[Federal Register Volume 66, Number 202 (Thursday, October 18, 2001)]
[Rules and Regulations]
[Pages 52867-52874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26263]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA101/178-4159; FRL-7083-2]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; VOC and NOX RACT Determinations for Four Individual 
Sources in the Pittsburgh-Beaver Valley Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the 
Commonwealth of Pennsylvania's State Implementation Plan (SIP). The 
revisions were submitted by the Pennsylvania Department of 
Environmental Protection (PADEP) to establish and require reasonably 
available control technology (RACT) for four major sources of volatile 
organic compounds (VOC) and nitrogen oxides (NOX). These 
sources are located in the Pittsburgh-Beaver Valley ozone nonattainment 
area (the Pittsburgh area). EPA is approving these revisions to 
establish RACT requirements in the SIP in accordance with the Clean Air 
Act (CAA).

EFFECTIVE DATE: This final rule is effective on November 2, 2001.

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, 
1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, 401 M Street, SW., Washington, DC 20460; and the Pennsylvania 
Department of Environmental Protection, Bureau of Air Quality, P.O. Box 
8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Marcia L. Spink, (215) 814-2104, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On January 6, 1995, September 13, 1996, and July 1, 1997, PADEP 
submitted revisions to the Pennsylvania SIP which establish and impose 
RACT for several major sources of VOC and/or NOX. This final 
rulemaking pertains to four of those sources. The remaining sources are 
or have been the subject of separate rulemakings. The Commonwealth's 
submittals consist of Plan Approvals (PAs) issued by PADEP and Plan 
Approvals and Agreement Upon Consent Orders (COs) issued by the 
Allegheny County Health Department (ACHD). These PAs and COs impose VOC 
and/or NOX RACT requirements for each source. These sources 
are all located in the Pittsburgh area and consist of: Duquesne Light 
Company-Brunot Island Power Station; Duquesne Light Company-Cheswick 
Power Station; Duquesne Light Company--Elrama Plant; and the 
Pennsylvania Electric Company--Keystone Generating Station.
    On August 10, 2001, EPA published a direct final rule (66 FR 42128) 
and a companion notice of proposed rulemaking (66 FR 42186) to approve 
these SIP revisions. On September 7, 2001, we received adverse comments 
on our direct final rule from the Citizens for Pennsylvania's Future 
(PennFuture). On September 20, 2001 (66 FR 48348), we published a 
timely withdrawal in the Federal Register informing the public that the 
direct final rule did not take effect. We indicated in our August 10, 
2001 direct final rulemaking that if we received adverse comments, EPA 
would address all public comments in a subsequent final rule based on 
the proposed rule (66 FR 42186). This is that subsequent final rule. A 
description of the RACT determination(s) made for each source was 
provided in the August 10, 2001 direct final rule and will not be 
restated here.
    The direct final rule (66 FR 42128) and companion notice of 
proposed rulemaking (66 FR 42186) pertained five major sources. In 
addition to proposing to approve RACT for Duquesne Light Company--
Brunot Island Power Station; Duquesne Light Company--Cheswick Power 
Station; Duquesne Light Company--Elrama Plant; and the Pennsylvania 
Electric Company--Keystone Generating Station; EPA also proposed to 
approve RACT for Duquesne Light Company--Phillips Power Station. 
Phillips Station has ceased operations, and thus EPA is not approving a 
source-specific RACT determination for this facility. On April 15, 
1999, Duquesne Light Company Inc.

[[Page 52868]]

entered into a Consent Order and Agreement with the Commonwealth of 
Pennsylvania, Department of Environmental Protection regarding 
NOX Allowances for its five power stations located in 
Pennsylvania. Paragraph 4 on page 5 of that Consent Order states that 
the emission reductions resulting from the curtailment of operations at 
the Phillips Station are not eligible to be used to generate ERCs and 
cannot be used as creditable emission reductions in any NSR 
applicability determination (a process referred to as netting). The 
Pennsylvania DEP has submitted this signed and dated Consent Order and 
Agreement to EPA and it has been placed in Administrative Record for 
this final rulemaking. This Consent Order and Agreement makes approval 
of any NOX RACT determination for the installations and 
operations at Phillips Station moot. If Duquesne (or any subsequent 
owner/operator) were to apply to recommence operations at Phillips 
Station, that restart would be subject to the Pennsylvania's SIP's 
applicable approved NSR program as though it were a new source. Under 
Pennsylvania's SIP-approved NSR program, the controls required of any 
such new source would, at a minimum, have to meet Best Available 
Technology (BAT) which must be at least as stringent as RACT.

II. Public Comments and Responses

    The Citizens for Pennsylvania's Future (PennFuture) submitted 
adverse comments on twenty proposed rules published by EPA in the 
Federal Register between August 6 and August 24, 2001 to approve case-
by-case RACT SIP submissions from the Commonwealth for NOX 
and or VOC sources located in the Pittsburgh area. PennFuture's letter 
includes general comments and comments specific to EPA's RACT approvals 
for certain sources. A summary of the comments submitted by PennFuture 
germane to this final rulemaking and EPA responses are provided at 
II.A.-G. of this document.
    A. Comment: PennFuture comments that EPA has conducted no 
independent technical review, and has prepared no technical support 
document to survey potential control technologies, determine the 
capital and operating costs of different options, and rank these 
options in total and marginal cost per ton of NOX and VOC 
controlled. In citing the definition of the term ``RACT,'' and the 
Strelow Memorandum (Roger Strelow, Assistant Administrator for Air and 
Waste Management, EPA, December 9, 1976, cited in Michigan v. Thomas, 
805 F.2d 176, 180 (6th Cir. 1986) and at 62 FR 43134, 43136 (1997)), 
PennFuture appears to comment that in every situation, RACT must 
include an emission rate. PennFuture asserts that EPA should conduct 
its own RACT evaluation for each source, or at a minimum document a 
step-by-step review demonstrating the adequacy of state evaluations, to 
ensure that appropriate control technology is applied. The commenter 
also believes that EPA's failure to conduct its own independent review 
of control technologies has resulted in our proposing to approve some 
RACT determinations that fail to meet the terms of EPA's own RACT 
standard.
    Response: On March 23, 1998 (63 FR 13789), EPA granted conditional 
limited approval of Pennsylvania's generic RACT regulations, 25 PA Code 
Chapters 121 and 129, thereby approving the definitions, provisions and 
procedures contained within those regulations under which the 
Commonwealth would require and impose RACT. Subsection 129.91, Control 
of major sources of NOX and VOCs, requires subject 
facilities to submit a RACT plan proposal to both the Pennsylvania 
Department of Environmental Protection (DEP) and to EPA Region III by 
July 15, 1994 in accordance with subsection 129.92, entitled, RACT 
proposal requirements. Under subsection 129.92, that proposal is to 
include, among other information, (1) A list of each subject source at 
the facility; (2) The size or capacity of each affected source, and the 
types of fuel combusted, and the types and amounts of materials 
processed or produced at each source; (3) A physical description of 
each source and its operating characteristics; (4) Estimates of 
potential and actual emissions from each affected source with 
supporting documentation; (5) A RACT analysis which meets the 
requirements of subsection 129.92 (b), including technical and economic 
support documentation for each affected source; (6) A schedule for 
implementation as expeditiously as practicable but not later than May 
15, 1995; (7) The testing, monitoring, recordkeeping and reporting 
procedures proposed to demonstrate compliance with RACT; and (8) any 
additional information requested by the DEP necessary to evaluate the 
RACT proposal. Under subsection 129.91, the DEP will approve, deny or 
modify each RACT proposal, and submit each RACT determination to EPA 
for approval as a SIP revision.
    The conditional nature of EPA's March 23, 1998 conditional limited 
approval did not impose any conditions pertaining to the regulation's 
procedures for the submittal of RACT plans and analyses by subject 
sources and approval of case-by case RACT determinations by the DEP. 
Rather, EPA stated that ``* * * RACT rules may not merely be procedural 
rules (emphasis added) that require the source and the State to later 
agree to the appropriate level of control; rather the rules must 
identify the appropriate level of control for source categories or 
individual sources.''
    On May 3, 2001 (66 FR 22123), EPA published a rulemaking 
determining that Pennsylvania had satisfied the conditions imposed in 
its conditional limited approval. In that rulemaking, EPA removed the 
conditional status of its approval of the Commonwealth's generic VOC 
and NOX RACT regulations on a statewide basis. EPA received 
no public comments on its action and that final rule removing the 
conditional status of Pennsylvania's VOC and NOX RACT 
regulations became effective on June 18, 2001. As of that time, 
Pennsylvania's generic VOC and NOX RACT regulations retained 
a limited approval status. On August 24, 2001 (66 FR 44578), EPA 
proposed to remove the limited nature of its approval of Pennsylvania's 
generic RACT regulation in the Pittsburgh area. EPA received no public 
comments on that proposal. Final action converting the limited approval 
to full approval shall occur once EPA has completed rulemaking to 
approve either (1) the case-by-case RACT proposals for all sources 
subject to the RACT requirements currently known in the Pittsburgh-
Beaver area or (2) for a sufficient number of sources such that the 
emissions from any remaining subject sources represent a de minimis 
level of emissions as defined in the March 23, 1998 rulemaking (63 FR 
13789).
    EPA agrees that it has an obligation to review the case-by-case 
RACT plan approvals and/or permits submitted as individual SIP 
revisions by Commonwealth to verify and determine if they are 
consistent with the RACT requirements of the Act and any relevant EPA 
guidance. EPA does not agree, however, that this obligation to review 
the case-by-case RACT determinations submitted by Pennsylvania 
necessarily extends to our performing our own RACT analyses, 
independent of the sources' RACT plans/analyses (included as part of 
the case-by-case RACT SIP revisions) or the Commonwealth's analyses. 
EPA first reviews this submission to ensure that the source and the 
Commonwealth followed the SIP-approved generic rule when applying for 
and imposing RACT for a specific source. Then EPA

[[Page 52869]]

performs a thorough review of the technical and economic analyses 
conducted by the source and the state. If EPA believes additional 
information may further support or would undercut the RACT analyses 
submitted by the state, then EPA may add additional EPA-generated 
analyses to the record.
    While RACT, as defined for an individual source or source category, 
often does specify an emission rate, such is not always the case. EPA 
has issued Control Technique Guidelines (CTGs) which states are to use 
as guidance in development of their RACT determinations/rules for 
certain sources or source categories. Not every CTG issued by EPA 
includes an emission rate. There are several examples of CTGs issued by 
EPA wherein equipment standards and/or work practice standards alone 
are provided as RACT guidance for all or part of the processes covered. 
Such examples include the CTGs issued for Bulk gasoline plants, 
Gasoline service stations--Stage I, Petroleum Storage in Fixed-roof 
tanks, Petroleum refinery processes, Solvent metal cleaning, 
Pharmaceutical products, External Floating roof tanks and Synthetic 
Organic Chemical Manufacturing (SOCMI)/polymer manufacturing. (The 
publication numbers for these CTG documents may be found at http://www.epa.gov/ttn/catc/dir1/ctg.txt).
    EPA disagrees with PennFuture's general comment that our failure to 
conduct our own independent review of control technologies for every 
case-by-case RACT determination conducted by the Commonwealth has 
resulted in our proposing to approve some RACT determinations that fail 
to meet the terms of our own RACT standard. PennFuture submitted 
comments specific to the case-by-case RACT determinations for only 
three sources located in the Pittsburgh area, namely for Duquesne 
Light's Elrama, Phillips and Brunot Island stations. EPA summarizes 
those comments and provides responses in the final rule pertaining to 
those sources.
    B. Comment: PennFuture comments that when EPA reviewed 
Pennsylvania's RACT program, it noted that Pennsylvania coal-fired 
boilers with a rated heat input of equal to or greater than 100 million 
Btu per hour ``are some of the largest NOX emitting sources 
in the Commonwealth and in the Northeast United States'' (63 FR 13789, 
13791 (1998)) and as such should have numeric emission limitations 
imposed as RACT whether or not they install presumptive RACT (under 25 
Pa.Code 129.93) to guarantee that sources would achieve quantifiable 
emissions reductions under the RACT program. PennFuture goes on to 
comment that because EPA has not conducted and documented a technical 
review of Pennsylvania case-by-case RACT submissions, EPA has not 
demonstrated that these large boilers are subject to ``numeric emission 
limitations'' under RACT. EPA must conduct a thorough RACT evaluation 
or review for each such source, and must document the application of 
numeric emission limits and quantifiable reductions for each coal-fired 
boiler with a rated heat input of over 100 million Btu per hour.
    Response: Circumstances may exist wherein a state could justify 
otherwise, however, in general, EPA agrees with PennFuture that coal-
fired boilers with a rated heat input of equal to or greater than 100 
million Btu per hour should have numeric emission limitations imposed 
as RACT whether or not they install presumptive RACT (under 25 Pa. Code 
129.93).
    As provided in the response found in II. A, EPA does not agree that 
it must conduct its own technical analysis of each of the case-by-case 
RACT determinations submitted for each RACT source in order to document 
that its RACT requirements include numeric emission limitations. That 
determination can be made by EPA when it reviews the plan approval, 
consent order, or permit issued to such a source as submitted by the 
Commonwealth as SIP revision. PennFuture's comment did not point to a 
specific instance where a RACT plan approval, consent order or permit 
imposing RACT on a coal-fired boiler with a rated heat input of equal 
to or greater than 100 million Btu per hour did, in fact, lack a 
numerical emission limitation(s). Nonetheless, pursuant to PennFuture's 
comment, EPA has re-examined all of the case-by-case RACT SIP 
submissions made by the Commonwealth for such sources located in the 
Pittsburgh area. That re-examination, combined with information 
provided by the Commonwealth, indicates that each case-by-case RACT 
plan approval, consent order and/or permit for each coal-fired boiler 
with a rated heat input of equal to or greater than 100 million Btu per 
hour includes a numeric emission limitation. A listing of each source, 
its plan approval, consent order and/or permit number and its numerical 
emission limitation has been placed in the Administrative Records for 
the case-by-case RACT rulemakings for the Pittsburgh area.
    C. Comment: PennFuture asserts that the Commonwealth has not 
adopted and submitted category RACT rules for all VOC source categories 
for which federal control technique guidelines (CTGs) have been issued. 
The commenter refers to Appendix 1 of the Technical Support Document 
(dated May 14, 2001), prepared by EPA in support of its proposed rule 
to redesignate the Pittsburgh-Beaver Valley Ozone Nonattainment Area 
(66 FR 29270), to assert that EPA has failed to require the 
Commonwealth to submit VOC RACT rules for certain categories of 
sources. PennFuture specifically names source categories such as 
equipment leaks from natural gas/gas processing plants, coke oven 
batteries, iron and steel foundries, and publically owned treatment 
works and asserts that the Commonwealth has neglected a statutory 
requirement to adopt category RACT regulations for these and 14 other 
unnamed VOC source categories.
    Response: EPA has not issued CTGs for coke oven batteries, iron and 
steel foundries and publically owned treatment works. The Appendix 1, 
referred to by the commenter, lists CTG covered categories as well as 
source categories taken from two STAPPA/ALAPCO documents entitled, 
``Meeting the 15-Percent Rate-of-Progress Requirement Under the Clean 
Air Act--A Menu of Options' (September 1993) and ``Controlling Nitrogen 
Oxides Under the Clean Air Act--A Menu of Options'' (July 1994). The 
categories referenced by PennFuture are not VOC categories for which 
EPA has issued CTGs, but were included in Appendix A as examples of 
some of the types of sources that could be subject to Pennsylvania's 
generic RACT regulations. The Commonwealth is under no statutory 
obligation to adopt RACT rules for source categories for which EPA has 
not issued a CTG. In fact, CTGs do not exist for all but one of the 
categories to which the commenter explicitly refers.
    The Act requires that states adopt regulations to impose RACT for 
``major sources of VOC,'' located within those areas of a state where 
RACT applies under Part D of the Act (182(b)(2)(C)). This is referred 
to as the non-CTG VOC RACT requirement. Moreover, EPA disagrees that 
there is a statutory mandate that a state adopt a source category RACT 
regulation even for a source category where EPA has issued a CTG. There 
are two statutory provisions that address RACT for sources covered by a 
CTG. One provides that states must adopt RACT for ``any category of VOC 
sources'' covered by a CTG issued prior to November 15, 1990 
(182(b)(2)(A)). The other provides that states must adopt VOC RACT for 
all ``VOC sources'' covered by a CTG issued after November

[[Page 52870]]

15, 1990 (182(b)(2)(B)). EPA has long interpreted the statutory RACT 
requirement to be met either by adoption of category-specific rules or 
by source-specific rules for each source within a category. When 
initially established, RACT was clearly defined as a case-by-case 
determination, but EPA provided CTG's to simplify the process for 
states such that they would not be required to adopt hundreds or 
thousands of individual rules. See Strelow Memorandum dated December 9, 
1976 and 44 FR 53761, September 17, 1979. EPA does not believe that 
Congress' use of ``source category'' in one provision of section 
182(b)(2) was intended to preclude the adoption of source-specific 
rules.
    Thus, where CTG-subject sources are located within those areas of a 
state where RACT applies under Part D of the Act, the state is 
obligated to impose RACT for the same universe of sources covered by 
the CTG. However, that obligation is not required to be met by the 
adoption and submittal of a source category RACT rule. A state may, 
instead, opt to impose RACT for such sources in permits, plan 
approvals, consent orders or in any other state enforceable document 
and submit those documents to EPA for approval as source-specific SIP 
revisions. This option has been exercised by many states, and happens 
most commonly when only a few CTG-subject sources are located in the 
state. The source-specific approach is generally employed to avoid what 
can be a lengthy and resource-intensive state rule adoption process for 
only a few sources that may have different needs and considerations 
that must be taken into account.
    As stated earlier, there is one source category explicitly included 
in PennFuture's comment for which EPA has issued a CTG, namely natural 
gas/gas processing plants. The Commonwealth made a negative declaration 
to EPA on April 13, 1993, stating that as of that date there were no 
applicable sources in this category. Therefore, the Commonwealth did 
not adopt a category RACT regulation for natural gas/gas processing 
plants.
    D. Comment: PennFuture cites EPA correspondence (letter from Marcia 
Spink, EPA, to James Salvaggio, DEP, December 15, 1993) to the 
Commonwealth which states that establishing any dollar figure in RACT 
guidance will not provide for the ``automatic'' selection or rejection 
of a control technology or emission limitation as RACT for a source or 
source category. With regard to the Pennsylvania DEP's intent to 
finalize a NOX RACT Guidance Document for implementation of 
its NOX RACT regulation, EPA's 1993 letter stated that the 
document could improperly be used to establish ``bright line'' or 
``cook-book'' approaches, particularly for a regulation applicable to 
many source categories and suggested that if the guidance document must 
include dollar figures/ton, it provide approximate ranges by source 
category. PennFuture comments that DEP issued its ``Guidance Document 
on Reasonably Available Control Technology for Sources of 
NOX Emissions,'' March 11, 1994, and on pp. 8-9 states that 
the acceptable threshold is $1500 per ton, and that this figure applies 
to ``all source categories.'' PennFuture notes that EPA later objected 
to the $1500 per ton methodology as ``not generically acceptable to 
EPA'' (letter from Thomas Maslany, EPA, to James Salvaggio, DEP, June 
24, 1997) and further stated in a Federal Register document that a 
``dollar per ton threshold'' is ``inconsistent with the definition of 
RACT'' (62 FR 43134, 37-38 (1997)).
    PennFuture comments that EPA is proposing to approve RACT 
determinations based on a cost per ton method that EPA had previously 
rejected, and according to its own clearly expressed standard, EPA must 
not approve RACT determinations by Pennsylvania DEP that apply this 
$1500 per ton threshold. The commenter states that PennFuture's review 
of several of the current DEP evaluations indicate that the 
Commonwealth applied this standard and provides the examples of 
Duquesne Light--Elrama (auxiliary boiler); Allegheny Ludlum--Washington 
(formerly Jessop Steel). PennFuture asserts EPA must reject all 
Pennsylvania RACT determinations applying the standard of $1500 per 
ton, or any other ``bright line'' approach, as failing to follow EPA 
procedures established for Pennsylvania RACT.
    Response: EPA still takes the position that a single cost per ton 
dollar figure may not, in and of itself, form the basis for rejecting a 
control technology, equipment standard, or work practice standard as 
RACT. The Technical Support Document prepared by EPA in support of its 
March 23, 1998 rulemaking (63 FR 13789) clearly indicates that the 
Commonwealth's document, ``Guidance Document on Reasonably Available 
Control Technology for Sources of NOX Emissions.'' March 11, 
1994, had not been included as part of the SIP submission of the 
Commonwealth's generic regulation and, therefore, had not been approved 
by EPA. EPA further notes that the Administrative Record of the March 
23, 1998 rulemaking (63 FR 13789), in addition to the correspondence 
cited by PennFuture, also includes correspondence from DEP to EPA 
(letter from James Salvaggio, DEP to David Arnold, EPA, September 10, 
1997) stating that DEP's RACT guidance document does not establish a 
maximum dollar per ton for determining the cost effectiveness for RACT 
determinations and notes that the DEP's $1500 per ton cost 
effectiveness is a target value and not an absolute maximum. For 
example, in its analyses of the cost effectiveness of RACT control 
options submitted by DEP as part of the case-by-case SIP revision for 
Peoples Natural Gas (PNG) Valley Compressor Station's turbo charged 
lean burn IC engine (see the Administrative Record for 66 FR 43492), 
the Commonwealth included DEP interoffice memoranda (Thomas Joseph to 
Krishnan Ramamurthy, July 14, 1994 and Krishnan Ramamurthy to Thomas 
McGinley, Babu Patel, Ronald Davis, Richard Maxwell, and Devendra 
Verma, July 15, 1994) which spoke directly to the $1500/ton dollar 
figure as being a guideline and not an upper limit. These memoranda 
explain that although PNG initially proposed intermediate original 
equipment manufacturer (OEM) combustion controls which would have 
reduced NOX emissions from 254.7 tons per year to 115 tons 
per year (by 55%) at a cost of $1355 per ton reduced, DEP required the 
installation of an OEM lean combustion modification that reduced 
NOX emissions from 254.7 tons per year to 76 tons per year 
(by 69%) at a cost of $1684 per ton reduced. The DEP's July 15, 1994 
interoffice memorandum says of the PNG RACT determination which 
exceeded the cost effectiveness screening level of $1500 per ton ``* * 
* Tom's (Joseph) insistence for the next more stringent level of 
control than the company's chosen level in the case of PNG was 
consistent with EPA Region III's sentiment that establishing any dollar 
figure in RACT guidance will not provide for an ``automatic'' rejection 
of a control technology as RACT for a source.''
    In no instance, including that for Duquesne Light--Elrama 
(auxiliary boiler) and Allegheny Ludlum--Washington (formerly Jessop 
Steel), has EPA proposed to approve a RACT determination submitted by 
the Commonwealth which was based solely on a conclusion that controls 
that cost more than $1500/ton were not required as RACT. As explained 
in the response provided in section II. A. of this document, EPA 
conducts its review of the entire case-by-case RACT SIP submittal 
including the source's

[[Page 52871]]

proposed RACT plan and analyses, Pennsylvania's analyses and the RACT 
plan approval, consent order or permit itself to insure that the 
requirements of the SIP-approved generic RACT have been followed. These 
analyses not only evaluate and consider the costs of potential control 
options, but also evaluate their technological feasibility.
    E. Comment: PennFuture comments that any emission reduction credits 
(ERCs) earned by sources subject to RACT must be surplus to all 
applicable state and federal requirements. Under Pennsylvania law, ERCs 
must be surplus, permanent, quantified, and Federally enforceable. 25 
Pa.Code 127.207(1). As to the requirement that ERCs be surplus, the 
Pennsylvania Code states: ERCs shall be included in the current 
emission inventory, and may not be required by or be used to meet past 
or current SIP, attainment demonstration, RFP, emission limitation or 
compliance plans. Emission reductions necessary to meet NSPS, LAER, 
RACT, Best Available Technology, BACT and permit or plan approval 
emissions limitations or another emissions limitation required by the 
Clean Air Act or the [Air Pollution Control Act] may not be used to 
generate ERCs. 25 Pa.Code 127.207(1)(i). To be creditable, ERCs must 
surpass not only RACT requirements but a host of other possible sources 
of emission limits. PennFuture comments that some of the RACT 
evaluations at issue in the current EPA notices purport to establish 
RACT as a baseline for future ERCs. PennFuture does acknowledge that 
EPA notes in its boilerplate for the notices, that Pennsylvania and EPA 
have established a series of NOX-reducing rules, including 
the recent Chapter 145 rule, to reduce NOX at large utility 
and industrial sources. See, for example, 66 FR 42415, 16-17 (August 
13, 2001). Because any ERCs must be surplus to the most stringent 
limitation applicable under state or federal law as described in the 
Pennsylvania Code provision set forth above, DEP and EPA must not 
approve ERCs unless they surpass all such limitations in addition to 
any limits set by RACT.
    Response: EPA agrees with this comment by PennFuture. The approval 
of a case-by-case RACT determination, in and of itself, does not 
establish the baseline from which further emission reductions may be 
calculated and assumed creditable under the Commonwealth's SIP-approved 
NSR and ERC program. Moreover, EPA's review of the Pennsylvania DEP's 
implementation of its approved SIP-approved NSR and ERC program 
indicates that the Commonwealth calculates and credits ERCs in 
accordance with the SIP-approved criteria for doing so as outlined in 
PennFuture's comment. No source for which EPA is approving a case-by-
case RACT determination should assume that its RACT approval alone 
automatically establishes the baseline against which it may calculate 
creditable ERCs.
    F. Comment: PennFuture comments that as in the case with 
Pennsylvania Power--Newcastle, EPA should compare RACT proposals to 
applicable acid rain program emission limits and control strategies. 
PennFuture contends that EPA previously disapproved a RACT proposal for 
the Pennsylvania Power--Newcastle plant (62 FR 43959 (1997); 63 FR 
23668 (1998)) and that EPA did so on the basis that the acid rain 
program requires more stringent emission limits. PennFuture asserts 
that while EPA had originally proposed to approve this proposal, an 
analysis of comparable boilers and, especially, a comparison to Phase 
II emission limits under the acid rain program led EPA to conclude that 
the RACT proposal emission limits were too lenient. (62 FR at 43961). 
Therefore, PennFuture contends that for sources subject to the acid 
rain program, EPA should consider emissions and control strategies for 
compliance with acid rain emission limits when evaluating proposals for 
compliance with RACT.
    Response: Title IV of the Act, addressing the acid rain program, 
contains NOX emission requirements for utilities which must 
be met in addition to any RACT requirements (see NOX 
Supplement to the General Preamble at 57 FR 55625, November 25, 1992). 
The Act provides for a number of control programs that may affect 
similar sources. For example, new sources may be subject to new source 
performance standards (NSPS), best available control technology (BACT), 
and lowest achievable emission rate (LAER). Other controls, under such 
programs as the acid rain program or the hazardous air pollutant 
program may also apply to sources. However, the applicability of these 
other requirements, which are often more stringent than RACT, do not 
establish what requirements must apply under the RACT program. While 
these programs may provide information as to the technical and economic 
feasibility of reduction programs for RACT, there is no presumption 
that acid rain controls should be mandated as RACT.
    EPA stated in the final disapproval of the NOX RACT 
determination for PPNC (63 FR at 23669), that the discussion concerning 
average emission rates for boilers with respect to the acid rain 
program requirements were included in order to provide a context for 
EPA's proposed disapproval. EPA made clear in its August 18, 1997 
proposed disapproval of Pennsylvania Powers'--Newcastle (PPNC) RACT 
determination, that the basis for disapproval was a comparison between 
PPNC's boilers and other similar combustion units, not acid rain 
limits. In fact, EPA stated in the August 18, 1997 proposed disapproval 
that ``Without additional knowledge or information, it would be 
erroneous and premature to conclude that the limits in the acid rain 
permit are RACT.'' (62 FR at 43961). EPA clearly stated in the final 
disapproval for PPNC that it did not use acid rain permit limits, or 
Pennsylvania's participation in any other NOX control 
program, to determine PPNC RACT approvability [63 FR at 23670]. Nor has 
EPA intended to use participation in NOX control programs 
including acid rain, in determining RACT for PPNC or any other subject 
sources. EPA also stated that the April 30, 1998, PPNC disapproval was 
based on the absence of pertinent information regarding a computerized 
combustion optimization system through an enforceable permit, not 
comparison of acid rain permit limits.
    G. Comment: PennFuture submitted comments specific to the case-by-
case RACT determinations for three sources located in the Pittsburgh 
area, namely for Duquesne Light's Elrama, Phillips and Brunot Island 
Stations.
    (1) Elrama Station--PennFuture comments that under Pennsylvania 
law, presumptive RACT for a coal-fired combustion unit with a rated 
heat input equal to or greater than 100 million Btu/hour is the 
installation and operation of low NOX burners with separate 
overfire air (LNB-SOFA). 25 Pa.Code 129.93(b)(1), and that the Duquesne 
Light--Elrama Station has four boiler units subject to this standard. 
PennFuture cites intra-agency correspondence between EPA staff which 
states that the RACT proposal fails to demonstrate that the burner 
modification and the new design burners will result in emission 
reductions that are equivalent to conventional low NOX 
burners. (Memo, Kelly Bunker, EPA, to David Campbell, EPA, November 25, 
1997, p. 2) PennFuture's comment also acknowledges DEP correspondence 
which did provide its justification as to why the emission controls at 
Units 1-3 at Elrama are functionally equivalent to LNB-SOFA. (Letter 
Krishnan Ramamurthy, DEP, to David Campbell, EPA, May 13, 1998.) 
PennFuture asserts,

[[Page 52872]]

nonetheless, that DEP did not conduct a case-by-case RACT analysis and 
did not demonstrate that the emission rate for these burners would be 
equivalent to LNB-SOFA. Lastly, PennFuture cites current emissions data 
from EPA (see Table B1 of EPA's Emissions Scorecard 2000) suggesting 
that other large coal burners in Pennsylvania that have applied LNB-
SOFA are achieving significantly lower emissions rates for 
NOX than Elrama Station.
    Response: Subsection 129.93, entitled Presumptive RACT emission 
limitations, states at 129.93(a) that the owner or operator of a major 
NOX emitting facility, may elect to comply with the 
presumptive RACT limitations of 129.93 as an alternative to developing 
and implementing a RACT emission limitation on case-by-case basis. For 
Elrama Station, Duquesne Light opted to submit a RACT proposal pursuant 
to the Subsections 129.91 and 129.92 rather than comply with the 
presumptive RACT requirements of 129.93. There is no requirement that 
its RACT proposal or the DEP's analysis conducted under 129.91 and 
129.92 demonstrate that 0.5lbs of NOX per MMBtu emission 
rate is equivalent to LNB-SOFA. Nonetheless, and as noted by 
PennFuture, the SIP submission does include DEP correspondence which 
does provide its justification as to why the emission controls at Units 
1-3 at Elrama are functionally equivalent to LNB-SOFA. (Letter Krishnan 
Ramamurthy, DEP, to David Campbell, EPA, May 13, 1998.) EPA has 
reviewed the RACT proposal done by Duquesne Light, the analysis of that 
proposal by DEP, and finds that given the age, configuration and design 
of the specific boilers; the required installation of low 
NOX burning systems, the associated modifications and the 
emission rate of 0.5lbs of NOX per MMBtu imposed as 
NOX RACT for the Elrama Station is approvable.
    In its comments, PennFuture compares the 0.5 lbs of NOX 
per MMBtu NOX allowable emission rate imposed by the 
Commonwealth as RACT on the Elrama station (to be complied with by May 
1995) to the current actual emissions data from other large coal 
burners in Pennsylvania (found in EPA's Emissions Scorecard in 2000). 
This direct comparison of Elrama's allowable RACT emission rate imposed 
for compliance by May of 1995 to actual year 2000 emissions data of 
other large coal burning sources in Pennsylvania is not an appropriate 
criterion by which to judge the approvability of that RACT allowable 
emission rate. Such a comparison fails to recognize that as of May 
1999, such large coal burning sources in Pennsylvania have been subject 
to additional ``post-RACT requirements'' to reduce seasonal 
NOX emissions under the NOX cap and trade 
regulation, 25 Pa Code Chapters 121 and 123, based upon a model rule 
developed by the States in the Ozone Transport Region (OTR). That 
rule's compliance date is May 1999. That regulation was approved as a 
SIP revision on June 6, 2000 (65 FR 35842). The current (and year 2000) 
actual emissions data from large coal burning sources in Pennsylvania 
reflect compliance with 25 Pa Code Chapters 121 and 123--not just RACT.
    The Duquesne Light Company's Elrama Plant is also subject to 
additional requirements to reduce NOX found at 25 PA Code 
Chapters 121, 123 and 145. Nothing in the approval of the case-by-case 
NOX RACT determination for Elrama in any way relieves the 
facility from the applicable requirements of SIP-approved 25 PA Code 
Chapters 121, 123 and 145.
    (2) Phillips Station--PennFuture comments that the DEP RACT 
evaluation for Duquesne Light--Phillips station takes the same approach 
as for Elrama, this time approving ``low NOX burning 
systems'' with a high emission rate of .72 pounds per million Btu. 
PennFuture contends that although DEP reports that the four boilers are 
unusually configured, they are still large boilers subject to 
presumptive RACT of LNB-SOFA. PennFuture asserts that the source and 
DEP offer no demonstration that the approved emission rate is 
equivalent to that obtained by presumptive RACT. Finally PennFuture 
contends that EPA specifically rejected an emission rate of .72 pounds 
per million Btu for a coal-fired unit as ``too high'' and failing the 
RACT standard at the Penn Power--Newcastle plant. (62 FR 43959, 43961 
(1997); 63 FR 23668 (1998)). For these reasons, PennFuture comments 
that EPA should disapprove the RACT proposal for Duquesne Light--
Phillips station.
    Response: Phillips Station has ceased operations, and thus EPA is 
not approving a source-specific RACT determination for this facility. 
On April 15, 1999, Duquesne Light Company Inc. entered into a Consent 
Order and Agreement with the Commonwealth of Pennsylvania, Department 
of Environmental Protection regarding NOX Allowances for its 
five power stations located in Pennsylvania. Paragraph 4 on page 5 of 
that Consent Order states that the emission reductions resulting from 
the curtailment of operations at the Phillips Station are not eligible 
to be used to generate ERCs and cannot be used as creditable emission 
reductions in any NSR applicability determination (a process referred 
to as netting). The Pennsylvania DEP has submitted this signed and 
dated Consent Order and Agreement to EPA as an alternative to the case-
by-case RACT SIP submission for Phillips Station and it has been placed 
in Administrative Record for this final rulemaking. This Consent Order 
and Agreement makes approval of any NOX RACT determination 
for the installations and operations at Phillips Station moot. If 
Duquesne (or any subsequent owner/operator) were to apply to recommence 
operations at Phillips Station, that restart would be subject to the 
Pennsylvania's SIP's applicable approved NSR program as though it were 
a new source. Under Pennsylvania's SIP-approved NSR program, the 
controls required of any such new source would, at a minimum, have to 
meet Best Available Technology (BAT) which must be at least as 
stringent as RACT.
    (3) Brunot Island Station (now owned by Orion Power Midwest, 
L.P.)--PennFuture comments that in its RACT determination for the 
Brunot Island plant's six units subject to NOX RACT 
requirements (Units 2A, 2B, and 3, which have a potential to emit 
NOX of over 3,300 tons per year each), DEP chose to 
bifurcate the technology review, analyzing operation and controls 
separately for the combined cycle combustion (CCC) and simple cycle 
combustion (SCC) modes. PennFuture asserts that DEP's approach 
improperly assumes that Brunot Island would have to make separate 
capital investments to apply control technology (in this case, wet 
injection) to the CCC and SCC modes. Considering these technologies in 
isolation, DEP concluded that wet injection is cost effective for CCC 
mode (while concluding that wet injection plus selective catalytic 
reduction would be cost prohibitive) and that wet injection was cost 
prohibitive for SCC mode at a maximum annual capacity of 23%. However, 
in practice, only one capital expenditure for wet injection would be 
required for this technology to reduce emissions during operation in 
either mode. Therefore, DEP should have evaluated either one capital 
expenditure as producing emission benefits in both modes, or only the 
marginal operating costs associated with wet injection during the SCC 
mode. PennFuture contends, therefore, that EPA must not approve the 
NOX RACT determination for the Brunot Island plant submitted 
by DEP. Instead, EPA should require that DEP submit a RACT 
determination that

[[Page 52873]]

properly considers the actual costs of applying wet injection to both 
operating modes.
    Response: Pursuant to PennFuture's comment, EPA has re-reviewed the 
source-specific RACT determination for the Brunot Island Station and 
has conferred with both the Allegheny County Health Department (ACHD) 
and the Pennsylvania DEP. On March 5, 2001, the ACHD issued a 
Prevention of Significant Deterioration (PSD) Installation Permit to 
Orion Power Midwest, L.P. for its Major Modification of the Brunot 
Island Station (ACHD Permit 0056). The modification to Brunot Island 
consists of an increase in the capacity factor to 100% for the existing 
simple cycle combustion turbines, 2A, 2B, and 3 and the installation of 
three heat recovery steam generators (HRSGs). Under Permit 0056, only 
natural gas shall be combusted in the modified combustion turbines and 
their associated HRSGs, and these units will only operate in combined 
cycle mode. Fuel oil will no longer be used in these units. The 
required control device is water injection selective catalytic 
reduction (SCR). Each unit is limited to 11.8 lbs/hr of NOX 
(based on a rolling 3-hr average) and to 51.7 tons per year. Total 
facility emissions from Units 2A, 2B and 3 shall not exceed 34.4 lbs of 
NOX/hr (based on a rolling 3-hr average) and 156 tons per 
year. In all instances the permit defines a year as any 12 consecutive 
months.
    Under Section V. 7 entitled, Additional Requirements, of Permit 
0056 (pp 23 and 23), conditions related to the period of time prior to 
the modified units operating in the combined cycle mode are imposed. 
EPA believes that those requirements are RACT, and their requirements 
apply until the modified units are operating in combined cycle mode. 
Those requirements include a condition which states that Units 2A, 2B 
and 3 may combust natural gas in simple cycle mode during the time 
period commencing with first operation on natural gas and ending with 
first operation in combined cycle mode with a restriction that 
NOX emissions not exceed 239.0 lbs/hr from each unit and 
131.0 tons per year from all three units combined. A year is defined as 
any 12 consecutive months. The 239.0 lbs/hr restriction on each boiler 
represents a 70 percent reduction from its former 3,300 tons per year 
potential to emit. The 131.0 tons per year combined annual limit for 
all three boilers represents a 98.7 percent reduction from their 
combined former 9,900 tons per year potential to emit. Another 
condition states that Units 2A, 2B and 3 shall not operate in simple 
cycle mode on natural gas without controls after January 1, 2003, 
unless a revised RACT plan is approved. Any such revised plan would 
have to submitted to EPA for approval as a SIP revision. Another 
condition states that anytime after start-up of Unit 2A, 2B or 3 in 
combined cycle mode, that Unit shall not operate in simple cycle mode.
    ACHD Permit 0056 has been submitted to EPA as part of the 
NOX RACT SIP submittal for Brunot Island including the 
documentation that a public comment period and public hearing were 
conducted on the proposed PSD permit. The Major Modification Prevention 
of Significant Deterioration (PSD) Installation Permit issued to Orion 
Power Midwest, L.P. for its Major Modification of the Brunot Island 
Station, ACHD Permit 0056, on March 5, 2001 has been placed in the 
Administrative Record for this SIP revision and is being approved as 
part of the SIP. Therefore, the federally enforceable and applicable 
requirements governing emissions of NOX from the Brunot 
Island Station are those imposed in permit 0056 issued on March 5, 2001 
which EPA is approving as RACT for this source. As of the March 5, 2001 
issuance of permit 0056 for Brunot Island, any ERCs generated would 
have to be surplus to the limits imposed in that permit.

III. Final Action

    EPA is approving the revisions to the Pennsylvania SIP submitted by 
PADEP to establish and require VOC and NOX RACT for four 
major of sources located in the Pittsburgh area. EPA is approving these 
RACT SIP submittals because the ACHD and PADEP established and imposed 
these RACT requirements in accordance with the criteria set forth in 
the SIP-approved RACT regulations applicable to these sources. The ACHD 
and PADEP have also imposed record-keeping, monitoring, and testing 
requirements on these sources sufficient to determine compliance with 
the applicable RACT determinations.

IV. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This rule 
also is not subject to Executive Order 13045 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it is not economically significant. In reviewing SIP 
submissions, EPA's role is to approve state choices, provided that they 
meet the criteria of the Clean Air Act. In this context, in the absence 
of a prior existing requirement for the State to use voluntary 
consensus standards (VCS), EPA has no authority to disapprove a SIP 
submission for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews a SIP submission, to use VCS in 
place of a SIP submission that otherwise satisfies the provisions of 
the Clean Air Act. Thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply. This rule does not impose an information collection 
burden under the provisions

[[Page 52874]]

of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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. Section 804 exempts from section 801 the following types 
of rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) 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 establishing source-
specific requirements for four named sources.

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 December 17, 2001. 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 approving the Commonwealth's source-
specific RACT requirements to control VOC and NOX from four 
power plants in the Pittsburgh area 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, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements.

    Dated: October 3, 2001.
Thomas C. Voltaggio,
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 52.2020 is amended by adding paragraph (c)(161) to read 
as follows:


Sec. 52.2020  Identification of plan.

* * * * *
    (c) * * *
    (161) Revisions pertaining to NOX and/or VOC RACT for 
major sources, located in the Pittsburgh-Beaver Valley ozone 
nonattainment area, submitted by the Pennsylvania Department of 
Environmental Protection on January 6, 1995, September 13, 1996, and 
July 1, 1997.
    (i) Incorporation by reference.
    (A) Letters from the Pennsylvania Department of Environmental 
Protection dated January 6, 1995, September 13, 1996, and July 1, 1997, 
transmitting source-specific VOC and/or NOX RACT 
determinations.
    (B) The following companies' Plan Approvals (PA), or Consent Orders 
(CO):
    (1) Duquesne Light Company's Cheswick Power Station, CO 217, 
effective March 8, 1996, except for condition 2.5.
    (2) Duquesne Light Company's Elrama Plant, PA 63-000-014, effective 
December 29, 1994.
    (3) Pennsylvania Electric Company's Keystone Generating Station, PA 
03-000-027, effective December 29, 1994.
    (ii) Additional materials.
    (A) The federally enforceable Major Modification PSD Permit, ACHD 
Permit #0056, issued on March 5, 2001 to Orion Power Midwest L.P. for 
its Brunot Island Power Station (formerly owned by Duquesne Light 
Company).
    (B) The Consent Order and Agreement, dated April 15, 1999, between 
the Commonwealth of Pennsylvania, Department of Environmental 
Protection and Duquesne Light Company, INC., regarding NOX 
Allowances, which states that the emission reductions resulting from 
the curtailment of operations at the Phillips Station prior to April 
15, 1999 are not eligible to be used to generate emission reduction 
credits (ERCs) and cannot be used as creditable emission reductions in 
any New Source Review (NSR) applicability determination.
    (C) Other materials submitted by the Commonwealth of Pennsylvania 
in support of and pertaining to the RACT determinations for the sources 
listed in paragraph (c)(161)(i)(B) of this section.
* * * * *

[FR Doc. 01-26263 Filed 10-17-01; 8:45 am]
BILLING CODE 6560-50-P