[Federal Register Volume 62, Number 155 (Tuesday, August 12, 1997)]
[Proposed Rules]
[Pages 43134-43139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21269]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 041-4013; FRL-5873-9]
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: Proposed rule.
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SUMMARY: EPA is proposing conditional limited approval of a State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Pennsylvania. This revision establishes and requires major sources of
volatile organic compounds (VOCs) and nitrogen oxides (NOX)
to implement reasonably available control technology (RACT). The
intended effect of this action is to propose conditional limited
approval of the Pennsylvania RACT regulation (Chapter 129.91-129.95).
DATES: Comments must be received on or before September 11, 1997.
ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone/CO
and Mobile Sources, Mailcode 3AT21, 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 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, or via e-mail at
stahl.cynthia@epamail.epa.gov. While information may be requested via
e-mail, any comments must be submitted in writing to the EPA Region III
address above.
SUPPLEMENTARY INFORMATION:
Background
On February 4, 1994, the Pennsylvania Department of Environmental
Protection (PA DEP, then known as the Pennsylvania Department of
Environmental Resources) 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. This submittal was amended with a revision on May 3, 1994
correcting and clarifying the presumptive NOX RACT
requirements under Chapter 129.93. The submittal was again amended on
September 18, 1995 by the withdrawal from EPA consideration of the
provisions 129.93(c) (6) and (7) pertaining to best available control
technology (BACT) and lowest achievable emission rate (LAER). The
Pennsylvania SIP revision consists of regulations that would require
sources that emit or have the potential to emit 25 tons or more of VOC
or NOX per year in the Pennsylvania portion of the
Philadelphia-Wilmington-Trenton ozone nonattainment area (the
Philadelphia area) 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 the Philadelphia ozone
nonattainment area, sources of NOX that 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. Pennsylvania's generic RACT regulation does
not impose specific up-front emission limitations, but instead allows
for future case-by-case determinations. This regulation allows PA DEP
to make case-by-case RACT determinations that are then submitted to EPA
for approval as revisions to the Pennsylvania SIP.
On January 12, 1995 (60 FR 2912), EPA proposed three alternative
rulemaking actions pertaining to the Pennsylvania RACT regulation (60
FR 2912). Many comments were received in response to that proposed
Federal Register notice. EPA is hereby withdrawing that notice of
proposed actions and reproposing conditional limited approval of this
Pennsylvania SIP revision. Because EPA is withdrawing its January 12,
1995 proposed actions, the comments submitted on the January 12, 1995
notice of proposed rulemaking will not be addressed. Any comments in
response to today's notice should be sent to the EPA Region III address
located in the ADDRESSES section of this notice.
Today's Rulemaking Action
EPA is proposing conditional limited approval of the Pennsylvania
VOC and NOX RACT regulations, Chapter 129.91 through 129.95.
EPA is proposing to conditionally approve the SIP revision based upon
PA DEP meeting its commitment to submit all the case-by-case RACT
proposals, for all of the sources it has identified as being subject to
the major source RACT regulations, as source-specific revisions to the
SIP no later than twelve months from the effective date of EPA's final
conditional limited approval of the Pennsylvania VOC and NOX
RACT regulations. Pennsylvania submitted its commitment
[[Page 43135]]
in a letter to EPA dated September 23, 1996. Once the Commonwealth has
satisfied this condition, EPA shall remove the conditional status of
its approval and the Pennsylvania VOC and NOX regulations
SIP revision will, for the time being, retain its limited approval
status. EPA is also proposing limited approval of the Pennsylvania VOC
and NOX RACT regulations SIP revision on the basis that its
approval will strengthen the SIP. The limited approval of the generic
VOC and NOX regulations SIP revision shall be converted to
full approval once EPA has approved each of Pennsylvania's case-by-case
RACT proposals as SIP revisions. This conditional limited approval
action is action that is being taken under section 110 of the Clean Air
Act.
Summary of Pennsylvania's VOC and NOX RACT Regulations
SIP Revision
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). The entire
Commonwealth is located in the OTR. The Pennsylvania portion of the
Philadelphia ozone nonattainment area consists of Bucks, Chester,
Delaware, Montgomery, and Philadelphia Counties. The Philadelphia ozone
nonattainment area 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 requirements for major stationary sources (including
RACT as specified in sections 182(b)(2) and 182(f)) apply throughout
the OTR. Therefore, RACT is applicable statewide in Pennsylvania.
The SIP submittal under review consists of Pennsylvania regulations
codified at 25 Pa. Code Chapters 129.91 through 129.95.
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 sections
129.51-129.72, 129.81, and 129.82) to provide PA DEP with
identification and emission information by May 16, 1994. Covered
sources must submit a written RACT proposal to PA DEP by July 15, 1994.
PA DEP 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 DEP 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.
Chapter 129.92--Chapter 129.92 details the information required in
the 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. This RACT
analysis must rank the available control options in descending order of
control effectiveness, provide information on baseline emissions and
emission reductions, and evaluate the cost effectiveness of each
control option. The Pennsylvania regulation requires that, at a
minimum, the cost effectiveness portion of the RACT analysis use the
procedures in ``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 that determine what control option is chosen as RACT to cost
factors alone, nor does it limit the method of evaluating costs to
those found in the OAQPS Control Cost Manual. The Pennsylvania generic
regulation properly does not specify a dollar per ton figure as a
threshold over which control options are ineligible for consideration
from RACT.
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 separate overfired 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 tune-up 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 DEP procedures.
For the following groups of sources, Pennsylvania proposes that
RACT is the installation, maintenance and operation of sources in
accordance with manufacturer's specifications. These groups are listed
in Chapter 129.93(c) (1) through (7), 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 retarded 4 deg. relative to standard timing;
(4) incinerators or thermal/catalytic oxidizers used primarily for air
pollution control; and (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.
Chapter 129.94 (NOX Averaging)--Chapter 129.94 permits
major NOX sources to submit a RACT proposal that includes
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 up-front agreement that a violation at one of the
participating sources is considered a violation at all of the
participating sources.
Chapter 129.95--Chapter 129.95 is the record keeping provision that
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 to demonstrate compliance with the
applicable RACT requirements. This section also requires that sources
of VOC and NOX that claim exemptions from the RACT
requirement maintain records that clearly demonstrate their exempt
status.
EPA's Analysis of the SIP Revision
RACT Proposal Requirements--Chapter 129.92 requires sources to
[[Page 43136]]
provide information on the emission reduction, technological
feasibility, and cost of control options. 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 the General Preamble on SIP revisions to
Nonattainment Areas, 44 FR 53761, 53762 (Sept. 17, 1979); ``Guidance
for Determining Acceptability of SIP regulations in Nonattainment
Areas,'' Memorandum of Roger Strelow, Assistant Administrator for Air
and Waste Management (Dec. 9, 1976).
Generic VOC and NOX RACT Requirements--Chapter 129.91
contains Pennsylvania's generic, or ``case-by-case,'' RACT provisions.
Under this approach, the applicable sources are not subject to
specific, ``up-front'' (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 implementation of [RACT],'' and further requires that the
submittals ``provide for the implementation of required measures as
expeditiously as practicable, but no later than May 31, 1995.'' The
Commonwealth believes that the design, age, and nature of the
industrial processes of the individual sources, for which RACT must be
required, vary so widely that case-by-case RACT determinations are
warranted, as no ``across the board'' emission limitations could be
reasonably imposed as satisfying the definition of RACT, namely the
lowest emission limitation that a source is capable of meeting
considering technological and economic feasibility.
However, EPA's interpretation of the statutory requirements, and
the one that accords with EPA's longstanding definition of RACT, is
that a state submittal of a SIP revision to satisfy the Act's
requirements for RACT must include specific, up-front emission
limitations for all covered sources, rather than a process leading to
the development of emission limitations at some later date. States are
required to establish these specific, up-front emission limitations and
submit them as SIP revisions to EPA for approval as RACT. EPA evaluates
these SIP submittals to determine whether or not the emission
limitations imposed by the state satisfy the definition of RACT for the
covered sources. 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. 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.'' Process-oriented generic regulations,
such as those submitted by Pennsylvania, which do not include specific
and ascertainable emission limitations, do not by themselves provide
standards for EPA to approve or disapprove as satisfying the definition
of RACT. Therefore, the Act's RACT requirements are satisfied only
after the specific limitations imposed by the Commonwealth on its major
sources have been submitted to EPA as SIP revisions and approved by EPA
as RACT for the subject sources.
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. 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 the opportunity to review RACT SIP
submittals prior to the implementation date. Under its generic case-by-
case RACT approach, the Commonwealth was not 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 DEP). While Pennsylvania has made
substantial progress in the submittal of its case-by-case RACT
proposals, it has not yet submitted all of the case-by-case RACT
determinations required by its generic RACT regulation to EPA as
source-specific SIP revisions.
As mentioned above, Pennsylvania's generic RACT regulation outlines
a process that must be followed by those sources choosing to have RACT
determined on a case-by-case basis. Included in this process outlined
by the Pennsylvania regulation is a reference to the OAQPS Control Cost
Manual and its subsequent amendments. Since the current OAQPS Control
Cost Manual does not contain any specific chapters on NOX
control costs, more appropriate methods to determine estimated costs
for NOX controls must be used. The cost analysis methodology
used to implement the Act's Acid Rain program is certainly a candidate.
Because States and EPA do not have complete knowledge of any individual
company's overall financial picture and must rely on the cost
calculations and financial information submitted that company in making
a source-specific RACT determination when considering the calculated
cost (i.e., in terms of dollars per ton), judgement must be exercised
so as to not overemphasize it as a factor in determination of economic
feasibility or in the overall determination of RACT. The calculated
costs submitted to the Commonwealth, and subsequently to EPA by PA DEP
in support of the source-specific SIP revisions of RACT proposals, can
be only one of the factors considered in the case-by-case
determinations as to what RACT is for those sources. Using cost as one
of many variables considered in determining RACT is consistent with
both the Pennsylvania regulation and with EPA's policies and guidance
on determining RACT.
Separate from its submittal of the generic RACT regulation to EPA,
PA DEP has prepared its own guidance for industrial sources requiring
case-by-case RACT determinations. Pennsylvania has stated that the
intent of its guidance is to facilitate the approval of case-by-case
RACT. EPA's review and approval of Pennsylvania's case-by-case RACT
proposals, when they are duly submitted as SIP revisions, is based upon
the information submitted for the official record and upon whether
these proposals meet the criteria for technical and economic
feasibility pursuant to EPA's and the Commonwealth's definition of
RACT. Guidance and procedures that include such principles as
establishing a maximum dollar per ton threshold for use in the
[[Page 43137]]
determination of all case-by-case RACTs or establishing a RACT emission
limit based on the median of monitored data plus nearly three standard
deviations, are examples of procedures that EPA finds inconsistent with
the definition of RACT.
Because Pennsylvania's SIP revision submittal requesting approval
of the generic VOC and NOX RACT regulations, itself, does
not reference or contain such guidance or procedures, EPA is able to
propose conditional limited approval of the Pennsylvania generic RACT
regulations.
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.
EPA has identified deficiencies in the other presumptive RACT
emission limitations of Chapter 129.93. For coal-fired combustion units
(100 mmBTU/hr or greater), Chapter 129.93(b)(1) provides that
presumptive RACT is low NOX burners with separate overfired
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
technology. While RACT for these types of units may specify the
installation of low NOX burners and separate overfired air,
EPA believes that RACT for these sources must include the requirement
to meet specific numeric emission limitations. Installation of low
NOX burners and separate overfired air does not ensure that
these controls will be operated in a manner that minimizes
NOX emissions. EPA cannot agree that installation of low
NOX burners and separate overfired air alone represents
RACT. 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
separate overfired air control technology for each of those units
subject to this provision of the Pennsylvania regulation. Coal-fired
combustion units greater than or equal to 100 mmBTU/hr represent a
significant portion of the NOX emissions 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) have been found to be
acceptable to EPA because Pennsylvania has provided information stating
that there are no other technically or economically feasible controls.
The emissions from these sources, in total, represent less than 5% of
the total 1990 NOX emissions inventory. 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 manufacturer's 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. Pennsylvania must correct the
deficiencies in Chapter 129.93(b)(2), (c) (1), (2), (4), and (5) by
removing the ability of a private party to relax unilaterally a RACT
standard by specifying that, in addition to being operated and
maintained in accordance with a manufacturer's specifications, the
equipment will also be maintained in accordance with good air pollution
control practices. Pennsylvania has agreed to correct this deficiency
in its regulation through additional language in each of the individual
source permits where this is determined to be RACT. This additional
language requires that these sources operate and maintain the emission
units in accordance with good air pollution control practices and
manufacturer's specifications. EPA has determined that Pennsylvania's
solution of adding the ``good air pollution control practice'' language
to the individual source permits is a practical and acceptable
alternative to revising the Pennsylvania RACT regulations for these
sources, Chapter 129.93. EPA has determined that Pennsylvania's
alternative to require these sources to operate and maintain the
emission units in accordance with good air pollution control practices
and manufacturer's specifications is acceptable. EPA interprets ``good
air pollution control practices'' to mean only those technically
supportable operation and maintenance requirements that result in the
equipment being operated, maintained and repaired in a manner that
achieves the minimization of NOX emissions.
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.
Record keeping--The record keeping requirements of Chapter 129.95
are consistent with EPA requirements.
Terms of and Rationale for Conditional Approval
EPA's proposal includes proposed conditional approval of
Pennsylvania's VOC and NOX regulations SIP revision, based
upon the Commonwealth's commitment to submit for approval into the SIP,
the case-by-case RACT proposals for all sources subject to the RACT
requirements currently known to PA DEP. The Commonwealth submitted this
commitment in a letter to EPA dated September 23, 1996. The case-by-
case RACT proposals must be submitted by a date certain that is no
later than 12 months after the effective date of EPA's final
conditional approval.
Therefore, to fulfill the condition of this approval the
Commonwealth must, by no later than 12 months after the effective date
of EPA's final conditional approval of the generic VOC and
NOX RACT regulations SIP: (1) Certify that it has submitted
case-by-case RACT proposals for all sources subject to the RACT
requirements currently known to PA DEP; or (2) demonstrate that the
emissions from any remaining subject sources represent a de minimis
level of emissions, as defined below. Once EPA has determined that the
Commonwealth has satisfied this condition, EPA shall remove the
conditional nature of its 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.
Definition of De Minimis
For states with a generic VOC RACT regulation intended to regulate
all non-Control Technology Guideline (non-CTG) VOC sources, de minimis
is determined by comparing the total 1990 emissions of all non-CTG VOC
major sources in the Commonwealth, where a CTG had not been issued at
the time of the state submittal of the generic VOC RACT regulation with
the total emissions of those non-CTG VOC sources subject to the generic
RACT where these source-specific RACTs have
[[Page 43138]]
not yet been approved by EPA. For example, while not applicable to the
Pennsylvania generic RACT submittal, since EPA has issued CTGs for ship
building and repair and wood furniture coatings in August 1996 and May
1996, respectively, EPA's de minimis procedure for a state submittal
subsequent August 1996 would require that all RACTs for those CTG
category sources and for shipbuilding and repair and wood furniture
coating be approved and that the de minimis procedure as described in
this notice apply only to those VOC emissions from sources that are
neither CTG sources or shipbuilding or wood furniture sources. The VOC
emissions from these remaining major sources are still subject to the
RACT requirement but EPA can lift the conditional status of its
approval of the state generic RACT rule prior to SIP approval for those
sources that represent a de minimis amount of VOC emissions. In
Pennsylvania's case, the generic RACT rule was submitted in February
1994. The post-1990 CTG issued prior to DEP's submittal is Synthetic
Organic Chemical Manufacturing Industry (SOCMI) Distillation and
Reactor Processes. Therefore, the VOC emissions from this source
category are excluded from the pool of VOC total emissions used to
determine whether the amount of emissions remaining is de minimis.
For Pennsylvania, de minimis is determined by comparing the total
1990 emissions of all NOX major sources in the Commonwealth,
subtracting those NOX emissions attributed to utility
boilers and then comparing this figure with those NOX
sources that are subject to the RACT requirement but where these
source-specific RACTs have not yet been approved by EPA. EPA is
specifically targeting utility boiler emissions and is requiring these
emissions to be subtracted from the total NOX inventory for
this exercise because, while there has not been a CTG issued for them,
there is an Alternative Control Technology (ACT) guidance document,
guidance issued through the NOX Supplement to the Title I
General Preamble (57 FR 55620), and other non-EPA sources of
information on reasonably available controls for these types of
NOX sources.
In addition, unlike any single source category in the non-CTG VOC
emissions inventory, utility boiler emissions represent a very large
part of the NOX emissions inventory. For this reason, the
case-by-case RACT proposals for all subject utility boilers must be
submitted by the Commonwealth as SIP revisions within 12 months of the
effective date of the final conditional limited approval of the generic
VOC and NOX regulations SIP revision, and any de minimis
demonstration must be baselined from the amount of NOX
emissions from all major sources required to implement RACT minus the
emissions from utility boilers.
Even after the conditional status of EPA's approval of the
Pennsylvania RACT regulation is removed, PA DEP must still continue to
submit, and have EPA approve into the Pennsylvania SIP, RACT
requirements for the remaining de minimis amount of emissions.
Therefore, removal of the conditional status to limited approval status
in no way changes PA DEP's statutory obligation to implement RACT for
all major sources.
Rationale for Also Proposing Limited Approval
The current Pennsylvania SIP does not contain a general requirement
that all major sources must implement RACT. While EPA does not believe
that the Pennsylvania generic VOC and NOX RACT regulation
satisfies the Act's RACT requirements as discussed previously in this
notice, EPA is also proposing limited approval of the Pennsylvania
generic RACT regulation on the basis that it strengthens the
Pennsylvania SIP. Once EPA has approved all of the case-by-case RACT
proposals as SIP revisions, the limited approval will convert to full
approval.
EPA's review of this material indicates that proposing conditional
limited approval is warranted. EPA is soliciting public comments on the
issues discussed in this notice. These comments 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. Further
discussion and details of this rulemaking action can be found in the
accompanying technical support document (TSD). Copies of the TSD may be
obtained from that same EPA Regional office.
Proposed Action
EPA is proposing conditional limited approval of the Pennsylvania
VOC and NOx RACT regulation, Chapter 129.91 through 129.95.
EPA is proposing conditional limited approval of this SIP revision
based upon the commitment made by Pennsylvania to submit all the case-
by-case RACT proposals for sources it is currently aware of as being
subject to the major source RACT regulations. On September 23, 1996,
Pennsylvania submitted a letter to EPA committing to: (1) Complete
submission of the SIP revisions required by Chapter 129.91(h)
containing RACT determinations for the major VOC and NOx
sources in the Commonwealth that are subject to the RACT rule, or for
sources that are subject to the RACT rule but fail to submit a RACT
plan, PA DEP will initiate appropriate enforcement action to obtain
compliance with the rule; and (2) provide a written statement to EPA
that, to the best of its knowledge, it has completed submission of the
SIP revisions described above within one year of the effective date of
the final conditional limited approval of the Pennsylvania generic RACT
rule.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to any SIP 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. 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 this approval of this revision to the
federal SIP would not impose any new requirements, EPA certifies that
it would 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).
Today's actions are proposal actions upon which EPA is soliciting
comments. In the unlikely event that Pennsylvania were to fail to meet
its commitment and did not satisfy the condition described herein, the
conditional limited approval would be converted to a disapproval. Such
conversion would trigger the 18-month clock for the mandatory
imposition of
[[Page 43139]]
sanctions under section 179(a) of the CAA and 40 CFR 52.31, EPA's
sanction rule. If the conditional approval is converted to a
disapproval under section 110(k), 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 would not affect its state-enforceability. Moreover, EPA's
disapproval of the submittal would not impose a new federal
requirement. Therefore, EPA certifies that any such disapproval action
would not have a significant impact on a substantial number of small
entities because it would not remove existing requirements nor would it
substitute a new federal requirement.
Under Section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final regulation that includes a
federal mandate that may result in estimated costs to State, local, or
tribal governments in the aggregate; or to the 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
of the Unfunded Mandates Act 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 proposed 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 proposes to
approve pre-existing requirements under State or local law, and imposes
no new federal requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
The Administrator's decision to approve or disapprove the SIP
revision, pertaining to the Pennsylvania generic VOC and NOx
RACT rule, 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,
Nitrogen dioxide, Ozone.
Authority: 42 U.S.C. 7401-7671q.
Dated: August 4, 1997.
Marcia E. Mulkey,
Acting Regional Administrator, Region III.
[FR Doc. 97-21269 Filed 8-11-97; 8:45 am]
BILLING CODE 6560-50-P
