Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Limited Approval/Limited Disapproval of Reasonably Available Control Technology Requirements for Major Sources of VOC and NOINFX

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 41-1-6288; FRL-5133-5]

Approval and Promulgation of Air Quality Implementation Plans;

Pennsylvania; Limited Approval/Limited Disapproval of Reasonably

Available Control Technology Requirements for Major Sources of VOC and

NOX

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing three alternative actions in today's notice

concerning Pennsylvania's State Implementation Plan (SIP) revision,

which contains regulations requiring major sources of volatile organic

compounds (VOC) and nitrogen oxides (NOX) to implement reasonably

available control technology (RACT). The intended effect of this action

is to propose and solicit comment on the range of alternative actions

regarding the Pennsylvania RACT submittal (Pennsylvania Chapters 129.91

through 129.95 and the associated definitions in Chapter 121). The

three alternatives propose either limited approval/limited disapproval

or full disapproval of the Pennsylvania regulations. In addition to the

specific issues related to the Pennsylvania submittal, EPA is also

specifically taking public comment on the general issue of whether RACT

submittals of regulations which allow for future case-by-case SIP

revisions meet the RACT requirements of the Clean Air Act and should be

approved now, for Pennsylvania, and can be approved in the future for

submittals by any state to EPA. EPA's resolution of this issue in this

rulemaking will affect its completeness and approvability

determinations in future case-by-case SIP revisions meet the RACT

requirements of the Clean Air Act and should be approved now, for

Pennsylvania, and can be approved in the future for submittals by any

state to EPA. EPA's resolution of this issue in this rulemaking will

affect its completeness and approvability determinations in future

rulemaking on SIP submittals by other states. These actions are being

taken under section 110 of the CAA.

DATES: Comments must be received on or before February 13, 1995.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air,

Radiation, and Toxics Division, 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 Resources, Bureau of Air Quality Control,

P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, (215) 597-9337, at

the EPA Region III address.

SUPPLEMENTARY INFORMATION: On February 4, 1994, the Pennsylvania

Department of Environmental Resources (PA DER) 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 and the associated definitions in Chapter 121). This submittal

was amended with a revision on May 3, 1994 correcting and clarifying

the presumptive NOX RACT requirements under Chapter 129.93. The

Pennsylvania SIP revision consists of new regulations which would

require sources which emit or have the potential to emit 25 tons or

more of VOC or NOX per year in Philadelphia 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 of the Philadelphia ozone nonattainment area, sources of

NOX which 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. A generic

RACT regulation is one which does not impose specific upfront emission

limitations but instead allows for future case-by-case determinations.

This regulation allows DER to make case-by-case RACT determinations

which are then submitted to EPA as revisions to the Pennsylvania SIP.

This proposed rulemaking is intended to take comment on whether a

generic RACT submittal, such as Pennsylvania's, meets the requirements

of sections 172(c), 182(b)(2), and 182(f) of the Clean Air Act. This

rulemaking is designed to clarify whether EPA will approve RACT

submittals that allow the SIP to be revised with future case-by-case

RACT determinations, or will instead require specific and immediately

ascertainable emission limitations.

Background

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) which is

established by the CAA. The Pennsylvania portion of the Philadelphia

ozone nonattainment area consists of Bucks, Chester, Delaware,

Montgomery, and Philadelphia Counties and 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 [[Page 2913]] requirements (including RACT as

specified in sections 182(b)(2) and 182(f)) apply throughout the OTR.

Therefore, RACT is applicable statewide in Pennsylvania.

Summary of Regulations

The SIP submittal under review consists of Pennsylvania regulations

codified at 25 Pa. Code Chapters 129.91 through 129.95, and the

associated definitions in Chapter 121.

I. Chapter 121 (Definitions)

The Pennsylvania submittal includes the following new definitions

in Chapter 121: Lowest Achievable Emission Rate (LAER), low NOX

burner with separated overfire air, major NOX emitting facility,

major VOC emitting facility, marginal ozone nonattainment area,

moderate ozone nonattainment area, National Ambient Air Quality

Standard (NAAQS), Oxides of Nitrogen (NOX), serious ozone

nonattainment area, and severe ozone nonattainment area.

II. 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 Secs. 129.51-129.72,

129.81 and 129.82) to provide PA DER with identification and emission

information by May 16, 1994. Covered sources must submit a written RACT

proposal to PA DER by July 15, 1994. PA DER 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 DER 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.

III. Chapter 129.92

Chapter 129.92 details the information required in 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. The RACT analysis must rank the available

control options in descending order of control effectiveness, provide

information on baseline emissions and emission reduction, and evaluate

the cost effectiveness of each control option. Cost effectiveness of

each control option is required to be calculated using the ``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 which

determine what control option is chosen as RACT to cost factors alone.

The Pennsylvania regulation also properly does not specify a dollar per

ton figure as a threshold over which control options are ineligible for

consideration from RACT.

IV. 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 separated overfire 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 tuneup 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 DER procedures.

For the following groups of sources, Pennsylvania proposes that

RACT is the installation, maintenance and operation of the sources in

accordance with manufacturers specifications. These groups as listed in

Chapter 129.93(c)(1) through (7), are 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 maintaining 4 deg. retarded relative to

standard timing; (4) incinerators or thermal/catalytic oxidizers used

primarily for air pollution control; (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; (6) sources that have

been approved as meeting LAER for NOX emissions since November 15,

1990 with federally enforceable emission limitations; and (7) sources

which have been approved as meeting BACT for NOX emissions since

November 15, 1990 with federally enforceable emission limitations. The

last group of sources are required, however, to meet any more stringent

category-wide RACT emission limitation promulgated by EPA or

Pennsylvania.

V. Chapter 129.94 (NOX Averaging Provisions)

Chapter 129.94 permits major NOX sources to submit a RACT

proposal which includes the 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 agreement that a

violation at one of the participating sources is considered a violation

at all of the participating sources.

VI. Chapter 129.95

Chapter 129.95 is the recordkeeping provision which 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 so

that compliance with the applicable RACT requirements can be

demonstrated. This section also requires that sources of VOC and

NOX which claim exemptions from the RACT requirement maintain

records clearly demonstrating their exempt status.

EPA Analysis

I. Definitions

The definitions associated with the Pennsylvania VOC and NOX

RACT regulation and contained in Chapter 121, with the exception of the

definition of low NOX burner with separated overfire air, conform

to the definitions in the Act and to EPA's existing requirements

located in 40 CFR Part 52. Pennsylvania's proposed definition of low

NOX burner with separated overfire air makes the applicability of

this technology to the group of sources specified in the regulation as

``coal-fired [[Page 2914]] combustion units'' unclear. The sources

covered by this requirement include stoker and cyclone combustion units

which do not have ``burners'' as such. It is unclear how the low

NOX burner requirement would apply to these sources. Pennsylvania

may correct this deficiency by clarifying the language in Chapter

129.93 pertaining to ``coal-fired combustion units'' or by amending its

definition (in Chapter 121) of low NOX burners with separated

overfire air to describe the applicable requirements in the situation

where a combustion unit does not have burners.

II. RACT Proposal Requirements

Chapter 129.92 requires sources to provide information on the

emission reduction, technological feasibility, and cost of control

option. 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 General Preamble on SIP revisions in

Nonattainment areas, 44 FR 53761, 53762 (Sept. 17, 1979); ``Guidance

for Determining Acceptability of SIP regulations in Non-Attainment

Areas,'' Memorandum of Roger Strelow, Assistant Administrator for Air

and Waste Management, December 9, 1976). As noted below, however, the

agency believes that there is a significant issue as to whether

Pennsylvania's generic RACT provision complies with Clean Air Act

requirements.

III. Generic VOC and NOX RACT Requirements

Chapter 129.91 contains Pennsylvania's generic, or ``case-by-

case,'' RACT provisions. Under this approach, the covered sources are

not subject to specific, ``upfront'' (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 the implementation of [RACT],'' and further requires that that

the submittals ``provide for the implementation of required measures as

expeditiously as practicable, but no later than May 31, 1995.''

(Emphasis added.) Pennsylvania asserts that its submittal satisfies

these requirements, as its generic RACT provision requires approved

RACT programs to be implemented by May 31, 1995. Pennsylvania also

believes that its case-by-case approach complies with EPA's definition

of RACT, which directs states to consider the economic and

technological circumstances of the regulated sources.

However, EPA believes that the more reasonable interpretation of

the statutory requirements, and the one that accords with EPA's

longstanding definition of RACT, is that RACT submittals must include

specific, upfront emission limitations for all covered sources, rather

than a process leading to the development of emission limitations at

some later date. 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. See Memorandum of Roger Strelow, Assistant

Administrator for Air and Waste Management, December 9, 1976); NOX

Supplement to the General Preamble on Title I, 57 FR 55620, 55622-23

(Nov. 25, 1992). 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.'' Under Sections 110(a)(2)(A) and

172(c)(6) of the Act, emission limitations must be ``enforceable,'' and

Section 107(d)(3)(E)(iii) further requires that emission reductions be

``permanent and enforceable'' in order to be creditable for attainment

demonstration. Process-oriented generic RACT submittals such as

Pennsylvania's, which do not include specific and ascertainable

emission limitations, do not by themselves provide enforceable

standards. The source becomes subject to federally enforceable

requirements only after EPA approves a subsequent SIP revision

incorporating the source-specific RACT regulations promulgated by the

state.

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. To the contrary, 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 an opportunity to review RACT

submittals prior to the implementation date. These objectives may not

be served by Pennsylvania's generic RACT provisions, under which the

Commonwealth will not be 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

DER).

IV. 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. Standard timing is typically defined as 2 to 6 deg.

before top dead center. EPA agrees with Pennsylvania's proposal for

internal combustion engines, which is an operation and maintenance

requirement and applicable recordkeeping requirement, and believes that

this may constitute RACT for these sources. Pennsylvania's operation

and maintenance requirements for internal combustion engines, coupled

with the applicable recordkeeping requirements, is acceptable to EPA as

RACT.

EPA has identified deficiencies in the other presumptive RACT

emission limitations of Chapter 129.93. For coal-fired combustion units

(100mmBTU/hour or greater), Chapter 129.93(b)(1) provides that

presumptive RACT is low NOX burners with separated overfire 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

[[Page 2915]] technology. 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 separated overfire air control technology. Coal-fired

combustion units greater than or equal to 100 mmBTU/hr represent a

significant portion of the NOX emission 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) are not acceptable to

EPA because Pennsylvania has not provided sufficient technical support

to justify these presumptions as RACT. With proper technical support

and justification, EPA may determine for some sources and source

categories that operation and maintenance requirements alone constitute

RACT. 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 manufacturers

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. In

order to correct these deficiencies in Chapter 129.93(b)(2), (c)(1),

(2), (4), and (5), Pennsylvania must propose and provide adequate

technical support for an emission limitation (which may be an operation

and maintenance requirement, if appropriate) for these sources.

In Chapter 129.93(c) (6) and (7), Pennsylvania is proposing that

for NOX sources for which the state has approved NOX LAER and

BACT determinations since November 15, 1990, the presumptive RACT

emission limitation shall be the approved LAER or BACT determinations.

These provisions allowing sources with approved NOX LAER and BACT

determinations are not acceptable because EPA cannot delegate the

responsibility of approving RACT determinations to a state. Chapter

129.93(c) (6) and (7) allows all NOX sources receiving LAER

determinations since November 1990 and all future LAER determinations

to be declared RACT without EPA approval via the SIP process. RACT

determinations cannot be approved through a permit but rather must be

approved through a SIP revision. EPA cannot agree to LAER

determinations as RACT since those determinations are not now before

the agency for review. Therefore, Pennsylvania must delete the

provisions in Chapter 129.93(c) (6) and (7) pertaining to LAER and BACT

determinations in order to correct this deficiency. The presumptive

RACT proposals in Chapter 129.93 (b) and (c) which require only annual

tune-ups or maintenance procedures simply allow these sources, without

adequate technical justification, to maintain the status quo. The CAA

requires that states in moderate and worse ozone nonattainment areas

and in the OTR control its major NOX sources to RACT levels. Since

the operation and maintenance and tune-up requirements located in

Chapter 129.93 are unsupported, they serve as exemptions from the

NOX RACT requirement in sections 182 and 184 of the CAA.

The provisions in the CAA for NOX exemptions are contained in

section 182(f). In order to exempt major NOX sources from RACT

requirements, Pennsylvania must petition EPA, and receive EPA approval,

for such an exemption under 182(f). EPA's guidance on the criteria for

approval of NOX exemptions under section 182(f) is contained in

the EPA document, ``Guideline for Determining the Applicability of

Nitrogen Oxide Requirements under Section 182(f)'', December 1993.

Pennsylvania has not submitted a petition under section 182(f) but,

even if it had, EPA could not approve the exclusion of major NOX

sources from RACT requirements until approval of such petition under

section 182(f) is granted.

V. 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.

VI. Recordkeeping

The recordkeeping requirements of Chapter 129.95 are consistent

with EPA requirements.

Proposed Action

As noted above, there is considerable controversy about whether

generic RACT provisions, such as the one under review, comply with the

requirements of Sections 172 (c)(1) and 182 (b)(2). EPA believes that

this notice and comment rulemaking would be an appropriate vehicle to

announce a clear agency position on this issue. Accordingly, EPA is

proposing three alternative actions in today's notice: two forms of

limited approval/limited disapproval, and a full disapproval. Under

Options #1 and #2, the limited approval/limited disapproval options,

EPA has identified certain deficiencies which prevent granting full

approval of this rule under section 110(k)(3) and Part D. Because the

submitted rule is not composed of separable parts which meet all the

applicable requirements of the CAA, EPA cannot grant partial approval

of the rule(s) under section 110(k)(3). However, EPA may grant a

limited approval of the submitted rules under section 110(k)(3) in

light of EPA's authority pursuant to section 301(a) to adopt

regulations necessary to further air quality by strengthening the SIP.

The approval is limited because EPA's action also contains a

simultaneous limited disapproval, due to the fact that the rule does

not meet the section 182 and 184 requirements of Part D due to the

noted deficiencies. EPA is soliciting public comment on each

alternative.

In addition, EPA is soliciting public comment on the approvability

of generic RACT provisions generally. The outcome of this rulemaking

will affect the determination of the completeness and approvability of

generic RACT submittals in future rulemaking actions.

Option #1

The first proposed action, and EPA's preferred option, is a

proposed limited approval/limited disapproval of Pennsylvania VOC and

NOX RACT regulations, Chapters 129.91 through 129.95 with the

associated definitions in Chapter 121. The limited approval would be

for the limited purpose of strengthening the SIP, as the Pennsylvania

regulation imposes requirements on previously unregulated sources.

The limited disapproval would be based on two separate grounds:

(1) A determination that the presumptive NOX emission

limitations cannot be approved as RACT for the reasons described above;

and

(2) A determination that Pennsylvania's generic VOC and NOX

provisions are deficient because they do not contain specific,

immediately ascertainable emission limitations (as defined in Section

302(k) of the CAA) for all applicable sources.

Under Option #1, to correct the deficiencies in the presumptive

NOX RACT emission limitation provisions, EPA believes that

Pennsylvania would have to do the following: [[Page 2916]]

(1) Clarify, and submit as a SIP revision, the applicability of the

presumptive RACT requirement for coal-fired combustion units,

(2) Submit SIP revisions to EPA including the specific emission

limitations resulting from the application of low NOX burners with

separated overfire air for those sources choosing to meet RACT

requirements through Chapter 129.93(b), and,

(3) Submit SIP revisions to EPA, with adequate technical support,

correcting the deficiencies identified in Chapters 129.93 (b)(2),

(c)(1), (2), (4), (5), (6) and (7). To the extent that Pennsylvania

proposes operation and maintenance requirements for these sources, the

state must provide technical support showing that specific numerical

emission limitations are impractical, and demonstrating that the

proposed operation and maintenance requirements qualify as RACT.

To correct the deficiency with the generic RACT provision under

Option #1, Pennsylvania must provide emission limitations, compliance

and monitoring requirements (along with adequate technical

justification for these requirements) for all major VOC and NOX

sources required to implement RACT. To ensure that all sources are

subject to RACT requirements, Pennsylvania must either (1) submit all

case-by-case RACT proposals for all covered sources to EPA for approval

as SIP revisions and certify that there are no other sources required

to implement RACT, or (2) submit a ``default'' RACT emission limitation

that would apply to all sources subject to the generic provision until

EPA approval of a source-specific RACT SIP revision.

EPA has preliminarily determined that this option is correct, but

will review public comment on this and other outcomes before making a

final determination.

Option #2

Under the limited approval/limited disapproval option #2, EPA would

be determining, for the reasons stated above, that the Pennsylvania

regulation with the presumptive control technology requirements can be

approved and disapproved in a limited fashion for the same reasons

given under option #1. However, EPA would be determining under option

#2 that the case-by-case SIP revision provision of the Pennsylvania

submittal meets the RACT requirements of section 182(b)(2) of the CAA

and provides sufficient safeguards to ensure that RACT is implemented

by May 31, 1995. The difference between this option and the first

option is that EPA, while expecting to receive the case-by-case RACT

proposals as specified by the Pennsylvania regulation, would not

consider the lack of submittal of these proposals at this time to be

reason for limited disapproval of the submitted Pennsylvania

regulation. Therefore, under this option, Pennsylvania may correct the

deficiencies in the regulation by:

(1) Clarifying, and submitting as a SIP revision, the applicability

of the presumptive RACT requirement for coal-fired combustion units,

(2) Submitting SIP revisions to EPA including the specific emission

limitations resulting from the application of low NOx burners with

separated overfire air for those sources choosing to meet RACT

requirements through Chapter 129.93(b), and

(3) Submitting SIP revisions to EPA, with adequate technical

support, correcting the deficiencies identified in Chapters

129.93(b)(2), (c)(1), (2), (4), (5), (6) and (7). To the extent that

Pennsylvania proposes operation and maintenance requirements for these

sources, the state must provide technical support showing that specific

numerical emission limitations are impractical, and demonstrating that

the proposed operation and maintenance requirements qualify as RACT.

Option #3

In its third alternative, EPA is proposing to fully disapprove

Chapter 129.91, pertaining to applicability, Chapter 129.92, pertaining

to VOC and NOX RACT submittals, Chapter 129.93, pertaining to

presumptive RACT control technology requirements, Chapter 129.94,

pertaining to NOX RACT averaging provisions, and Chapter 129.95,

pertaining to VOC and NOX source recordkeeping requirements. The

rationale for full disapproval would be that the deficiencies outlined

above pertaining to the presumptive control technology requirements and

the case-by-case SIP revision provisions of the Pennsylvania regulation

are so significant that limited approval/limited disapproval of the

submittal, on the grounds that it strengthens the SIP, is not

warranted.

Under section 179(a)(2), if the Administrator disapproves a

submission under section 110(k) for an area designated nonattainment,

based on the submission's failure to meet one or more of the elements

required by the Act, the Administrator must apply one of the sanctions

set forth in section 179(b) unless the deficiency has been corrected

within 18 months of such disapproval. Section 179(b) provides two

sanctions available to the Administrator: highway funding and offsets.

The 18 month period referred to in section 179(a) will begin on the

effective date of a final disapproval. Moreover, the final disapproval

triggers the federal implementation plan (FIP) requirement under

section 110(c). The sanctions will apply if the Pennsylvania submittal

is disapproved fully or in a limited fashion.

If EPA decides to issue a limited approval/limited disapproval

pursuant to Options #1 or #2, EPA intends to conduct final limited

approval/limited disapproval rulemaking on the Pennsylvania regulation

without further proposal. If Pennsylvania chooses to make modifications

to their RACT regulation, by correcting definitions and adding default

emission limitation requirements for all major VOC and NOX

sources, EPA will conduct rulemaking appropriate to our preliminary

judgment on the approvability of the substance of any subsequent

submittal. Under the limited approval/limited disapproval options, to

the extent that any subsequent Pennsylvania submittal modifying the

February 10, 1994 submittal is made, EPA intends to finalize, without

further proposal, limited approval/limited disapproval of the

regulation that remains unaffected by the subsequent submittal.

If EPA decides to fully disapprove the regulation pursuant to

Option #3, EPA intends to disapprove the submittal without further

proposal unless Pennsylvania either (a) submits all case by-case RACT

determinations to EPA and certifies that there are no other subject

sources, or (b) modifies their regulation to add default emission

limitations for all major VOC and NOX sources.

If Pennsylvania submits a regulation subsequent to this notice and

withdraws the present submittal, EPA intends to propose action on the

new submittal.

EPA has proposed three actions and is specifically soliciting

comment on these actions and the rationale provided as the basis for

each of those actions. A consequence of adopting options #1 or #3 in

the final rulemaking is that future RACT submittals with generic

provisions may be deemed inadequate to meet the RACT requirements of

section 182(b)(2). Such a decision will significantly impact future

determinations as to whether such generic RACT regulation submittals

meet the completeness criteria in 40 CFR Part 51 Appendix V. Further

discussion of the Pennsylvania submittal and rationale for these

proposals is contained in the [[Page 2917]] accompanying technical

support document.

Through the first two proposal options, EPA is proposing a limited

approval of Chapters 129.91 through 129.95 and the associated

definitions in Chapter 121 which was submitted on February 10, 1994,

including the corrective revision submitted on May 3, 1994.

As noted, EPA's preliminary review of this submittal indicates that

the Pennsylvania generic VOC and NOx RACT regulation submitted on

February 10, 1994 and the corrective revision submitted on May 3, 1994

should be approved/disapproved in a limited fashion, under the

rationale for option #1; to strengthen the Pennsylvania SIP and to

allow Pennsylvania to correct the deficiencies in the RACT regulation

cited above. EPA has proposed three actions and is specifically

soliciting comment on these actions and the rationale provided as the

basis for each of those actions. Public comments on the issues

discussed in this notice or on other relevant matters 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.

Under the limited approval/limited disapproval options, EPA has

identified certain deficiencies which prevent granting full approval of

this rule under section 110(k)(3) and Part D. Also, because the

submitted rule is not composed of separable parts which meet all the

applicable requirements of the CAA, EPA cannot grant partial approval

of the rule(s) under section 110(k)(3). However, EPA may grant a

limited approval of the submitted rule(s) under section 110(k)(3) in

light of EPA's authority pursuant to section 301(a) to adopt

regulations necessary to further air quality by strengthening the SIP.

The approval is limited because EPA's action also contains a

simultaneous limited disapproval, due to the fact that the rule does

not meet the section 182 and 184 requirements of Part D because of the

noted deficiencies. Thus, in order to strengthen the SIP, EPA is

proposing a limited approval of Pennsylvania's submitted Chapters

129.91 through 192.95 and associated definitions in Chapter 121 under

section 110(k)(3) and 301(a) of the CAA.

At the same time, EPA is also proposing a limited disapproval of

this rule because it contains deficiencies, and, as such, the rule does

not fully meet the requirements of Part D of the Act. Under section

179(a)(2), if the Administrator disapproves a submission under section

110(k) for an area designated nonattainment, based on the submission's

failure to meet one or more of the elements required by the Act, the

Administrator must apply one of the sanctions as discussed above.

Except to the extent that EPA proposes to use this rulemaking as a

vehicle to announce an agency policy on generic RACT submittals,

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.

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals 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, I certify

that it does not have a significant impact on any small entities

affected. Moreover, due to the nature of the Federal-State relationship

under the CAA, preparation of a flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

EPA's disapproval of the State request under section 110 and

subchapter I, part D of the CAA does not affect any existing

requirements applicable to small entities. Any pre-existing federal

requirements remain in place after this disapproval. Federal

disapproval of the state submittal does not affect its state-

enforceability. Moreover, EPA's disapproval of the submittal does not

impose any new Federal requirements. Therefore, EPA certifies that this

disapproval action does not have a significant impact on a substantial

number of small entities because it does not remove existing

requirements and impose any new Federal requirements.

This action has been classified as a Table 2 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by

an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant

Administrator for Air and Radiation. The OMB has exempted this

regulatory action from E.O. 12866 review.

The Administrator's decision to approve or disapprove the

Pennsylvania SIP revisions, pertaining to the VOC and NOX RACT

regulations, 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,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Ozone, Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401-7671q.

Dated: October 27, 1994.

W.T. Wisniewski,

Acting Regional Administrator, Region III.

[FR Doc. 95-822 Filed 1-11-95; 8:45 am]

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