 [Federal Register: August 26, 2008 (Volume 73, Number 166)] [ Proposed Rules]                [Page 50267-50270] [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-

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

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

submitting comments.

    B. E-mail<EMAIL_ADDRESS>     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,<PHONE_NUMBER>, or by e-

mail at<EMAIL_ADDRESS>

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

(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

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]

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