[Federal Register Volume 63, Number 83 (Thursday, April 30, 1998)]
[Rules and Regulations]
[Pages 23668-23673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11507]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA058-4070; FRL-5997-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Disapproval of the NO<INF>X</INF> RACT Determination for 
Pennsylvania Power Company

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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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 (NO<INF>X</INF>) 
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 NO<INF>X</INF> 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

[[Page 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 NO<INF>X</INF> 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 NO<INF>X</INF>. 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-NO<INF>X</INF> 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, 
NO<INF>X</INF> 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. NO<INF>X</INF> emissions 
are regulated by several programs but the control technology and 
methods to achieve NO<INF>X</INF> 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

[[Page 23670]]

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 NO<INF>X</INF> 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 NO<INF>X</INF> 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) 
NO<INF>X</INF> 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 NO<INF>X</INF> 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 NO<INF>X</INF> 
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 NO<INF>X</INF> 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 NO<INF>X</INF> RACT determinations 
referred to by the commenter pertained to NO<INF>X</INF> sources unlike 
those at PPNC. These New York NO<INF>X</INF> 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 NO<INF>X</INF> RACT 
guidance. Indeed, it states that it includes, along with the 
NO<INF>X</INF> Supplement to the General Preamble, ``several other 
guidelines and policy memorandum'' (sic). These items include primarily 
documents regarding SIP attainment demonstrations, section 182(f) 
NO<INF>X</INF> waivers, emissions trading, fuel switching, compliance 
schedules, de minimis values for gas turbines and internal combustion 
engines, NO<INF>X</INF> 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

[[Page 23671]]

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.
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    \1\ The 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.
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    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 long-standing 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 NO<INF>X</INF> 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 NO<INF>X</INF> 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 NO<INF>X</INF> 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--NO<INF>X</INF> 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 NO<INF>X</INF> 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 NO<INF>X</INF> 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 
NO<INF>X</INF> 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 NO<INF>X</INF> RACT regulation, Chapter

[[Page 23672]]

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 
NO<INF>x</INF> 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

[[Page 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 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, 
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 
NO<INF>X</INF> 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:


Sec. 52.2023  Approval status.

* * * * *
    (e) Disapproval of the April 19, 1995 NO<INF>X</INF> 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