[Federal Register Volume 62, Number 159 (Monday, August 18, 1997)]
[Proposed Rules]
[Pages 43959-43962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21805]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 058-4039; FRL-5876-5]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Proposed Disapproval of the NOX RACT
Determination for Pennsylvania Power Company
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to disapprove a State Implementation Plan
(SIP) revision submitted by the Commonwealth of Pennsylvania's
Department of Environmental Protection (PADEP). This revision withdraws
EPA's previously proposed approval of the nitrogen oxide
(NOX) reasonably available control technology (RACT)
determination submitted by PADEP for Pennsylvania Power Company--New
Castle plant (PPNC), located in Lawrence County, Pennsylvania and,
instead, proposes to disapprove the SIP revision pertaining to this
facility. The intended effect of this action is to propose disapproval
of the NOX RACT determination submitted by PADEP for PPNC.
DATES: Comments must be received on or before September 17, 1997.
ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone/CO
and Mobile Sources Section, 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 office above or via e-mail at
stahl.cynthia@epamail.epa.gov. While information may be requested via
e-mail, all comments must be submitted in writing to the EPA Region III
address above.
SUPPLEMENTARY INFORMATION:
Background
On April 19, 1995, PADEP submitted a revision to the Pennsylvania
SIP requesting EPA approve RACT determinations it had made for several
facilities, including PPNC. Only the RACT determination submitted for
PPNC is the subject of this rulemaking action. The revision consists of
an operating permit, OP 37-023, for PPNC. The other plan approvals and
operating permits submitted on April 19, 1995 are the subject of other
rulemaking actions.
On April 9, 1996, EPA published a direct final rule in the Federal
Register (61 FR 15709). This document stated that EPA was approving,
without prior proposal, 21 source-specific RACT determinations made and
submitted by PADEP for facilities located in Pennsylvania. Included
among these 21 source-specific RACT determinations was one for PPNC.
The document also stated that unless adverse comments were received
within 30 days of publication, EPA's RACT determinations for these 21
facilities would become final. The accompanying proposed rulemaking,
which appears with every direct final rule, was also published on April
9, 1996 ( 61 FR 15744).
On May 8, 1996, New York Department of Environmental Conservation
submitted a letter stating that it intended to adversely comment on
EPA's action to approve PADEP's RACT determination for PPNC. Therefore,
on June 11, 1996, EPA published a document withdrawing the final rule
approving PADEP's RACT determination for PPNC, among other facilities
(61 FR 29483). At the request of the commenters, EPA also extended the
comment period twice; the last time until August 2, 1996 (61 FR 29483
and 61 FR 37030).
On June 28, 1996, NYDEC submitted comments to EPA pertaining to
PADEP's RACT determination for PPNC. 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. The comments received by EPA are summarized below and,
in more detail, in the technical support document (TSD) prepared by EPA
in support of this proposed action to disapprove PADEP's SIP revision
for PPNC submitted on April 19, 1995. Copies of the TSD are available,
upon request, from the EPA Region III office listed in the ADDRESSES
section of this document.
This action proposing to disapprove PADEP's April 19, 1995 SIP
revision request for PPNC being taken under section 110 of the Clean
Air Act.
Comments Received on EPA's April 9, 1996 Proposal to Approve
PADEP's RACT Determination for PPNC
NYDEC Comments:
NYDEC states in its June 28, 1996 comment letter that it disagrees
with EPA's proposal to approve PADEP's RACT determination for PPNC.
NYDEC states that it believes that the control efficiencies for add-on
emission controls are understated in the PADEP technical support
document, the costs for add-on controls are overstated, the 15-year
cost-recovery period used in the PPNC RACT analysis is too short, and
that NOX add-on control technology is technically and
[[Page 43960]]
economically feasible for the boilers at PPNC. In addition, NYDEC
states that another indication that the economic analysis is flawed is
the inconsistency in final NOX emission limits depending on
how the emission limits are calculated. NYDEC further states that
PADEP's acceptance of PPNC's use of a lower NOX emission
rate (and non-enforceable emission rate) to perform the cost analysis
to show that any emission controls are infeasible, but a higher
NOX emission rate (i.e. the proposed RACT emission limits)
to determine total NOX emissions allowed, is inconsistent
with its (NYDEC's) State Implementation Plan (SIP) experience in
establishing enforceable emission limits and determining the cost-
effectiveness of controls for RACT. NYDEC's comments included a table
of calculations showing the total NOX emissions using the
proposed RACT (SIP) emission limits and the calculated emission limits
using the emission caps proposed as part of the PPNC RACT
determination. NYDEC states that PPNC appears to have used lower
emission limits to evaluate the economic feasibility of control options
but did not agree to make those lower emission limits enforceable as
part of the RACT determination.NYDEC states that the PADEP October 14,
1996 memorandum seriously underestimates the effectiveness of low
NOX burner (LNB) controls. PADEP estimates that emission
reductions of approximately 30% are expected for the operation of LNB
while NYDEC believes that emission reductions on the order of 40-50%
are more realistic. NYDEC states that the Title IV Phase I limits
(under the acid rain program) estimate that reductions of 40-50% are
achievable and at costs well below those estimated in the PPNC RACT
proposal submitted to PADEP.
Pennsylvania Power--New Castle Comments:
On July 15, 1996 and August 1, 1996, the firm of Fried, Frank,
Harris, Shriver & Jacobsen submitted comments to EPA on behalf of their
client, Pennsylvania Power Company. In summary, the commenter states
that the Company pursued a Company-wide NOX emission
reduction strategy to achieve 55% NOX reduction consistent
with the goals of the Ozone Transport Commission's (OTC) NOX
Memorandum of Understanding (NOX MOU). The commenter also
states that the NOX emission caps agreed to by PPNC for
Units 3 -5 represent a 55% NOX emission reduction from
potential emission levels. The commenter further states that the New
Castle plants emissions are small relative to the rest of the
Pennsylvania Power System and that PPNC's Units 3--5 represent 12% of
the total Pennsylvania Power System NOX emissions. The
commenter, on behalf of the Company, states that its Mansfield plant
has installed low-NOX burners and, that these, in
combination with lowered emissions from the shut down of PPNC's units 1
and 2, result in Pennsylvania Power achieving a 51% potential emission
reduction. PPNC states that determination made by PADEP that any
control technology is technically or economically infeasible, was based
on existing Pennsylvania regulations. The commenter asserts that the
determination was made by relying upon procedures approved by EPA for
making NOX RACT determinations and by relying on emission
caps for units 3, 4, and 5 to restrict capacity and emissions. These
emission caps were factored into the RACT determination, resulting in
unreasonable costs for add-on controls. These procedures were
referenced as: 25 Pa Code Sec. 129.91 and ``PADER, Guidance Document on
Reasonably Available Control Technology for Sources of NOX
Emissions (March 10, 1994).'' The commenter states that the RACT
determination for PPNC submitted by PADEP was supported by accompanying
documentation, which included a description of the control technology
options, costs, and control effectiveness. The commenter cites the PA
NOX RACT guidance document and EPA's March 16, 1994
memorandum as part of its evidence that the technically feasible
control options were properly deemed economically infeasible. The
commenter included as part of its comments, additional vendor
information, supplied to support the RACT determination, that add-on
controls are economically infeasible for the PPNC units. The commenter
states that the vendor has extensive experience in the design and
installation of low NOX burners including those at Ohio
Edison/Penn Power's Edgewater, Sammis, and Mansfield plants. The
commenter concludes that the selection of no controls as RACT for the
PPNC boilers is a legitimate RACT determination using the PADEP and EPA
policies and guidance. The Company believes that substituting NYDEC's
analysis for the one done by PADEP, or substituting data submitted by
NYDEC for that originally considered by PADEP, would be a violation of
the principles of administrative law.
Pennsylvania DEP Comments:
On August 2, 1996, Pennsylvania DEP submitted a short statement
that it sees no justifiable reason to change its RACT determination and
urged EPA to approve the PPNC RACT determination as it was submitted.
In addition to PADEP's August 2, 1996 letter, EPA received, via fax on
July 29, 1996, a document showing how PADEP calculated the
NOX RACT emission limitation for PPNC unit 3 using
continuous emission monitoring (CEM) data. The actual methodology is
contained in the March 1996 Pennsylvania NOX RACT Guidance
Document, which has not been submitted or approved as part of the
Pennsylvania SIP. The faxed material shows the data used by PADEP to
calculate the PPNC NOX emission limits. Briefly, the PADEP
formula used to calculate a NOX emission limit specifies the
use of the mean 30-day NOX CEM average plus 2.78 standard
deviations. Using this formula, PADEP calculated the NOX
emission limit for unit 3 (using first- and second-quarter 1995 CEM
data) to be 0.531 + 2.78(0.0929) = 0.79 lbs/mmBTU. The NOX
emission limits for units 4 and 5 were calculated similarly.
Relevant Information
A survey of other boilers similar to PPNC's (dry-bottom, wall-
fired, coal burning) show that in the ozone transport region (OTR),
which includes the states in the northeast U.S., uncontrolled emission
levels average 0.54 lbs NOX/mmBTU. Controlled emission
levels for this same group of boilers can meet, on average, 0.47 lbs
NOX/mmBTU. The add-on controls generally used for these
boilers are low NOX burners. Across the country, which would
include areas that are designated attainment for ozone and are,
therefore, not required to implement NOX RACT, uncontrolled
emission levels for boilers similar to PPNC average 0.72 lbs
NOX/mmBTU. Controlled emissions for this nationwide group of
boilers average 0.47 lbs NOX/mmBTU. In EPA Region III
(consisting of the states Pennsylvania, Maryland, Delaware, Virginia,
West Virginia and the District of Columbia), there are 31 boiler units
that are of similar type to PPNC's boilers. Forty-five percent of these
31 boilers have low NOX burners installed. There are 20
boiler units that are similar to PPNC's boilers in Pennsylvania; 55% of
these boilers have low NOX burners or LNB with overfired air
installed as emission controls.
A review of the CEM data for PPNC shows that NOX
emissions at this facility, which does not have any NOX add-
on controls, have been between 14 and 58% lower than the RACT emission
limits proposed by the Company and determined by PADEP to be RACT. No
CEM data is available for units 1 and 2 since the CEM requirement did
not start
[[Page 43961]]
until after those units were shut down. The CEM data for units 3
through 5 are available from the last quarter of 1993 through the last
quarter of 1996. The CEM data is required to be reported by the Company
to both PADEP and EPA.
Under the Clean Air Act's Title IV (Acid Rain) requirements, EPA
conducted final rulemaking for the Phase I, Group I boilers (including
dry-bottom, wall-fired units such as PPNC's) (60 FR 18751, April 13,
1995). This final rule was the result of a court ordered remand of the
March 22, 1994 Phase I, Group I boilers final rulemaking (FR CITE).
Both the March 22, 1994 and the April 13, 1995 rulemakings state that
LNB technology is a technically feasible and cost effective option for
utility boilers such as PPNC's. The April 1995 rule states that LNB
costs are on the order of $226/ton NOX removed and proposes
an emission limit of 0.5 lbs NOX/mmBTU. The information
gathered under the acid rain provisions of the Act are relevant and
pertinent to the PPNC RACT determination. Other literature pertaining
to utility boilers and feasibility of controls also indicate that the
installation of NOX controls is cost effective. This
information is discussed in more detail in the TSD prepared for this
proposal which is included in the rulemaking docket and available to
the public.
Prior to PPNC's July 1994 NOX RACT proposal to PADEP,
and during the time that PPNC and PADEP were working to develop a RACT
proposal for submittal to EPA, EPA proposed NOX emission
limitations under the Title IV acid rain program. EPA's acid rain
proposal occurred in November 1992 and was finalized in March 1994. The
March 1994 rule was later vacated and EPA reissued the final rule in
December 1996. Under the acid rain program, on May 10, 1994, PPNC
applied to accept federally enforceable permit conditions to limit the
NOX emissions at units 1 and 2 to no more than 0.5 lbs/mmBTU
on an annual average. Units 1 and 2 were volunteered by the Company as
Phase I substitution units, meaning that in exchange for the 0.5 lbs/
mmBTU emission limits on those boilers, the Pennsylvania Power parent
company would be allowed to have boilers elsewhere in the Company,
subject to the acid rain Phase I requirements, continue to emit at
higher than otherwise allowable levels. EPA approved the Company's
request through a permit issued on November 28, 1994, prior to the PPNC
NOX RACT submittal date of April 19, 1995.
The currently operating units 3-5 are Phase II acid rain units and
will be subject to compliance with a 0.5 lbs NOX/mmBTU,
annual average, emission limit by the year 2000. On December 26, 1996,
the Company requested early compliance with the Phase II requirements.
In so doing, PPNC units 3 through 5 will be required to meet the Phase
II requirements by January 1, 1997. The early election option allows
sources to meet the Phase II requirements prior to the compliance date
and relieves those sources from meeting the more stringent emission
limit of 0.46 lbs/mmBTU until 2009. PPNC would have otherwise been
required to meet this more stringent emission limitation by 2000.
EPA's Analysis
EPA has reviewed and considered all the information submitted by
the commenters and has reconsidered its original decision based on
those comments. The RACT determination, including the emission limits,
as submitted by PADEP on April 19, 1995 and proposed for approval by
EPA on April 9, 1996 (61 FR 15709) cannot be supported in light of all
available information, including the additional information and
comments submitted by PADEP and PPNC during the public comment period
and other relevant publicly available information. Therefore, EPA is
hereby withdrawing its April 9, 1996 proposed approval of PADEP RACT
determination for PPNC and is proposing, instead, to disapprove PADEP's
RACT determination for PPNC submitted to EPA on April 19, 1995.
EPA initially proposed to approve the emission limits determined by
PADEP to be RACT because the PPNC RACT submittal, on its face,
including the analysis done by PADEP (without reference to relevant
information in existence but not contained in the submittal) appeared
to meet the criteria for RACT determinations. EPA understood from PADEP
that its analysis, as described in its technical support document for
the PPNC RACT determination, was performed in accordance with proper
procedures.
However, due to the submittal of adverse comments, EPA has reviewed
the issues raised regarding the PPNC RACT proposal and determined that
the information provided does not support PADEP's RACT determination
for PPNC.
All five boilers, including units 1 and 2 that are now shut down,
are dry-bottom, single-wall-fired, coal-burning boilers. Units 1 and 2
were the smallest boilers at this facility and were rated at 495 mmBTU/
hr and 640 mmBTU/hr, respectively. Units 3 through 5 are rated at 1029,
1029, and 1325 mmBTU/hr, respectively. The cost infeasibility arguments
for the installation of any controls at PPNC are not supported by the
body of literature and information available, particularly in light of
the fact that many other dry-bottom, wall-fired, coal burning boilers
have been able to install emission controls and meet lower emission
limits. Fundamentally, neither PPNC nor PADEP has adequately
demonstrated that the installation of emission controls is not
technically or economically feasible. Details of the information
pertaining to PPNC are discussed in the accompanying TSD available from
the EPA Region III listed in the ADDRESSES section of this document.
Furthermore, although units 1 and 2 were shut down in 1993, the
Company agreed to accept an effective, federally enforceable
NOX emission limit of 0.5 lbs/mmBTU under the acid rain
program. Therefore, EPA has determined that the proposed RACT limits of
0.93 lbs NOX/mmBTU and 0.90 lbs NOX/mmBTU for
units 1 and 2, respectively, are too high.
Additionally, PADEP has subsequently submitted a separate request
to EPA to approve the early implementation of the acid rain Phase II
emission limits of 0.5 lbs NOX/mmBTU for units 3, 4 and 5.
Therefore, the proposed NOX RACT limits of 0.79 lbs/mmBTU,
0.72 lbs/mmBTU and 1.01 lbs/mmBTU are also too high. Without additional
analysis and information, it would be erroneous and premature to
conclude that the limits in the acid rain permit are RACT. Therefore,
any statements in this document regarding the acid rain requirements
should not be construed as pre-determining what RACT might be for the
PPNC boilers.
The CEM data for units 3 through 5 indicate that even without
emission controls, the NOX emission rates for these units
are well below the proposed NOX RACT emission limits of 0.79
lbs/mmBTU, 0.72 lbs/mmBTU and 1.01 lbs/mmBTU for units 3, 4 and 5,
respectively. Please refer to the TSD for a summary of the CEM data.
Therefore, EPA believes that the proposed NOX RACT emission
limits are too high and do not represent the ``lowest emission rate
[PPNC] is capable of meeting by the application of control technology
that is reasonably available considering technological and economic
feasibility.'' 1
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\1\ 25 Pennsylvania Code, Chapter 121, definition of RACT;
December 9, 1976 memorandum from Roger Strelow, Assistant
Administrator for Air and Waste Management, to all Regional
Administrators.
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The public notice and comment procedures required by the Federal
rulemaking process for actions taken to approve or disapprove SIP
revisions,
[[Page 43962]]
including PADEP's source-specific SIP revisions to determine RACT on a
case-by -case basis for companies such as PPNC, allows interested
parties to comment on whether the information, rationale, procedure and
conclusions are appropriate for the subject source(s). The process is
designed to allow interested parties to question the proposal by
challenging EPA's rationale for its rulemaking action, including
pointing out gaps in information or information that may have been
overlooked in the original proposal. By its re-analysis, performed
subsequent to and in consideration of the issues raised by NYDEC's
comments, EPA has determined that PPNC did not follow the Pennsylvania
RACT regulation or EPA's requirements when it submitted its RACT
proposal to PADEP. Furthermore, EPA has determined that PADEP, in
reviewing and analyzing PPNC's RACT proposal, did not determine and
impose RACT in accordance with its regulation's definition and the
Federal definition of RACT. EPA's reconsideration of the PPNC RACT as a
result of such public comment is the kind of action supported by the
law.
Both Pennsylvania and the Company indicated that they relied on the
Pennsylvania's March 10, 1994 RACT guidance document in developing the
PPNC RACT proposal. This RACT guidance document was not submitted by
PADEP with the April 19, 1995 PPNC RACT package nor at any other time
as part of the SIP revision. The Company included this document in its
July 15, 1996 response to EPA's proposed rulemaking notice. In a June
26, 1997 letter to PA DEP, EPA stated that it had no record of this
document being subjected to public notice and comment. Furthermore, EPA
stated that the March 10, 1994 DEP RACT guidance document contained
procedures and methods that EPA finds inconsistent with the definition
of RACT. Consequently, following the procedures in the March 10, 1994
DEP RACT guidance document does not guarantee that the RACT proposal is
approvable by EPA. EPA has determined that the PPNC RACT proposal is
not supported by the information in the record. EPA's review of this
material indicates the proposed RACT emission limits for PPNC submitted
on April 19, 1995 are unsubstantiated and cannot be approved. EPA is
soliciting public comments on the issues discussed in this document and
on other relevant matters. These comments will be fully 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 document.
Proposed Action
EPA is withdrawing the proposed approval published on April 9, 1996
in the Federal Register and is, instead, proposing to disapprove the
RACT determination submitted by PADEP on April 19, 1995 for the
Pennsylvania Power--New Castle plant, located in Lawrence County.
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
Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
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 proposed action impacts one source, Pennsylvania Power's New
Castle plant. Therefore, EPA certifies that this disapproval action
does not have a significant impact on small entities.Furthermore, as
explained in this document, the request does not meet the requirements
of the Clean Air Act and EPA cannot approve the request. Therefore, EPA
has no option but to propose to disapprove the submittal.
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
disapproval 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.
The Administrator's decision to approve or disapprove the SIP
revision submitted by PADEP for Pennsylvania Power's New Castle plant
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 8, 1997.
Thomas Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 97-21805 Filed 8-15-97; 8:45 am]
BILLING CODE 6560-50-F
