[Federal Register Volume 66, Number 210 (Tuesday, October 30, 2001)]
[Rules and Regulations]
[Pages 54710-54715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26764]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA-4183; FRL-7089-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; VOC and NOX RACT Determinations for Eight 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 eight major sources of volatile 
organic compounds (VOC) and nitrogen oxides ( NOX). These 
sources are located in the Philadelphia-Wilmington-Trenton ozone 
nonattainment area (the Philadelphia 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 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 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) 814-2104 or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 2, 1996, June 10, 1996, January 21, 1997, April 9, 1999, 
August 9, 2000, and March 23, 2001, PADEP submitted revisions to the 
Pennsylvania SIP which establish and impose RACT for several sources of 
VOC and/or NOX. This rulemaking pertains to eight 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 eight sources are all located in 
the Philadelphia area and include: Brown Printing Company, Cardone 
Industries (Chew Street), Cardone Industries (Rising Sun Avenue), Naval 
Surface Warfare Center--Carderock Division, SUN CHEMICALS--General 
Printing Ink Division, Sunoco Chemicals--Frankford Plant, U.S. Steel 
Group/USX Corporation, and Wheelabrator Falls, Incorporated.
    On August 31, 2001, EPA published a direct final rule (66 FR 45933) 
and a companion notice of proposed rulemaking (66 FR 45954) to approve 
these SIP revisions. On October 1, 2001, we received adverse comments 
on our direct final rule from the Citizens for Pennsylvania's Future 
(PennFuture). On October 11, 2001, 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 31, 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 45954). This is that subsequent final rule. A description of the 
RACT determination(s) made for each source was provided in the August 
31, 2001 direct final rule and will not be restated here. A summary of 
the comments submitted by PennFuture germane to this final rulemaking 
and EPA's responses are provided in Section II of this document.

II. Public Comments and Responses

    On October 1, 2001, the Citizens for Pennsylvania's Future 
(PennFuture) submitted adverse comments on the proposed rule published 
by EPA in the Federal Register on August 31, 2001 to approve case-by-
case RACT SIP submissions from the Commonwealth for NOX and 
or VOC sources located in the Philadelphia area. 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

[[Page 54711]]

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 
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

[[Page 54712]]

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's comment cites to Wall v. 
EPA, 2001 FED App. 0318P (6th Cir.) (Cincinnati ozone redesignation and 
RACT). EPA should reject any proposed case-by-case VOC RACT for a 
source in a category for 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

[[Page 54713]]

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 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

[[Page 54714]]

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.

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 eight major sources located in the Philadelphia area. EPA is 
approving these RACT SIP submittals because the Philadelphia Air 
Management Services (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 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 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

[[Page 54715]]

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 eight 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 eight 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)(174) to read 
as follows:


Sec. 52.2020  Identification of plan.

* * * * *
    (c) * * *
    (174) Revisions to the Pennsylvania Regulations, Chapter 129 
pertaining to VOC and/or NOX RACT for sources located in the 
Philadelphia area submitted by the Pennsylvania Department of 
Environmental Protection on May 2, 1996, June 10, 1996, January 21, 
1997, April 9, 1999, August 9, 2000, and two submittals on March 23, 
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, on May 2, 1996, June 10, 1996, January 21, 1997, 
April 9, 1999, August 9, 2000, and two letters on March 23, 2001.
    (B) Plan approvals (PA), Operating permits (OP) issued to the 
following sources:
    (1) Cardone Industries, PA-51-3887, for PLID 3887, effective May 
29, 1995.
    (2) Cardone Industries, PA-51-2237, for PLID 2237, effective May 
29, 1995.
    (3) Naval Surface Warfare Center--Carderock Division, PA-51-9724, 
for PLID 9724, effective December 27, 1997.
    (4) Wheelabrator Falls, Inc., OP-09-0013, effective January 11, 
1996 (as amended May 17, 1996).
    (5) U.S. Steel Group/USX Corporation, OP-09-0006, effective April 
8, 1999, except for the expiration date.
    (6) Brown Printing Company, OP-46-0018A, effective May 17, 2000, 
except for the expiration date and condition 12.
    (7) SUN CHEMICAL--General Printing Ink Division, PA-51-2052, for 
PLID 2052, effective July 14, 2000.
    (8) Sunoco Chemicals, Frankford Plant, PA-51-1551, for PLID 1551, 
effective July 27, 1999, except for conditions 1.A.(2)-(4), 1.A.(6), 
1.A.(8); conditions 1.B.(1), 1.B. (3)-(6); the last sentence of 
condition 2.A.; conditions 2.B.-D.; 2.G., the last sentence of 2.H., 
2.I.; and condition 7.
    (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)(174) (i)(B) of 
this section.

[FR Doc. 01-26764 Filed 10-29-01; 8:45 am]
BILLING CODE 6560-50-P