[Federal Register Volume 62, Number 159 (Monday, August 18, 1997)]
[Proposed Rules]
[Pages 43959-43962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21805]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 058-4039; FRL-5876-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Proposed Disapproval of the NOX RACT 
Determination for Pennsylvania Power Company

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove a State Implementation Plan 
(SIP) revision submitted by the Commonwealth of Pennsylvania's 
Department of Environmental Protection (PADEP). This revision withdraws 
EPA's previously proposed approval of the nitrogen oxide 
(NOX) reasonably available control technology (RACT) 
determination submitted by PADEP for Pennsylvania Power Company--New 
Castle plant (PPNC), located in Lawrence County, Pennsylvania and, 
instead, proposes to disapprove the SIP revision pertaining to this 
facility. The intended effect of this action is to propose disapproval 
of the NOX RACT determination submitted by PADEP for PPNC.

DATES: Comments must be received on or before September 17, 1997.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone/CO 
and Mobile Sources Section, Mailcode 3AT21, U.S. Environmental 
Protection Agency, Region III, 841 Chestnut Building, Philadelphia, 
Pennsylvania 19107. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
Air, Radiation, and Toxics Division, U.S. Environmental Protection 
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 
19107; Pennsylvania Department of Environmental Protection, Bureau of 
Air Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 
17105.

FOR FURTHER INFORMATION CONTACT: Cynthia H.Stahl, (215) 566-2180, at 
the EPA Region III office above or via e-mail at 
[email protected]. While information may be requested via 
e-mail, all comments must be submitted in writing to the EPA Region III 
address above.

SUPPLEMENTARY INFORMATION:

Background

    On April 19, 1995, PADEP submitted a revision to the Pennsylvania 
SIP requesting EPA approve RACT determinations it had made for several 
facilities, including PPNC. Only the RACT determination submitted for 
PPNC is the subject of this rulemaking action. The revision consists of 
an operating permit, OP 37-023, for PPNC. The other plan approvals and 
operating permits submitted on April 19, 1995 are the subject of other 
rulemaking actions.
    On April 9, 1996, EPA published a direct final rule in the Federal 
Register (61 FR 15709). This document stated that EPA was approving, 
without prior proposal, 21 source-specific RACT determinations made and 
submitted by PADEP for facilities located in Pennsylvania. Included 
among these 21 source-specific RACT determinations was one for PPNC. 
The document also stated that unless adverse comments were received 
within 30 days of publication, EPA's RACT determinations for these 21 
facilities would become final. The accompanying proposed rulemaking, 
which appears with every direct final rule, was also published on April 
9, 1996 ( 61 FR 15744).
    On May 8, 1996, New York Department of Environmental Conservation 
submitted a letter stating that it intended to adversely comment on 
EPA's action to approve PADEP's RACT determination for PPNC. Therefore, 
on June 11, 1996, EPA published a document withdrawing the final rule 
approving PADEP's RACT determination for PPNC, among other facilities 
(61 FR 29483). At the request of the commenters, EPA also extended the 
comment period twice; the last time until August 2, 1996 (61 FR 29483 
and 61 FR 37030).
    On June 28, 1996, NYDEC submitted comments to EPA pertaining to 
PADEP's RACT determination for PPNC. 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. The comments received by EPA are summarized below and, 
in more detail, in the technical support document (TSD) prepared by EPA 
in support of this proposed action to disapprove PADEP's SIP revision 
for PPNC submitted on April 19, 1995. Copies of the TSD are available, 
upon request, from the EPA Region III office listed in the ADDRESSES 
section of this document.
    This action proposing to disapprove PADEP's April 19, 1995 SIP 
revision request for PPNC being taken under section 110 of the Clean 
Air Act.

Comments Received on EPA's April 9, 1996 Proposal to Approve 
PADEP's RACT Determination for PPNC

    NYDEC Comments:
    NYDEC states in its June 28, 1996 comment letter that it disagrees 
with EPA's proposal to approve PADEP's RACT determination for PPNC. 
NYDEC states that it believes that the control efficiencies for add-on 
emission controls are understated in the PADEP technical support 
document, the costs for add-on controls are overstated, the 15-year 
cost-recovery period used in the PPNC RACT analysis is too short, and 
that NOX add-on control technology is technically and

[[Page 43960]]

economically feasible for the boilers at PPNC. In addition, NYDEC 
states that another indication that the economic analysis is flawed is 
the inconsistency in final NOX emission limits depending on 
how the emission limits are calculated. NYDEC further states that 
PADEP's acceptance of PPNC's use of a lower NOX emission 
rate (and non-enforceable emission rate) to perform the cost analysis 
to show that any emission controls are infeasible, but a higher 
NOX emission rate (i.e. the proposed RACT emission limits) 
to determine total NOX emissions allowed, is inconsistent 
with its (NYDEC's) State Implementation Plan (SIP) experience in 
establishing enforceable emission limits and determining the cost-
effectiveness of controls for RACT. NYDEC's comments included a table 
of calculations showing the total NOX emissions using the 
proposed RACT (SIP) emission limits and the calculated emission limits 
using the emission caps proposed as part of the PPNC RACT 
determination. NYDEC states that PPNC appears to have used lower 
emission limits to evaluate the economic feasibility of control options 
but did not agree to make those lower emission limits enforceable as 
part of the RACT determination.NYDEC states that the PADEP October 14, 
1996 memorandum seriously underestimates the effectiveness of low 
NOX burner (LNB) controls. PADEP estimates that emission 
reductions of approximately 30% are expected for the operation of LNB 
while NYDEC believes that emission reductions on the order of 40-50% 
are more realistic. NYDEC states that the Title IV Phase I limits 
(under the acid rain program) estimate that reductions of 40-50% are 
achievable and at costs well below those estimated in the PPNC RACT 
proposal submitted to PADEP.
    Pennsylvania Power--New Castle Comments:
    On July 15, 1996 and August 1, 1996, the firm of Fried, Frank, 
Harris, Shriver & Jacobsen submitted comments to EPA on behalf of their 
client, Pennsylvania Power Company. In summary, the commenter states 
that the Company pursued a Company-wide NOX emission 
reduction strategy to achieve 55% NOX reduction consistent 
with the goals of the Ozone Transport Commission's (OTC) NOX 
Memorandum of Understanding (NOX MOU). The commenter also 
states that the NOX emission caps agreed to by PPNC for 
Units 3 -5 represent a 55% NOX emission reduction from 
potential emission levels. The commenter further states that the New 
Castle plants emissions are small relative to the rest of the 
Pennsylvania Power System and that PPNC's Units 3--5 represent 12% of 
the total Pennsylvania Power System NOX emissions. The 
commenter, on behalf of the Company, states that its Mansfield plant 
has installed low-NOX burners and, that these, in 
combination with lowered emissions from the shut down of PPNC's units 1 
and 2, result in Pennsylvania Power achieving a 51% potential emission 
reduction. PPNC states that determination made by PADEP that any 
control technology is technically or economically infeasible, was based 
on existing Pennsylvania regulations. The commenter asserts that the 
determination was made by relying upon procedures approved by EPA for 
making NOX RACT determinations and by relying on emission 
caps for units 3, 4, and 5 to restrict capacity and emissions. These 
emission caps were factored into the RACT determination, resulting in 
unreasonable costs for add-on controls. These procedures were 
referenced as: 25 Pa Code Sec. 129.91 and ``PADER, Guidance Document on 
Reasonably Available Control Technology for Sources of NOX 
Emissions (March 10, 1994).'' The commenter states that the RACT 
determination for PPNC submitted by PADEP was supported by accompanying 
documentation, which included a description of the control technology 
options, costs, and control effectiveness. The commenter cites the PA 
NOX RACT guidance document and EPA's March 16, 1994 
memorandum as part of its evidence that the technically feasible 
control options were properly deemed economically infeasible. The 
commenter included as part of its comments, additional vendor 
information, supplied to support the RACT determination, that add-on 
controls are economically infeasible for the PPNC units. The commenter 
states that the vendor has extensive experience in the design and 
installation of low NOX burners including those at Ohio 
Edison/Penn Power's Edgewater, Sammis, and Mansfield plants. The 
commenter concludes that the selection of no controls as RACT for the 
PPNC boilers is a legitimate RACT determination using the PADEP and EPA 
policies and guidance. The Company believes that substituting NYDEC's 
analysis for the one done by PADEP, or substituting data submitted by 
NYDEC for that originally considered by PADEP, would be a violation of 
the principles of administrative law.
    Pennsylvania DEP Comments:
    On August 2, 1996, Pennsylvania DEP submitted a short statement 
that it sees no justifiable reason to change its RACT determination and 
urged EPA to approve the PPNC RACT determination as it was submitted. 
In addition to PADEP's August 2, 1996 letter, EPA received, via fax on 
July 29, 1996, a document showing how PADEP calculated the 
NOX RACT emission limitation for PPNC unit 3 using 
continuous emission monitoring (CEM) data. The actual methodology is 
contained in the March 1996 Pennsylvania NOX RACT Guidance 
Document, which has not been submitted or approved as part of the 
Pennsylvania SIP. The faxed material shows the data used by PADEP to 
calculate the PPNC NOX emission limits. Briefly, the PADEP 
formula used to calculate a NOX emission limit specifies the 
use of the mean 30-day NOX CEM average plus 2.78 standard 
deviations. Using this formula, PADEP calculated the NOX 
emission limit for unit 3 (using first- and second-quarter 1995 CEM 
data) to be 0.531 + 2.78(0.0929) = 0.79 lbs/mmBTU. The NOX 
emission limits for units 4 and 5 were calculated similarly.

Relevant Information

    A survey of other boilers similar to PPNC's (dry-bottom, wall-
fired, coal burning) show that in the ozone transport region (OTR), 
which includes the states in the northeast U.S., uncontrolled emission 
levels average 0.54 lbs NOX/mmBTU. Controlled emission 
levels for this same group of boilers can meet, on average, 0.47 lbs 
NOX/mmBTU. The add-on controls generally used for these 
boilers are low NOX burners. Across the country, which would 
include areas that are designated attainment for ozone and are, 
therefore, not required to implement NOX RACT, uncontrolled 
emission levels for boilers similar to PPNC average 0.72 lbs 
NOX/mmBTU. Controlled emissions for this nationwide group of 
boilers average 0.47 lbs NOX/mmBTU. In EPA Region III 
(consisting of the states Pennsylvania, Maryland, Delaware, Virginia, 
West Virginia and the District of Columbia), there are 31 boiler units 
that are of similar type to PPNC's boilers. Forty-five percent of these 
31 boilers have low NOX burners installed. There are 20 
boiler units that are similar to PPNC's boilers in Pennsylvania; 55% of 
these boilers have low NOX burners or LNB with overfired air 
installed as emission controls.
    A review of the CEM data for PPNC shows that NOX 
emissions at this facility, which does not have any NOX add-
on controls, have been between 14 and 58% lower than the RACT emission 
limits proposed by the Company and determined by PADEP to be RACT. No 
CEM data is available for units 1 and 2 since the CEM requirement did 
not start

[[Page 43961]]

until after those units were shut down. The CEM data for units 3 
through 5 are available from the last quarter of 1993 through the last 
quarter of 1996. The CEM data is required to be reported by the Company 
to both PADEP and EPA.
    Under the Clean Air Act's Title IV (Acid Rain) requirements, EPA 
conducted final rulemaking for the Phase I, Group I boilers (including 
dry-bottom, wall-fired units such as PPNC's) (60 FR 18751, April 13, 
1995). This final rule was the result of a court ordered remand of the 
March 22, 1994 Phase I, Group I boilers final rulemaking (FR CITE). 
Both the March 22, 1994 and the April 13, 1995 rulemakings state that 
LNB technology is a technically feasible and cost effective option for 
utility boilers such as PPNC's. The April 1995 rule states that LNB 
costs are on the order of $226/ton NOX removed and proposes 
an emission limit of 0.5 lbs NOX/mmBTU. The information 
gathered under the acid rain provisions of the Act are relevant and 
pertinent to the PPNC RACT determination. Other literature pertaining 
to utility boilers and feasibility of controls also indicate that the 
installation of NOX controls is cost effective. This 
information is discussed in more detail in the TSD prepared for this 
proposal which is included in the rulemaking docket and available to 
the public.
    Prior to PPNC's July 1994 NOX RACT proposal to PADEP, 
and during the time that PPNC and PADEP were working to develop a RACT 
proposal for submittal to EPA, EPA proposed NOX emission 
limitations under the Title IV acid rain program. EPA's acid rain 
proposal occurred in November 1992 and was finalized in March 1994. The 
March 1994 rule was later vacated and EPA reissued the final rule in 
December 1996. Under the acid rain program, on May 10, 1994, PPNC 
applied to accept federally enforceable permit conditions to limit the 
NOX emissions at units 1 and 2 to no more than 0.5 lbs/mmBTU 
on an annual average. Units 1 and 2 were volunteered by the Company as 
Phase I substitution units, meaning that in exchange for the 0.5 lbs/
mmBTU emission limits on those boilers, the Pennsylvania Power parent 
company would be allowed to have boilers elsewhere in the Company, 
subject to the acid rain Phase I requirements, continue to emit at 
higher than otherwise allowable levels. EPA approved the Company's 
request through a permit issued on November 28, 1994, prior to the PPNC 
NOX RACT submittal date of April 19, 1995.
    The currently operating units 3-5 are Phase II acid rain units and 
will be subject to compliance with a 0.5 lbs NOX/mmBTU, 
annual average, emission limit by the year 2000. On December 26, 1996, 
the Company requested early compliance with the Phase II requirements. 
In so doing, PPNC units 3 through 5 will be required to meet the Phase 
II requirements by January 1, 1997. The early election option allows 
sources to meet the Phase II requirements prior to the compliance date 
and relieves those sources from meeting the more stringent emission 
limit of 0.46 lbs/mmBTU until 2009. PPNC would have otherwise been 
required to meet this more stringent emission limitation by 2000.

EPA's Analysis

    EPA has reviewed and considered all the information submitted by 
the commenters and has reconsidered its original decision based on 
those comments. The RACT determination, including the emission limits, 
as submitted by PADEP on April 19, 1995 and proposed for approval by 
EPA on April 9, 1996 (61 FR 15709) cannot be supported in light of all 
available information, including the additional information and 
comments submitted by PADEP and PPNC during the public comment period 
and other relevant publicly available information. Therefore, EPA is 
hereby withdrawing its April 9, 1996 proposed approval of PADEP RACT 
determination for PPNC and is proposing, instead, to disapprove PADEP's 
RACT determination for PPNC submitted to EPA on April 19, 1995.
    EPA initially proposed to approve the emission limits determined by 
PADEP to be RACT because the PPNC RACT submittal, on its face, 
including the analysis done by PADEP (without reference to relevant 
information in existence but not contained in the submittal) appeared 
to meet the criteria for RACT determinations. EPA understood from PADEP 
that its analysis, as described in its technical support document for 
the PPNC RACT determination, was performed in accordance with proper 
procedures.
    However, due to the submittal of adverse comments, EPA has reviewed 
the issues raised regarding the PPNC RACT proposal and determined that 
the information provided does not support PADEP's RACT determination 
for PPNC.
    All five boilers, including units 1 and 2 that are now shut down, 
are dry-bottom, single-wall-fired, coal-burning boilers. Units 1 and 2 
were the smallest boilers at this facility and were rated at 495 mmBTU/
hr and 640 mmBTU/hr, respectively. Units 3 through 5 are rated at 1029, 
1029, and 1325 mmBTU/hr, respectively. The cost infeasibility arguments 
for the installation of any controls at PPNC are not supported by the 
body of literature and information available, particularly in light of 
the fact that many other dry-bottom, wall-fired, coal burning boilers 
have been able to install emission controls and meet lower emission 
limits. Fundamentally, neither PPNC nor PADEP has adequately 
demonstrated that the installation of emission controls is not 
technically or economically feasible. Details of the information 
pertaining to PPNC are discussed in the accompanying TSD available from 
the EPA Region III listed in the ADDRESSES section of this document.
    Furthermore, although units 1 and 2 were shut down in 1993, the 
Company agreed to accept an effective, federally enforceable 
NOX emission limit of 0.5 lbs/mmBTU under the acid rain 
program. Therefore, EPA has determined that the proposed RACT limits of 
0.93 lbs NOX/mmBTU and 0.90 lbs NOX/mmBTU for 
units 1 and 2, respectively, are too high.
    Additionally, PADEP has subsequently submitted a separate request 
to EPA to approve the early implementation of the acid rain Phase II 
emission limits of 0.5 lbs NOX/mmBTU for units 3, 4 and 5. 
Therefore, the proposed NOX RACT limits of 0.79 lbs/mmBTU, 
0.72 lbs/mmBTU and 1.01 lbs/mmBTU are also too high. Without additional 
analysis and information, it would be erroneous and premature to 
conclude that the limits in the acid rain permit are RACT. Therefore, 
any statements in this document regarding the acid rain requirements 
should not be construed as pre-determining what RACT might be for the 
PPNC boilers.
    The CEM data for units 3 through 5 indicate that even without 
emission controls, the NOX emission rates for these units 
are well below the proposed NOX RACT emission limits of 0.79 
lbs/mmBTU, 0.72 lbs/mmBTU and 1.01 lbs/mmBTU for units 3, 4 and 5, 
respectively. Please refer to the TSD for a summary of the CEM data. 
Therefore, EPA believes that the proposed NOX RACT emission 
limits are too high and do not represent the ``lowest emission rate 
[PPNC] is capable of meeting by the application of control technology 
that is reasonably available considering technological and economic 
feasibility.'' 1
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    \1\ 25 Pennsylvania Code, Chapter 121, definition of RACT; 
December 9, 1976 memorandum from Roger Strelow, Assistant 
Administrator for Air and Waste Management, to all Regional 
Administrators.
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    The public notice and comment procedures required by the Federal 
rulemaking process for actions taken to approve or disapprove SIP 
revisions,

[[Page 43962]]

including PADEP's source-specific SIP revisions to determine RACT on a 
case-by -case basis for companies such as PPNC, allows interested 
parties to comment on whether the information, rationale, procedure and 
conclusions are appropriate for the subject source(s). The process is 
designed to allow interested parties to question the proposal by 
challenging EPA's rationale for its rulemaking action, including 
pointing out gaps in information or information that may have been 
overlooked in the original proposal. By its re-analysis, performed 
subsequent to and in consideration of the issues raised by NYDEC's 
comments, EPA has determined that PPNC did not follow the Pennsylvania 
RACT regulation or EPA's requirements when it submitted its RACT 
proposal to PADEP. Furthermore, EPA has determined that PADEP, in 
reviewing and analyzing PPNC's RACT proposal, did not determine and 
impose RACT in accordance with its regulation's definition and the 
Federal definition of RACT. EPA's reconsideration of the PPNC RACT as a 
result of such public comment is the kind of action supported by the 
law.
    Both Pennsylvania and the Company indicated that they relied on the 
Pennsylvania's March 10, 1994 RACT guidance document in developing the 
PPNC RACT proposal. This RACT guidance document was not submitted by 
PADEP with the April 19, 1995 PPNC RACT package nor at any other time 
as part of the SIP revision. The Company included this document in its 
July 15, 1996 response to EPA's proposed rulemaking notice. In a June 
26, 1997 letter to PA DEP, EPA stated that it had no record of this 
document being subjected to public notice and comment. Furthermore, EPA 
stated that the March 10, 1994 DEP RACT guidance document contained 
procedures and methods that EPA finds inconsistent with the definition 
of RACT. Consequently, following the procedures in the March 10, 1994 
DEP RACT guidance document does not guarantee that the RACT proposal is 
approvable by EPA. EPA has determined that the PPNC RACT proposal is 
not supported by the information in the record. EPA's review of this 
material indicates the proposed RACT emission limits for PPNC submitted 
on April 19, 1995 are unsubstantiated and cannot be approved. EPA is 
soliciting public comments on the issues discussed in this document and 
on other relevant matters. These comments will be fully considered 
before taking final action. Interested parties may participate in the 
Federal rulemaking procedure by submitting written comments to the EPA 
Regional office listed in the ADDRESSES section of this document.

Proposed Action

    EPA is withdrawing the proposed approval published on April 9, 1996 
in the Federal Register and is, instead, proposing to disapprove the 
RACT determination submitted by PADEP on April 19, 1995 for the 
Pennsylvania Power--New Castle plant, located in Lawrence County.
    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.

Administrative Requirements

Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

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 proposed action impacts one source, Pennsylvania Power's New 
Castle plant. Therefore, EPA certifies that this disapproval action 
does not have a significant impact on small entities.Furthermore, as 
explained in this document, the request does not meet the requirements 
of the Clean Air Act and EPA cannot approve the request. Therefore, EPA 
has no option but to propose to disapprove the submittal.

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 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 
disapproval action proposed does not include a Federal mandate that may 
result in estimated costs of $100 million or more to either State, 
local, or tribal governments in the aggregate, or to the private 
sector.
    The Administrator's decision to approve or disapprove the SIP 
revision submitted by PADEP for Pennsylvania Power's New Castle plant 
will be based on whether it meets the requirements of section 
110(a)(2)(A)-(K) and part D of the Clean Air Act, as amended, and EPA 
regulations in 40 CFR part 51.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Nitrogen dioxide, Ozone.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: August 8, 1997.
Thomas Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 97-21805 Filed 8-15-97; 8:45 am]
BILLING CODE 6560-50-F