[Federal Register Volume 60, Number 8 (Thursday, January 12, 1995)]
[Proposed Rules]
[Pages 2912-2917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-822]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 41-1-6288; FRL-5133-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Limited Approval/Limited Disapproval of Reasonably 
Available Control Technology Requirements for Major Sources of VOC and 
NO<INF>X

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing three alternative actions in today's notice 
concerning Pennsylvania's State Implementation Plan (SIP) revision, 
which contains regulations requiring major sources of volatile organic 
compounds (VOC) and nitrogen oxides (NO<INF>X) to implement reasonably 
available control technology (RACT). The intended effect of this action 
is to propose and solicit comment on the range of alternative actions 
regarding the Pennsylvania RACT submittal (Pennsylvania Chapters 129.91 
through 129.95 and the associated definitions in Chapter 121). The 
three alternatives propose either limited approval/limited disapproval 
or full disapproval of the Pennsylvania regulations. In addition to the 
specific issues related to the Pennsylvania submittal, EPA is also 
specifically taking public comment on the general issue of whether RACT 
submittals of regulations which allow for future case-by-case SIP 
revisions meet the RACT requirements of the Clean Air Act and should be 
approved now, for Pennsylvania, and can be approved in the future for 
submittals by any state to EPA. EPA's resolution of this issue in this 
rulemaking will affect its completeness and approvability 
determinations in future case-by-case SIP revisions meet the RACT 
requirements of the Clean Air Act and should be approved now, for 
Pennsylvania, and can be approved in the future for submittals by any 
state to EPA. EPA's resolution of this issue in this rulemaking will 
affect its completeness and approvability determinations in future 
rulemaking on SIP submittals by other states. These actions are being 
taken under section 110 of the CAA.

DATES: Comments must be received on or before February 13, 1995.

ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air, 
Radiation, and Toxics Division, U.S. Environmental Protection Agency, 
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107. 
Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the Air, Radiation, 
and Toxics Division, U.S. Environmental Protection Agency, Region III, 
841 Chestnut Building, Philadelphia, Pennsylvania 19107; Pennsylvania 
Department of Environmental Resources, Bureau of Air Quality Control, 
P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, (215) 597-9337, at 
the EPA Region III address.

SUPPLEMENTARY INFORMATION: On February 4, 1994, the Pennsylvania 
Department of Environmental Resources (PA DER) submitted a revision to 
its State Implementation Plan (SIP) for the control of VOC and NO<INF>X 
emissions from major sources (Pennsylvania Chapters 129.91 through 
129.95 and the associated definitions in Chapter 121). This submittal 
was amended with a revision on May 3, 1994 correcting and clarifying 
the presumptive NO<INF>X RACT requirements under Chapter 129.93. The 
Pennsylvania SIP revision consists of new regulations which would 
require sources which emit or have the potential to emit 25 tons or 
more of VOC or NO<INF>X per year in Philadelphia or 50 tons or more of 
VOC per year in the remainder of the Commonwealth to comply with 
reasonably available control technology requirements by May 31, 1995. 
Outside of the Philadelphia ozone nonattainment area, sources of 
NO<INF>X which emit or have the potential to emit 100 tons or more per 
year are required to comply with RACT by no later than May 31, 1995. 
While the Pennsylvania regulations contain specific provisions 
requiring major VOC and NO<INF>X sources to implement RACT, the 
regulations under review do not contain specific emission limitations 
in the form of a specified overall percentage emission reduction 
requirement or other numerical emission standards. Instead, the 
Pennsylvania regulations contain technology-based or operational 
``presumptive RACT emission limitations'' for certain major NO<INF>X 
sources. For other major NO<INF>X sources, and all covered major VOC 
sources, the submittal contains a ``generic'' RACT provision. A generic 
RACT regulation is one which does not impose specific upfront emission 
limitations but instead allows for future case-by-case determinations. 
This regulation allows DER to make case-by-case RACT determinations 
which are then submitted to EPA as revisions to the Pennsylvania SIP.
    This proposed rulemaking is intended to take comment on whether a 
generic RACT submittal, such as Pennsylvania's, meets the requirements 
of sections 172(c), 182(b)(2), and 182(f) of the Clean Air Act. This 
rulemaking is designed to clarify whether EPA will approve RACT 
submittals that allow the SIP to be revised with future case-by-case 
RACT determinations, or will instead require specific and immediately 
ascertainable emission limitations.

Background

    Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act 
(CAA), Pennsylvania is required to implement RACT for all major VOC and 
NO<INF>X sources by no later than May 31, 1995. The major source size 
is determined by its location, the classification of that area and 
whether it is located in the ozone transport region (OTR) which is 
established by the CAA. The Pennsylvania portion of the Philadelphia 
ozone nonattainment area consists of Bucks, Chester, Delaware, 
Montgomery, and Philadelphia Counties and is classified as severe. The 
remaining counties in Pennsylvania are classified as either moderate or 
marginal nonattainment areas or are designated attainment for ozone. 
However, under section 184 of the CAA, at a minimum, moderate ozone 
nonattainment area [[Page 2913]] requirements (including RACT as 
specified in sections 182(b)(2) and 182(f)) apply throughout the OTR. 
Therefore, RACT is applicable statewide in Pennsylvania.

Summary of Regulations

    The SIP submittal under review consists of Pennsylvania regulations 
codified at 25 Pa. Code Chapters 129.91 through 129.95, and the 
associated definitions in Chapter 121.

I. Chapter 121 (Definitions)

    The Pennsylvania submittal includes the following new definitions 
in Chapter 121: Lowest Achievable Emission Rate (LAER), low NO<INF>X 
burner with separated overfire air, major NO<INF>X emitting facility, 
major VOC emitting facility, marginal ozone nonattainment area, 
moderate ozone nonattainment area, National Ambient Air Quality 
Standard (NAAQS), Oxides of Nitrogen (NO<INF>X), serious ozone 
nonattainment area, and severe ozone nonattainment area.

II. Chapter 129.91

    Chapter 129.91 contains the applicability section, and requires 
owners and operators of covered sources (i.e. all major NO<INF>X 
sources and major VOC sources not covered by the source-specific and 
mobile source RACT requirements of 25 Pa. Code Secs. 129.51-129.72, 
129.81 and 129.82) to provide PA DER with identification and emission 
information by May 16, 1994. Covered sources must submit a written RACT 
proposal to PA DER by July 15, 1994. PA DER is to approve, deny or 
modify each RACT proposal. Upon notification of approval, covered 
sources must implement RACT ``as expeditiously as practicable'' but no 
later than May 31, 1995.
    Following implementation of RACT, certain large combustion units 
are required to determine emission rates through continuous emissions 
monitoring or a PA DER approved source testing or modeling program. 25 
Pa. Code 129.91(d) provides for the case-by-case RACT determinations to 
be approved through the SIP revision process.

III. Chapter 129.92

    Chapter 129.92 details the information required in RACT proposals 
submitted by these major VOC and NO<INF>X sources. Except for sources 
that opt for the presumptive RACT emission limitations, the proposal 
must include a RACT analysis. The RACT analysis must rank the available 
control options in descending order of control effectiveness, provide 
information on baseline emissions and emission reduction, and evaluate 
the cost effectiveness of each control option. Cost effectiveness of 
each control option is required to be calculated using the ``OAQPS 
Control Cost Manual'' (Fourth Edition), EPA 450/3-90-006 January 1990 
and subsequent revisions. This provision clearly requires sources to 
provide relevant information in their RACT proposal, including cost 
factors, but does not limit the consideration of factors which 
determine what control option is chosen as RACT to cost factors alone. 
The Pennsylvania regulation also properly does not specify a dollar per 
ton figure as a threshold over which control options are ineligible for 
consideration from RACT.

IV. Chapter 129.93 (Presumptive NO<INF>X RACT Requirements)

    Chapter 129.93 provides certain major NO<INF>X sources with an 
alternative to case-by-case RACT determinations. Chapter 129.93(b)(1) 
specifies that presumptive RACT for coal-fired combustion units with a 
rated heat input equal to or greater than 100 million British thermal 
units per hour (mmBtu/hr) is the installation of low NO<INF>X burners 
with separated overfire air. Chapter 129.93(b)(2) provides that 
presumptive RACT for combustion units with a rated heat input between 
20 mmBtu/hr and 50 mmBtu/hr is an annual adjustment or tuneup of the 
combustion process. Chapter 129.93(b)(4) and (5) provides that owners 
and operators of oil, gas and combination oil/gas-fired units are 
required to keep records of fuel certification and to perform annual 
adjustment in accordance with the EPA document ``Combustion Efficiency 
Optimization Manual for Operators of Oil and Gas-fired Boilers'', 
September 1983, EPA-340/1-83-023, or equivalent PA DER procedures.
    For the following groups of sources, Pennsylvania proposes that 
RACT is the installation, maintenance and operation of the sources in 
accordance with manufacturers specifications. These groups as listed in 
Chapter 129.93(c)(1) through (7), are as follows: (1) boilers and 
combustion sources with individual rated gross heat inputs of less than 
20 mmBtu/hr; (2) combustion turbines with individual heat input rates 
of less than 25 mmBtu/hr which are used for natural gas distribution; 
(3) internal combustion engines rated at less than 500 brake horsepower 
(bhp) which are set and maintaining 4 deg. retarded relative to 
standard timing; (4) incinerators or thermal/catalytic oxidizers used 
primarily for air pollution control; (5) any fuel burning equipment, 
gas turbine or internal combustion engine with an annual capacity 
factor of less than 5%, or an emergency standby engine operating less 
than 500 hours in a consecutive 12-month period; (6) sources that have 
been approved as meeting LAER for NO<INF>X emissions since November 15, 
1990 with federally enforceable emission limitations; and (7) sources 
which have been approved as meeting BACT for NO<INF>X emissions since 
November 15, 1990 with federally enforceable emission limitations. The 
last group of sources are required, however, to meet any more stringent 
category-wide RACT emission limitation promulgated by EPA or 
Pennsylvania.

V. Chapter 129.94 (NO<INF>X Averaging Provisions)

    Chapter 129.94 permits major NO<INF>X sources to submit a RACT 
proposal which includes the averaging of emissions at two or more 
facilities provided several conditions are met and the proposal is 
approved by EPA as a revision to the Pennsylvania SIP. Among other 
conditions, the averaging scheme must require emission caps and 
enforceable emission rates at each participating source, telemetry 
links between the participating sources, and an agreement that a 
violation at one of the participating sources is considered a violation 
at all of the participating sources.

VI. Chapter 129.95

    Chapter 129.95 is the recordkeeping provision which is applicable 
to all VOC and NO<INF>X sources in the Commonwealth. This section 
clearly requires that records be kept for a period of at least 2 years 
and that such records must provide sufficient data and calculations so 
that compliance with the applicable RACT requirements can be 
demonstrated. This section also requires that sources of VOC and 
NO<INF>X which claim exemptions from the RACT requirement maintain 
records clearly demonstrating their exempt status.

EPA Analysis

I. Definitions

    The definitions associated with the Pennsylvania VOC and NO<INF>X 
RACT regulation and contained in Chapter 121, with the exception of the 
definition of low NO<INF>X burner with separated overfire air, conform 
to the definitions in the Act and to EPA's existing requirements 
located in 40 CFR Part 52. Pennsylvania's proposed definition of low 
NO<INF>X burner with separated overfire air makes the applicability of 
this technology to the group of sources specified in the regulation as 
``coal-fired [[Page 2914]] combustion units'' unclear. The sources 
covered by this requirement include stoker and cyclone combustion units 
which do not have ``burners'' as such. It is unclear how the low 
NO<INF>X burner requirement would apply to these sources. Pennsylvania 
may correct this deficiency by clarifying the language in Chapter 
129.93 pertaining to ``coal-fired combustion units'' or by amending its 
definition (in Chapter 121) of low NO<INF>X burners with separated 
overfire air to describe the applicable requirements in the situation 
where a combustion unit does not have burners.

II. RACT Proposal Requirements

    Chapter 129.92 requires sources to provide information on the 
emission reduction, technological feasibility, and cost of control 
option. This requirement is consistent with EPA's definition of RACT as 
the lowest emission limitation that a source is capable of meeting by 
the application of control technology that is reasonably available 
considering technological and economic feasibility. See NO<INF>X 
Supplement to the General Preamble on Title I, 57 FR 55620, 55622-23 
(Nov. 25, 1992); CTG Supplement to General Preamble on SIP revisions in 
Nonattainment areas, 44 FR 53761, 53762 (Sept. 17, 1979); ``Guidance 
for Determining Acceptability of SIP regulations in Non-Attainment 
Areas,'' Memorandum of Roger Strelow, Assistant Administrator for Air 
and Waste Management, December 9, 1976). As noted below, however, the 
agency believes that there is a significant issue as to whether 
Pennsylvania's generic RACT provision complies with Clean Air Act 
requirements.

III. Generic VOC and NO<INF>X RACT Requirements

    Chapter 129.91 contains Pennsylvania's generic, or ``case-by-
case,'' RACT provisions. Under this approach, the covered sources are 
not subject to specific, ``upfront'' (i.e., immediately ascertainable) 
emission limitations. Instead, the regulations establish a process for 
the state to review and approve individual RACT emission limitations 
proposed by the sources, which are then to be submitted to EPA as SIP 
revisions. Since the wood furniture emission standards contained in the 
existing Pennsylvania regulation have not been federally approved, 
Chapter 129.91 states that wood furniture sources are required to 
comply with the RACT requirements of Chapter 129.91.
    Pennsylvania believes that the case-by-case approach is consistent 
with the RACT requirements of the Clean Air Act. Pennsylvania notes 
that section 172(c)(1) requires that nonattainment plan provisions 
``shall provide for the implementation of [RACT] as expeditiously as 
practicable * * *'' Section 182(b)(2) provides that SIP submittals for 
moderate ozone nonattainment areas shall ``include provisions to 
require the implementation of [RACT],'' and further requires that that 
the submittals ``provide for the implementation of required measures as 
expeditiously as practicable, but no later than May 31, 1995.'' 
(Emphasis added.) Pennsylvania asserts that its submittal satisfies 
these requirements, as its generic RACT provision requires approved 
RACT programs to be implemented by May 31, 1995. Pennsylvania also 
believes that its case-by-case approach complies with EPA's definition 
of RACT, which directs states to consider the economic and 
technological circumstances of the regulated sources.
    However, EPA believes that the more reasonable interpretation of 
the statutory requirements, and the one that accords with EPA's 
longstanding definition of RACT, is that RACT submittals must include 
specific, upfront emission limitations for all covered sources, rather 
than a process leading to the development of emission limitations at 
some later date. EPA defines RACT as the lowest emission limitation 
that a source is capable of meeting by the application of control 
technology that is reasonably available considering technological and 
economic feasibility. See Memorandum of Roger Strelow, Assistant 
Administrator for Air and Waste Management, December 9, 1976); NO<INF>X 
Supplement to the General Preamble on Title I, 57 FR 55620, 55622-23 
(Nov. 25, 1992). Section 302 of the Act in turn defines ``emission 
limitation'' as ``a requirement * * * which limits the quantity, rate, 
or concentration of air pollutants on a continuous basis, * * *, and 
any design, equipment, work practice or operational standard 
promulgated under this chapter.'' Under Sections 110(a)(2)(A) and 
172(c)(6) of the Act, emission limitations must be ``enforceable,'' and 
Section 107(d)(3)(E)(iii) further requires that emission reductions be 
``permanent and enforceable'' in order to be creditable for attainment 
demonstration. Process-oriented generic RACT submittals such as 
Pennsylvania's, which do not include specific and ascertainable 
emission limitations, do not by themselves provide enforceable 
standards. The source becomes subject to federally enforceable 
requirements only after EPA approves a subsequent SIP revision 
incorporating the source-specific RACT regulations promulgated by the 
state.
    Furthermore, EPA believes that the May 31, 1995 RACT implementation 
deadline specified in Section 182(b)(2) of the Act does not authorize 
states to delay the promulgation of RACT standards beyond the SIP 
submittal deadline of November 15, 1992. To the contrary, EPA believes 
that the extended implementation deadline was designed to give sources 
an adequate opportunity to understand and comply with newly-promulgated 
RACT standards, and to give EPA an opportunity to review RACT 
submittals prior to the implementation date. These objectives may not 
be served by Pennsylvania's generic RACT provisions, under which the 
Commonwealth will not be in a position to submit case-by-case RACT 
emission limitations as SIP revisions until some months after July 15, 
1994 (the date that sources are required to submit RACT proposals to PA 
DER).

IV. Presumptive NO<INF>X RACT Requirements

    Pennsylvania gives major NO<INF>X sources the option of complying 
with the ``presumptive RACT emission limitations'' of Chapter 129.93 as 
an alternative to developing and implementing a RACT limit on a case-
by-case basis. The proposed presumptive RACT in Chapter 129.93(c)(3) 
for internal combustion engines, which requires the engines to be set 
and maintained at 4 deg. retarded relative to standard timing is 
acceptable to EPA. Standard timing is typically defined as 2 to 6 deg. 
before top dead center. EPA agrees with Pennsylvania's proposal for 
internal combustion engines, which is an operation and maintenance 
requirement and applicable recordkeeping requirement, and believes that 
this may constitute RACT for these sources. Pennsylvania's operation 
and maintenance requirements for internal combustion engines, coupled 
with the applicable recordkeeping requirements, is acceptable to EPA as 
RACT.
    EPA has identified deficiencies in the other presumptive RACT 
emission limitations of Chapter 129.93. For coal-fired combustion units 
(100mmBTU/hour or greater), Chapter 129.93(b)(1) provides that 
presumptive RACT is low NO<INF>X burners with separated overfire air 
control technology. Although EPA accepts Pennsylvania's determination 
that this technology constitutes RACT for this source category, the 
agency believes it is necessary and appropriate to quantify the 
emission reduction required to be obtained through this 
[[Page 2915]] technology. Pennsylvania may correct this deficiency with 
an additional SIP submittal including enforceable, numerical emission 
limitations to be met through the installation of the low NO<INF>X 
burner and separated overfire air control technology. Coal-fired 
combustion units greater than or equal to 100 mmBTU/hr represent a 
significant portion of the NO<INF>X emission inventory in Pennsylvania. 
Establishing specific emission limitations for these sources in the SIP 
will allow Pennsylvania to quantify and rely on the expected emission 
reductions from these sources for air quality planning purposes. The 
proposed presumptive RACT determinations contained in Chapters 
129.93(b)(2) and 129.93(c) (1), (2), (4), and (5) are not acceptable to 
EPA because Pennsylvania has not provided sufficient technical support 
to justify these presumptions as RACT. With proper technical support 
and justification, EPA may determine for some sources and source 
categories that operation and maintenance requirements alone constitute 
RACT. It is not acceptable, however, for the RACT to be defined, 
without further elaboration, as ``installation, maintenance and 
operation of the source in accordance with manufacturers 
specifications.'' Once approved by EPA, a RACT standard cannot be 
relaxed by action of a private party. Such a result might occur if RACT 
is defined simply as compliance with manufacturer's specifications. In 
order to correct these deficiencies in Chapter 129.93(b)(2), (c)(1), 
(2), (4), and (5), Pennsylvania must propose and provide adequate 
technical support for an emission limitation (which may be an operation 
and maintenance requirement, if appropriate) for these sources.
    In Chapter 129.93(c) (6) and (7), Pennsylvania is proposing that 
for NO<INF>X sources for which the state has approved NO<INF>X LAER and 
BACT determinations since November 15, 1990, the presumptive RACT 
emission limitation shall be the approved LAER or BACT determinations. 
These provisions allowing sources with approved NO<INF>X LAER and BACT 
determinations are not acceptable because EPA cannot delegate the 
responsibility of approving RACT determinations to a state. Chapter 
129.93(c) (6) and (7) allows all NO<INF>X sources receiving LAER 
determinations since November 1990 and all future LAER determinations 
to be declared RACT without EPA approval via the SIP process. RACT 
determinations cannot be approved through a permit but rather must be 
approved through a SIP revision. EPA cannot agree to LAER 
determinations as RACT since those determinations are not now before 
the agency for review. Therefore, Pennsylvania must delete the 
provisions in Chapter 129.93(c) (6) and (7) pertaining to LAER and BACT 
determinations in order to correct this deficiency. The presumptive 
RACT proposals in Chapter 129.93 (b) and (c) which require only annual 
tune-ups or maintenance procedures simply allow these sources, without 
adequate technical justification, to maintain the status quo. The CAA 
requires that states in moderate and worse ozone nonattainment areas 
and in the OTR control its major NO<INF>X sources to RACT levels. Since 
the operation and maintenance and tune-up requirements located in 
Chapter 129.93 are unsupported, they serve as exemptions from the 
NO<INF>X RACT requirement in sections 182 and 184 of the CAA.
    The provisions in the CAA for NO<INF>X exemptions are contained in 
section 182(f). In order to exempt major NO<INF>X sources from RACT 
requirements, Pennsylvania must petition EPA, and receive EPA approval, 
for such an exemption under 182(f). EPA's guidance on the criteria for 
approval of NO<INF>X exemptions under section 182(f) is contained in 
the EPA document, ``Guideline for Determining the Applicability of 
Nitrogen Oxide Requirements under Section 182(f)'', December 1993. 
Pennsylvania has not submitted a petition under section 182(f) but, 
even if it had, EPA could not approve the exclusion of major NO<INF>X 
sources from RACT requirements until approval of such petition under 
section 182(f) is granted.

V. NO<INF>X Averaging Provision

    The NO<INF>X averaging provision in Chapter 129.94 is acceptable to 
EPA since there is the opportunity for further refinement of the 
averaging scheme conditions, and assurance of enforceability, when the 
individual averaging proposals are submitted to EPA as SIP revisions.

VI. Recordkeeping

    The recordkeeping requirements of Chapter 129.95 are consistent 
with EPA requirements.

Proposed Action

    As noted above, there is considerable controversy about whether 
generic RACT provisions, such as the one under review, comply with the 
requirements of Sections 172 (c)(1) and 182 (b)(2). EPA believes that 
this notice and comment rulemaking would be an appropriate vehicle to 
announce a clear agency position on this issue. Accordingly, EPA is 
proposing three alternative actions in today's notice: two forms of 
limited approval/limited disapproval, and a full disapproval. Under 
Options #1 and #2, the limited approval/limited disapproval options, 
EPA has identified certain deficiencies which prevent granting full 
approval of this rule under section 110(k)(3) and Part D. Because the 
submitted rule is not composed of separable parts which meet all the 
applicable requirements of the CAA, EPA cannot grant partial approval 
of the rule(s) under section 110(k)(3). However, EPA may grant a 
limited approval of the submitted rules under section 110(k)(3) in 
light of EPA's authority pursuant to section 301(a) to adopt 
regulations necessary to further air quality by strengthening the SIP. 
The approval is limited because EPA's action also contains a 
simultaneous limited disapproval, due to the fact that the rule does 
not meet the section 182 and 184 requirements of Part D due to the 
noted deficiencies. EPA is soliciting public comment on each 
alternative.
    In addition, EPA is soliciting public comment on the approvability 
of generic RACT provisions generally. The outcome of this rulemaking 
will affect the determination of the completeness and approvability of 
generic RACT submittals in future rulemaking actions.

Option #1

    The first proposed action, and EPA's preferred option, is a 
proposed limited approval/limited disapproval of Pennsylvania VOC and 
NO<INF>X RACT regulations, Chapters 129.91 through 129.95 with the 
associated definitions in Chapter 121. The limited approval would be 
for the limited purpose of strengthening the SIP, as the Pennsylvania 
regulation imposes requirements on previously unregulated sources.
    The limited disapproval would be based on two separate grounds:
    (1) A determination that the presumptive NO<INF>X emission 
limitations cannot be approved as RACT for the reasons described above; 
and
    (2) A determination that Pennsylvania's generic VOC and NO<INF>X 
provisions are deficient because they do not contain specific, 
immediately ascertainable emission limitations (as defined in Section 
302(k) of the CAA) for all applicable sources.
    Under Option #1, to correct the deficiencies in the presumptive 
NO<INF>X RACT emission limitation provisions, EPA believes that 
Pennsylvania would have to do the following: [[Page 2916]] 
    (1) Clarify, and submit as a SIP revision, the applicability of the 
presumptive RACT requirement for coal-fired combustion units,
    (2) Submit SIP revisions to EPA including the specific emission 
limitations resulting from the application of low NO<INF>X burners with 
separated overfire air for those sources choosing to meet RACT 
requirements through Chapter 129.93(b), and,
    (3) Submit SIP revisions to EPA, with adequate technical support, 
correcting the deficiencies identified in Chapters 129.93 (b)(2), 
(c)(1), (2), (4), (5), (6) and (7). To the extent that Pennsylvania 
proposes operation and maintenance requirements for these sources, the 
state must provide technical support showing that specific numerical 
emission limitations are impractical, and demonstrating that the 
proposed operation and maintenance requirements qualify as RACT.
    To correct the deficiency with the generic RACT provision under 
Option #1, Pennsylvania must provide emission limitations, compliance 
and monitoring requirements (along with adequate technical 
justification for these requirements) for all major VOC and NO<INF>X 
sources required to implement RACT. To ensure that all sources are 
subject to RACT requirements, Pennsylvania must either (1) submit all 
case-by-case RACT proposals for all covered sources to EPA for approval 
as SIP revisions and certify that there are no other sources required 
to implement RACT, or (2) submit a ``default'' RACT emission limitation 
that would apply to all sources subject to the generic provision until 
EPA approval of a source-specific RACT SIP revision.
    EPA has preliminarily determined that this option is correct, but 
will review public comment on this and other outcomes before making a 
final determination.

Option #2 

    Under the limited approval/limited disapproval option #2, EPA would 
be determining, for the reasons stated above, that the Pennsylvania 
regulation with the presumptive control technology requirements can be 
approved and disapproved in a limited fashion for the same reasons 
given under option #1. However, EPA would be determining under option 
#2 that the case-by-case SIP revision provision of the Pennsylvania 
submittal meets the RACT requirements of section 182(b)(2) of the CAA 
and provides sufficient safeguards to ensure that RACT is implemented 
by May 31, 1995. The difference between this option and the first 
option is that EPA, while expecting to receive the case-by-case RACT 
proposals as specified by the Pennsylvania regulation, would not 
consider the lack of submittal of these proposals at this time to be 
reason for limited disapproval of the submitted Pennsylvania 
regulation. Therefore, under this option, Pennsylvania may correct the 
deficiencies in the regulation by:
    (1) Clarifying, and submitting as a SIP revision, the applicability 
of the presumptive RACT requirement for coal-fired combustion units,
    (2) Submitting SIP revisions to EPA including the specific emission 
limitations resulting from the application of low NOx burners with 
separated overfire air for those sources choosing to meet RACT 
requirements through Chapter 129.93(b), and
    (3) Submitting SIP revisions to EPA, with adequate technical 
support, correcting the deficiencies identified in Chapters 
129.93(b)(2), (c)(1), (2), (4), (5), (6) and (7). To the extent that 
Pennsylvania proposes operation and maintenance requirements for these 
sources, the state must provide technical support showing that specific 
numerical emission limitations are impractical, and demonstrating that 
the proposed operation and maintenance requirements qualify as RACT.

Option #3 

    In its third alternative, EPA is proposing to fully disapprove 
Chapter 129.91, pertaining to applicability, Chapter 129.92, pertaining 
to VOC and NO<INF>X RACT submittals, Chapter 129.93, pertaining to 
presumptive RACT control technology requirements, Chapter 129.94, 
pertaining to NO<INF>X RACT averaging provisions, and Chapter 129.95, 
pertaining to VOC and NO<INF>X source recordkeeping requirements. The 
rationale for full disapproval would be that the deficiencies outlined 
above pertaining to the presumptive control technology requirements and 
the case-by-case SIP revision provisions of the Pennsylvania regulation 
are so significant that limited approval/limited disapproval of the 
submittal, on the grounds that it strengthens the SIP, is not 
warranted.
    Under section 179(a)(2), if the Administrator disapproves a 
submission under section 110(k) for an area designated nonattainment, 
based on the submission's failure to meet one or more of the elements 
required by the Act, the Administrator must apply one of the sanctions 
set forth in section 179(b) unless the deficiency has been corrected 
within 18 months of such disapproval. Section 179(b) provides two 
sanctions available to the Administrator: highway funding and offsets. 
The 18 month period referred to in section 179(a) will begin on the 
effective date of a final disapproval. Moreover, the final disapproval 
triggers the federal implementation plan (FIP) requirement under 
section 110(c). The sanctions will apply if the Pennsylvania submittal 
is disapproved fully or in a limited fashion.
    If EPA decides to issue a limited approval/limited disapproval 
pursuant to Options #1 or #2, EPA intends to conduct final limited 
approval/limited disapproval rulemaking on the Pennsylvania regulation 
without further proposal. If Pennsylvania chooses to make modifications 
to their RACT regulation, by correcting definitions and adding default 
emission limitation requirements for all major VOC and NO<INF>X 
sources, EPA will conduct rulemaking appropriate to our preliminary 
judgment on the approvability of the substance of any subsequent 
submittal. Under the limited approval/limited disapproval options, to 
the extent that any subsequent Pennsylvania submittal modifying the 
February 10, 1994 submittal is made, EPA intends to finalize, without 
further proposal, limited approval/limited disapproval of the 
regulation that remains unaffected by the subsequent submittal.
    If EPA decides to fully disapprove the regulation pursuant to 
Option #3, EPA intends to disapprove the submittal without further 
proposal unless Pennsylvania either (a) submits all case by-case RACT 
determinations to EPA and certifies that there are no other subject 
sources, or (b) modifies their regulation to add default emission 
limitations for all major VOC and NO<INF>X sources.
    If Pennsylvania submits a regulation subsequent to this notice and 
withdraws the present submittal, EPA intends to propose action on the 
new submittal.
    EPA has proposed three actions and is specifically soliciting 
comment on these actions and the rationale provided as the basis for 
each of those actions. A consequence of adopting options #1 or #3 in 
the final rulemaking is that future RACT submittals with generic 
provisions may be deemed inadequate to meet the RACT requirements of 
section 182(b)(2). Such a decision will significantly impact future 
determinations as to whether such generic RACT regulation submittals 
meet the completeness criteria in 40 CFR Part 51 Appendix V. Further 
discussion of the Pennsylvania submittal and rationale for these 
proposals is contained in the [[Page 2917]] accompanying technical 
support document.
    Through the first two proposal options, EPA is proposing a limited 
approval of Chapters 129.91 through 129.95 and the associated 
definitions in Chapter 121 which was submitted on February 10, 1994, 
including the corrective revision submitted on May 3, 1994.
    As noted, EPA's preliminary review of this submittal indicates that 
the Pennsylvania generic VOC and NOx RACT regulation submitted on 
February 10, 1994 and the corrective revision submitted on May 3, 1994 
should be approved/disapproved in a limited fashion, under the 
rationale for option #1; to strengthen the Pennsylvania SIP and to 
allow Pennsylvania to correct the deficiencies in the RACT regulation 
cited above. EPA has proposed three actions and is specifically 
soliciting comment on these actions and the rationale provided as the 
basis for each of those actions. Public comments on the issues 
discussed in this notice or on other relevant matters will be 
considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the Addresses section of 
this notice.
    Under the limited approval/limited disapproval options, EPA has 
identified certain deficiencies which prevent granting full approval of 
this rule under section 110(k)(3) and Part D. Also, because the 
submitted rule is not composed of separable parts which meet all the 
applicable requirements of the CAA, EPA cannot grant partial approval 
of the rule(s) under section 110(k)(3). However, EPA may grant a 
limited approval of the submitted rule(s) under section 110(k)(3) in 
light of EPA's authority pursuant to section 301(a) to adopt 
regulations necessary to further air quality by strengthening the SIP. 
The approval is limited because EPA's action also contains a 
simultaneous limited disapproval, due to the fact that the rule does 
not meet the section 182 and 184 requirements of Part D because of the 
noted deficiencies. Thus, in order to strengthen the SIP, EPA is 
proposing a limited approval of Pennsylvania's submitted Chapters 
129.91 through 192.95 and associated definitions in Chapter 121 under 
section 110(k)(3) and 301(a) of the CAA.
    At the same time, EPA is also proposing a limited disapproval of 
this rule because it contains deficiencies, and, as such, the rule does 
not fully meet the requirements of Part D of the Act. Under section 
179(a)(2), if the Administrator disapproves a submission under section 
110(k) for an area designated nonattainment, based on the submission's 
failure to meet one or more of the elements required by the Act, the 
Administrator must apply one of the sanctions as discussed above.
    Except to the extent that EPA proposes to use this rulemaking as a 
vehicle to announce an agency policy on generic RACT submittals, 
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.
    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.
    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, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the Federal-State relationship 
under the CAA, preparation of a 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).
    EPA's disapproval of the State request under section 110 and 
subchapter I, part D of the CAA does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, EPA certifies that this 
disapproval action does not have a significant impact on a substantial 
number of small entities because it does not remove existing 
requirements and impose any new Federal requirements.
    This action has been classified as a Table 2 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by 
an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant 
Administrator for Air and Radiation. The OMB has exempted this 
regulatory action from E.O. 12866 review.
    The Administrator's decision to approve or disapprove the 
Pennsylvania SIP revisions, pertaining to the VOC and NO<INF>X RACT 
regulations, will be based on whether it meets the requirements of 
section 110(a)(2)(A)-(K) and part D of the Clean Air Act, as amended, 
and EPA regulations in 40 CFR Part 51.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: October 27, 1994.
W.T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. 95-822 Filed 1-11-95; 8:45 am]
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