23668 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

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 rule 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. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

§ 804(2).

Petitions for Judicial Review

Under section 307(b)(1) of the Act,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by June 29, 1998. 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 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, Intergovernmental relations,

Ozone, Reporting and recordkeeping

requirements, Volatile organic

compounds.

Dated: March 30, 1998.

William Muszynski,

Acting Regional Administrator, Region 2.

Part 52, chapter I, title 40 of the Code

of Federal Regulations 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 HH—New York

2. Section 52.1670 is amended by

adding new paragraph (c)(92) to read as

follows:

§ 52.1670 Identification of plan.

* * * * *

(c) * * *

(92) Revisions to the New York State

Implementation Plan (SIP) for ozone

concerning the control of volatile

organic compounds from Gasoline

Dispensing Sites and Transport

Vehicles, dated July 8, 1994, submitted

by the New York State Department of

Environmental Conservation (NYSDEC).

(i) Incorporation by reference:

(A) Amendments to Part 230 of title

6 of the New York Code of Rules and

Regulations of the State of New York,

entitled ‘‘Gasoline Dispensing Sites and

Transport Vehicles,’’ effective

September 22, 1994.

(ii) Additional material:

(A) July 8, 1994, letter from Langdon

Marsh, NYSDEC, to Jeanne Fox, EPA,

requesting EPA approval of the

amendments to Part 230.

3. In § 52.1679 the table is amended

by revising the entry, for Part 230 to

read as follows:

§ 52.1679 EPA-approved New York State

regulations.

New York State regulation State effective

date

Latest EPA approval

date Comments

* * * * * * *

Part 230, Gasoline Dispensing Sites and Transport Vehicles .................... 8/22/94 April 30, 1998.

* * * * * * *

[FR Doc. 98–11381 Filed 4–29–98; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[PA058–4070; FRL–5997–8]

Approval and Promulgation of Air

Quality Implementation Plans;

Pennsylvania; Disapproval of the NOX

RACT Determination for Pennsylvania

Power Company

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is disapproving a State

Implementation Plan (SIP) revision

submitted by the Commonwealth of

Pennsylvania. The intended effect of

this action is to disapprove the nitrogen

oxide (NOX) reasonably available

control technology (RACT)

determination submitted by the

Pennsylvania Department of

Environmental Protection (PADEP for

Pennsylvania Power Company—New

Castle plant (PPNC), located in

Lawrence County, Pennsylvania.

DATES: This final rule is effective on

June 1, 1998.

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, 841 Chestnut

Building, Philadelphia, Pennsylvania

19107; Pennsylvania Department of

Environmental Protection, Bureau of Air

Quality, P.O. Box 8468, 400 Market

Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT:

Cynthia H. Stahl, (215) 566–2180, at the

EPA Region III address above.

SUPPLEMENTARY INFORMATION: On August

18, 1997 (62 FR 43959), EPA published

a notice of proposed rulemaking (NPR)

for the Commonwealth of Pennsylvania.

The NPR proposed disapproval of the

NOX RACT determination for

Pennsylvania Power’s New Castle plant

(PPNC), located in Lawrence County.

The formal SIP revision was submitted

by Pennsylvania Department of

Environmental Resources (now the

Pennsylvania Department of

Environmental Protection or PADEP) on

April 19, 1995. EPA is now taking final

action to disapprove the RACT

determination submitted by PADEP for

PPNC. This action is being taken under

section 110 of the Clean Air Act.

I. Background

On April 9, 1996 EPA originally

published a direct final rulemaking

approving this RACT determination.

Opportunity for public comment was

provided, however, and on May 8, 1996,

the New York Department of

Environmental Conservation (NYDEC)

submitted a letter stating that it

intended to adversely comment on

EPA’s proposed approval of PADEP’s

RACT determination for PPNC. Because

of New York’s letter of intent, the direct

final action converted to a proposed

action in accordance with established

Federal rulemaking procedures. On June

11, 1996, EPA published a notice
Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 23669

withdrawing the effective date of the

original direct final rule for

Pennsylvania Power—New Castle,

among other facilities. (61 FR 29483). The NYDEC submitted adverse

comments to EPA on June 28, 1996 in

response to the converted proposed

rulemaking notice published on April 9,

1996. The NYDEC stated that they

disagreed with EPA’s RACT

determination for the boilers at PPNC

and believe that there are technically

and economically feasible controls for

those boilers that should be determined

to be RACT. As requested, EPA

extended the comment period on its

original April 9, 1996 proposed

approval twice; the last time until

August 2, 1996 (61 FR 29483 and 61 FR

37030). On July 15, 1996 and August 1,

1996, PPNC submitted comments to

EPA addressing issues raised by

NYDEC. On August 2, 1996,

Pennsylvania DEP submitted comments

to EPA stating that EPA should proceed

with final approval of the PPNC RACT

determination.

After considering all the comments

submitted, EPA withdrew the proposed

approval and instead, on August 18,

1997, proposed disapproval of the

operating permit submitted by PADEP

on April 19, 1995 intended to impose

RACT for PPNC.

II. Comments Received on the August

18, 1997 Proposed Disapproval

In response to the August 18, 1997

proposed disapproval of PADEP’s RACT

determination for PPNC, comments

were received from NYDEC and Paul,

Hastings, Janofsky & Walker LLP,

attorneys for PPNC. NYDEC’s comments

fully supported EPA’s proposed

rulemaking action. The comments from

Paul, Hastings, Janofsky & Walker LLP

are summarized below.

Comment 1—EPA has not articulated

its legal standard to make RACT

determinations. Case-by-case RACT is

not a legal standard. Response 1—EPA articulated its

rationale and the criteria by which the

PPNC submittal was being judged in the

August 18, 1997 NPR. EPA’s policies

regarding RACT and how RACT

determinations are made were discussed

in the NPR. Since EPA’s definition of

RACT allows for the consideration of

source-specific factors (i.e. case-by-case)

in the determination of RACT-specific

applications of policy or guidance are

described in the applicable NPR. Comment 2—By stating that the

proposed PPNC RACT limits are too

high, EPA has used legal standards that

have yet to be defined by regulation. Response 2—EPA used, as a basis to

support its statement, the monitoring

data that was available for the PPNC

boilers. EPA and the Pennsylvania

regulations define RACT as ‘‘the lowest

emission limit that a particular source is

capable of meeting by the application of

control technology that is reasonably

available considering technological and

economic feasibility’’ (December 9, 1976

memorandum from Roger Strelow,

Assistant Administrator for Air and

Waste Management, to EPA Regional

Administrators and 25 Pa. Code,

Subpart C Article III, Chapter 121).

Since RACT is the lowest emission limit

achievable considering technological

and economic feasibility, it appeared to

be unreasonable that the emission rates

requested by PPNC for RACT were

higher than those actually monitored at

those boilers. It is unnecessary that a

legal standard for RACT be established

by regulation prior to an action on a

case-by-case RACT determination

proposal; the Clean Air Act

contemplates establishing enforceable

legal standards through notice and

comment rulemaking such as that being

conducted for case-by-case RACT

proposals.

Comment 3—EPA has not

promulgated a definition for RACT to be

used in NOX determinations and cannot

rely on Pennsylvania’s definition of

RACT since EPA had not approved it

until August 12, 1997. EPA has

misapplied the RACT definition in the

Strelow Memorandum to the PPNC

determination since the Strelow

Memorandum is guidance for SIP

approvals by EPA and not to make

individual RACT determinations. The

Strelow Memorandum recognized that

individual RACT determinations would

be made using future guidance. The

RACT definition contained in the

Strelow Memorandum was not issued

by notice and comment rulemaking and

therefore is not binding. Furthermore,

EPA expanded this definition of RACT

without notice and without record.

Response 3—The Clean Air Act give

EPA authority to define RACT for all

regulated pollutants, including NOX.

EPA defined RACT in the Strelow

memorandum dated December 9, 1997.

In a Federal Register published on

September 17, 1979 (44 FR 53761), EPA

discussed the Clean Air Act statutory

requirements including the definition of

RACT and stated there that the Strelow

memorandum was published in BNA

Environmental Reporter, Current

Developments, pp. 1210–12 (1976).

EPA’s definition of RACT is consistent

with the statutory intent and

Pennsylvania’s definition of RACT is

consistent with the Strelow

memorandum. Congress expressly cites

to EPA’s RACT guidance and endorses

it in section 182(a)(2)(4) as the

appropriate guide for state submittals.

This guidance was published and made

available to the public in the House

Energy and Commerce Committee

Reports, Rept. 101–490 Part 1 at page

235. Therefore, EPA’s statutory

authority to approve RACT

determinations is clear. EPA has

consistently applied the definition of

RACT to the PPNC RACT submittal.

Comment 4—EPA is inappropriately

using 1993 as a baseline and has not

provided record support to use 1993

instead of 1990 as baseline.

Response 4—The commenter

concludes that EPA has used 1993 as a

baseline instead of 1990 and yet does

not provide a discussion of the reason

for this comment. EPA has not

established any baseline year but rather

has used emissions data that available

for 1993 to illustrate the feasibility of

achieving emission rates lower than

those proposed by PPNC as RACT.

These emission rates were achieved

without the use of low-NOX burners or

other add-on controls; leading to the

conclusion that more stringent emission

limitations that those proposed by the

Company should be considered RACT.

Comment 5—EPA is using ad hoc

reasons, such as averages of emissions

data from similar sources, acid rain

information, NOX Memorandum of

Understanding (MOU) status, and

Ozone Transport Assessment Group

(OTAG), to support its RACT

determination. EPA has not defined

what a ‘‘similar boiler’’ is.

Response 5—The discussion in the

EPA NPR regarding average emission

rates achieved for boilers similar to

PPNC, requirements under the acid rain

program that the PPNC boilers agreed to,

etc. were included in order to provide

a context for EPA’s proposed

disapproval of the PPNC RACT

submittal. The reasonableness of the

proposed PPNC emission limits must be

determined in the context of what other

similar sources are able to achieve and

what PPNC itself agreed to achieve in

order to meet its other statutory

obligations. NOX emissions are

regulated by several programs but the

control technology and methods to

achieve NOX emission reductions are

not limited to meeting the obligations in

any one program. EPA also clarified the

use of the term ‘‘similar boilers’’ by

stating that the comparisons with

similar boilers were made by size and

type (dry-bottom, wall-fired, coal

burning). The data used came from the

acid rain database, which only includes

those boilers subject to the acid rain

requirements. The boilers subject to the

acid rain requirements are utility units

larger than 250 mmBTU/hr, rated heart
23670 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

input. EPA’s determination is also based

on its recognition that there may be

technical similarities that would

facilitate the use of similar emission

controls even among boilers of different

sizes and types. The NPR makes clear

the bases of comparison between

PPNC’s boilers and other combustion

units.

Comment 6—In making the PPNC

RACT determination now, EPA is

retroactively applying criteria that did

not exist when PPNC prepared its

proposal, when PADEP conducted its

review, or when EPA approved the

PPNC RACT proposal.

Response 6—EPA’s definition of

RACT has been that contained in the

Strelow memo since it was issued in the

late 1970s and EPA has used that

definition as the basis for its RACT

rulemaking actions since that time.

EPA’s reliance on guidance documents

is clearly stated in its proposed

rulemaking actions that would result in

binding enforceable requirements such

as those in case-by-case RACT

determinations. Interested parties are

welcome to comment specifically on the

RACT rulemaking actions as well as on

the criteria that EPA used to conduct

those rulemaking actions. Binding

criteria do not have to exist prior to

conducting a proposed rulemaking

action. The criteria that EPA applies to

all RACT proposals, including the PPNC

proposal, is the definition of RACT, any

guidance in the form of memos or

guidance documents pertinent to the

source category or source that is subject

to the RACT requirement, and any

specific data applicable to the source

category or source that is subject to the

RACT requirement. This has been EPA’s

criteria for RACT determinations since

the statutory requirement was imposed.

The source category or source specific

guidance documents to be used are

those that are available at the time the

RACT determination is being evaluated

and proposed. For example, the NOX

Supplement to the Title I General

Preamble published in the November

25, 1992 Federal Register re-states our

practice for determining RACT and

states that much of EPA’s guidance for

VOC RACT is also applicable to NOX

RACT (57 FR 55620). In the case of

PPNC, PADEP prepared its RACT

proposal and supporting documents in

the late summer and fall of 1994. The

public hearing for the PPNC RACT

proposal was held on November 17,

1994. EPA submitted comments for the

record on December 5, 1994. EPA’s

comments regarding the PPNC RACT

proposal included comments

questioning the cost factors and

asserting that, in general, the

information in the package did not

support the conclusions arrived at by

PPNC. The record is clear that EPA has

consistently maintained its position on

this RACT proposal since it was first

proposed at the state level. The use of

the federal definition of RACT even

where such a definition has not been

specifically approved into a state’s SIP

ensures that consistent criteria are

applied in imposing RACT

requirements.

Comment 7—EPA cannot use PPNC’s

acid rain permit limits or

Pennsylvania’s participation in the

Ozone Transport Commission (OTC)

NOX MOU as criteria to determine

whether PPNC’s proposal is RACT.

Response 7—EPA did not use PPNC’s

acid rain permit limits or

Pennsylvania’s participation in the OTC

NOX MOU as criteria to determine

whether PPNC’s proposal is RACT.

Instead, EPA applied criteria using the

definition of RACT, information from

available, appropriate guidance

documents, and available information

regarding PPNC’s boilers. The test of

reasonableness in the definition of

RACT warrants investigating the

availability of controls and the ability to

meet other emission limitations among

similar sources. EPA’s evaluation of the

PPNC RACT proposal investigated all

relevant information that would

indicate technical and economic

feasibility of achieving lower emission

limits as required by the definition of

RACT. See also Response 6.

Comment 8—EPA is using different

criteria documents than required to be

used such as those used in the approval

of three NOX RACT determinations for

sources in New York (September 23,

1997, 62 FR 49617). None of the

documents referenced by EPA in the

PPNC docket are listed in the March

1996 NOX Policy Documents for the

Clean Air Act of 1990 (EPA–452/R–96–

005). EPA has not provided record

support to explain its deviation from not

using the policy documents listed in

EPA–452/R–96–005.

Response 8—The criteria documents

in the PPNC RACT docket are those that

were determined to be relevant to the

evaluation of the types of boilers at

PPNC. The three NOX RACT

determinations referred to by the

commenter pertained to NOX sources

unlike those at PPNC. These New York

NOX sources are the University of

Rochester, with two non-utility oil-fired

boilers (90 mmBTU/hr and 122

mmBUT/hr rated capacity), Morton

International, Incorporated, with one

gas-fired boilers smaller than 100

mmBTU/hr rated capacity and

Algonquin Gas Transmission Company

with four gas-fired internal combustion

engines. It is to be expected that the

documents used to evaluate the New

York sources would be different than

those used to evaluate the five coal-fired

utility boilers at PPNC. As stated by

PPNC, the rated capacity of the PPNC

boilers are 119 mmBTU/hr (35 MW),

164 mmBTU/hr (48 MW), 335 mmBTU/

hr (98MW), 335mmBTU/hr (98MW),

and 468 mmBTU/hr (137 MW). The

documents listed in the March 1996

EPA document (EPA–452/R–96–005) are

those related to ozone policy. EPA’s

Introduction to the March 1996

document does not purport to

exhaustively list all applicable or

relevant NOX RACT guidance. Indeed, it

states that it includes, along with the

NOX Supplement to the General

Preamble, ‘‘several other guidelines and

policy memorandum’’ (sic). These items

include primarily documents regarding

SIP attainment demonstrations, section

182(f) NOX waivers, emissions trading,

fuel switching, compliance schedules,

de minimis values for gas turbines and

internal combustion engines, NOX

substitution in air quality plans,

conformity, and new source review—

issues that do not pertain to the PPNC

RACT submittal. The relevant

documents in the March 1996 list that

pertained to PPNC were used and

included in the PPNC docket along with

other relevant and appropriate pieces of

information. No applicable regulation,

policy or guidance limits EPA’s

consideration in evaluating RACT

submittals to only those documents that

are contained in the March 1996 EPA

document list. Consequently, EPA’s use

of criteria documents in the evaluation

of the PPNC RACT submittal were

appropriate.

Comment 9—The proposed action

does not cite any delegation of authority

to the Regional Administrator to sign

SIP actions. Based on Table 1, 54 FR

2221 (Jan. 19, 1989), only the

Administrator can sign SIP actions that

deviate from national policy and the

proposed disapproval of the PPNC SIP

submittal relies on criteria that

significantly deviate from national

policy.

Response 9—Delegation 7–10

provides the authority for Regional

Administrators ‘‘[t]o propose or take

final action on any State

implementation plan under section 110

of the Clean Air Act.’’ EPA’s Directives

System contains the definitive

statements of EPA’s organization * * *

and delegations of authority. 40 CFR

1.5(b). The Directives System is the

official statement of authority that has

been delegated and EPA is not required

to identify the specific delegation of
Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 23671

1The commenter’s citation to Table 1 is obsolete.

Under the previous version of delegation 7–10, the

Agency created three tables which identified

separate processes for SIP actions. The Regional

Administrators were delegated authority to sign

actions on tables 2 and 3, with the Administrator

retaining sole authority to sign actions on Table 1.

Subject to two limitations, the Regional

Administrators have been delegated authority to

sign all SIP actions.

authority in each action the Agency

takes. The current delegation, approved

by the Administrator on May 6, 1997,

places two limitations on the

delegation.1 The first limitation applies

only to final actions. The second

provides that the delegation does not

apply where the action establishes an

alternative interpretation from an

established EPA policy where the

alternative interpretation has not been

reviewed through the Agency’s

consistency process. As explained

above, EPA’s proposed action for PPNC

is not based on an alternative

interpretation from an established EPA

policy.

Comment 10—EPA has used a

significantly different approach in the

PPNC RACT proposal evaluation than

used in other EPA RACT

determinations. For example, the EPA

approval of International Paper—

Hammermill Division (Lockhaven)

allowed an emission limit based on a 30

day running average that included a

‘‘buffer’’ as a way to account for the

limited emission data available and did

not require the installation of add-on

controls.

Response 10—EPA’s approach in

evaluating all RACT determinations is

consistent in that the same definition of

RACT is used. However, under longstanding EPA policy and guidance, the

determination of RACT allows for the

consideration of source-specific

variables and as such, can result in

different conclusions as to what RACT

is for different sources. The

circumstances at International Paper—

Hammermill Division (Lockhaven) and

the information provided by PADEP and

the Company in support of the RACT

proposal warranted granting the

particular RACT determination in that

instance. The PADEP’s submittal for

PPNC does not contain information

supporting its proposed RACT

determination. Consequently, EPA

approved the International Paper RACT

and proposed to disapprove the PPNC

RACT submittal.

Comment 11—EPA did not consider

the full PPNC NOX RACT proposal in

deciding to propose disapproval. EPA

did not obtain from PADEP the full

proposal with its appendices that were

submitted by PPNC to PADEP.

Response 11—EPA evaluated the

PPNC NOX RACT submittal using all the

information submitted by PADEP and

that submitted during the comment

periods in June-August 1996 and in

August 1997. If either PADEP or PPNC

believed that EPA did not originally

consider documents critical to its RACT

proposal, it had an opportunity to

submit any of these documents and

comments in response to the proposed

rulemaking notices. Furthermore, EPA

expects RACT SIP submittals to include

all documents relied on by the state in

making its decision to propose RACT. If

PADEP did not submit information to

EPA, the presumption is that that

information was not relied on in its

decision making. Whether or not

documents are submitted with each

Pennsylvania RACT submittal is an

issue between the source and the

Commonwealth. EPA’s final rulemaking

action considers all information

submitted with the April 19, 1995

PADEP submittal and during the

relevant comment periods.

Comment 12— EPA improperly

viewed the PPNC proposal as a ‘‘no

controls’’ proposal. Since late 1993,

PPNC has installed and experimented

with two separate computerized

combustion optimization systems in the

PPNC unit 5 boiler resulting in a 50%

emission reduction from 1990 levels.

PPNC has used this information from

unit 5 on units 3 and 4, resulting in

comparable emission reductions.

Response 12—EPA evaluated the

PPNC proposal on the basis of whether

the proposal would result in a RACT

level of emissions. RACT is defined by

EPA and PADEP as the lowest

achievable emission limit considering

technical and economic feasibility. The

emission limits proposed by PADEP and

PPNC are higher than those that were

currently monitored at the facility at the

time the RACT proposal was being

developed. The PADEP’s April 19, 1995

submittal to EPA intended to impose

RACT for PPNC did not mention a

computerized combustion optimization

system through an enforceable permit.

Subsequent to the April 19, 1995

submittal, PADEP mentioned the use of

a computerized combustion

optimization system at PPNC. On

further investigation, EPA found that

this system was bought, installed and

tested using Department of Energy funds

and did not require the use of capital

funds at PPNC. If the combustion

optimization system is an available

emission control option to reduce NOX

emissions, the PPNC submittal should

have compared the sustainable emission

reductions that can be achieved by such

a combustion optimization system with

those sustainable emission reductions

that can be achieved by other more

conventional controls such as low—

NOX burners or selective catalytic

reduction (SCR) along with economic

considerations. Even if a proper RACT

evaluation were done to support a

conclusion that RACT may not require

add-on controls, the emission limits in

the April 19, 1995 RACT submittal for

PPNC would not be approval because

they are substantially less stringent than

the actual measured data. The PPNC

cost analysis for conventional NOX

controls uses figures that appear to be

unrealistic and unsupported by fact.

The cost figures provided by PPNC,

when compared in context with cost

figures for similar boilers, appear to be

significantly higher than other figures

without adequate justification.

Consequently, EPA has determined that

the PPNC RACT proposal has not

adequately demonstrated that add-on

controls are economically infeasible.

Comment 13—EPA has improperly

used the lack of official EPA approval of

the PADEP Guidance Document on

Reasonably Available Control

Technology for Sources of NOX

Emissions to support its proposed

disapproval.

Response 13—EPA clearly stated in

the August 18, 1997 NPR regarding the

proposed PPNC disapproval that the

PADEP Guidance Document on

Reasonably Available Control

Technology for Sources of NOX

Emissions was not part of the April 19,

1995 submittal nor any other PADEP

submittal requesting EPA approval and

that, therefore, EPA was not relying on

this guidance document in proposing

disapproval of the PPNC RACT

submittal. EPA included a discussion of

this document only because PPNC made

comments in response to EPA’s

withdrawal of its initial notice of

approval (June 11, 1996) claiming that

PADEP had relied on this document.

However, PPNC’s claims in this regard

cannot be considered by EPA where

PADEP has not identified this document

as a basis for its submittal.

Furthermore, as stated in the NPR for

EPA’s action on Pennsylvania’s VOC

and NOX RACT regulation, Chapter
23672 Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations

129.91 through 129.95, the

Pennsylvania RACT guidance document

has never been submitted to EPA for

approval into the Pennsylvania SIP (62

FR 43134, August 12, 1997).

Comment 14—EPA’s refusal to

consider any options other than add-on

controls is unsupportable. EPA

regulations, guidance, relevant case law

and EPA’s definition of RACT

contemplates and supports the use of

methods other than add-on controls.

Response 14—RACT requirements do

not necessarily always have to include

add-on controls. EPA has made many

RACT determinations that provide for

control methods that do not include

add-on controls. These RACT

determinations were supported by

technical and economic data. A RACT

analysis requires that all control options

be evaluated for technical and economic

feasibility and the potential emission

reductions from each of these options

compared. Therefore, the commenter is

mistaken in concluding that because

EPA has proposed to disapprove the

PPNC RACT proposal which does not

propose any add-on controls, EPA has

refused to consider other non-add-on

control options. EPA’s evaluation of the

PPNC submittal merely analyzes the

information submitted and available

that are relevant to PPNC and concludes

that the PPNC proposal is unsupported

by the relevant information.

Comment 15—EPA has

inappropriately included Ohio Edison

Company in its consideration of costs

on PPNC. EPA should consider only

PPNC’s resources and not those of other

companies with which PPNC has a

relationship. ‘‘Reasonably available’’

requires that cost-effectiveness is

determined only on a facility basis.

Response 15—EPA’s analysis of the

PPNC RACT submittal did not name

particular companies or parent

companies as specifically responsible

for the costs of PPNC. The cost figures

as provided by PPNC are out-of-line

with those obtained from other sources,

including sources under the acid rain

program, for similarly sized and typed

boilers, resulting in EPA’s conclusion

that the PPNC RACT proposal submitted

by PADEP is not adequately

substantiated and supported to justify

the emission requirements being

requested.

Comment 16—EPA has failed to give

proper deference to PADEP’s decision to

approve the PPNC proposal as RACT.

EPA cannot substitute its judgment for

the State’s determination because EPA

believes more stringent air quality

controls are achievable.

Response 16—Although the State has

the initial obligation to determine the

appropriate control requirements for

sources, EPA is required to review the

submission and to approve or

disapprove it as complying with the

applicable statutory requirements.

These requirements include the general

requirements of section 110(a)(2) and, in

this case, the statutory requirements that

the control technology is ‘‘RACT’’ for

PPNC. While EPA will consider the

record for the State’s determination,

there is no statutory obligation for EPA

to defer to the State. To the contrary, the

statutory requirement that EPA review

and take rulemaking action on the

State’s submission demonstrates that

Congress did not intend for EPA to

‘‘rubber stamp’’ State determinations.

Comment 17—EPA has acted

arbitrarily and capriciously in proposing

to disapprove the PPNC RACT proposal.

EPA has denied PPNC a meaningful

opportunity to comment based on each

of the reasons above. Consequently,

until EPA can resolve the above

comments, EPA should suspend this

rulemaking and ultimately consider

approval of the PPNC RACT proposal or

re-propose the disapproval including

legal and factual rationale.

Response 17—EPA’s proposed

rulemaking action is clear and

deliberate in setting forth the legal and

factual reasons supporting the proposed

disapproval. PPNC and all other

interested parties were given ample

opportunity to submit comments and

supporting information. EPA has

addressed every comment made in the

commenter’s letter and has considered

all relevant pieces of information. In

conducting this rulemaking action, EPA

met its obligations to consider all

comments made in response to the

proposed rulemaking action. Proceeding

to final rulemaking is not predicated on

negotiating an acceptable resolution

with the parties that submitted

comments. EPA concludes that it

consideration and review of all

submitted information and its rationale

supports a disapproval of the PPNC

RACT proposal submitted on April 19,

1995.

III. Final Action

EPA is disapproving the Pennsylvania

Power New Castle plant NOx RACT

proposal submitted by PADEP on April

19, 1995 as a requested revision to the

Pennsylvania SIP.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any state

implementation plan. Each request for

revision to the state implementation

plan shall be considered separately in

light of specific technical, economic,

and environmental factors and in

relation to relevant statutory and

regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

This regulatory action has been

submitted to the Office of Management

and Budget (OMB) for E.O. 12866

review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities. 5 U.S.C. 603

and 604. Alternatively, EPA may certify

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations of

less than 50,000. This action only affects

one source, Pennsylvania Power

Company—New Castle plant (PPNC).

PPNC is not a small entity. Therefore,

EPA certifies that this disapproval

action does not have a significant

impact on small entities.

SIP approvals under sections 110 and

301, and subchapter I, part D of the CAA

do not create any new requirements but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not impose any new requirements, EPA

certifies that it does not have a

significant impact on any small entities

affected. Moreover, due to the nature of

the Federal-State relationship the CAA,

preparation of flexibility analysis would

constitute Federal inquiry into the

economic reasonableness of state action.

The Clean Air Act forbids EPA to base

its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA,

427 U.S. 246, 255–66 (1976); 42 U.S.C.

7410(a)(2).

C. Unfunded Mandates

Under Section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to private sector, of $100

million or more. Under Section 205,

EPA must select the most cost-effective

and least burdensome alternative that

achieves the objectives of the rule and

is consistent with statutory

requirements. Section 203 requires EPA
Federal Register / Vol. 63, No. 83 /Thursday, April 30, 1998 /Rules and Regulations 23673

to establish a plan for informing and

advising any small governments that

may be significantly or uniquely

impacted by the rule.

EPA has determined that the approval

action being promulgated does not

include a Federal mandate that may

result in estimated costs of $100 million

or more to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

D. Submission to Congress and the

General Accounting Office

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,

however, exempts from section 801 the

following types of rules: rules of

particular applicability; rules relating to

agency management or personnel; and

rules of agency organization, procedure,

or practice that do not substantially

affect the rights or obligations of nonagency 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, applying only to

Pennsylvania Power—New Castle plant,

located in Lawrence County.

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action pertaining to the disapproval

of PADEP’s NOX RACT proposal for

Pennsylvania Power New Castle must be

filed in the United States Court of

Appeals for the appropriate circuit by

June 29, 1998. 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 may 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, Intergovernmental

relations, Nitrogen dioxide, Ozone,

Reporting and recordkeeping

requirements.

Dated: April 8, 1998.

W. Michael McCabe,

Regional Administrator, Region III.

Chapter I, title 40, of the Code of

Federal Regulations 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 52.2023 is amended by

adding paragraph (e) to read as follows:

§ 52.2023 Approval status.

* * * * *

(e) Disapproval of the April 19, 1995

NOX RACT proposal for Pennsylvania

Power Company—New Castle plant

located in Lawrence County,

Pennsylvania.

* * * * *

[FR Doc. 98–11507 Filed 4–29–98; 8:45 am]

BILLING CODE 6560–50–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 272

[FRL–6003–4]

Oklahoma: Final Authorization and

Incorporation by Reference of State

Hazardous Waste Management

Program

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Immediate final rule.

SUMMARY: Oklahoma has revised its

hazardous waste program under the

Resource Conservation and Recovery

Act (RCRA). With respect to today’s

document, Oklahoma has made

conforming changes to make its

regulations internally consistent relative

to the revisions made for the above

listed authorizations. Oklahoma has also

changed its regulations to make them

more consistent with the Federal

requirements. The EPA has reviewed

Oklahoma’s changes to its program and

has made a decision, subject to public

review and comment, that Oklahoma’s

hazardous waste program revisions

satisfy all of the requirements necessary

to qualify for final authorization. Unless

adverse written comments are received

during the review and comment period

on the parallel proposed rule also in

today’s Federal Register (FR) notice,

EPA’s decision to approve Oklahoma’s

hazardous waste program revisions will

take effect as provided below.

Oklahoma’s program revisions are

available for public review and

comment.

The EPA uses part 272 of Title 40

Code of Federal Regulations (CFR) to

provide notice of the authorization

status of State programs, and to

incorporate by reference those

provisions of the State statutes and

regulations that are part of the

authorized State program. Thus, EPA

intends to revise and incorporate by

reference the Oklahoma authorized

State program in 40 CFR part 272. The

purpose of this action is to incorporate

by reference into CFR currently

authorized State hazardous waste

program in Oklahoma. This document

incorporates by reference provisions of

State hazardous waste statutes and

regulations and clarifies which of these

provisions are included in the

authorized and Federally enforceable

program.

DATES: Final authorization for

Oklahoma’s program revisions shall be

effective July 14, 1998 without further

notice unless EPA, receives relevant

adverse comment on the parallel notice

of proposed rulemaking. Should the

agency receive such comments, it will

publish a notice informing the public

that this rule did not take effect. All

comments on Oklahoma’s program

revisions must be received by close of

business June 1, 1998. The

incorporation by reference of certain

Oklahoma statutes and regulations was

approved by the Director of the Federal

Register as of July 14, 1998 in

accordance with 5 U.S.C. 552(a) and 1

CFR part 51.

ADDRESSES: Copies of Oklahoma’s

program revisions and materials EPA

used in evaluating the revisions are

available for copying from 8:30 a.m. to

4:00 p.m. Monday through Friday at the

following addresses: State of Oklahoma

Department of Environmental Quality,

1000 Northeast Tenth Street, Oklahoma

City, Oklahoma 73117–1212, Phone

number: (405) 271–5338; or EPA Region

6 Library, 12th Floor, 1445 Ross

Avenue, Dallas, Texas 75202–2733,

Phone number: (214) 665–6444. Written

comments referring to Docket Number

OK98–1 should be sent to Alima

Patterson, Region 6 Authorization

Coordinator, Grants and Authorization

Section (6PD–G), Multimedia Planning

and Permitting Division, EPA Region 6,

1445 Ross Avenue, Dallas, Texas 75202–

2733, Phone number: (214) 665–8533.

FOR FURTHER INFORMATION CONTACT:

Alima Patterson, Region 6 Authorization