[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Proposed Rules]
[Pages 50267-50270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19756]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2006-0379; FRL-8708-4]
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: Proposed rule.
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SUMMARY: EPA is proposing to remove the limited status of its approval
of the Commonwealth of Pennsylvania's State Implementation Plan (SIP)
revision that requires all major sources of volatile organic compounds
(VOC) and nitrogen oxides (NOX) to implement reasonably
available control technology (RACT). EPA is proposing to convert 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.
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. EPA previously proposed to convert its limited approval of
Pennsylvania's VOC and NOX RACT regulations as they apply in
the remainder of the Commonwealth to full approval. EPA is withdrawing
that proposal and is now reproposing approval. This action is being
taken under the Clean Air Act (CAA or the Act).
DATES: Written comments must be received on or before September 25,
2008.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
[[Page 50268]]
R03-OAR-2006-0379 by one of the following methods:
A. www.regulations.gov. Follow the online instructions for
submitting comments.
B. E-mail: [email protected].
C. Mail: EPA-R03-OAR-2006-0379, Cristina Fernandez, Chief, Air
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2006-0379. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov. providing any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 www.regulations.gov or
in hard copy 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].
I. Background
Pursuant to sections 182(b) and 182(f) of the CAA, the Commonwealth
of Pennsylvania (Pennsylvania) is required to establish and implement
RACT for all major VOC and NOX sources. SIP revisions
imposing RACT for three classes of VOC sources are required under
section 182(b)(2). The categories are all sources covered by a Control
Technique Guideline (CTG) document issued between November 15, 1990 and
the date of 1-hour ozone attainment; all sources covered by a CTG
issued prior to November 15, 1990; and all other major non-CTG sources.
Section 182(f) provides that the planning requirements applicable to
major stationary sources of VOCs in other provisions in part D, subpart
2 (including section 182) apply to major stationary sources of
NOX.
The Pennsylvania SIP already includes approved RACT regulations for
sources and source categories of VOCs covered by the CTGs as required
by section 182(b)(2)(A) and (B). Regulations requiring RACT for all
major sources of VOC and NOX were to be submitted to EPA as
SIP revisions by November 1992 and compliance required by May of 1995.
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 additional 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. As described in more detail, below, EPA granted
conditional limited approval of 25 PA Code Chapters 129.91 through
129.95 on March 23, 1998 (63 FR 13789), and removed the conditional
aspect of the approval on May 3, 2001 (66 FR 22123).
Under section 184 of the CAA, RACT as specified in sections
182(b)(2) and 182(f) applies throughout the Ozone Transport Region
(OTR). The entire Commonwealth is located within the OTR. Therefore,
RACT is applicable statewide in Pennsylvania. The major source size
generally is determined by the classification of the area in which the
source is located. However, for areas located in the OTR, the major
source size for stationary sources of VOCs is 50 tons per year (tpy)
unless the area's classification prescribes a lower major source
threshold. The RACT regulations contain technology-based or operational
``presumptive RACT emission limitations'' for certain major
NOX sources. For other major NOX sources, and all
major non-CTG VOC sources (not otherwise already subject to RACT
pursuant to a source category regulation under the Pennsylvania SIP),
the regulations contain a ``generic'' RACT provision. A generic RACT
regulation is one that does not, itself, specifically define RACT for a
source or source categories, but instead allows for case-by-case RACT
determinations. The generic provisions of Pennsylvania's regulations
allow for DEP to make case-by-case RACT determinations that are then to
be submitted to EPA as revisions to the Pennsylvania SIP.
On March 23, 1998 (63 FR 13789), EPA granted conditional limited
approval of 25 PA Code Chapters 129.91 through 129.95, which require
all major sources of NOX and non-CTG sources to implement
RACT, as a revision to the Pennsylvania SIP. This approval was granted
on the condition that Pennsylvania must, by no later than April 22,
1999 certify that (1) it had submitted case-by-case RACT proposals for
all sources subject to the RACT requirements of 25 PA Code Chapters
129.91 through 129.95 currently known to DEP, or (2) demonstrate that
the emissions from any remaining subject sources represented a de
minimis level of emissions as defined in the rulemaking document.
On April 22, 1999, the DEP submitted a letter certifying that it
had met the terms and conditions imposed by EPA in its March 23, 1998
(63 FR 13789) conditional limited approval of its VOC and
NOX RACT regulation by submitting the case-by-case VOC/
NOX RACT determinations as SIP revisions in accordance with
EPA's conditional limited approval. EPA concurred that Pennsylvania's
April 22, 1999 certification satisfied the condition imposed in its
conditional limited approval published on March 23, 1998
[[Page 50269]]
(63 FR 13789), and published a direct final rulemaking (May 3, 2001, 66
FR 22123) removing the conditional status of its approval of 25 PA Code
Chapters 129.91 through 129.95 as a revision to the Commonwealth's SIP.
That final rule became effective on June 18, 2001. The SIP revision
consisting of 25 PA Code Chapters 129.91 through 129.95 retained a
limited approval status on the basis that it strengthened the
Pennsylvania SIP. Conversion from limited to full approval would occur
when EPA had approved all of the case-by-case RACT determinations
submitted by DEP as SIP revisions.
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 June 16, 2006 (71 FR 34864),
EPA published a proposed rule to convert its limited approval of 25 PA
Code Chapters 129.91 through 129.95 as they apply in the remainder of
the Commonwealth to full approval. No public comments were submitted to
EPA on the June 16, 2006 proposed action. Given the length of time that
has passed since that proposed action, and to clarify that any future
RACT determinations made by the DEP must still be submitted as SIP
revisions once 25 PA Code Chapters 129.91 through 129.95 are fully
approved, EPA is withdrawing that proposal and is now re-proposing to
convert its limited approval of 25 PA Code Chapters 129.91 through
129.95 to full approval as those RACT regulations apply in the
remainder of the Commonwealth.
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 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 determination is 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 approval or RACT permit has 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 must be
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
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 a RACT plan approval or RACT permit be
approved asSIP revision, the DEP's formal SIP revision submission must
include a signed/dated technical support document or memorandum
prepared by DEP in support of its RACT determination and the SIP
revision
[[Page 50270]]
request. Sources in Pennsylvania subject to 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 PA Code Chapters 129.91 through 129.95.
G. The SIP submission by DEP must 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. EPA's Proposed Action
EPA has previously removed the limited status of its approval of
Pennsylvania's SIP revisions that requires all major sources of VOC and
NOX to implement RACT as it applies in the Pittsburgh and
Philadelphia areas because EPA has approved all of the case-by-case
RACT determinations for these areas. In this action, EPA is proposing
to convert its limited approval of Pennsylvania's RACT regulation to
full approval as it applies in the remainder of the Commonwealth
because EPA has approved all of the case-by-case RACT determinations
submitted by DEP such that there are no longer any such submissions
pending before EPA. EPA is soliciting public comments on the issues
discussed in this document. These comments will be considered before
taking final action.
IV. Statutory and Executive Order Reviews
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 proposes to approve state law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed 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.);
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 proposed rule regarding Pennsylvania's VOC and
NOX RACT regulations Chapters 129.91-129.95 as they apply in
the remainder of the Commonwealth of Pennsylvania does not have tribal
implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the Pennsylvania SIP is not approved to
apply in Indian country, and EPA, therefore, notes that it will not
impose substantial direct costs on tribal governments or preempt tribal
law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 14, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E8-19756 Filed 8-25-08; 8:45 am]
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