2912 Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / Proposed Rules

§ 213.27 Change in conditions after

submission to IRS.

AID will promptly notify the IRS if,

after submission of a debt to the IRS for

offset, AID:

(a) Determines that an error has been

made with respect to the information

submitted to the IRS;

(b) Receives a payment or credits a

payment, other than an IRS offset, to the

account of the debtor;

(c) Receives notice that the debtor has

filed for bankruptcy under title 11 of the

United States Code or the debt has been

discharged in bankruptcy;

(d) Receives notice that an offset was

made at the time when the automatic

stay provisions of 11 U.S.C. 362 were in

effect;

(e) Receives notice that the debt has

been extinguished by death; or

(f) Refunds all or part of the offset

amount to the debtor.

Dated: November 22, 1994.

Tony L. Cully,

Controller.

[FR Doc. 95–776 Filed 1–11–95; 8:45 am]

BILLING CODE 6116–01–M

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 NOX

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

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

(NOX) 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 NOX 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 NOX 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 NOX 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

NOX 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 NOX 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 NOX

sources. For other major NOX 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-bycase 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 NOX

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
Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / Proposed Rules 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 NOX burner

with separated overfire air, major NOX

emitting facility, major VOC emitting

facility, marginal ozone nonattainment

area, moderate ozone nonattainment

area, National Ambient Air Quality

Standard (NAAQS), Oxides of Nitrogen

(NOX), 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 NOX sources and major

VOC sources not covered by the sourcespecific and mobile source RACT

requirements of 25 Pa. Code §§ 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 NOX

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 NOX

RACT Requirements)

Chapter 129.93 provides certain major

NOX sources with an alternative to caseby-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 NOX 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° 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 NOX emissions since

November 15, 1990 with federally

enforceable emission limitations; and

(7) sources which have been approved

as meeting BACT for NOX 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 (NOX Averaging

Provisions)

Chapter 129.94 permits major NOX

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 NOX 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 NOX 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 NOX RACT

regulation and contained in Chapter

121, with the exception of the definition

of low NOX 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 NOX burner with separated overfire

air makes the applicability of this

technology to the group of sources

specified in the regulation as ‘‘coal-fired
2914 Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / Proposed Rules

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 NOX 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 NOX

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 NOX 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 NonAttainment 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 NOX RACT

Requirements

Chapter 129.91 contains

Pennsylvania’s generic, or ‘‘case-bycase,’’ 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 caseby-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); NOX 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. Processoriented 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 newlypromulgated 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 NOX RACT

Requirements

Pennsylvania gives major NOX

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 caseby-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° retarded

relative to standard timing is acceptable

to EPA. Standard timing is typically

defined as 2 to 6° 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 coalfired combustion units (100mmBTU/

hour or greater), Chapter 129.93(b)(1)

provides that presumptive RACT is low

NOX 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
Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / Proposed Rules 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

NOX 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 NOX 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 NOX

sources for which the state has

approved NOX 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 NOX 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 NOX

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 NOX 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 NOX RACT requirement in

sections 182 and 184 of the CAA.

The provisions in the CAA for NOX

exemptions are contained in section

182(f). In order to exempt major NOX

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 NOX

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 NOX

sources from RACT requirements until

approval of such petition under section

182(f) is granted.

V. NOX Averaging Provision

The NOX 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 NOX 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 NOX emission limitations

cannot be approved as RACT for the

reasons described above; and

(2) A determination that

Pennsylvania’s generic VOC and NOX

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 NOX

RACT emission limitation provisions,

EPA believes that Pennsylvania would

have to do the following:
2916 Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / Proposed Rules

(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 NOX 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

NOX 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

NOX RACT submittals, Chapter 129.93,

pertaining to presumptive RACT control

technology requirements, Chapter

129.94, pertaining to NOX RACT

averaging provisions, and Chapter

129.95, pertaining to VOC and NOX

source recordkeeping requirements. The

rationale for full disapproval would be

that the deficiencies outlined above

pertaining to the presumptive control

technology requirements and the caseby-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

NOX 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 NOX

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
Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / Proposed Rules 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 stateenforceability. 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

NOX 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]

BILLING CODE 6560–50–P

40 CFR Part 70

[SD–001; FRL–5137–4]

Clean Air Act Proposed Interim

Approval of Operating Permits

Program; State of South Dakota

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed interim approval.

SUMMARY: EPA proposes interim

approval of the Operating Permits

Program submitted by the State of South

Dakota for the purpose of complying

with Federal requirements for an

approvable State program to issue

operating permits to all major stationary

sources, and to certain other sources.

DATES: Comments on this proposed

action must be received in writing by

February 13, 1995.

ADDRESSES: Comments should be

addressed to Laura Farris at the Region

8 address. Copies of the State’s

submittal and other supporting

information used in developing this

proposed rule are available for

inspection during normal business

hours at the following location: U.S.

Environmental Protection Agency,