[Federal Register Volume 66, Number 210 (Tuesday, October 30, 2001)]
[Rules and Regulations]
[Pages 54691-54698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26761]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA-4188; FRL-7090-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; VOC and NOX RACT Determinations for 14 Individual Sources 
in the Philadelphia-Wilmington-Trenton 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 fourteen major sources of 
volatile organic compounds (VOC) and/or nitrogen oxides ( 
NOX). These sources are located in the Philadelphia-
Wilmington-Trenton ozone nonattainment area (the Philadelphia area). 
EPA is approving these revisions to the SIP in accordance with the 
Clean Air Act (CAA or the Act).

EFFECTIVE DATE: This final rule is effective on November 14, 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

[[Page 54692]]

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 Spink (215) 814-2014 or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On December 7, 1998, February 2, 1999, April 20, 1999, March 23, 
2001 (two separate submissions), and July 5, 2001, PADEP submitted 
revisions to the Pennsylvania SIP to establish and impose RACT for 
several sources of VOC and/or NOX. This rulemaking pertains 
to fourteen (14) of those sources. The remaining sources are or have 
been the subject of separate rulemakings. The Commonwealth's submittals 
consist of plan approvals and operating permits which impose VOC and/or 
NOX RACT requirements for each source. These sources are all 
located in the Philadelphia area and include Aldan Rubber Company; 
Arbill Industries, Inc.; Bethlehem Lukens Plate; Braceland Brothers, 
Inc.; Graphic Arts, Inc.; International Business Systems; McWhorter 
Technologies; Montenay Montgomery Ltd.; Newman and Company; Northeast 
Foods; Northeast Water Pollution Control Plant (Philadelphia Water 
Department); O'Brien (Philadelphia) Cogeneration, Inc.--Northeast Water 
Pollution Control Plant; O'Brien (Philadelphia) Cogeneration, Inc.--
Southwest Water Pollution Control Plant; and Pearl Pressman Liberty.
    On September 10, 2001 (66 FR 46953), EPA published a direct final 
rule and a companion notice of proposed rulemaking (66 FR 46971) to 
approve these SIP revisions. On October 9, 2001, we received adverse 
comments on our direct final rule from the Citizens for Pennsylvania's 
Future (PennFuture). On October 10, 2001, EPA signed a timely 
withdrawal for publication in the Federal Register informing the public 
that the direct final rule did not take effect. We indicated in our 
September 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 46971). This is that subsequent 
final rule. A description of the RACT determination(s) made for each 
source was provided in the September 10, 2001 direct final rule and 
will not be restated here. A summary of the comments submitted and 
EPA's responses are provided in Section II of this document.

II. Public Comments and Responses

    On October 9, 2001, the Citizens for Pennsylvania's Future 
(PennFuture) submitted adverse comments on the proposed rule published 
by EPA in the Federal Register on September 10, 2001 to approve case-
by-case RACT SIP submissions from the Commonwealth for NOX 
and or VOC sources located in the Philadelphia area. We also received 
letters of clarification from Montenay Energy Resources of Montgomery 
County; Pepper Hamilton LLP on behalf of its client, Bethlehem Steel 
Corporation; and from PADEP. A summary of those comments and EPA's 
responses are provided below.
    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 each of 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 September 6, 2001 (66 FR 46571), EPA 
proposed to remove the limited nature of its approval of Pennsylvania's 
generic RACT regulation in the Philadelphia area. EPA received no 
public comments on that proposal. Final action converting the limited

[[Page 54693]]

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 Philadelphia 
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 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 two 
located in the Philadelphia area, namely for Kurz-Hastings and GATX 
Terminals Corporation. 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 
Philadelphia 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 Philadelphia 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. PennFuture contends that the case-by-
case approach for establishing and approving RACT is unacceptable under 
a statutory scheme that specifically requires category-wide RACT 
regulations for sources covered by CTGs. PennFuture's comment cites to 
Wall v. EPA, 2001 FED App. 0318P (6th Cir.)(Cincinnati ozone 
redesignation and RACT) and goes on the state that EPA should reject 
any proposed case-by-case VOC RACT for a source in a category for

[[Page 54694]]

which there is a CTG but no Pennsylvania RACT regulation.
    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 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. EPA disagrees with the commenter's 
citing to Wall v. EPA, 2001 FED App. 0318P (6th Cir. Sept. 11, 2001) 
(Cincinnati ozone redesignation and RACT) as indicative of his 
contentions regarding states' obligations to adopt category-wide RACT 
regulations for sources covered by CTGs. The opinion rendered in the 
cited case neither requires states to adopt category-wide RACT 
regulations for sources covered by CTGs, nor does it preclude states 
from exercising their option to impose RACT for CTG-subject sources, on 
a case-by-case basis. Rather, it speaks only to the Act's requirement 
that states must implement RACT for CTG-subject sources in ozone 
nonattainment areas; and not to any specific regulatory construct by 
which they must do so. Pennsylvania has implemented RACT for all CTG-
subject sources in the Philadelphia area, and, EPA has approved all 
such RACT determinations as revisions to the Pennsylvania SIP. 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 notice 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. 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

[[Page 54695]]

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, 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 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

[[Page 54696]]

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. Clarification: On October 8, 2001, Montenay Energy Resources of 
Montgomery County, Inc. (Montenay) submitted a letter on EPA's 
September 10, 2001 rulemaking as it pertains to its facility. Montenay 
does not adversely comment on the rulemaking. Rather, its letter 
clarifies that the conditions imposed in operating permit (OP) OP-46-
0010A which specify that air contaminant emissions from the two 
municipal waste combustors must be controlled through the use of 
individual Research-Cottrell spray dryer absorber using Sorbalit 1 
reagent to control mercury and acid gases, Research-Cottrell fabric 
collectors and a selective non-catalytic reduction (SNCR) control 
system; and that NOX emissions per combustor (expressed as 
NO2) shall not exceed a 24-hour daily arithmetic average of 
205 parts per million by volume, corrected to 7 percent oxygen, dry 
basis and, in accordance with 40 CFR part 60 Section 60.33b(d), 109 
pounds per hour, and 477.4 tons per year were imposed by PADEP pursuant 
to the applicable NOX requirements of 40 CFR part 60, 
subpart Cb (relating to Emission Guidelines and Compliance Times for 
large Municipal Waste Combustors that are constructed on or before 
September 20, 1994)--and not as RACT. Montenay agrees that it is 
subject to all of the provisions imposed in OP-46-0010A but calls 
attention to the distinction between the permit's NOX RACT 
provisions and its NOX provisions imposed pursuant to 40 CFR 
Part 60, Subpart Cb (relating to Emission Guidelines and Compliance 
Times for large Municipal Waste Combustors that are constructed on or 
before September 20, 1994). Montenay's letter also clarifies that the 
compliance date for 40 CFR Part 60, Subpart Cb (relating to Emission 
Guidelines and Compliance Times for large Municipal Waste Combustors 
that are constructed on or before September 20, 1994) is September of 
1999 versus its RACT compliance date under the Pennsylvania approved 
SIP.
    Response: The letter of clarification submitted by Montenay has 
been placed in the administrative record for this final rule. EPA 
agrees that OP-46-0010A issued by PADEP serves to impose on Montenay 
both its applicable NOX RACT requirements as determined 
under 25 Pa. Code 129.91-129.95 and the applicable NOX 
requirements of 40 CFR Part 60, Subpart Cb (relating to Emission 
Guidelines and Compliance Times for large Municipal Waste Combustors 
that are constructed on or before September 20, 1994). EPA also agrees 
that OP-46-0010A, which is being approved as a SIP revision, makes the 
distinction between Montenay's NOX RACT requirements and its 
applicable NOX requirements of 40 CFR Part 60, Subpart Cb 
(relating to Emission Guidelines and Compliance Times for large 
Municipal Waste Combustors that are constructed on or before September 
20, 1994).
    EPA notes that it is not uncommon for the same emission sources at 
a given facility to be subject to multiple requirements of the Act. As 
both the compliance deadlines for NOX RACT and the 
NOX requirements of 40 CFR part 60, subpart Cb (relating to 
Emission Guidelines and Compliance Times for large Municipal Waste 
Combustors that are constructed on or before September 20, 1994) have 
now passed and are fully effective, Montenay's distinction between the 
RACT requirements and those of 40 CFR Part 60, Subpart Cb as imposed in 
OP-46-0010A has no environmental effect. Moreover, it is important to 
note that in the event that a determination of eligible ERCs were to be 
sought for NOX reductions at the facility in the future, any 
emission reductions would have to surplus to all applicable 
requirements of the Act in order to qualify as ERCs under the 
Pennsylvania SIP.
    H. Clarification: On October 10, 2001, EPA received a letter from 
Pepper Hamilton LLP on behalf of its client Bethlehem Steel regarding 
OP-46-0011 issued to Bethlehem Lukens Plate by PADEP on December 11, 
1998. The letter states that it is not making adverse comments to EPA's 
September 10, 2001 rulemaking. Rather, the letter states that Pepper 
Hamilton LLP supports approval of the case-by-case RACT determination 
imposed as NOX RACT in OP-46-0011, but notes that there is 
an error in an emission factor cited in OP-46-0011. The comment letter 
explains that an amended version of OP-46-0011 was issued by PADEP on 
July 31, 2001 correcting the emission factor and leaving the 
NOX RACT limit unchanged. The letter from Pepper Hamilton 
LLP states that PADEP shortly intends to submit the revised version of 
OP-46-0011 to EPA as a SIP revision. On October 10, 2001, PADEP 
submitted a letter to EPA confirming the contents of the October 10, 
2001 letter from Pepper Hamilton LLP. The PADEP letter requests that 
EPA proceed at this time to approve OP-46-0011, as proposed on 
September 10, 2001, but informs us that it will expeditiously prepare 
and submit a SIP revision for Bethlehem Lukens Plate to correct the 
reference to the emission factor in OP-46-0011. The PADEP confirms that 
the NOX RACT emission limit shall remain unchanged.
    Response: The letter submitted by Pepper Hamilton LLP on behalf of 
its client Bethlehem Steel regarding OP-46-0011 has been placed in the 
administrative record for this final rule. As requested by PADEP, EPA 
will proceed to approve the version of OP-46-0011, as proposed on 
September 10, 2001, in this final rule. As also requested by PADEP, we 
will act upon the soon to be submitted SIP revision for Bethlehem 
Lukens Plate via the Federal rulemaking process for amending the SIP as 
expeditiously as practicable.

III. Final Action

    EPA is approving the SIP revisions to the Pennsylvania SIP 
submitted by PADEP to establish and require VOC and/or NOX 
RACT for fourteen major sources located in the Philadelphia area. EPA 
is approving these SIP submittals because the Philadelphia AMS 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 AMS and PADEP have also imposed record 
keeping, monitoring, and/or testing requirements 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

[[Page 54697]]

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 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 14 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 31, 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 VOC and/or NOX RACT 
for 14 sources located in the Philadelphia 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, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements.

    Dated: October 15, 2001.
James W. Newsom,
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)(185) to read 
as follows:


Sec. 52.2020  Identification of plan.

* * * * *
    (c) * * *
    (185) Revisions to the Pennsylvania Regulations, Chapter 129 
pertaining to VOC and NOX RACT for 14 sources located in the 
Philadelphia area, submitted by the Pennsylvania Department of 
Environmental Protection on December 7, 1998, February 2, 1999, April 
20, 1999, March 23, 2001 (two separate submissions), and July 5, 2001.
    (i) Incorporation by reference.
    (A) Letters submitted by the Pennsylvania Department of 
Environmental Protection transmitting source-specific VOC and/or 
NOX RACT determinations, in the form of plan approvals and 
operating permits December 7, 1998, February 2, 1999, April 20, 1999, 
March 23, 2001 (two separate submissions), and July 5, 2001.
    (B) Plan approvals (PA), Operating permits (OP) issued to the 
following sources:
    (1) International Business Systems, Inc., OP-46-0049, effective 
October 29, 1998 and as revised December 9, 1999, except for the 
expiration date.
    (2) Bethlehem Lukens Plate, OP-46-0011, effective December 11, 
1998, except for the expiration date.
    (3) Montenay Montgomery Limited Partnership, OP-46-0010A, effective 
April 20, 1999 and as revised June 20, 2000, except for the expiration 
date.
    (4) Northeast Foods, Inc., OP-09-0014, effective April 9, 1999, 
except for the expiration date.
    (5) Aldan Rubber Company, PA-1561, effective July 21, 2000, except 
for conditions 1.A.(1), 1.A.(2) and 1.A.(4); and conditions 2.A. and 
2.C.
    (6) Braceland Brothers, Inc., PA-3679, effective July 14, 2000.
    (7) Graphic Arts, Incorporated, PA-2260, effective July 14, 2000.
    (8) O'Brien (Philadelphia) Cogeneration, Inc.--Northeast Water 
Pollution Control Plant, PA-1533, effective July 21, 2000.
    (9) O'Brien (Philadelphia) Cogeneration, Inc.--Southwest Water

[[Page 54698]]

Pollution Control Plant, PA-1534, effective July 21, 2000.
    (10) Pearl Pressman Liberty, PA-7721, effective July 24, 2000.
    (11) Arbill Industries, Inc., PA-51-3811, effective July 27, 1999, 
except for condition 5.
    (12) McWhorter Technologies, PA-51-3542, effective July 27, 1999, 
except for condition 2.B. and condition 5.
    (13) Northeast Water Pollution Control Plant, PA-51-9513, effective 
July 27, 1999, except for condition 1.A.(1), conditions 2.A. and 2.B., 
and condition 7.
    (14) Newman and Company, PA-3489, effective June 11, 1997.
    (ii) Additional Materials--Other materials submitted by the 
Commonwealth of Pennsylvania in support of and pertaining to the RACT 
determinations for the sources listed in paragraph (c)(185)(l)(B) of 
this section.

[FR Doc. 01-26761 Filed 10-29-01; 8:45 am]
BILLING CODE 6560-50-P