[Federal Register Volume 73, Number 205 (Wednesday, October 22, 2008)]
[Rules and Regulations]
[Pages 62891-62893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25162]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2006-0379; FRL-8732-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Commonwealth of Pennsylvania; Reasonably Available Control Technology 
Requirements for Volatile Organic Compounds and Nitrogen Oxides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is converting its limited approval of a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Pennsylvania consisting of regulations that require all major sources 
of volatile organic compounds (VOC) and nitrogen oxides 
(NOX) to implement reasonably available control technology 
(RACT) to a full approval as they apply throughout the Commonwealth. In 
prior final rules, EPA has fully approved Pennsylvania's VOC and 
NOX RACT regulations for the Pennsylvania portion of the 
Philadelphia-Wilmington-Trenton area, and for the Pittsburgh-Beaver 
Valley area. The intended effect of this action is to convert EPA's 
limited approval of Pennsylvania's VOC and NOX RACT 
regulations to full approval as they apply throughout the remainder of 
the Commonwealth. This action is being taken under the Clean Air Act 
(CAA or the Act).

DATES: Effective Date: This final rule is effective on November 21, 
2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2006-0379. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy 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. Copies of the State submittal are available at the 
Pennsylvania Department of Environmental Resources, Bureau of Air 
Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, 
Pennsylvania 17105.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 4, 1994, the Pennsylvania Department of Environmental 
Protection (DEP) submitted a revision to the Pennsylvania SIP, 
consisting of 25 PA Code Chapters 129.91 through 129.95, to require 
major sources of NOX and major sources of VOC emissions not 
covered by a CTG (non-CTG sources) to implement RACT. The February 4, 
1994 submittal was amended on May 3, 1994 to correct and clarify 
certain presumptive NOX RACT requirements under Chapter 
129.93. On March 23, 1998 (63 FR 13789), EPA granted conditional 
limited approval of 25 PA Code Chapters 129.91 through 129.95, and 
removed the conditional aspect of the approval on May 3, 2001 (66 FR 
22123). On October 16, 2001 (66 FR 52533), EPA published a final 
rulemaking for the Commonwealth removing the limited status of its 
approval of 25 PA Code Chapters 129.91 through 129.95 as it applied in 
the Pittsburgh-Beaver Valley ozone nonattainment area (Allegheny, 
Armstrong, Beaver, Butler, Fayette, Washington, and Westmoreland 
counties), because EPA had approved all of the case-by-case RACT 
determinations submitted by DEP for affected major sources of 
NOX and/or VOC sources located in the area. In so doing, EPA 
converted its limited approval of 25 PA Code Chapters 129.91 through 
129.95 to full approval as it applied to that area. That rulemaking 
became effective on November 15, 2001. On October 30, 2001, (66 FR 
54698), EPA published a final rulemaking for the Commonwealth removing 
the limited status of its approval of 25 PA Code Chapters 129.91 
through 129.95 as it applied in the Pennsylvania portion of the 
Philadelphia-Wilmington-Trenton ozone nonattainment area (Bucks, 
Chester, Delaware, Montgomery, and Philadelphia counties) because EPA 
had approved all of the case-by-case RACT determinations submitted by 
DEP for affected major sources of NOX and/or VOC sources 
located in the area. In so doing, EPA converted its limited approval of 
25 PA Code Chapters 129.91 through 129.95 to full approval as it 
applied to that area. That rulemaking became effective on November 29, 
2001.
    On August 26, 2008 (73 FR 50267), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR 
proposed to convert EPA's limited approval of 25 PA Code Chapters 
129.91 through 129.95 to full approval as they apply throughout the 
remainder of the Commonwealth. EPA is converting its limited approval 
of Pennsylvania's VOC and NOX RACT regulations to full 
approval because EPA has approved all of the case-by-case RACT 
determinations that had been submitted by Pennsylvania such that there 
are no longer any such submissions pending before EPA. No public 
comments were received on the NPR.

II. Future Submissions of Case-by-Case RACT Determinations

    The DEP has submitted and EPA has approved as SIP revisions case-
by-case RACT determinations for nearly 600

[[Page 62892]]

non-CTG and NOX sources in Pennsylvania pursuant to 
Pennsylvania regulations Chapters 129.91-129.95. (See 40 CFR 52.2020(d) 
for the list of sources.) As stated previously, there are no source-
specific RACT determination submissions from DEP currently pending 
before EPA. In the future, should DEP find it necessary to issue any 
additional or revised source-specific RACT determinations in plan 
approvals and/or permits pursuant to the fully approved Pennsylvania 
regulations Chapters 129.91-95 of the Pennsylvania SIP, those RACT 
determinations must still be submitted to EPA for approval as source-
specific SIP revisions. In order for EPA to consider such submissions 
for approval, the DEP must ensure that:

A. The Sources Are Not Subject to Any Ctgs or Alternative Control 
Techniques (Acts) Issued By EPA for Which Pennsylvania Has Adopted or 
Is Due to Adopt State-Wide Regulations for Approval as SIP Revisions

    Such sources should be subject to any applicable CTG or ACT 
regulation. In addition to the CTG documents issued between November 
15, 1990 and the date of 1-hour ozone attainment, and the CTG documents 
issued prior to November 15, 1990; EPA issued CTG and ACT documents in 
2006 and 2007. EPA is also due to issue additional control technique 
documents by September 2008. Pennsylvania is required to adopt 
statewide RACT regulations pursuant to these control technique 
documents and is mandated a schedule for doing so. A source in the 
Commonwealth that has been considered a non-CTG source may no longer be 
so defined if their source category is covered by the 2006, 2007, or 
2008 CTGs or ACTs. At the time DEP adopts statewide RACT regulations 
pursuant to the 2006, 2007, and 2008 CTGs and ACTs, it must address the 
applicability of those RACT regulations to sources previously 
considered non-CTG sources under regulations 129.91-129.95.

B. The RACT Plan Approvals and/or RACT Permits Do Not Relax Any 
Previously SIP Approved Source-Specific RACT Approved for the Source(s)

    Any request by such sources to modify (relax) their emission rates, 
equipments standards, work practice standards, or conditions on the 
type or amount of materials/fuels combusted or processed; or to seek 
relief from their daily, monthly and/or annual emission caps would not 
be approvable as RACT in 2008 or beyond. When such sources seek relief 
with the operating conditions imposed in their SIP approved RACT plan 
approvals or RACT permits because they have modified to add additional 
emission units, or need to increase operation in light of market-based 
demand for their products; RACT needs to be re-assessed, re-determined 
and potentially made more stringent not less stringent.

C. The RACT Determinations Are Not To Be Simply Based Upon an Arbitrary 
Dollar per Ton Figure in a State Guidance Document That Is Neither SIP-
Approved Nor Approvable by EPA

    The very nature of a non-CTG and/or source-specific alternative 
RACT makes any ``one size fits all'' dollar per ton figure 
inappropriate when determining and imposing RACT.

D. The RACT Plan Approvals or RACT Permits Have No Expiration Date

    No regulation, plan approval or permit submitted for approval as a 
SIP revision to be incorporated by reference and made part of a SIP may 
have an expiration or sunset provision. By federal statute, a state is 
responsible to implement and enforce all provisions of its approved SIP 
at all times.

E. Any RACT Plan Approvals' or RACT Permits' Redactions Are Done in 
Such a Way as To Be Able To Read the Redacted Text

    When a plan approval or permit is issued by DEP to a source, it may 
impose additional requirements or conditions completely unrelated to 
the RACT requirements for NOX and/or VOCs. In those 
instances, DEP may submit the plan approval or permit as a SIP revision 
with those unrelated portions of the plan approval or permit redacted. 
Those redactions must be done in such a way as to be able to read the 
redacted text. This is necessary to ensure that the redacted language 
is not contrary to the portions being submitted for approval as RACT, 
does not render the RACT portions less stringent, does not remove or 
make less stringent any conditions related to enforcement of RACT, or 
make the RACT requirements subject to change without a SIP revision.

F. When Requesting That RACT Plan Approvals or RACT Permits Be Approved 
as SIP Revisions, the DEP's Formal SIP Revision Submissions Include 
Signed/Dated Technical Support Documents or Memoranda Prepared by DEP 
in Support of Its RACT Determinations and the SIP Revision Requests

    Sources in Pennsylvania subject to 25 PA Code Chapters 129.91 
through 129.95 are not to send their RACT plan proposals directly to 
EPA. Under the CAA, SIP revision submissions in their entirety must be 
submitted by the State requesting that the SIP be revised. EPA will 
consider only the materials formally submitted by DEP in its SIP 
revision request and any comments submitted during the public comment 
period provided by EPA on its proposed rule when determining its final 
action to approve or disapprove a source-specific SIP revision 
submitted by DEP pursuant to 25 PA Code Chapters 129.91 through 129.95.

G. The SIP Revision Submissions Do Not Include Any Materials That Are 
Considered ``Confidential Business Information'' in Nature or Entitled 
to Any Proprietary Treatment

    Moreover, the DEP plan approvals and permits cannot include 
conditions that cite to the source's RACT Plan proposal where that 
proposal includes materials which the company has requested be treated 
as confidential and proprietary. No materials that are considered 
``confidential business information'' in nature or entitled to any 
proprietary treatment are to be included in a SIP revision submittal 
because the materials that constitute SIP revisions are required to be 
made available to the public by both the State and EPA.

III. Final Action

    EPA is converting its limited approval of 25 PA Code Chapters 
129.91 through 129.95 to a full approval as they apply throughout the 
Commonwealth of Pennsylvania.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

[[Page 62893]]

     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

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. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

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 22, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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 converting 25 PA Code Chapters 
129.91 through 129.95 to full approval as they apply throughout the 
remainder of the Commonwealth 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Volatile organic compounds.

    Dated: October 9, 2008.
W.T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart NN--Pennsylvania


Sec.  52.2023  [Amended]

0
2. In Sec.  52.2023, paragraph (k) is removed and reserved.

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3. Section 52.2027 is amended by adding paragraph (c) to read as 
follows:


Sec.  52.2027  Approval Status of Pennsylvania's Generic NOX 
and VOC RACT Rules.

* * * * *
    (c) Effective November 21, 2008, EPA removes the limited nature of 
its approval of 25 PA Code of Regulations, Chapter 129.91 through 
129.95 as those regulations apply to the following areas: Adams, 
Bedford, Berks, Blair, Bradford, Cambria, Cameron, Carbon, Centre, 
Clarion, Clearfield, Clinton, Columbia, Crawford, Cumberland, Dauphin, 
Elk, Erie, Forest, Franklin, Fulton, Greene, Huntington, Indiana, 
Jefferson, Juniata, Lackawanna, Lancaster, Lawrence, Lebanon, Lehigh, 
Luzerne, Lycoming, McKean, Mercer, Mifflin, Monroe, Montour, 
Northampton, Northumberland, Perry, Pike, Potter, Schuylkill, Snyder, 
Somerset, Sullivan, Susquehanna, Tioga, Union, Venango, Warren, Wayne, 
Wyoming, and York Counties.

[FR Doc. E8-25162 Filed 10-21-08; 8:45 am]
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