the March
1996 EPA document list. Consequently, EPA's use of criteria documents
in the evaluation of the PPNC RACT submittal were appropriate.
Comment 9--The proposed action does not cite any delegation of
authority to the Regional Administrator to sign SIP actions. Based on
Table 1, 54 FR 2221 (Jan. 19, 1989), only the Administrator can sign
SIP actions that deviate from national policy and the proposed
disapproval of the PPNC SIP submittal relies on criteria that
significantly deviate from national policy.
Response 9--Delegation 7-10 provides the authority for Regional
Administrators ``[t]o propose or take final action on any State
implementation plan under section 110 of the Clean Air Act.'' EPA's
Directives System contains the definitive statements of EPA's
organization * * * and delegations of authority. 40 CFR 1.5(b). The
Directives System is the official statement of authority that has been
delegated and EPA is not required to identify the specific delegation
of
[[Page 23671]]
authority in each action the Agency takes. The current delegation,
approved by the Administrator on May 6, 1997, places two limitations on
the delegation.\1\ The first limitation applies only to final actions.
The second provides that the delegation does not apply where the action
establishes an alternative interpretation from an established EPA
policy where the alternative interpretation has not been reviewed
through the Agency's consistency process. As explained above, EPA's
proposed action for PPNC is not based on an alternative interpretation
from an established EPA policy.
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\1\ The commenter's citation to Table 1 is obsolete. Under the
previous version of delegation 7-10, the Agency created three tables
which identified separate processes for SIP actions. The Regional
Administrators were delegated authority to sign actions on tables 2
and 3, with the Administrator retaining sole authority to sign
actions on Table 1. Subject to two limitations, the Regional
Administrators have been delegated authority to sign all SIP
actions.
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Comment 10--EPA has used a significantly different approach in the
PPNC RACT proposal evaluation than used in other EPA RACT
determinations. For example, the EPA approval of International Paper--
Hammermill Division (Lockhaven) allowed an emission limit based on a 30
day running average that included a ``buffer'' as a way to account for
the limited emission data available and did not require the
installation of add-on controls.
Response 10--EPA's approach in evaluating all RACT determinations
is consistent in that the same definition of RACT is used. However,
under long-standing EPA policy and guidance, the determination of RACT
allows for the consideration of source-specific variables and as such,
can result in different conclusions as to what RACT is for different
sources. The circumstances at International Paper--Hammermill Division
(Lockhaven) and the information provided by PADEP and the Company in
support of the RACT proposal warranted granting the particular RACT
determination in that instance. The PADEP's submittal for PPNC does not
contain information supporting its proposed RACT determination.
Consequently, EPA approved the International Paper RACT and proposed to
disapprove the PPNC RACT submittal.
Comment 11--EPA did not consider the full PPNC NOX RACT
proposal in deciding to propose disapproval. EPA did not obtain from
PADEP the full proposal with its appendices that were submitted by PPNC
to PADEP.
Response 11--EPA evaluated the PPNC NOX RACT submittal
using all the information submitted by PADEP and that submitted during
the comment periods in June-August 1996 and in August 1997. If either
PADEP or PPNC believed that EPA did not originally consider documents
critical to its RACT proposal, it had an opportunity to submit any of
these documents and comments in response to the proposed rulemaking
notices. Furthermore, EPA expects RACT SIP submittals to include all
documents relied on by the state in making its decision to propose
RACT. If PADEP did not submit information to EPA, the presumption is
that that information was not relied on in its decision making. Whether
or not documents are submitted with each Pennsylvania RACT submittal is
an issue between the source and the Commonwealth. EPA's final
rulemaking action considers all information submitted with the April
19, 1995 PADEP submittal and during the relevant comment periods.
Comment 12-- EPA improperly viewed the PPNC proposal as a ``no
controls'' proposal. Since late 1993, PPNC has installed and
experimented with two separate computerized combustion optimization
systems in the PPNC unit 5 boiler resulting in a 50% emission reduction
from 1990 levels. PPNC has used this information from unit 5 on units 3
and 4, resulting in comparable emission reductions.
Response 12--EPA evaluated the PPNC proposal on the basis of
whether the proposal would result in a RACT level of emissions. RACT is
defined by EPA and PADEP as the lowest achievable emission limit
considering technical and economic feasibility. The emission limits
proposed by PADEP and PPNC are higher than those that were currently
monitored at the facility at the time the RACT proposal was being
developed. The PADEP's April 19, 1995 submittal to EPA intended to
impose RACT for PPNC did not mention a computerized combustion
optimization system through an enforceable permit. Subsequent to the
April 19, 1995 submittal, PADEP mentioned the use of a computerized
combustion optimization system at PPNC. On further investigation, EPA
found that this system was bought, installed and tested using
Department of Energy funds and did not require the use of capital funds
at PPNC. If the combustion optimization system is an available emission
control option to reduce NOX emissions, the PPNC submittal
should have compared the sustainable emission reductions that can be
achieved by such a combustion optimization system with those
sustainable emission reductions that can be achieved by other more
conventional controls such as low--NOX burners or selective
catalytic reduction (SCR) along with economic considerations. Even if a
proper RACT evaluation were done to support a conclusion that RACT may
not require add-on controls, the emission limits in the April 19, 1995
RACT submittal for PPNC would not be approval because they are
substantially less stringent than the actual measured data. The PPNC
cost analysis for conventional NOX controls uses figures
that appear to be unrealistic and unsupported by fact. The cost figures
provided by PPNC, when compared in context with cost figures for
similar boilers, appear to be significantly higher than other figures
without adequate justification. Consequently, EPA has determined that
the PPNC RACT proposal has not adequately demonstrated that add-on
controls are economically infeasible.
Comment 13--EPA has improperly used the lack of official EPA
approval of the PADEP Guidance Document on Reasonably Available Control
Technology for Sources of NOX Emissions to support its
proposed disapproval.
Response 13--EPA clearly stated in the August 18, 1997 NPR
regarding the proposed PPNC disapproval that the PADEP Guidance
Document on Reasonably Available Control Technology for Sources of
NOX Emissions was not part of the April 19, 1995 submittal
nor any other PADEP submittal requesting EPA approval and that,
therefore, EPA was not relying on this guidance document in proposing
disapproval of the PPNC RACT submittal. EPA included a discussion of
this document only because PPNC made comments in response to EPA's
withdrawal of its initial notice of approval (June 11, 1996) claiming
that PADEP had relied on this document. However, PPNC's claims in this
regard cannot be considered by EPA where PADEP has not identified this
document as a basis for its submittal.
Furthermore, as stated in the NPR for EPA's action on
Pennsylvania's VOC and NOX RACT regulation, Chapter
[[Page 23672]]
129.91 through 129.95, the Pennsylvania RACT guidance document has
never been submitted to EPA for approval into the Pennsylvania SIP (62
FR 43134, August 12, 1997).
Comment 14--EPA's refusal to consider any options other than add-on
controls is unsupportable. EPA regulations, guidance, relevant case law
and EPA's definition of RACT contemplates and supports the use of
methods other than add-on controls.
Response 14--RACT requirements do not necessarily always have to
include add-on controls. EPA has made many RACT determinations that
provide for control methods that do not include add-on controls. These
RACT determinations were supported by technical and economic data. A
RACT analysis requires that all control options be evaluated for
technical and economic feasibility and the potential emission
reductions from each of these options compared. Therefore, the
commenter is mistaken in concluding that because EPA has proposed to
disapprove the PPNC RACT proposal which does not propose any add-on
controls, EPA has refused to consider other non-add-on control options.
EPA's evaluation of the PPNC submittal merely analyzes the information
submitted and available that are relevant to PPNC and concludes that
the PPNC proposal is unsupported by the relevant information.
Comment 15--EPA has inappropriately included Ohio Edison Company in
its consideration of costs on PPNC. EPA should consider only PPNC's
resources and not those of other companies with which PPNC has a
relationship. ``Reasonably available'' requires that cost-effectiveness
is determined only on a facility basis.
Response 15--EPA's analysis of the PPNC RACT submittal did not name
particular companies or parent companies as specifically responsible
for the costs of PPNC. The cost figures as provided by PPNC are out-of-
line with those obtained from other sources, including sources under
the acid rain program, for similarly sized and typed boilers, resulting
in EPA's conclusion that the PPNC RACT proposal submitted by PADEP is
not adequately substantiated and supported to justify the emission
requirements being requested.
Comment 16--EPA has failed to give proper deference to PADEP's
decision to approve the PPNC proposal as RACT. EPA cannot substitute
its judgment for the State's determination because EPA believes more
stringent air quality controls are achievable.
Response 16--Although the State has the initial obligation to
determine the appropriate control requirements for sources, EPA is
required to review the submission and to approve or disapprove it as
complying with the applicable statutory requirements. These
requirements include the general requirements of section 110(a)(2) and,
in this case, the statutory requirements that the control technology is
``RACT'' for PPNC. While EPA will consider the record for the State's
determination, there is no statutory obligation for EPA to defer to the
State. To the contrary, the statutory requirement that EPA review and
take rulemaking action on the State's submission demonstrates that
Congress did not intend for EPA to ``rubber stamp'' State
determinations.
Comment 17--EPA has acted arbitrarily and capriciously in proposing
to disapprove the PPNC RACT proposal. EPA has denied PPNC a meaningful
opportunity to comment based on each of the reasons above.
Consequently, until EPA can resolve the above comments, EPA should
suspend this rulemaking and ultimately consider approval of the PPNC
RACT proposal or re-propose the disapproval including legal and factual
rationale.
Response 17--EPA's proposed rulemaking action is clear and
deliberate in setting forth the legal and factual reasons supporting
the proposed disapproval. PPNC and all other interested parties were
given ample opportunity to submit comments and supporting information.
EPA has addressed every comment made in the commenter's letter and has
considered all relevant pieces of information. In conducting this
rulemaking action, EPA met its obligations to consider all comments
made in response to the proposed rulemaking action. Proceeding to final
rulemaking is not predicated on negotiating an acceptable resolution
with the parties that submitted comments. EPA concludes that it
consideration and review of all submitted information and its rationale
supports a disapproval of the PPNC RACT proposal submitted on April 19,
1995.
III. Final Action
EPA is disapproving the Pennsylvania Power New Castle plant
NOx RACT proposal submitted by PADEP on April 19, 1995 as a
requested 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.
IV. Administrative Requirements
A. Executive Order 12866
This regulatory action has been submitted to the Office of
Management and Budget (OMB) for E.O. 12866 review.
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. This action only affects one source, Pennsylvania Power
Company--New Castle plant (PPNC). PPNC is not a small entity.
Therefore, EPA certifies that this disapproval action does not have a
significant impact on small entities.
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, 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 the CAA, preparation of 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).
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
[[Page 23673]]
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. Section 804, however, exempts from section 801 the
following types of rules: rules of particular applicability; rules
relating to agency management or personnel; and rules of agency
organization, procedure, or practice that do not substantially affect
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA
is not required to submit a rule report regarding today's action under
section 801 because this is a rule of particular applicability,
applying only to Pennsylvania Power--New Castle plant, located in
Lawrence County.
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 disapproval of PADEP's
NOX RACT proposal for Pennsylvania Power New Castle must be
filed in the United States Court of Appeals for the appropriate circuit
by June 29, 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 may 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, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
Dated: April 8, 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 52.2023 is amended by adding paragraph (e) to read as
follows:
Sec. 52.2023 Approval status.
* * * * *
(e) Disapproval of the April 19, 1995 NOX RACT proposal
for Pennsylvania Power Company--New Castle plant located in Lawrence
County, Pennsylvania.
* * * * *
[FR Doc. 98-11507 Filed 4-29-98; 8:45 am]
BILLING CODE 6560-50-M
