[Federal Register Volume 70, Number 211 (Wednesday, November 2, 2005)]
[Rules and Regulations]
[Pages 66261-66263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21749]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2005-PA-0002; FRL-7992-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; VOC and NOX RACT Determinations for Three Individual 
Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the 
Commonwealth of Pennsylvania State Implementation Plan (SIP). The 
revisions were submitted by the Pennsylvania Department of 
Environmental Protection (PADEP) to establish and require reasonably 
available control technology (RACT) for three major sources of volatile 
organic compounds (VOC) and nitrogen oxides (NO<INF>X</INF>) pursuant 
to the Commonwealth of Pennsylvania's (Pennsylvania's or the 
Commonwealth's) SIP-approved generic RACT regulations. EPA is approving 
these revisions in accordance with the Clean Air Act (CAA).

DATES: This rule is effective on December 2, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) ID Number R03-OAR-2005-PA-0002. All documents 
in the docket are listed in the RME index at http://docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the 
appropriate RME identification number. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in RME or in hard copy 
for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the Pennsylvania Department of Environmental 
Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street, 
Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Amy Caprio, (215) 814-2156, or by e-
mail at <a href="/cdn-cgi/l/email-protection#c5a6a4b5b7acaaeba4a8bc85a0b5a4eba2aab3"><span class="__cf_email__" data-cfemail="e2818392908b8dcc838f9ba2879283cc858d94">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 30, 2004, PADEP submitted a formal SIP revision that 
consists of source-specific operating permits and/or plan approvals 
issued by PADEP to establish and require RACT pursuant to the 
Commonwealth's SIP-approved generic RACT regulations. On April 4, 2005 
(70 FR 16955), EPA published a direct final rule (DFR) approving 
revisions to PADEP-issued operating permits which establish and require 
RACT for three individual sources. The following table identifies the 
sources and the individual plan approvals (PAs) and operating permits 
(OPs) which are the subject of this rulemaking.

                                          Pennsylvania--VOC and NOX RACT Determinations for Individual Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Plan Approval (PA <greek-
            Source's name                           County                  i>) Operating Permit          Source type         ``Major source'' pollutant
                                                                               (OP <greek-i>)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Waste Management Disposal Services    Berks; Montgomery.................  OP-46-0033..............  Turbines; Enclosed       NOX and VOC.
 of Pennsylvania, Inc. (Pottstown                                                                    Flares.
 Landfill).
Waste Management Disposal Services    York..............................  67-02047................  Internal Combustion      NOX and VOC.
 of PA, Inc.                                                                                         Engines; Enclosed
                                                                                                     Ground Flares.
Armstrong World Industries, Inc.....  Lancaster.........................  36-2001.................  Space Heaters; Dryers;   NOX and VOC.
                                                                                                     Surface Coatings.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    An explanation of the CAA's RACT requirements as they apply to the 
Commonwealth and EPA's rationale for approving these SIP revisions were 
provided in the DFR and will not be restated here.
    In accordance with direct final rulemaking procedures, on April 4, 
2005 (70 FR 16955), EPA also published a companion notice of proposed 
rulemaking on these SIP revisions inviting interested parties to 
comment on the DFR. Timely adverse comments were submitted on EPA's 
April 4, 2005 DFR.
    On May 26, 2005 (70 FR 30378), due to receipt of the adverse 
comments on its approval of the PADEP's RACT determination for the 
three individual sources, EPA published a withdrawal of the DFR. A 
summary of those comments and EPA's responses are provided in Section 
II of this document.

II. Summary of Public Comments and EPA Responses

Comment

    On April 16, 2005, a citizen submitted adverse comments on EPA's 
DFR notice approving PADEP's VOC and NO<INF>X</INF> RACT determinations 
for three individual sources. The commenter states that Pennsylvania's 
air goes to New Jersey so the dirty air harms people in both states and 
RACT should be more rigorous. The commenter also states that prescribed 
burning in parks and wildlife areas fills the air with particulate 
matter which causes lung cancer, heart attacks, strokes, and asthma.

Response

    The rulemaking at issue is limited in scope and addresses the CAA 
section 182(b)(1) RACT requirements for sources located in the ozone 
nonattainment area classified as moderate or above. The commenter did 
not comment specifically on the RACT determinations for the three 
individual sources and did not submit any supporting technical data or 
information to support that the standards for the three individual 
sources do not

[[Page 66262]]

represent RACT. Rather, the commenter makes broad statements alleging: 
(1) That the regulations should be more ``rigorous'' than those 
required under the Act, and (2) that prescribed burning in parks and 
wildlife areas are filling the air with particulates, in turn causing 
health problems and fatalities. These comments are not ``significant 
comments'' to which EPA needs to respond. Whitman v. American Trucking 
Ass'n., 531 U.S. 457, n.2 at 471 (2001) (Under the CAA, EPA need only 
respond to significant comments, i.e., comments relevant to EPA's 
decision). Mere ``assertions that in the opinions of the commenter the 
Agency got it wrong,'' are not relevant comments warranting a response. 
International Fabricare Inst. v. EPA, 972 F.2d 384, 391 (D.C. Cir. 
1992). As to the first comment, that the rules should be more 
``rigorous'' than required under the Act, EPA has no authority to 
mandate that a State regulate more rigorously than required. Under the 
CAA's bifurcated scheme, the State is responsible for choosing how a 
source must be regulated for purposes of attaining the NAAQS and EPA's 
role is limited in reviewing the State's choice to ensure it meets the 
minimum statutory requirements. Here, as is clear from the commenter's 
first point, the commenter is not claiming that the regulations do not 
meet the statutory minimum, but rather that the statute does not 
require enough. EPA has no authority to modify the statute, as 
requested by the commenter nor does EPA have authority to require that 
the State to regulate more rigorously than required by the statute. The 
CAA is based upon ``cooperative federalism,'' which contemplates that 
each State will develop its own SIP, and that States retain a large 
degree of flexibility in choosing which sources to control and to what 
degree. EPA must approve a State's plan if it meets the ``minimum 
requirements of the CAA. Union Elec. Co. v. EPA, 427 U.S. 246, 264-266 
(1976).
    As to the commenter's second point, the rulemaking at issue creates 
additional, Federally-enforceable controls for individual sources of 
VOCs and NO<INF>X</INF>. This rulemaking does not address any emissions 
attributable to prescribed burning in New Jersey or elsewhere. Comments 
regarding the potential adverse effects of prescribed burning are not 
relevant to this rulemaking.

III. Final Action

    EPA is approving the revisions to the Pennsylvania SIP submitted by 
PADEP on January 27, 2005 to establish and require VOC and 
NO<INF>X</INF> RACT for three sources pursuant to the Commonwealth's 
SIP-approved generic RACT regulations.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This rule also is 
not subject to Executive Order 13045 ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because this is a rule of particular applicability establishing source-
specific requirements for three named sources.

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 3, 2006. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action.
    This action approving source-specific RACT requirements for three 
sources in the Commonwealth of Pennsylvania may not be challenged later 
in proceedings to enforce its requirements. (See section 307(b)(2).)

[[Page 66263]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: October 21, 2005.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart NN--Pennsylvania

0
2. In Section 52.2020, the table in paragraph (d)(1) is amended by 
adding the entries for Waste Management Disposal Services of 
Pennsylvania, Inc. (Pottstown Landfill); Waste Management Disposal 
Services of PA, Inc.; and Armstrong Industries, Inc. at the end of the 
table to read as follows:


Sec.  52.2020  Identification of plan.

* * * * *
    (d) * * *
    (1) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         State
           Name of source                   Permit No.                County           effective     EPA approval date      Additional explanation/Sec.
                                                                                          date                                   52.2063  citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Waste Management Disposal Services   OP-46-0033.............  Berks; Montgomery.....     4/20/99;  11/2/05 [Insert page   52.2020(d)(1)(a).
 of Pennsylvania, Inc. (Pottstown                                                         1/27/04   number where the
 Landfill).                                                                                         document begins].
Waste Management Disposal Services   67-02047...............  York..................      4/20/99  11/2/05 [Insert page   52.2020(d)(1)(a).
 of PA, Inc.                                                                                        number where the
                                                                                                    document begins].
Armstrong World Industries, Inc....  36-2001................  Lancaster.............       7/3/99  11/2/05 [Insert page   52.2020(d)(1)(a).
                                                                                                    number where the
                                                                                                    document begins].
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* * * * *
[FR Doc. 05-21749 Filed 11-1-05; 8:45 am]
BILLING CODE 6560-50-P


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