Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania Conditional Limited Approval of the Pennsylvania VOC and NOINFX/INF RACT Regulation

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

[email protected]. 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

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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]

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