
[Federal Register: August 26, 2008 (Volume 73, Number 166)]
[
Proposed Rules]               
[Page 50267-50270]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au08-24]                         

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ENVIRONMENTAL PROTECTION AGENCY



40 CFR Part 52



[EPA-R03-OAR-2006-0379; FRL-8708-4]



 
Approval and Promulgation of Air Quality Implementation Plans; 

Commonwealth of Pennsylvania; Reasonably Available Control Technology 

Requirements for Volatile Organic Compounds and Nitrogen Oxides



AGENCY: Environmental Protection Agency (EPA).



ACTION: Proposed rule.



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SUMMARY: EPA is proposing to remove the limited status of its approval 

of the Commonwealth of Pennsylvania's State Implementation Plan (SIP) 

revision that requires all major sources of volatile organic compounds 

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

available control technology (RACT). EPA is proposing to convert its 

limited approval of Pennsylvania's VOC and NOX RACT 

regulations to full approval because EPA has approved all of the case-

by-case RACT determinations that had been submitted by Pennsylvania 

such that there are no longer any such submissions pending before EPA. 

In prior final rules, EPA has fully approved Pennsylvania's VOC and 

NOX RACT regulations for the Pennsylvania portion of the 

Philadelphia-Wilmington-Trenton area, and for the Pittsburgh-Beaver 

Valley area. EPA previously proposed to convert its limited approval of 

Pennsylvania's VOC and NOX RACT regulations as they apply in 

the remainder of the Commonwealth to full approval. EPA is withdrawing 

that proposal and is now reproposing approval. This action is being 

taken under the Clean Air Act (CAA or the Act).



DATES: Written comments must be received on or before September 25, 

2008.



ADDRESSES: Submit your comments, identified by Docket ID Number EPA-



[[Page 50268]]



R03-OAR-2006-0379 by one of the following methods:

    A. www.regulations.gov. Follow the online instructions for 

submitting comments.

    B. E-mail: fernandez.cristina@epa.gov.

    C. Mail: EPA-R03-OAR-2006-0379, Cristina Fernandez, Chief, Air 

Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

    D. Hand Delivery: At the previously-listed EPA Region III address. 

Such deliveries are only accepted during the Docket's normal hours of 

operation, and special arrangements should be made for deliveries of 

boxed information.

    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-

2006-0379. EPA's policy is that all comments received will be included 

in the public docket without change, and may be made available online 

at www.regulations.gov. providing any personal information provided, 

unless the comment includes information claimed to be Confidential 

Business Information (CBI) or other information whose disclosure is 

restricted by statute. Do not submit information that you consider to 

be CBI or otherwise protected through www.regulations.gov or e-mail. 

The www.regulations.gov Web site is an ``anonymous access'' system, 

which means EPA will not know your identity or contact information 

unless you provide it in the body of your comment. If you send an e-

mail comment directly to EPA without going through www.regulations.gov, 

your e-mail address will be automatically captured and included as part 

of the comment that is placed in the public docket and made available 

on the Internet. If you submit an electronic comment, EPA recommends 

that you include your name and other contact information in the body of 

your comment and with any disk or CD-ROM you submit. If EPA cannot read 

your comment due to technical difficulties and cannot contact you for 

clarification, EPA may not be able to consider your comment. Electronic 

files should avoid the use of special characters, any form of 

encryption, and be free of any defects or viruses.

    Docket: All documents in the electronic docket are listed in the 

www.regulations.gov index. Although listed in the index, some 

information is not publicly available, i.e., CBI or other information 

whose disclosure is restricted by statute. Certain other material, such 

as copyrighted material, is not placed on the Internet and will be 

publicly available only in hard copy form. Publicly available docket 

materials are available either electronically in www.regulations.gov or 

in hard copy during normal business hours at the Air Protection 

Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 

Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 

are available at the Pennsylvania Department of Environmental Resources 

Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, 

Harrisburg, Pennsylvania 17105.



FOR FURTHER INFORMATION CONTACT: Marcia Spink, (215) 814-2104, or by e-

mail at spink.marcia@epa.gov.



I. Background



    Pursuant to sections 182(b) and 182(f) of the CAA, the Commonwealth 

of Pennsylvania (Pennsylvania) is required to establish and implement 

RACT for all major VOC and NOX sources. SIP revisions 

imposing RACT for three classes of VOC sources are required under 

section 182(b)(2). The categories are all sources covered by a Control 

Technique Guideline (CTG) document issued between November 15, 1990 and 

the date of 1-hour ozone attainment; all sources covered by a CTG 

issued prior to November 15, 1990; and all other major non-CTG sources. 

Section 182(f) provides that the planning requirements applicable to 

major stationary sources of VOCs in other provisions in part D, subpart 

2 (including section 182) apply to major stationary sources of 

NOX.

    The Pennsylvania SIP already includes approved RACT regulations for 

sources and source categories of VOCs covered by the CTGs as required 

by section 182(b)(2)(A) and (B). Regulations requiring RACT for all 

major sources of VOC and NOX were to be submitted to EPA as 

SIP revisions by November 1992 and compliance required by May of 1995. 

On February 4, 1994, the Pennsylvania Department of Environmental 

Protection (DEP) submitted a revision to the Pennsylvania SIP, 

consisting of 25 PA Code Chapters 129.91 through 129.95, to require 

major sources of NOX and additional major sources of VOC 

emissions not covered by a CTG (non-CTG sources) to implement RACT. The 

February 4, 1994 submittal was amended on May 3, 1994 to correct and 

clarify certain presumptive NOX RACT requirements under 

Chapter 129.93. As described in more detail, below, EPA granted 

conditional limited approval of 25 PA Code Chapters 129.91 through 

129.95 on March 23, 1998 (63 FR 13789), and removed the conditional 

aspect of the approval on May 3, 2001 (66 FR 22123).

    Under section 184 of the CAA, RACT as specified in sections 

182(b)(2) and 182(f) applies throughout the Ozone Transport Region 

(OTR). The entire Commonwealth is located within the OTR. Therefore, 

RACT is applicable statewide in Pennsylvania. The major source size 

generally is determined by the classification of the area in which the 

source is located. However, for areas located in the OTR, the major 

source size for stationary sources of VOCs is 50 tons per year (tpy) 

unless the area's classification prescribes a lower major source 

threshold. The RACT regulations contain technology-based or operational 

``presumptive RACT emission limitations'' for certain major 

NOX sources. For other major NOX sources, and all 

major non-CTG VOC sources (not otherwise already subject to RACT 

pursuant to a source category regulation under the Pennsylvania SIP), 

the regulations contain a ``generic'' RACT provision. A generic RACT 

regulation is one that does not, itself, specifically define RACT for a 

source or source categories, but instead allows for case-by-case RACT 

determinations. The generic provisions of Pennsylvania's regulations 

allow for DEP to make case-by-case RACT determinations that are then to 

be submitted to EPA as revisions to the Pennsylvania SIP.

    On March 23, 1998 (63 FR 13789), EPA granted conditional limited 

approval of 25 PA Code Chapters 129.91 through 129.95, which require 

all major sources of NOX and non-CTG sources to implement 

RACT, as a revision to the Pennsylvania SIP. This approval was granted 

on the condition that Pennsylvania must, by no later than April 22, 

1999 certify that (1) it had submitted case-by-case RACT proposals for 

all sources subject to the RACT requirements of 25 PA Code Chapters 

129.91 through 129.95 currently known to DEP, or (2) demonstrate that 

the emissions from any remaining subject sources represented a de 

minimis level of emissions as defined in the rulemaking document.

    On April 22, 1999, the DEP submitted a letter certifying that it 

had met the terms and conditions imposed by EPA in its March 23, 1998 

(63 FR 13789) conditional limited approval of its VOC and 

NOX RACT regulation by submitting the case-by-case VOC/

NOX RACT determinations as SIP revisions in accordance with 

EPA's conditional limited approval. EPA concurred that Pennsylvania's 

April 22, 1999 certification satisfied the condition imposed in its 

conditional limited approval published on March 23, 1998



[[Page 50269]]



(63 FR 13789), and published a direct final rulemaking (May 3, 2001, 66 

FR 22123) removing the conditional status of its approval of 25 PA Code 

Chapters 129.91 through 129.95 as a revision to the Commonwealth's SIP. 

That final rule became effective on June 18, 2001. The SIP revision 

consisting of 25 PA Code Chapters 129.91 through 129.95 retained a 

limited approval status on the basis that it strengthened the 

Pennsylvania SIP. Conversion from limited to full approval would occur 

when EPA had approved all of the case-by-case RACT determinations 

submitted by DEP as SIP revisions.

    On October 16, 2001 (66 FR 52533), EPA published a final rulemaking 

for the Commonwealth removing the limited status of its approval of 25 

PA Code Chapters 129.91 through 129.95 as it applied in the Pittsburgh-

Beaver Valley ozone nonattainment area (Allegheny, Armstrong, Beaver, 

Butler, Fayette, Washington, and Westmoreland counties), because EPA 

had approved all of the case-by-case RACT determinations submitted by 

DEP for affected major sources of NOX and/or VOC sources 

located in the area. In so doing, EPA converted its limited approval of 

25 PA Code Chapters 129.91 through 129.95 to full approval as it 

applied to that area. That rulemaking became effective on November 15, 

2001. On October 30, 2001 (66 FR 54698), EPA published a final 

rulemaking for the Commonwealth removing the limited status of its 

approval of 25 PA Code Chapters 129.91 through 129.95 as it applied in 

the Pennsylvania portion of the Philadelphia-Wilmington-Trenton ozone 

nonattainment area (Bucks, Chester, Delaware, Montgomery, and 

Philadelphia counties) because EPA had approved all of the case-by-case 

RACT determinations submitted by DEP for affected major sources of 

NOX and/or VOC sources located in the area. In so doing, EPA 

converted its limited approval of 25 PA Code Chapters 129.91 through 

129.95 to full approval as it applied to that area. That rulemaking 

became effective on November 29, 2001. On June 16, 2006 (71 FR 34864), 

EPA published a proposed rule to convert its limited approval of 25 PA 

Code Chapters 129.91 through 129.95 as they apply in the remainder of 

the Commonwealth to full approval. No public comments were submitted to 

EPA on the June 16, 2006 proposed action. Given the length of time that 

has passed since that proposed action, and to clarify that any future 

RACT determinations made by the DEP must still be submitted as SIP 

revisions once 25 PA Code Chapters 129.91 through 129.95 are fully 

approved, EPA is withdrawing that proposal and is now re-proposing to 

convert its limited approval of 25 PA Code Chapters 129.91 through 

129.95 to full approval as those RACT regulations apply in the 

remainder of the Commonwealth.



II. Future Submissions of Case-by-Case RACT Determinations



    The DEP has submitted and EPA has approved as SIP revisions case-

by-case RACT determinations for nearly 600 non-CTG and NOX 

sources in Pennsylvania pursuant to Pennsylvania regulations Chapters 

129.91-129.95. (See 40 CFR 52.2020(d) for the list of sources.) As 

stated previously, there are no source-specific RACT determination 

submissions from DEP currently pending before EPA. In the future, 

should DEP find it necessary to issue any additional or revised source-

specific RACT determinations in plan approvals and/or permits pursuant 

to the fully approved Pennsylvania regulations Chapters 129.91-95 of 

the Pennsylvania SIP, those RACT determinations must still be submitted 

to EPA for approval as source-specific SIP revisions. In order for EPA 

to consider such submissions for approval, the DEP must ensure that:

    A. The sources are not subject to any CTGs or Alternative Control 

Techniques (ACTs) issued by EPA for which Pennsylvania has adopted or 

is due to adopt state-wide regulations for approval as SIP revisions. 

Such sources should be subject to any applicable CTG or ACT regulation. 

In addition to the CTG documents issued between November 15, 1990 and 

the date of 1-hour ozone attainment, and the CTG documents issued prior 

to November 15, 1990; EPA issued CTG and ACT documents in 2006 and 

2007. EPA is also due to issue additional control technique documents 

by September 2008. Pennsylvania is required to adopt statewide RACT 

regulations pursuant to these control technique documents and is 

mandated a schedule for doing so. A source in the Commonwealth that has 

been considered a non-CTG source may no longer be so defined if their 

source category is covered by the 2006, 2007, or 2008 CTGs or ACTs. At 

the time DEP adopts statewide RACT regulations pursuant to the 2006, 

2007, and 2008 CTGs and ACTs, it must address the applicability of 

those RACT regulations to sources previously considered non-CTG sources 

under regulations 129.91-129.95.

    B. The RACT Plan approvals and/or RACT permits do not relax any 

previously SIP approved source-specific RACT approved for the 

source(s). Any request by such sources to modify (relax) their emission 

rates, equipments standards, work practice standards, or conditions on 

the type or amount of materials/fuels combusted or processed; or to 

seek relief from their daily, monthly and/or annual emission caps would 

not be approvable as RACT in 2008 or beyond. When such sources seek 

relief with the operating conditions imposed in their SIP approved RACT 

plan approvals or RACT permits because they have modified to add 

additional emission units, or need to increase operation in light of 

market-based demand for their products; RACT needs to be re-assessed, 

re-determined and potentially made more stringent not less stringent.

    C. The RACT determination is not to be simply based upon an 

arbitrary dollar per ton figure in a state guidance document that is 

neither SIP-approved nor approvable by EPA. The very nature of a non-

CTG and/or source-specific alternative RACT makes any ``one size fits 

all'' dollar per ton figure inappropriate when determining and imposing 

RACT.

    D. The RACT plan approval or RACT permit has no expiration date. No 

regulation, plan approval or permit submitted for approval as a SIP 

revision to be incorporated by reference and made part of a SIP may 

have an expiration or sunset provision. By federal statute, a state is 

responsible to implement and enforce all provisions of its approved SIP 

at all times.

    E. Any RACT plan approvals' or RACT permits' redactions must be 

done in such a way as to be able to read the redacted text. When a plan 

approval or permit is issued by DEP to a source, it may impose 

additional requirements or conditions completely unrelated to the RACT 

requirements for NOX and/or VOCs. In those instances, DEP 

may submit the plan approval or permit as a SIP revision with those 

portions of the plan approval or permit redacted. Those redactions must 

be done in such a way as to be able to read the redacted text. This is 

necessary to ensure that the redacted language is not contrary to the 

portions being submitted for approval as RACT, does not render the RACT 

portions less stringent, does not remove or make less stringent any 

conditions related to enforcement of RACT, or make the RACT 

requirements subject to change without a SIP revision.

    F. When requesting that a RACT plan approval or RACT permit be 

approved asSIP revision, the DEP's formal SIP revision submission must 

include a signed/dated technical support document or memorandum 

prepared by DEP in support of its RACT determination and the SIP 

revision



[[Page 50270]]



request. Sources in Pennsylvania subject to PA Code Chapters 129.91 

through 129.95 are not to send their RACT plan proposals directly to 

EPA. Under the CAA, SIP revision submissions in their entirety must be 

submitted by the State requesting that the SIP be revised. EPA will 

consider only the materials formally submitted by DEP in its SIP 

revision request and any comments submitted during the public comment 

period provided by EPA on its proposed rule when determining its final 

action to approve or disapprove a source-specific SIP revision 

submitted by DEP pursuant to PA Code Chapters 129.91 through 129.95.

    G. The SIP submission by DEP must not include any materials that 

are considered ``confidential business information'' in nature or 

entitled to any proprietary treatment. Moreover, the DEP plan approvals 

and permits cannot include conditions that cite to the source's RACT 

Plan proposal where that proposal includes materials which the company 

has requested be treated as confidential and proprietary. No materials 

that are considered ``confidential business information'' in nature or 

entitled to any proprietary treatment are to be included in a SIP 

revision submittal because the materials that constitute SIP revisions 

are required to be made available to the public by both the State and 

EPA.



III. EPA's Proposed Action



    EPA has previously removed the limited status of its approval of 

Pennsylvania's SIP revisions that requires all major sources of VOC and 

NOX to implement RACT as it applies in the Pittsburgh and 

Philadelphia areas because EPA has approved all of the case-by-case 

RACT determinations for these areas. In this action, EPA is proposing 

to convert its limited approval of Pennsylvania's RACT regulation to 

full approval as it applies in the remainder of the Commonwealth 

because EPA has approved all of the case-by-case RACT determinations 

submitted by DEP such that there are no longer any such submissions 

pending before EPA. EPA is soliciting public comments on the issues 

discussed in this document. These comments will be considered before 

taking final action.



IV. Statutory and Executive Order Reviews



    Under the Clean Air Act, the Administrator is required to approve a 

SIP submission that complies with the provisions of the Act and 

applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, EPA's role is to approve state 

choices, provided that they meet the criteria of the Clean Air Act. 

Accordingly, this action merely proposes to approve state law as 

meeting Federal requirements and does not impose additional 

requirements beyond those imposed by state law. For that reason, this 

proposed action:

     Is not a ``significant regulatory action'' subject to 

review by the Office of Management and Budget under Executive Order 

12866 (58 FR 51735, October 4, 1993);

     Does not impose an information collection burden under the 

provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

     Is certified as not having a significant economic impact 

on a substantial number of small entities under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.);

     Does not contain any unfunded mandate or significantly or 

uniquely affect small governments, as described in the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 104-4);

     Does not have Federalism implications as specified in 

Executive Order 13132 (64 FR 43255, August 10, 1999);

     Is not an economically significant regulatory action based 

on health or safety risks subject to Executive Order 13045 (62 FR 

19885, April 23, 1997);

     Is not a significant regulatory action subject to 

Executive Order 13211 (66 FR 28355, May 22, 2001);

     Is not subject to requirements of section 12(d) of the 

National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 

note) because application of those requirements would be inconsistent 

with the Clean Air Act; and

     Does not provide EPA with the discretionary authority to 

address, as appropriate, disproportionate human health or environmental 

effects, using practicable and legally permissible methods, under 

Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, this proposed rule regarding Pennsylvania's VOC and 

NOX RACT regulations Chapters 129.91-129.95 as they apply in 

the remainder of the Commonwealth of Pennsylvania does not have tribal 

implications as specified by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the Pennsylvania SIP is not approved to 

apply in Indian country, and EPA, therefore, notes that it will not 

impose substantial direct costs on tribal governments or preempt tribal 

law.



List of Subjects in 40 CFR Part 52



    Environmental protection, Air pollution control, Nitrogen dioxide, 

Ozone, Reporting and recordkeeping requirements, Volatile organic 

compounds.



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



    Dated: August 14, 2008.

William T. Wisniewski,

Acting Regional Administrator, Region III.

[FR Doc. E8-19756 Filed 8-25-08; 8:45 am]

BILLING CODE 6560-50-P
