Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Disapproval of the NOINFX/INF RACT Determination for Pennsylvania Power Company

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA058-4070; FRL-5997-8]

Approval and Promulgation of Air Quality Implementation Plans;

Pennsylvania; Disapproval of the NOX RACT Determination for

Pennsylvania Power Company

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is disapproving a State Implementation Plan (SIP) revision

submitted by the Commonwealth of Pennsylvania. The intended effect of

this action is to disapprove the nitrogen oxide (NOX)

reasonably available control technology (RACT) determination submitted

by the Pennsylvania Department of Environmental Protection (PADEP for

Pennsylvania Power Company--New Castle plant (PPNC), located in

Lawrence County, Pennsylvania.

DATES: This final rule is effective on June 1, 1998.

ADDRESSES: Copies of the documents relevant to this action are

available for public inspection during normal business hours at the Air

Protection 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.

SUPPLEMENTARY INFORMATION: On August 18, 1997 (62 FR 43959), EPA

published a notice of proposed rulemaking (NPR) for the Commonwealth of

Pennsylvania. The NPR proposed disapproval of the NOX RACT

determination for Pennsylvania Power's New Castle plant (PPNC), located

in Lawrence County. The formal SIP revision was submitted by

Pennsylvania Department of Environmental Resources (now the

Pennsylvania Department of Environmental Protection or PADEP) on April

19, 1995. EPA is now taking final action to disapprove the RACT

determination submitted by PADEP for PPNC. This action is being taken

under section 110 of the Clean Air Act.

I. Background

On April 9, 1996 EPA originally published a direct final rulemaking

approving this RACT determination. Opportunity for public comment was

provided, however, and on May 8, 1996, the New York Department of

Environmental Conservation (NYDEC) submitted a letter stating that it

intended to adversely comment on EPA's proposed approval of PADEP's

RACT determination for PPNC. Because of New York's letter of intent,

the direct final action converted to a proposed action in accordance

with established Federal rulemaking procedures. On June 11, 1996, EPA

published a notice

[[Page 23669]]

withdrawing the effective date of the original direct final rule for

Pennsylvania Power--New Castle, among other facilities. (61 FR 29483).

The NYDEC submitted adverse comments to EPA on June 28, 1996 in

response to the converted proposed rulemaking notice published on April

9, 1996. The NYDEC stated that they disagreed with EPA's RACT

determination for the boilers at PPNC and believe that there are

technically and economically feasible controls for those boilers that

should be determined to be RACT. As requested, EPA extended the comment

period on its original April 9, 1996 proposed approval twice; the last

time until August 2, 1996 (61 FR 29483 and 61 FR 37030). 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.

After considering all the comments submitted, EPA withdrew the

proposed approval and instead, on August 18, 1997, proposed disapproval

of the operating permit submitted by PADEP on April 19, 1995 intended

to impose RACT for PPNC.

II. Comments Received on the August 18, 1997 Proposed Disapproval

In response to the August 18, 1997 proposed disapproval of PADEP's

RACT determination for PPNC, comments were received from NYDEC and

Paul, Hastings, Janofsky & Walker LLP, attorneys for PPNC. NYDEC's

comments fully supported EPA's proposed rulemaking action. The comments

from Paul, Hastings, Janofsky & Walker LLP are summarized below.

Comment 1--EPA has not articulated its legal standard to make RACT

determinations. Case-by-case RACT is not a legal standard.

Response 1--EPA articulated its rationale and the criteria by which

the PPNC submittal was being judged in the August 18, 1997 NPR. EPA's

policies regarding RACT and how RACT determinations are made were

discussed in the NPR. Since EPA's definition of RACT allows for the

consideration of source-specific factors (i.e. case-by-case) in the

determination of RACT-specific applications of policy or guidance are

described in the applicable NPR.

Comment 2--By stating that the proposed PPNC RACT limits are too

high, EPA has used legal standards that have yet to be defined by

regulation.

Response 2--EPA used, as a basis to support its statement, the

monitoring data that was available for the PPNC boilers. EPA and the

Pennsylvania regulations define RACT as ``the lowest emission limit

that a particular source is capable of meeting by the application of

control technology that is reasonably available considering

technological and economic feasibility'' (December 9, 1976 memorandum

from Roger Strelow, Assistant Administrator for Air and Waste

Management, to EPA Regional Administrators and 25 Pa. Code, Subpart C

Article III, Chapter 121). Since RACT is the lowest emission limit

achievable considering technological and economic feasibility, it

appeared to be unreasonable that the emission rates requested by PPNC

for RACT were higher than those actually monitored at those boilers. It

is unnecessary that a legal standard for RACT be established by

regulation prior to an action on a case-by-case RACT determination

proposal; the Clean Air Act contemplates establishing enforceable legal

standards through notice and comment rulemaking such as that being

conducted for case-by-case RACT proposals.

Comment 3--EPA has not promulgated a definition for RACT to be used

in NOX determinations and cannot rely on Pennsylvania's

definition of RACT since EPA had not approved it until August 12, 1997.

EPA has misapplied the RACT definition in the Strelow Memorandum to the

PPNC determination since the Strelow Memorandum is guidance for SIP

approvals by EPA and not to make individual RACT determinations. The

Strelow Memorandum recognized that individual RACT determinations would

be made using future guidance. The RACT definition contained in the

Strelow Memorandum was not issued by notice and comment rulemaking and

therefore is not binding. Furthermore, EPA expanded this definition of

RACT without notice and without record.

Response 3--The Clean Air Act give EPA authority to define RACT for

all regulated pollutants, including NOX. EPA defined RACT in

the Strelow memorandum dated December 9, 1997. In a Federal Register

published on September 17, 1979 (44 FR 53761), EPA discussed the Clean

Air Act statutory requirements including the definition of RACT and

stated there that the Strelow memorandum was published in BNA

Environmental Reporter, Current Developments, pp. 1210-12 (1976). EPA's

definition of RACT is consistent with the statutory intent and

Pennsylvania's definition of RACT is consistent with the Strelow

memorandum. Congress expressly cites to EPA's RACT guidance and

endorses it in section 182(a)(2)(4) as the appropriate guide for state

submittals. This guidance was published and made available to the

public in the House Energy and Commerce Committee Reports, Rept. 101-

490 Part 1 at page 235. Therefore, EPA's statutory authority to approve

RACT determinations is clear. EPA has consistently applied the

definition of RACT to the PPNC RACT submittal.

Comment 4--EPA is inappropriately using 1993 as a baseline and has

not provided record support to use 1993 instead of 1990 as baseline.

Response 4--The commenter concludes that EPA has used 1993 as a

baseline instead of 1990 and yet does not provide a discussion of the

reason for this comment. EPA has not established any baseline year but

rather has used emissions data that available for 1993 to illustrate

the feasibility of achieving emission rates lower than those proposed

by PPNC as RACT. These emission rates were achieved without the use of

low-NOX burners or other add-on controls; leading to the

conclusion that more stringent emission limitations that those proposed

by the Company should be considered RACT.

Comment 5--EPA is using ad hoc reasons, such as averages of

emissions data from similar sources, acid rain information,

NOX Memorandum of Understanding (MOU) status, and Ozone

Transport Assessment Group (OTAG), to support its RACT determination.

EPA has not defined what a ``similar boiler'' is.

Response 5--The discussion in the EPA NPR regarding average

emission rates achieved for boilers similar to PPNC, requirements under

the acid rain program that the PPNC boilers agreed to, etc. were

included in order to provide a context for EPA's proposed disapproval

of the PPNC RACT submittal. The reasonableness of the proposed PPNC

emission limits must be determined in the context of what other similar

sources are able to achieve and what PPNC itself agreed to achieve in

order to meet its other statutory obligations. NOX emissions

are regulated by several programs but the control technology and

methods to achieve NOX emission reductions are not limited

to meeting the obligations in any one program. EPA also clarified the

use of the term ``similar boilers'' by stating that the comparisons

with similar boilers were made by size and type (dry-bottom, wall-

fired, coal burning). The data used came from the acid rain database,

which only includes those boilers subject to the acid rain

requirements. The boilers subject to the acid rain requirements are

utility units larger than 250 mmBTU/hr, rated heart

[[Page 23670]]

input. EPA's determination is also based on its recognition that there

may be technical similarities that would facilitate the use of similar

emission controls even among boilers of different sizes and types. The

NPR makes clear the bases of comparison between PPNC's boilers and

other combustion units.

Comment 6--In making the PPNC RACT determination now, EPA is

retroactively applying criteria that did not exist when PPNC prepared

its proposal, when PADEP conducted its review, or when EPA approved the

PPNC RACT proposal.

Response 6--EPA's definition of RACT has been that contained in the

Strelow memo since it was issued in the late 1970s and EPA has used

that definition as the basis for its RACT rulemaking actions since that

time. EPA's reliance on guidance documents is clearly stated in its

proposed rulemaking actions that would result in binding enforceable

requirements such as those in case-by-case RACT determinations.

Interested parties are welcome to comment specifically on the RACT

rulemaking actions as well as on the criteria that EPA used to conduct

those rulemaking actions. Binding criteria do not have to exist prior

to conducting a proposed rulemaking action. The criteria that EPA

applies to all RACT proposals, including the PPNC proposal, is the

definition of RACT, any guidance in the form of memos or guidance

documents pertinent to the source category or source that is subject to

the RACT requirement, and any specific data applicable to the source

category or source that is subject to the RACT requirement. This has

been EPA's criteria for RACT determinations since the statutory

requirement was imposed. The source category or source specific

guidance documents to be used are those that are available at the time

the RACT determination is being evaluated and proposed. For example,

the NOX Supplement to the Title I General Preamble published

in the November 25, 1992 Federal Register re-states our practice for

determining RACT and states that much of EPA's guidance for VOC RACT is

also applicable to NOX RACT (57 FR 55620). In the case of

PPNC, PADEP prepared its RACT proposal and supporting documents in the

late summer and fall of 1994. The public hearing for the PPNC RACT

proposal was held on November 17, 1994. EPA submitted comments for the

record on December 5, 1994. EPA's comments regarding the PPNC RACT

proposal included comments questioning the cost factors and asserting

that, in general, the information in the package did not support the

conclusions arrived at by PPNC. The record is clear that EPA has

consistently maintained its position on this RACT proposal since it was

first proposed at the state level. The use of the federal definition of

RACT even where such a definition has not been specifically approved

into a state's SIP ensures that consistent criteria are applied in

imposing RACT requirements.

Comment 7--EPA cannot use PPNC's acid rain permit limits or

Pennsylvania's participation in the Ozone Transport Commission (OTC)

NOX MOU as criteria to determine whether PPNC's proposal is

RACT.

Response 7--EPA did not use PPNC's acid rain permit limits or

Pennsylvania's participation in the OTC NOX MOU as criteria

to determine whether PPNC's proposal is RACT. Instead, EPA applied

criteria using the definition of RACT, information from available,

appropriate guidance documents, and available information regarding

PPNC's boilers. The test of reasonableness in the definition of RACT

warrants investigating the availability of controls and the ability to

meet other emission limitations among similar sources. EPA's evaluation

of the PPNC RACT proposal investigated all relevant information that

would indicate technical and economic feasibility of achieving lower

emission limits as required by the definition of RACT. See also

Response 6.

Comment 8--EPA is using different criteria documents than required

to be used such as those used in the approval of three NOX

RACT determinations for sources in New York (September 23, 1997, 62 FR

49617). None of the documents referenced by EPA in the PPNC docket are

listed in the March 1996 NOX Policy Documents for the Clean

Air Act of 1990 (EPA-452/R-96-005). EPA has not provided record support

to explain its deviation from not using the policy documents listed in

EPA-452/R-96-005.

Response 8--The criteria documents in the PPNC RACT docket are

those that were determined to be relevant to the evaluation of the

types of boilers at PPNC. The three NOX RACT determinations

referred to by the commenter pertained to NOX sources unlike

those at PPNC. These New York NOX sources are the University

of Rochester, with two non-utility oil-fired boilers (90 mmBTU/hr and

122 mmBUT/hr rated capacity), Morton International, Incorporated, with

one gas-fired boilers smaller than 100 mmBTU/hr rated capacity and

Algonquin Gas Transmission Company with four gas-fired internal

combustion engines. It is to be expected that the documents used to

evaluate the New York sources would be different than those used to

evaluate the five coal-fired utility boilers at PPNC. As stated by

PPNC, the rated capacity of the PPNC boilers are 119 mmBTU/hr (35 MW),

164 mmBTU/hr (48 MW), 335 mmBTU/hr (98MW), 335mmBTU/hr (98MW), and 468

mmBTU/hr (137 MW). The documents listed in the March 1996 EPA document

(EPA-452/R-96-005) are those related to ozone policy. EPA's

Introduction to the March 1996 document does not purport to

exhaustively list all applicable or relevant NOX RACT

guidance. Indeed, it states that it includes, along with the

NOX Supplement to the General Preamble, ``several other

guidelines and policy memorandum'' (sic). These items include primarily

documents regarding SIP attainment demonstrations, section 182(f)

NOX waivers, emissions trading, fuel switching, compliance

schedules, de minimis values for gas turbines and internal combustion

engines, NOX substitution in air quality plans, conformity,

and new source review--issues that do not pertain to the PPNC RACT

submittal. The relevant documents in the March 1996 list that pertained

to PPNC were used and included in the PPNC docket along with other

relevant and appropriate pieces of information. No applicable

regulation, policy or guidance limits EPA's consideration in evaluating

RACT submittals to only those documents that are contained in the March

1996 EPA document list. Consequently, EPA's use of criteria documents

in the evaluation of the PPNC RACT submittal were appropriate.

Comment 9--The proposed action does not cite any delegation of

authority to the Regional Administrator to sign SIP actions. Based on

Table 1, 54 FR 2221 (Jan. 19, 1989), only the Administrator can sign

SIP actions that deviate from national policy and the proposed

disapproval of the PPNC SIP submittal relies on criteria that

significantly deviate from national policy.

Response 9--Delegation 7-10 provides the authority for Regional

Administrators ``[t]o propose or take final action on any State

implementation plan under section 110 of the Clean Air Act.'' EPA's

Directives System contains the definitive statements of EPA's

organization * * * and delegations of authority. 40 CFR 1.5(b). The

Directives System is the official statement of authority that has been

delegated and EPA is not required to identify the specific delegation

of

[[Page 23671]]

authority in each action the Agency takes. The current delegation,

approved by the Administrator on May 6, 1997, places two limitations on

the delegation.\1\ The first limitation applies only to final actions.

The second provides that the delegation does not apply where the action

establishes an alternative interpretation from an established EPA

policy where the alternative interpretation has not been reviewed

through the Agency's consistency process. As explained above, EPA's

proposed action for PPNC is not based on an alternative interpretation

from an established EPA policy.

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\1\ The commenter's citation to Table 1 is obsolete. Under the

previous version of delegation 7-10, the Agency created three tables

which identified separate processes for SIP actions. The Regional

Administrators were delegated authority to sign actions on tables 2

and 3, with the Administrator retaining sole authority to sign

actions on Table 1. Subject to two limitations, the Regional

Administrators have been delegated authority to sign all SIP

actions.

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Comment 10--EPA has used a significantly different approach in the

PPNC RACT proposal evaluation than used in other EPA RACT

determinations. For example, the EPA approval of International Paper--

Hammermill Division (Lockhaven) allowed an emission limit based on a 30

day running average that included a ``buffer'' as a way to account for

the limited emission data available and did not require the

installation of add-on controls.

Response 10--EPA's approach in evaluating all RACT determinations

is consistent in that the same definition of RACT is used. However,

under long-standing EPA policy and guidance, the determination of RACT

allows for the consideration of source-specific variables and as such,

can result in different conclusions as to what RACT is for different

sources. The circumstances at International Paper--Hammermill Division

(Lockhaven) and the information provided by PADEP and the Company in

support of the RACT proposal warranted granting the particular RACT

determination in that instance. The PADEP's submittal for PPNC does not

contain information supporting its proposed RACT determination.

Consequently, EPA approved the International Paper RACT and proposed to

disapprove the PPNC RACT submittal.

Comment 11--EPA did not consider the full PPNC NOX RACT

proposal in deciding to propose disapproval. EPA did not obtain from

PADEP the full proposal with its appendices that were submitted by PPNC

to PADEP.

Response 11--EPA evaluated the PPNC NOX RACT submittal

using all the information submitted by PADEP and that submitted during

the comment periods in June-August 1996 and in August 1997. If either

PADEP or PPNC believed that EPA did not originally consider documents

critical to its RACT proposal, it had an opportunity to submit any of

these documents and comments in response to the proposed rulemaking

notices. Furthermore, EPA expects RACT SIP submittals to include all

documents relied on by the state in making its decision to propose

RACT. If PADEP did not submit information to EPA, the presumption is

that that information was not relied on in its decision making. Whether

or not documents are submitted with each Pennsylvania RACT submittal is

an issue between the source and the Commonwealth. EPA's final

rulemaking action considers all information submitted with the April

19, 1995 PADEP submittal and during the relevant comment periods.

Comment 12-- EPA improperly viewed the PPNC proposal as a ``no

controls'' proposal. Since late 1993, PPNC has installed and

experimented with two separate computerized combustion optimization

systems in the PPNC unit 5 boiler resulting in a 50% emission reduction

from 1990 levels. PPNC has used this information from unit 5 on units 3

and 4, resulting in comparable emission reductions.

Response 12--EPA evaluated the PPNC proposal on the basis of

whether the proposal would result in a RACT level of emissions. RACT is

defined by EPA and PADEP as the lowest achievable emission limit

considering technical and economic feasibility. The emission limits

proposed by PADEP and PPNC are higher than those that were currently

monitored at the facility at the time the RACT proposal was being

developed. The PADEP's April 19, 1995 submittal to EPA intended to

impose RACT for PPNC did not mention a computerized combustion

optimization system through an enforceable permit. Subsequent to the

April 19, 1995 submittal, PADEP mentioned the use of a computerized

combustion optimization system at PPNC. On further investigation, EPA

found that this system was bought, installed and tested using

Department of Energy funds and did not require the use of capital funds

at PPNC. If the combustion optimization system is an available emission

control option to reduce NOX emissions, the PPNC submittal

should have compared the sustainable emission reductions that can be

achieved by such a combustion optimization system with those

sustainable emission reductions that can be achieved by other more

conventional controls such as low--NOX burners or selective

catalytic reduction (SCR) along with economic considerations. Even if a

proper RACT evaluation were done to support a conclusion that RACT may

not require add-on controls, the emission limits in the April 19, 1995

RACT submittal for PPNC would not be approval because they are

substantially less stringent than the actual measured data. The PPNC

cost analysis for conventional NOX controls uses figures

that appear to be unrealistic and unsupported by fact. The cost figures

provided by PPNC, when compared in context with cost figures for

similar boilers, appear to be significantly higher than other figures

without adequate justification. Consequently, EPA has determined that

the PPNC RACT proposal has not adequately demonstrated that add-on

controls are economically infeasible.

Comment 13--EPA has improperly used the lack of official EPA

approval of the PADEP Guidance Document on Reasonably Available Control

Technology for Sources of NOX Emissions to support its

proposed disapproval.

Response 13--EPA clearly stated in the August 18, 1997 NPR

regarding the proposed PPNC disapproval that the PADEP Guidance

Document on Reasonably Available Control Technology for Sources of

NOX Emissions was not part of the April 19, 1995 submittal

nor any other PADEP submittal requesting EPA approval and that,

therefore, EPA was not relying on this guidance document in proposing

disapproval of the PPNC RACT submittal. EPA included a discussion of

this document only because PPNC made comments in response to EPA's

withdrawal of its initial notice of approval (June 11, 1996) claiming

that PADEP had relied on this document. However, PPNC's claims in this

regard cannot be considered by EPA where PADEP has not identified this

document as a basis for its submittal.

Furthermore, as stated in the NPR for EPA's action on

Pennsylvania's VOC and NOX RACT regulation, Chapter

[[Page 23672]]

129.91 through 129.95, the Pennsylvania RACT guidance document has

never been submitted to EPA for approval into the Pennsylvania SIP (62

FR 43134, August 12, 1997).

Comment 14--EPA's refusal to consider any options other than add-on

controls is unsupportable. EPA regulations, guidance, relevant case law

and EPA's definition of RACT contemplates and supports the use of

methods other than add-on controls.

Response 14--RACT requirements do not necessarily always have to

include add-on controls. EPA has made many RACT determinations that

provide for control methods that do not include add-on controls. These

RACT determinations were supported by technical and economic data. A

RACT analysis requires that all control options be evaluated for

technical and economic feasibility and the potential emission

reductions from each of these options compared. Therefore, the

commenter is mistaken in concluding that because EPA has proposed to

disapprove the PPNC RACT proposal which does not propose any add-on

controls, EPA has refused to consider other non-add-on control options.

EPA's evaluation of the PPNC submittal merely analyzes the information

submitted and available that are relevant to PPNC and concludes that

the PPNC proposal is unsupported by the relevant information.

Comment 15--EPA has inappropriately included Ohio Edison Company in

its consideration of costs on PPNC. EPA should consider only PPNC's

resources and not those of other companies with which PPNC has a

relationship. ``Reasonably available'' requires that cost-effectiveness

is determined only on a facility basis.

Response 15--EPA's analysis of the PPNC RACT submittal did not name

particular companies or parent companies as specifically responsible

for the costs of PPNC. The cost figures as provided by PPNC are out-of-

line with those obtained from other sources, including sources under

the acid rain program, for similarly sized and typed boilers, resulting

in EPA's conclusion that the PPNC RACT proposal submitted by PADEP is

not adequately substantiated and supported to justify the emission

requirements being requested.

Comment 16--EPA has failed to give proper deference to PADEP's

decision to approve the PPNC proposal as RACT. EPA cannot substitute

its judgment for the State's determination because EPA believes more

stringent air quality controls are achievable.

Response 16--Although the State has the initial obligation to

determine the appropriate control requirements for sources, EPA is

required to review the submission and to approve or disapprove it as

complying with the applicable statutory requirements. These

requirements include the general requirements of section 110(a)(2) and,

in this case, the statutory requirements that the control technology is

``RACT'' for PPNC. While EPA will consider the record for the State's

determination, there is no statutory obligation for EPA to defer to the

State. To the contrary, the statutory requirement that EPA review and

take rulemaking action on the State's submission demonstrates that

Congress did not intend for EPA to ``rubber stamp'' State

determinations.

Comment 17--EPA has acted arbitrarily and capriciously in proposing

to disapprove the PPNC RACT proposal. EPA has denied PPNC a meaningful

opportunity to comment based on each of the reasons above.

Consequently, until EPA can resolve the above comments, EPA should

suspend this rulemaking and ultimately consider approval of the PPNC

RACT proposal or re-propose the disapproval including legal and factual

rationale.

Response 17--EPA's proposed rulemaking action is clear and

deliberate in setting forth the legal and factual reasons supporting

the proposed disapproval. PPNC and all other interested parties were

given ample opportunity to submit comments and supporting information.

EPA has addressed every comment made in the commenter's letter and has

considered all relevant pieces of information. In conducting this

rulemaking action, EPA met its obligations to consider all comments

made in response to the proposed rulemaking action. Proceeding to final

rulemaking is not predicated on negotiating an acceptable resolution

with the parties that submitted comments. EPA concludes that it

consideration and review of all submitted information and its rationale

supports a disapproval of the PPNC RACT proposal submitted on April 19,

1995.

III. Final Action

EPA is disapproving the Pennsylvania Power New Castle plant

NOx RACT proposal submitted by PADEP on April 19, 1995 as a

requested revision to the Pennsylvania SIP.

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.

IV. Administrative Requirements

A. Executive Order 12866

This regulatory action has been submitted to the Office of

Management and Budget (OMB) for E.O. 12866 review.

B. 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 action only affects one source, Pennsylvania Power

Company--New Castle plant (PPNC). PPNC is not a small entity.

Therefore, EPA certifies that this disapproval action does not have a

significant impact on small entities.

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, EPA

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

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

relationship the CAA, preparation of 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).

C. 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

[[Page 23673]]

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 being promulgated 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 approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. Section 804, however, exempts from section 801 the

following types of rules: rules of particular applicability; rules

relating to agency management or personnel; and rules of agency

organization, procedure, or practice that do not substantially affect

the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA

is not required to submit a rule report regarding today's action under

section 801 because this is a rule of particular applicability,

applying only to Pennsylvania Power--New Castle plant, located in

Lawrence County.

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action pertaining to the disapproval of PADEP's

NOX RACT proposal for Pennsylvania Power New Castle must be

filed in the United States Court of Appeals for the appropriate circuit

by June 29, 1998. Filing a petition for reconsideration by the

Administrator of this final rule does not affect the finality of this

rule for the purposes of judicial review nor does it extend the time

within which a petition for judicial review may be filed, and shall not

postpone the effectiveness of such rule or action. This action may be

challenged later in proceedings to enforce its requirements. (See

section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental

relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping

requirements.

Dated: April 8, 1998.

W. Michael McCabe,

Regional Administrator, Region III.

Chapter I, title 40, of the Code of Federal Regulations is amended

as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart NN--Pennsylvania

2. Section 52.2023 is amended by adding paragraph (e) to read as

follows:

Sec. 52.2023 Approval status.

* * * * *

(e) Disapproval of the April 19, 1995 NOX RACT proposal

for Pennsylvania Power Company--New Castle plant located in Lawrence

County, Pennsylvania.

* * * * *

[FR Doc. 98-11507 Filed 4-29-98; 8:45 am]

BILLING CODE 6560-50-M