[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Proposed Rules]
[Pages 50267-50270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19756]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2006-0379; FRL-8708-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Commonwealth of Pennsylvania; Reasonably Available Control Technology 
Requirements for Volatile Organic Compounds and Nitrogen Oxides

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to remove the limited status of its approval 
of the Commonwealth of Pennsylvania's State Implementation Plan (SIP) 
revision that requires all major sources of volatile organic compounds 
(VOC) and nitrogen oxides (NO<INF>X</INF>) to implement reasonably 
available control technology (RACT). EPA is proposing to convert its 
limited approval of Pennsylvania's VOC and NO<INF>X</INF> RACT 
regulations to full approval because EPA has approved all of the case-
by-case RACT determinations that had been submitted by Pennsylvania 
such that there are no longer any such submissions pending before EPA. 
In prior final rules, EPA has fully approved Pennsylvania's VOC and 
NO<INF>X</INF> RACT regulations for the Pennsylvania portion of the 
Philadelphia-Wilmington-Trenton area, and for the Pittsburgh-Beaver 
Valley area. EPA previously proposed to convert its limited approval of 
Pennsylvania's VOC and NO<INF>X</INF> RACT regulations as they apply in 
the remainder of the Commonwealth to full approval. EPA is withdrawing 
that proposal and is now reproposing approval. This action is being 
taken under the Clean Air Act (CAA or the Act).

DATES: Written comments must be received on or before September 25, 
2008.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-

[[Page 50268]]

R03-OAR-2006-0379 by one of the following methods:
    A. www.regulations.gov. Follow the online instructions for 
submitting comments.
    B. E-mail: <a href="/cdn-cgi/l/email-protection#abcdced9c5cac5cfced185c8d9c2d8dfc2c5caebcedbca85ccc4dd"><span class="__cf_email__" data-cfemail="610704130f000f05041b4f0213081215080f00210411004f060e17">[email protected]</span></a>.
    C. Mail: EPA-R03-OAR-2006-0379, Cristina Fernandez, Chief, Air 
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2006-0379. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov. providing any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 www.regulations.gov or 
in hard copy 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 Resources 
Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, 
Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Marcia Spink, (215) 814-2104, or by e-
mail at <a href="/cdn-cgi/l/email-protection#3340435a5d581d5e5241505a52735643521d545c45"><span class="__cf_email__" data-cfemail="b7c4c7ded9dc99dad6c5d4ded6f7d2c7d699d0d8c1">[email protected]</span></a>.

I. Background

    Pursuant to sections 182(b) and 182(f) of the CAA, the Commonwealth 
of Pennsylvania (Pennsylvania) is required to establish and implement 
RACT for all major VOC and NO<INF>X</INF> sources. SIP revisions 
imposing RACT for three classes of VOC sources are required under 
section 182(b)(2). The categories are all sources covered by a Control 
Technique Guideline (CTG) document issued between November 15, 1990 and 
the date of 1-hour ozone attainment; all sources covered by a CTG 
issued prior to November 15, 1990; and all other major non-CTG sources. 
Section 182(f) provides that the planning requirements applicable to 
major stationary sources of VOCs in other provisions in part D, subpart 
2 (including section 182) apply to major stationary sources of 
NO<INF>X</INF>.
    The Pennsylvania SIP already includes approved RACT regulations for 
sources and source categories of VOCs covered by the CTGs as required 
by section 182(b)(2)(A) and (B). Regulations requiring RACT for all 
major sources of VOC and NO<INF>X</INF> were to be submitted to EPA as 
SIP revisions by November 1992 and compliance required by May of 1995. 
On February 4, 1994, the Pennsylvania Department of Environmental 
Protection (DEP) submitted a revision to the Pennsylvania SIP, 
consisting of 25 PA Code Chapters 129.91 through 129.95, to require 
major sources of NO<INF>X</INF> and additional major sources of VOC 
emissions not covered by a CTG (non-CTG sources) to implement RACT. The 
February 4, 1994 submittal was amended on May 3, 1994 to correct and 
clarify certain presumptive NO<INF>X</INF> RACT requirements under 
Chapter 129.93. As described in more detail, below, EPA granted 
conditional limited approval of 25 PA Code Chapters 129.91 through 
129.95 on March 23, 1998 (63 FR 13789), and removed the conditional 
aspect of the approval on May 3, 2001 (66 FR 22123).
    Under section 184 of the CAA, RACT as specified in sections 
182(b)(2) and 182(f) applies throughout the Ozone Transport Region 
(OTR). The entire Commonwealth is located within the OTR. Therefore, 
RACT is applicable statewide in Pennsylvania. The major source size 
generally is determined by the classification of the area in which the 
source is located. However, for areas located in the OTR, the major 
source size for stationary sources of VOCs is 50 tons per year (tpy) 
unless the area's classification prescribes a lower major source 
threshold. The RACT regulations contain technology-based or operational 
``presumptive RACT emission limitations'' for certain major 
NO<INF>X</INF> sources. For other major NO<INF>X</INF> sources, and all 
major non-CTG VOC sources (not otherwise already subject to RACT 
pursuant to a source category regulation under the Pennsylvania SIP), 
the regulations contain a ``generic'' RACT provision. A generic RACT 
regulation is one that does not, itself, specifically define RACT for a 
source or source categories, but instead allows for case-by-case RACT 
determinations. The generic provisions of Pennsylvania's regulations 
allow for DEP to make case-by-case RACT determinations that are then to 
be submitted to EPA as revisions to the Pennsylvania SIP.
    On March 23, 1998 (63 FR 13789), EPA granted conditional limited 
approval of 25 PA Code Chapters 129.91 through 129.95, which require 
all major sources of NO<INF>X</INF> and non-CTG sources to implement 
RACT, as a revision to the Pennsylvania SIP. This approval was granted 
on the condition that Pennsylvania must, by no later than April 22, 
1999 certify that (1) it had submitted case-by-case RACT proposals for 
all sources subject to the RACT requirements of 25 PA Code Chapters 
129.91 through 129.95 currently known to DEP, or (2) demonstrate that 
the emissions from any remaining subject sources represented a de 
minimis level of emissions as defined in the rulemaking document.
    On April 22, 1999, the DEP submitted a letter certifying that it 
had met the terms and conditions imposed by EPA in its March 23, 1998 
(63 FR 13789) conditional limited approval of its VOC and 
NO<INF>X</INF> RACT regulation by submitting the case-by-case VOC/
NO<INF>X</INF> RACT determinations as SIP revisions in accordance with 
EPA's conditional limited approval. EPA concurred that Pennsylvania's 
April 22, 1999 certification satisfied the condition imposed in its 
conditional limited approval published on March 23, 1998

[[Page 50269]]

(63 FR 13789), and published a direct final rulemaking (May 3, 2001, 66 
FR 22123) removing the conditional status of its approval of 25 PA Code 
Chapters 129.91 through 129.95 as a revision to the Commonwealth's SIP. 
That final rule became effective on June 18, 2001. The SIP revision 
consisting of 25 PA Code Chapters 129.91 through 129.95 retained a 
limited approval status on the basis that it strengthened the 
Pennsylvania SIP. Conversion from limited to full approval would occur 
when EPA had approved all of the case-by-case RACT determinations 
submitted by DEP as SIP revisions.
    On October 16, 2001 (66 FR 52533), EPA published a final rulemaking 
for the Commonwealth removing the limited status of its approval of 25 
PA Code Chapters 129.91 through 129.95 as it applied in the Pittsburgh-
Beaver Valley ozone nonattainment area (Allegheny, Armstrong, Beaver, 
Butler, Fayette, Washington, and Westmoreland counties), because EPA 
had approved all of the case-by-case RACT determinations submitted by 
DEP for affected major sources of NO<INF>X</INF> and/or VOC sources 
located in the area. In so doing, EPA converted its limited approval of 
25 PA Code Chapters 129.91 through 129.95 to full approval as it 
applied to that area. That rulemaking became effective on November 15, 
2001. On October 30, 2001 (66 FR 54698), EPA published a final 
rulemaking for the Commonwealth removing the limited status of its 
approval of 25 PA Code Chapters 129.91 through 129.95 as it applied in 
the Pennsylvania portion of the Philadelphia-Wilmington-Trenton ozone 
nonattainment area (Bucks, Chester, Delaware, Montgomery, and 
Philadelphia counties) because EPA had approved all of the case-by-case 
RACT determinations submitted by DEP for affected major sources of 
NO<INF>X</INF> and/or VOC sources located in the area. In so doing, EPA 
converted its limited approval of 25 PA Code Chapters 129.91 through 
129.95 to full approval as it applied to that area. That rulemaking 
became effective on November 29, 2001. On June 16, 2006 (71 FR 34864), 
EPA published a proposed rule to convert its limited approval of 25 PA 
Code Chapters 129.91 through 129.95 as they apply in the remainder of 
the Commonwealth to full approval. No public comments were submitted to 
EPA on the June 16, 2006 proposed action. Given the length of time that 
has passed since that proposed action, and to clarify that any future 
RACT determinations made by the DEP must still be submitted as SIP 
revisions once 25 PA Code Chapters 129.91 through 129.95 are fully 
approved, EPA is withdrawing that proposal and is now re-proposing to 
convert its limited approval of 25 PA Code Chapters 129.91 through 
129.95 to full approval as those RACT regulations apply in the 
remainder of the Commonwealth.

II. Future Submissions of Case-by-Case RACT Determinations

    The DEP has submitted and EPA has approved as SIP revisions case-
by-case RACT determinations for nearly 600 non-CTG and NO<INF>X</INF> 
sources in Pennsylvania pursuant to Pennsylvania regulations Chapters 
129.91-129.95. (See 40 CFR 52.2020(d) for the list of sources.) As 
stated previously, there are no source-specific RACT determination 
submissions from DEP currently pending before EPA. In the future, 
should DEP find it necessary to issue any additional or revised source-
specific RACT determinations in plan approvals and/or permits pursuant 
to the fully approved Pennsylvania regulations Chapters 129.91-95 of 
the Pennsylvania SIP, those RACT determinations must still be submitted 
to EPA for approval as source-specific SIP revisions. In order for EPA 
to consider such submissions for approval, the DEP must ensure that:
    A. The sources are not subject to any CTGs or Alternative Control 
Techniques (ACTs) issued by EPA for which Pennsylvania has adopted or 
is due to adopt state-wide regulations for approval as SIP revisions. 
Such sources should be subject to any applicable CTG or ACT regulation. 
In addition to the CTG documents issued between November 15, 1990 and 
the date of 1-hour ozone attainment, and the CTG documents issued prior 
to November 15, 1990; EPA issued CTG and ACT documents in 2006 and 
2007. EPA is also due to issue additional control technique documents 
by September 2008. Pennsylvania is required to adopt statewide RACT 
regulations pursuant to these control technique documents and is 
mandated a schedule for doing so. A source in the Commonwealth that has 
been considered a non-CTG source may no longer be so defined if their 
source category is covered by the 2006, 2007, or 2008 CTGs or ACTs. At 
the time DEP adopts statewide RACT regulations pursuant to the 2006, 
2007, and 2008 CTGs and ACTs, it must address the applicability of 
those RACT regulations to sources previously considered non-CTG sources 
under regulations 129.91-129.95.
    B. The RACT Plan approvals and/or RACT permits do not relax any 
previously SIP approved source-specific RACT approved for the 
source(s). Any request by such sources to modify (relax) their emission 
rates, equipments standards, work practice standards, or conditions on 
the type or amount of materials/fuels combusted or processed; or to 
seek relief from their daily, monthly and/or annual emission caps would 
not be approvable as RACT in 2008 or beyond. When such sources seek 
relief with the operating conditions imposed in their SIP approved RACT 
plan approvals or RACT permits because they have modified to add 
additional emission units, or need to increase operation in light of 
market-based demand for their products; RACT needs to be re-assessed, 
re-determined and potentially made more stringent not less stringent.
    C. The RACT determination is not to be simply based upon an 
arbitrary dollar per ton figure in a state guidance document that is 
neither SIP-approved nor approvable by EPA. The very nature of a non-
CTG and/or source-specific alternative RACT makes any ``one size fits 
all'' dollar per ton figure inappropriate when determining and imposing 
RACT.
    D. The RACT plan approval or RACT permit has no expiration date. No 
regulation, plan approval or permit submitted for approval as a SIP 
revision to be incorporated by reference and made part of a SIP may 
have an expiration or sunset provision. By federal statute, a state is 
responsible to implement and enforce all provisions of its approved SIP 
at all times.
    E. Any RACT plan approvals' or RACT permits' redactions must be 
done in such a way as to be able to read the redacted text. When a plan 
approval or permit is issued by DEP to a source, it may impose 
additional requirements or conditions completely unrelated to the RACT 
requirements for NO<INF>X</INF> and/or VOCs. In those instances, DEP 
may submit the plan approval or permit as a SIP revision with those 
portions of the plan approval or permit redacted. Those redactions must 
be done in such a way as to be able to read the redacted text. This is 
necessary to ensure that the redacted language is not contrary to the 
portions being submitted for approval as RACT, does not render the RACT 
portions less stringent, does not remove or make less stringent any 
conditions related to enforcement of RACT, or make the RACT 
requirements subject to change without a SIP revision.
    F. When requesting that a RACT plan approval or RACT permit be 
approved asSIP revision, the DEP's formal SIP revision submission must 
include a signed/dated technical support document or memorandum 
prepared by DEP in support of its RACT determination and the SIP 
revision

[[Page 50270]]

request. Sources in Pennsylvania subject to PA Code Chapters 129.91 
through 129.95 are not to send their RACT plan proposals directly to 
EPA. Under the CAA, SIP revision submissions in their entirety must be 
submitted by the State requesting that the SIP be revised. EPA will 
consider only the materials formally submitted by DEP in its SIP 
revision request and any comments submitted during the public comment 
period provided by EPA on its proposed rule when determining its final 
action to approve or disapprove a source-specific SIP revision 
submitted by DEP pursuant to PA Code Chapters 129.91 through 129.95.
    G. The SIP submission by DEP must not include any materials that 
are considered ``confidential business information'' in nature or 
entitled to any proprietary treatment. Moreover, the DEP plan approvals 
and permits cannot include conditions that cite to the source's RACT 
Plan proposal where that proposal includes materials which the company 
has requested be treated as confidential and proprietary. No materials 
that are considered ``confidential business information'' in nature or 
entitled to any proprietary treatment are to be included in a SIP 
revision submittal because the materials that constitute SIP revisions 
are required to be made available to the public by both the State and 
EPA.

III. EPA's Proposed Action

    EPA has previously removed the limited status of its approval of 
Pennsylvania's SIP revisions that requires all major sources of VOC and 
NO<INF>X</INF> to implement RACT as it applies in the Pittsburgh and 
Philadelphia areas because EPA has approved all of the case-by-case 
RACT determinations for these areas. In this action, EPA is proposing 
to convert its limited approval of Pennsylvania's RACT regulation to 
full approval as it applies in the remainder of the Commonwealth 
because EPA has approved all of the case-by-case RACT determinations 
submitted by DEP such that there are no longer any such submissions 
pending before EPA. EPA is soliciting public comments on the issues 
discussed in this document. These comments will be considered before 
taking final action.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely proposes to approve state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule regarding Pennsylvania's VOC and 
NO<INF>X</INF> RACT regulations Chapters 129.91-129.95 as they apply in 
the remainder of the Commonwealth of Pennsylvania does not have tribal 
implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), because the Pennsylvania SIP is not approved to 
apply in Indian country, and EPA, therefore, notes that it will not 
impose substantial direct costs on tribal governments or preempt tribal 
law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: August 14, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E8-19756 Filed 8-25-08; 8:45 am]
BILLING CODE 6560-50-P


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