E6-9461. Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Pennsylvania; Reasonably Available Control Technology Requirements for Volatile Organic Compounds and Nitrogen Oxides

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to remove the limited status of its approval of the Commonwealth of Pennsylvania's State Implementation Plan (SIP) revision that requires all major sources of volatile organic compounds (VOC) and nitrogen oxides (NO_X) to implement reasonably available control technology (RACT). EPA is proposing to convert its limited approval of Pennsylvania's VOC and NO_X RACT regulations to full approval because EPA has approved or is currently conducting rulemaking to approve all of the case-by-case RACT determinations submitted by Pennsylvania for the affected sources. In prior final rules, EPA has previously fully approved Pennsylvania's VOC and NO_X RACT regulations for the Philadelphia-Wilmington-Trenton, and Pittsburgh-Beaver Valley areas. EPA is now proposing to convert its limited approval of Pennsylvania's VOC and NO_X RACT regulations as they apply in the remainder of the Commonwealth to full approval because EPA has approved or is currently conducting rulemaking to approve all of the case-by-case RACT determinations submitted by Pennsylvania for the affected sources in the remainder of the Commonwealth. Final action converting the limited approval to full approval shall occur once EPA has completed rulemaking to approve either (1) the case-by-case RACT proposals for all sources subject to the RACT requirements currently known in the remainder of the State, outside of the Pittsburgh and Philadelphia areas; or (2) for a sufficient number of sources such that the emissions from any remaining subject sources represent a de minimis level of emissions. This action is being taken under the Clean Air Act (CAA or the Act).

DATES:

Written comments must be received on or before July 17, 2006.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2006-0379 by one of the following methods:

A. www.regulations.gov. Follow the on-line instructions for submitting comments.

B. E-mail: [e-mail].

C. Mail: EPA-R03-OAR-2006-0379, Makeba Morris, Chief, Air Quality Planning and Analysis Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2006-0379. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov. providing any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Resources Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT:

Ellen Wentworth, [phone], or by e-mail at [e-mail].

I. Background

Pursuant to sections 182(b) and 182(f) of the Clean Air Act (CAA), the Commonwealth of Pennsylvania (the Commonwealth or Pennsylvania) is required to establish and implement RACT for all major VOC and NO_X sources. SIP revisions imposing RACT for three classes of VOC sources are required under section 182(b)(2). The categories are all sources covered by a Control Technique Guideline (CTG) document issued between November 15, 1990 and the date of 1-hour ozone attainment; all sources covered by a CTG issued prior to November 15, 1990; and all other major non-CTG sources. Section 182(f) provides that the planning requirements applicable to major stationary sources of VOCs in other provisions in part D, subpart 2 (including section 182) apply to major stationary sources of NO_X.

The Pennsylvania SIP already includes approved RACT regulations for sources and source categories of VOCs covered by the CTGs as required by section 182(b)(2)(A) and (B). Regulations requiring RACT for all major sources of VOC and NO_X were to be submitted to EPA as SIP revisions by November 1992 and compliance required by May of 1995. On February 4, 1994, PADEP submitted a revision to its SIP, consisting of 25 PA Code Chapters 129.91 through 129.95, to require major sources of NO_X and additional major sources of VOC emissions (not covered by a CTG) to implement RACT (non-CTG RACT rules). The February 4, 1994 submittal was amended on May 3, 1994 to correct and clarify certain presumptive NO_X RACT requirements under Chapter 129.93. As described in more detail, below, EPA granted conditional limited approval of the Commonwealth's VOC and NO_X RACT regulations on March 23, 1998 (63 FR 13789), and removed the conditional aspect of the approval on May 3, 2001 (66 FR 22123).

Under section 184 of the CAA, RACT as specified in sections 182(b)(2) and 182(f) applies throughout the ozone transport region (OTR). The entire Commonwealth is located within the OTR. Therefore, RACT is applicable statewide in Pennsylvania. The major source size generally is determined by the classification of the area in which the source is located. However, for areas located in the OTR, the major source size for stationary sources of VOCs is 50 tons per year (tpy) unless the area's 1-hour ozone classification prescribes a lower major source threshold. The RACT regulations contain technology-based or operational “presumptive RACT emission limitations” for certain major NO_X sources. For other major NO_X sources, and all major non-CTG VOC sources (not otherwise already subject to RACT pursuant to a source category regulation under the Pennsylvania SIP), the regulations contain a “generic” RACT provision. A generic RACT regulation is one that does not, itself, specifically define RACT for a source or source categories, but instead allows for case-by-case RACT determinations. The generic provisions of Pennsylvania's regulations allow for PADEP to make case-by-case RACT determinations that are then to be submitted to EPA as revisions to the Pennsylvania SIP.

On March 23, 1998 (63 FR 13789), EPA granted conditional limited approval of a Pennsylvania SIP revision that established and required all major sources of VOCs and NO_X to implement RACT. This approval was granted on the condition that Pennsylvania must, by no later than April 22, 1999 certify that (1) it had submitted case-by-case RACT proposals for all sources subject to the RACT requirements currently know to PADEP, or (2) demonstrate that the emissions from any remaining subject sources represented a de minimis level of emissions as defined in the rulemaking document.

On April 22, 1999, the PADEP submitted a letter certifying that it had met the terms and conditions imposed by EPA in its March 23, 1998 (63 FR 13789) conditional limited approval of its VOC and NO_X RACT regulation by submitting case-by-case VOC/NO_X RACT determinations as SIP revisions. EPA concurred that Pennsylvania's April 22, 1999 certification satisfied the condition imposed in its conditional limited approval published on March 23, 1998 (63 FR 13789), and published a direct final rulemaking (May 3, 2001, 66 FR 22123) removing the conditional status of its approval of the Commonwealth's SIP revision that required all major sources of VOCs and NO_X to implement RACT. That final rule became effective on June 18, 2001. The regulation retained a limited approval status on the basis that it strengthened the Pennsylvania SIP. Conversion from limited to full approval would occur when EPA had approved all of the case-by-case RACT determinations as SIP revisions.

On October 16, 2001 (66 FR 52533), EPA published a final rulemaking for the Commonwealth removing the limited status of its approval of Pennsylvania's SIP revision that required all major sources of VOCs and NO_X to implement RACT as it applied in the Pittsburgh-Beaver Valley ozone nonattainment area (Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, and Westmoreland counties), because EPA had approved all of the case-by-case RACT determinations submitted by PADEP for affected major sources of NO_X and/or VOC sources located in the area. EPA converted its limited approval of Pennsylvania's RACT regulation to full approval as it applied to that area. That rulemaking became effective on November 15, 2001.

On October 30, 2001 (66 FR 54698), EPA published a final rulemaking for the Commonwealth removing the limited status of its approval of Pennsylvania's SIP revision that required all major sources of VOCs and NO_X to implement RACT as it applied in the Philadelphia-Wilmington-Trenton ozone nonattainment area (Bucks, Chester, Delaware, Montgomery, and Philadelphia counties) because EPA had approved all of the case-by-case RACT determinations submitted by PADEP for affected major sources of NO_X and/or VOC sources located in the area. EPA converted its limited approval of Pennsylvania's RACT regulation to full approval as it applied to that area. That rulemaking became effective on November 29, 2001.

II. EPA's Proposed Action

As EPA stated in its May 3, 2001 final rule (66 FR 22123), conversion of Pennsylvania's VOC and NO_X regulation from limited to full approval would occur when EPA had approved all of the case-by-case RACT determinations submitted by Pennsylvania into the Pennsylvania SIP. EPA has previously removed the limited status of its approval of Pennsylvania's SIP revisions that requires all major sources of VOC and NO_X to implement RACT as it applies in the Pittsburgh and Philadelphia areas because EPA has approved all of the case-by-case RACT determinations for these areas. In this action EPA is proposing to convert its limited approval of Pennsylvania's RACT regulation to full approval as it applies in the remainder of the Commonwealth because EPA has approved or is currently conducting rulemaking to approve all remaining case-by-case RACT determinations submitted by PADEP. Final action converting the limited approval to full approval shall occur once EPA has completed rulemaking to approve either (1) the case-by-case RACT proposals for all sources subject to the RACT requirements currently known in the remainder of the State, outside of the Pittsburgh and Philadelphia areas; or (2) for a sufficient number of sources such that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking (63 FR 13789). EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

III. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act.

Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order.

This proposed rule, regarding Pennsylvania's VOC and NO_X RACT regulations as they apply in the remainder of the Commonwealth, does not impose an information collection under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Authority: 42 U.S.C. 7401 et seq.

Dated: June 7, 2006.

Donald S. Welsh,

Regional Administrator, Region III.