[Federal Register Volume 70, Number 211 (Wednesday, November 2, 2005)]
[Rules and Regulations]
[Pages 66261-66263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21749]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R03-OAR-2005-PA-0002; FRL-7992-1]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; VOC and NOX RACT Determinations for Three Individual
Sources
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 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 three major sources of volatile
organic compounds (VOC) and nitrogen oxides (NOX) pursuant
to the Commonwealth of Pennsylvania's (Pennsylvania's or the
Commonwealth's) SIP-approved generic RACT regulations. EPA is approving
these revisions in accordance with the Clean Air Act (CAA).
DATES: This rule is effective on December 2, 2005.
ADDRESSES: EPA has established a docket for this action under Regional
Material in EDocket (RME) ID Number R03-OAR-2005-PA-0002. All documents
in the docket are listed in the RME index at http://docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the
appropriate RME identification number. 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 in RME 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
Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street,
Harrisburg, Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Amy Caprio, (215) 814-2156, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On August 30, 2004, PADEP submitted a formal SIP revision that
consists of source-specific operating permits and/or plan approvals
issued by PADEP to establish and require RACT pursuant to the
Commonwealth's SIP-approved generic RACT regulations. On April 4, 2005
(70 FR 16955), EPA published a direct final rule (DFR) approving
revisions to PADEP-issued operating permits which establish and require
RACT for three individual sources. The following table identifies the
sources and the individual plan approvals (PAs) and operating permits
(OPs) which are the subject of this rulemaking.
Pennsylvania--VOC and NOX RACT Determinations for Individual Sources
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Plan Approval (PA ) Operating Permit Source type ``Major source'' pollutant
(OP )
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Waste Management Disposal Services Berks; Montgomery................. OP-46-0033.............. Turbines; Enclosed NOX and VOC.
of Pennsylvania, Inc. (Pottstown Flares.
Landfill).
Waste Management Disposal Services York.............................. 67-02047................ Internal Combustion NOX and VOC.
of PA, Inc. Engines; Enclosed
Ground Flares.
Armstrong World Industries, Inc..... Lancaster......................... 36-2001................. Space Heaters; Dryers; NOX and VOC.
Surface Coatings.
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An explanation of the CAA's RACT requirements as they apply to the
Commonwealth and EPA's rationale for approving these SIP revisions were
provided in the DFR and will not be restated here.
In accordance with direct final rulemaking procedures, on April 4,
2005 (70 FR 16955), EPA also published a companion notice of proposed
rulemaking on these SIP revisions inviting interested parties to
comment on the DFR. Timely adverse comments were submitted on EPA's
April 4, 2005 DFR.
On May 26, 2005 (70 FR 30378), due to receipt of the adverse
comments on its approval of the PADEP's RACT determination for the
three individual sources, EPA published a withdrawal of the DFR. A
summary of those comments and EPA's responses are provided in Section
II of this document.
II. Summary of Public Comments and EPA Responses
Comment
On April 16, 2005, a citizen submitted adverse comments on EPA's
DFR notice approving PADEP's VOC and NOX RACT determinations
for three individual sources. The commenter states that Pennsylvania's
air goes to New Jersey so the dirty air harms people in both states and
RACT should be more rigorous. The commenter also states that prescribed
burning in parks and wildlife areas fills the air with particulate
matter which causes lung cancer, heart attacks, strokes, and asthma.
Response
The rulemaking at issue is limited in scope and addresses the CAA
section 182(b)(1) RACT requirements for sources located in the ozone
nonattainment area classified as moderate or above. The commenter did
not comment specifically on the RACT determinations for the three
individual sources and did not submit any supporting technical data or
information to support that the standards for the three individual
sources do not
[[Page 66262]]
represent RACT. Rather, the commenter makes broad statements alleging:
(1) That the regulations should be more ``rigorous'' than those
required under the Act, and (2) that prescribed burning in parks and
wildlife areas are filling the air with particulates, in turn causing
health problems and fatalities. These comments are not ``significant
comments'' to which EPA needs to respond. Whitman v. American Trucking
Ass'n., 531 U.S. 457, n.2 at 471 (2001) (Under the CAA, EPA need only
respond to significant comments, i.e., comments relevant to EPA's
decision). Mere ``assertions that in the opinions of the commenter the
Agency got it wrong,'' are not relevant comments warranting a response.
International Fabricare Inst. v. EPA, 972 F.2d 384, 391 (D.C. Cir.
1992). As to the first comment, that the rules should be more
``rigorous'' than required under the Act, EPA has no authority to
mandate that a State regulate more rigorously than required. Under the
CAA's bifurcated scheme, the State is responsible for choosing how a
source must be regulated for purposes of attaining the NAAQS and EPA's
role is limited in reviewing the State's choice to ensure it meets the
minimum statutory requirements. Here, as is clear from the commenter's
first point, the commenter is not claiming that the regulations do not
meet the statutory minimum, but rather that the statute does not
require enough. EPA has no authority to modify the statute, as
requested by the commenter nor does EPA have authority to require that
the State to regulate more rigorously than required by the statute. The
CAA is based upon ``cooperative federalism,'' which contemplates that
each State will develop its own SIP, and that States retain a large
degree of flexibility in choosing which sources to control and to what
degree. EPA must approve a State's plan if it meets the ``minimum
requirements of the CAA. Union Elec. Co. v. EPA, 427 U.S. 246, 264-266
(1976).
As to the commenter's second point, the rulemaking at issue creates
additional, Federally-enforceable controls for individual sources of
VOCs and NOX. This rulemaking does not address any emissions
attributable to prescribed burning in New Jersey or elsewhere. Comments
regarding the potential adverse effects of prescribed burning are not
relevant to this rulemaking.
III. Final Action
EPA is approving the revisions to the Pennsylvania SIP submitted by
PADEP on January 27, 2005 to establish and require VOC and
NOX RACT for three sources pursuant to the Commonwealth's
SIP-approved generic RACT regulations.
IV. Statutory and Executive Order Reviews
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 (Pub. L. 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 CAA. 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 CAA. 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 three 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 January 3, 2006. 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 source-specific RACT requirements for three
sources in the Commonwealth of Pennsylvania may not be challenged later
in proceedings to enforce its requirements. (See section 307(b)(2).)
[[Page 66263]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen dioxide,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: October 21, 2005.
Donald S. Welsh,
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
0
2. In Section 52.2020, the table in paragraph (d)(1) is amended by
adding the entries for Waste Management Disposal Services of
Pennsylvania, Inc. (Pottstown Landfill); Waste Management Disposal
Services of PA, Inc.; and Armstrong Industries, Inc. at the end of the
table to read as follows:
Sec. 52.2020 Identification of plan.
* * * * *
(d) * * *
(1) * * *
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State
Name of source Permit No. County effective EPA approval date Additional explanation/Sec.
date 52.2063 citation
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* * * * * * *
Waste Management Disposal Services OP-46-0033............. Berks; Montgomery..... 4/20/99; 11/2/05 [Insert page 52.2020(d)(1)(a).
of Pennsylvania, Inc. (Pottstown 1/27/04 number where the
Landfill). document begins].
Waste Management Disposal Services 67-02047............... York.................. 4/20/99 11/2/05 [Insert page 52.2020(d)(1)(a).
of PA, Inc. number where the
document begins].
Armstrong World Industries, Inc.... 36-2001................ Lancaster............. 7/3/99 11/2/05 [Insert page 52.2020(d)(1)(a).
number where the
document begins].
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[FR Doc. 05-21749 Filed 11-1-05; 8:45 am]
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