  SEQ CHAPTER \h \r 1 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

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:	Final rule.

SUMMARY:  EPA is converting its limited approval of a State
Implementation Plan (SIP) revision submitted by the Commonwealth of
Pennsylvania consisting of regulations that require all major sources of
volatile organic compounds (VOC) and nitrogen oxides (NOx) to implement
reasonably available control technology (RACT) to a full approval as
they apply throughout the Commonwealth.  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.  The intended effect of this
action is to convert EPA’s limited approval of Pennsylvania’s VOC
and NOx RACT regulations to full approval as they apply throughout the
remainder of the Commonwealth. This action is being taken under the
Clean Air Act (CAA or the Act). 

EFFECTIVE DATE:  This final rule is effective on [insert date 30 days
from date of publication].

ADDRESSES:  EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2006-0379.  All documents in the docket are listed in
the www.regulations.gov website.   Although listed in the electronic
docket, some information is not publicly available, 

i.e., confidential business information (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 through www.regulations.gov or in hard
copy for public inspection 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   HYPERLINK "mailto:spink.marcia@epa.gov" 
spink.marcia@epa.gov .

SUPPLEMENTARY INFORMATION:  

I.     Background	

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
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.  On March 23, 1998 (63 FR 13789), EPA granted
conditional limited approval of 25 PA 

Code Chapters 129.91 through 129.95, and removed the conditional aspect
of the approval on May 3, 2001 (66 FR 22123).  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  August 26, 2008 (73 FR 50267), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Pennsylvania.  The NPR proposed
to convert EPA’s limited approval of 

25 PA Code Chapters 129.91 through 129.95 to full approval as they apply
throughout the remainder of the Commonwealth.  EPA is converting 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.  No public comments were received on the NPR.

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 determinations are 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 approvals or RACT permits have 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 are 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 unrelated 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 RACT plan approvals or RACT permits be approved
as SIP revisions, the DEP’s formal SIP revision submissions include
signed/dated technical support documents or memoranda prepared by DEP in
support of its RACT determinations and the SIP revision requests.  
Sources in Pennsylvania subject to 25 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 25 PA Code Chapters 129.91 through 129.95.  

G.  The SIP revision submissions do 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.	Final Action

EPA is converting its limited approval of 25 PA Code Chapters 129.91
through 129.95 to a full approval as they apply throughout the
Commonwealth of Pennsylvania. 

IV.   Statutory and Executive Order Reviews 

A.   General Requirements 

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 approves state law as meeting Federal requirements and does not
impose additional requirements beyond those imposed by state law.  For
that reason, this 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 (Public Law 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 rule does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
is not approved to apply in Indian country located in the state, and EPA
notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law.

B.   Submission to Congress and the Comptroller General

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.  EPA will submit a report containing this action and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register.  A major rule cannot
take effect until 60 days after it is published in the Federal Register.
 This action is not a “major rule” as defined by 5 U.S.C. 

804(2). 

C.  Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial
review of this action must be filed in the United States Court of
Appeals for the appropriate circuit by [Insert date 60 days from date of
publication of this document in the Federal Register].  Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action 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 converting 25 PA Code Chapters 129.91
through 129.95 to full approval as they apply throughout the remainder
of the Commonwealth may not 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.

                                                                        
                                /s/

                        ___________________________    

Dated:   October 9, 2008       				W. T. Wisniewski, Acting             
                    							Regional Administrator,

                                  					Region III.

40 CFR part 52 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 52.2027 is amended by adding paragraph (c) to read as
follows:

§ 52.2027 	Approval Status of Pennsylvania’s Generic NOx and VOC RACT
Rules.

* * * * * 

 

(c ) Effective [insert 30 days from date of publication], EPA removes
the limited nature of its approval of  25 PA Code of Regulations,
Chapter 129.91 through 129.95 as those regulations apply to the
following areas:  Adams, Bedford, Berks, Blair, Bradford, Cambria,
Cameron, Carbon, Centre, Clarion, Clearfield, Clinton, Columbia,
Crawford, Cumberland, Dauphin, Elk, Erie, Forest, Franklin, Fulton,
Greene, Huntington, Indiana, Jefferson, Juniata, Lackawanna, Lancaster,
Lawrence, Lebanon, Lehigh, Luzerne, Lycoming, McKean, Mercer, Mifflin,
Monroe, Montour, Northampton, Northumberland, Perry, Pike, Potter,
Schuylkill, Snyder, Somerset, Sullivan, Susquehanna, Tioga, Union,
Venango, Warren, Wayne, Wyoming, and York Counties.

§52.2023 [Amended]

3.  In §52.2023, paragraph (k) is removed and reserved.

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