[Federal Register: March 23, 1998 (Volume 63, Number 55)]
[Rules and Regulations]               
[Page 13789-13795]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23mr98-11]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 041-4069; FRL-5977-4]

 
Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania Conditional Limited Approval of the Pennsylvania VOC and 
NO<INF>X</INF> RACT Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting conditional limited approval of a State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Pennsylvania. This revision establishes and requires the implementation 
of reasonably available control technology (RACT) on all major sources 
of volatile organic compounds (VOCs) and nitrogen oxides 
(NO<INF>X</INF>). The intended effect of this action is to grant 
conditional limited approval to this Pennsylvania RACT regulation.

EFFECTIVE DATE: This final rule is effective on April 22, 1998.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
841 Chestnut Building, Philadelphia, Pennsylvania 19107; the Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460; and Pennsylvania 
Department of Environmental Protection, Bureau of Air Quality, P.O. Box 
8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, (215) 566-2180, at 
the above EPA Region III address.

SUPPLEMENTARY INFORMATION:

Background

    On August 12, 1997 (62 FR 43134), EPA published a notice of 
proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR 
proposed conditional limited approval of the Pennsylvania RACT 
regulation for NO<INF>X</INF> and VOC sources. (Pennsylvania Chapters 
129.91 through 129.95). The formal SIP revision was submitted by the 
Pennsylvania Department of Environmental Protection (PA DEP, then known 
as the Pennsylvania Department of Environmental Resources) on February 
4, 1994. This submittal was amended with a revision on May 3, 1994 
correcting and clarifying the presumptive NO<INF>X</INF> RACT 
requirements under Chapter 129.93(b)(4). The submittal was again 
amended on September 18, 1995 by the withdrawal from EPA consideration 
of provisions 129.93(c)(6) and (7) pertaining to best available control 
technology (BACT) and lowest achievable emission rate (LAER). A 
description of Pennsylvania's SIP revision and EPA's rationale for 
granting it conditional limited approval were provided in the NPR and 
shall not be restated here.

[[Page 13790]]

Comments Received on EPA's Proposed Action

    In response to the August 12, 1997 proposed action, EPA received 
comments from PADEP. The PADEP comments were the only ones received. 
The comments relevant to the rulemaking and EPA's responses follow 
below. A more detailed discussion can be found in the Technical Support 
Document (TSD) prepared on this rulemaking. A copy of the TSD may be 
obtained from the EPA Regional Office listed in the ADDRESSES section 
of this document.

Comment 1

    Pennsylvania states that the Clean Air Act (the Act) RACT 
requirements do not specify that ``upfront'' emission limitations for 
each source or source category must be included in a RACT SIP. The 
Pennsylvania RACT regulation requires the submission of RACT plans, 
sets forth a requirement to perform a top-down RACT analysis and 
requires implementation of RACT by no later than May 31, 1995.

Response 1

    The Act requires the State to submit RACT rules for major sources 
not covered by a control techniques guideline (CTG) by November, 15, 
1992 and for sources to implement RACT by May 31, 1995. Implementation 
of RACT would require that specific requirements are set forth, 
including appropriate emission limitation requirements and monitoring 
and recordkeeping requirements. The Pennsylvania RACT regulation, while 
strengthening the SIP by establishing the requirement for sources to 
submit RACT plans, general procedures to determine RACT, and a 
schedule, does not provide the necessary specific requirements for each 
subject source so that RACT can be implemented by May 31, 1995. Nor 
does it provide the certainty in terms of emission reductions that will 
be achieved to enable the State to perform the analyses required for an 
attainment demonstration.
    Without certainty as to the control requirements that would apply 
to sources, EPA cannot determine at this point in time whether all 
major non-CTG sources are subject to appropriate and enforceable RACT 
requirements. For that reason, EPA has long taken the position that 
RACT rules may not merely be procedural rules that require the source 
and the State to later agree to an appropriate level of control; rather 
the rules submitted to meet the RACT requirement of the Act must 
identify the appropriate level of control for source categories or for 
individual sources. EPA does not believe that it can fully approve the 
Commonwealth's plan as providing for RACT in accordance with section 
182(b) unless and until the Agency can review the State-adopted control 
requirements to determine whether such controls are ``reasonably 
available.'' EPA was upheld on this interpretation of RACT in State of 
Michigan v. Thomas, 805 F.2d 176 (6th Cir. 1986) (interpreting the RACT 
requirement in section 172 of the pre-amended CAA). However, although 
EPA does not believe that this procedural rule, standing alone, meets 
the RACT requirements of section 182(b), EPA does believe that it will 
help the State achieve healthier air by requiring sources to identify 
and implement control requirements. Therefore, while EPA cannot fully 
approve this rule as meeting the section 182(b) RACT requirement, the 
Agency does believe that it can and should be approved into the SIP. 
Consequently, EPA is granting limited approval to the Pennsylvania RACT 
regulation on the basis that it strengthens the SIP.

Comment 2

    Pennsylvania states that by accepting the Pennsylvania RACT 
regulation as complete, EPA has determined that the case-by-case 
process contained within that regulation meets the requirements of the 
Act. Pennsylvania further states that the completeness criteria include 
a requirement for numeric emission limitations so that if EPA believes 
that emission limitations were appropriate for any of the RACT source 
categories, it should have found the Pennsylvania RACT submittal 
incomplete. By not finding the Pennsylvania submittal incomplete, EPA 
has accepted the Pennsylvania regulation as not needing numeric 
emission limitations.

Response 2

    The completeness review and the approvability determination are two 
separate processes as explicitly recognized in the Clean Air Act. The 
completeness criteria in 40 CFR Part 51, Appendix V (adopted pursuant 
to section 110(k)(1)(A)) provide the means to ensure that the 
administrative requirements of SIP submittals are met and that all the 
information necessary to judge approvability of the SIP submittal is 
included in the submittal. The Act provides that after EPA determines a 
submission is complete or it is deemed complete, then it provides for 
EPA to approve or disapprove the submission (section 110(k)(2) and 
(3)). Consequently, a determination of completeness does not presume 
approvability. The criteria used to judge approvability of the 
Pennsylvania RACT regulation are not the same as the completeness 
criteria. EPA's determination of completeness regarding the 
Pennsylvania RACT regulation simply meant that EPA had the materials 
necessary to make a decision as to approvability of the regulation. In 
the August 12, 1997 proposed rulemaking notice EPA provided the 
rationale for its proposed decision regarding the approvability of the 
Pennsylvania RACT regulation.
    Theoretically, EPA could have found the Pennsylvania RACT SIP 
submittal incomplete because the Part 51 Appendix V completeness 
criteria at 2.2(g) states that the submittal should contain evidence of 
emission limitations, among other elements. There are two compelling 
reasons why EPA did not make such a finding and why such a rigid 
interpretation of the completeness criteria is counterproductive. 
First, the completeness criteria in Appendix V must be applied to all 
SIP submittals where numeric emission limitations are not expected or 
required. Such SIP submittals include air quality plans (attainment 
demonstrations, rate of progress plans) and the maintenance plans that 
must accompany requests to redesignate areas. The rigid interpretation 
of the completeness criteria could warrant finding these types of SIP 
submittals incomplete. It is not the intent of the Appendix V 
completeness criteria to reject as incomplete all SIPs that do not 
contain numeric emission limitations. Second, it is possible that RACT 
for certain sources and source categories could consist of requirements 
that do not specifically include numeric emission limitations, but 
instead have other kinds of emission limitations. For instance, RACT 
can consist of operational requirements therefore, EPA did not apply 
the completeness criteria rigidly to exclude from consideration any 
RACT submittal that did not contain numeric emission limitations for 
every subject source. Furthermore, even if EPA was in error finding the 
Pennsylvania submission incomplete, EPA would not be precluded from 
finding a deficiency in the submittal package in the approval process.

Comment 3

    Pennsylvania states that section 182 of the Act requires provisions 
to provide for RACT, but not specifically for numeric emission 
limitations. Furthermore, section 110 provides for numeric emission 
limitations where

[[Page 13791]]

necessary, indicating that there are times when emission limitations 
are not necessary.

Response 3

    Numeric emission limitations are not a requirement for every SIP 
submittal. For SIPs such as emission inventory SIPs or maintenance 
plans, emission limitations do not make sense and are not required. 
This, however, does not preclude finding that emission limitations are 
appropriate and necessary for certain SIPs such as those establishing 
RACT requirements for certain source categories.

Comment 4

    EPA's definition and interpretation of RACT expressly authorizes 
case-by-case RACT determinations. If EPA has changed its position, it 
has an obligation to revoke all prior inconsistent SIP approvals, issue 
SIP deficiency notices and subject all other states to the same rules 
as being applied in Pennsylvania.

Response 4

    EPA's RACT definition recognizes that RACT may be determined on a 
case-by-case basis. However, under the Act, EPA is required to issue 
CTGs, which establish presumptive RACT requirements for various source 
categories. States generally use the CTGs to adopt RACT regulations 
that apply based on source categories but may choose to develop source-
specific RACT rules if compelling reasons exist. For source categories 
not covered by a CTG, States may develop a general RACT requirement or 
they can develop RACT on a source-by-source basis. EPA's acknowledgment 
of the appropriateness of case-by-case RACT determinations does not 
mean that process-oriented RACT regulations, such as Pennsylvania's, 
meet the section 182(b)(2) requirements of the Act. Rather, for the 
reasons provided in response 1, above, EPA believes that the case-by-
case RACT submissions must be submitted and approved in order to 
determine that the State has met the RACT requirement.

Comment 5

    EPA states in its proposal that the Section 129.93 presumptive 
requirements for large coal-fired combustion units constitutes RACT for 
this source category. Therefore, EPA has accepted a control technology 
requirement alone as RACT and Pennsylvania should receive full approval 
for submission of RACT for this source category.

Response 5

    EPA has stated, and Pennsylvania acknowledged in its September 23, 
1996 letter, that even those sources subject to the presumptive 
requirement in Pennsylvania's Chapter 129.93 must submit RACT proposals 
to EPA for SIP approval. Pennsylvania Chapter 129.93 contains a 
presumptive requirement of low-NO<INF>X</INF> burners with separate 
overfired air for coal-fired boilers with rated heat inputs of equal to 
or greater than 100 mmBTU/hr, but does not provide any numeric emission 
limitations. The condition that Pennsylvania must meet in submitting 
all sources subject to the Chapter 129.93 low-NO<INF>X</INF> burner and 
separate overfired air control technology requirement reflects EPA's 
consistent position that control technology alone for these kinds of 
sources is not RACT. The submittal of these source RACTs as case-by-
case RACT determinations using the procedures contained in 
Pennsylvania's RACT regulation (Chapter 129.91 and 129.92), in 
conjunction with EPA approval of these RACT proposals, will satisfy the 
section 182 RACT requirements of the Act for this group of sources. EPA 
and the Pennsylvania regulations define RACT as ``the lowest emission 
limit that a particular source is capable of meeting by the application 
of control technology that is reasonably available considering 
technological and economic feasibility'' (December 9, 1976 memorandum 
from Roger Strelow, Assistant Administrator for Air and Waste 
Management, to EPA Regional Adminstrators and 25 Pa. Code, Subpart C 
Article III, Chapter 121). Installation of control technology alone 
does not ensure that the lowest emission limits are being achieved. 
Consequently, in the ideal case, RACT for all sources would include 
numeric emission limitations and a control technology requirement. The 
practical approach, however, warrants obtaining numeric emission 
limitations only where technically and economically feasible. Numeric 
emission limitations are necessary and appropriate for coal-fired 
boilers rated <gr-thn-eq> 100 mmBTU/hr. As a source category, these 
coal-fired boilers, almost exclusively utility boilers, are some of the 
largest NO<INF>X</INF> emitting sources in the Commonwealth and in the 
Northeast United States. Establishment of numeric emission limitations 
at emission sources where operating and maintenance conditions can 
significantly affect the amount of emissions is prudent. Large coal-
fired combustion units <gr-thn-eq> 100 mmBTU/hr, even with emission 
controls, can emit NO<INF>X</INF> at significantly different emission 
rates if operation and maintenance of the units is not closely 
monitored. Since methods to accurately measure NO<INF>X</INF> emissions 
from these large combustion units exist, compliance with numeric 
emission limitations is feasible. The operating circumstances, size and 
impact of these large boilers, together with the ability to accurately 
measure emissions, warrants the use of numeric emission limitations. 
Smaller combustion sources generally do not impact NO<INF>X</INF> 
emissions to as large an extent as the large coal-fired combustion 
units. Numeric emission limitations on smaller units would be ideal, 
although requiring such numeric emission limitations on small 
combustion units is generally difficult because of the lack of accurate 
monitoring methods. Consequently, numeric emission limitations are 
appropriate to include in the RACT requirements for some sources, but 
are potentially infeasible as RACT for other types of sources. 
Pennsylvania's Chapter 129.93 (b) does not contain additional 
requirements that EPA has determined are appropriate for this source 
category, including numeric emission limitations. In the proposed 
rulemaking notice EPA clearly identified this deficiency in Section 
129.93 (62 FR 43134). As EPA stated in the proposal, a technology 
requirement alone for this source category does not constitute RACT. 
EPA's conditional limited approval is based on the determination that 
Pennsylvania's process-oriented SIP does not fully satisfy the section 
182(b)(2) RACT requirement of the Act.

Comment 6

    Pennsylvania's large combustion units using continuous emission 
monitoring systems will be evaluated by the Department and will have 
their emission limitations submitted to EPA and implemented through the 
state operating permit program or through the Title V permit program, 
making these emission limitations federally enforceable. EPA and the 
public will have an opportunity to comment on those emission 
limitations at that time.

Response 6

    EPA is required to determine through the SIP approval process 
whether the state has established emission limitations and other 
applicable requirements that meet RACT. The EPA review procedures, 
under the permitting process for the state operating permit program or 
the Title V program, provide for the federal enforceability of emission 
limitations. They are not a substitute for the kind of EPA approval 
required by Title I for establishing initial requirements for SIPs. 
Opportunity for

[[Page 13792]]

EPA to comment on a permit with a limited time period for veto are not 
sufficient for EPA to fulfill its statutory obligation to determine 
whether applicable requirements meet the RACT requirements of the Act. 
The Title V program is a means to incorporate all of the applicable 
requirements and not a mechanism to establish initial requirements. 
Process-oriented SIPs such as Pennsylvania's do not contain the 
necessary underlying RACT control requirements.

Comment 7

    Pennsylvania states that it has submitted RACT proposals to EPA for 
all sources subject to the Pennsylvania regulation section 129.93(b)(1) 
requirement as of September 23, 1996. Pennsylvania further states that 
EPA agreed that if the sources are located in Allegheny or Philadelphia 
Counties, the respective local air regulatory agencies are responsible 
for these RACT proposals and that EPA would limit the applicability of 
Clean Air Act sanctions to those jurisdictions. Pennsylvania states 
that if EPA grants conditional as opposed to full approval of the RACT 
SIP, then this rulemaking action should reflect the agreements 
regarding Philadelphia and Allegheny County.

Response 7

    As an initial matter, Pennsylvania is mistaken in its assertion 
that it had submitted RACT proposals for all sources subject to section 
129.93(b)(1) by September 23, 1996. Section 129.93 (b)(1) pertains to 
those coal-fired combustion units rated at greater than or equal to 100 
million BTU/hr. Since September 23, 1996, PADEP has made SIP submittals 
to EPA for sources subject to section 129.93(b)(1). Further, EPA is 
aware that there remain sources in Pennsylvania subject to 129.93(b)(1) 
for which PADEP still has not submitted RACT proposals to EPA.
    EPA's regulation for the automatic imposition of sanctions pursuant 
to section 179(a) of the Act provides that sanctions will be applied in 
the ``affected area.'' 40 CFR 52.31; see 59 FR 39832, 39854 (Aug. 4, 
1994). The affected area is defined as the geographic area subject to 
the relevant Act requirement. 40 CFR 52.31(b)(3). Under section 182(b), 
the relevant Act requirement at issue, Pennsylvania must submit RACT 
rules for each nonattainment area. Therefore, it is the nonattainment 
area as a whole that is the area subject to the relevant Act 
requirement. Consequently, if PA DEP fails to complete its SIP 
commitments for any portion of the Philadelphia or Pittsburgh 
nonattainment areas, EPA must apply section 179 sanctions to the entire 
affected nonattainment area.

Comment 8

    Pennsylvania disagrees with EPA's proposed de minimis methodology 
for purposes of determining when the Pennsylvania RACT regulation can 
be converted to a full approval action. Pennsylvania states that many 
sources have been added to the 1990 emission inventory since 1990 and 
that EPA should allow the Department to use either 1990 or a more 
recent inventory for this de minimis calculation.

Response 8

    EPA formulated its policy for de minimis (as the term relates to 
the conversion of a generic RACT rule to full SIP approval) based on 
the 1990 emission inventory because this inventory is public, required 
to go through public notice and comment before changes are made to it, 
and represents the baseline of emissions used for air quality planning 
purposes. The Act specifies the use of the 1990 emission inventory for 
air quality planning purposes in order to provide for an established 
baseline from which emission reductions can be determined. If 
Pennsylvania has discovered additional sources or other inaccuracies in 
the 1990 emission inventory, it should correct those omissions and 
inaccuracies through the processes required to change the 1990 emission 
inventory. Using a later calendar year for the de minimis calculation 
raises issues related to the accessibility, verifiability, and 
consistency of the data. For purposes of determining whether a de 
minimis amount of emissions remain to be covered by specific SIP 
approved RACT requirements in converting the rulemaking action from 
conditional to limited approval and from limited approval to full 
approval, and in order allow for consistent comparison, the baseline of 
emissions that is used must be public, verifiable, and consistent.

Comment 9

    Pennsylvania states that EPA's failure to address comments 
submitted to the January 12, 1995 proposed rulemaking is inappropriate.

Response 9

    The August 12, 1997 proposed rulemaking for the Pennsylvania 
generic VOC and NO<INF>X</INF> RACT regulation withdraws the January 
12, 1995 proposal and proposes conditional limited approval for the 
Pennsylvania RACT regulation. The August 1997 proposal completely 
replaces the January 1995 proposal. In the August 1997 notice, EPA 
stated that comments made to the January 1995 proposal would not be 
addressed and invited all interested parties to submit comments on the 
August 1997 proposal. Only Pennsylvania submitted comments on the 
August 1997 proposal. In addition, the January 1995 proposed rulemaking 
actions were different from the August 1997 rulemaking action. EPA 
could not presume that comments made for one type of rulemaking action 
would be appropriate for another rulemaking action. If interested 
parties that commented on the January 1995 proposal believed that the 
same comments applied to the August 1997 proposal, the comments should 
have been resubmitted in response to the August 1997 proposal. There is 
no statutory obligation for EPA to respond to comments on a proposed 
rule where EPA has withdrawn the proposed rule and is not, therefore, 
taking final action on that proposal.

Comment 10

    Pennsylvania believes that EPA should fully and unconditionally 
approve the Pennsylvania RACT regulation. In the alternative, EPA 
should grant conditional approval based on Pennsylvania meeting the 
conditions of its September 23, 1996 commitment letter to EPA.

Response 10

    For the reasons provided in response to the previous comments, EPA 
believes it cannot fully approve Pennsylvania submission nor can it 
grant a conditional approval. Sections 182(b)(2) and 184(b)(4) of the 
Act require that Pennsylvania implement RACT for all major stationary 
sources. EPA believes, however, as stated in a November 7, 1996 policy 
memo, that it is possible to eventually fully approve the state generic 
RACT regulations like Pennsylvania's provided certain criteria are met. 
These criteria are described in detail in the August 12, 1997 proposed 
rulemaking notice (62 FR 43134) and summarized below in the Terms of 
Conditional Approval and Conversion of Limited Approval to Full 
Approval sections. This policy provides that such approval does not 
exempt any major source from RACT requirements but instead provides for 
a de minimis deferral of RACT. EPA fully expects every major VOC and 
NO<INF>X</INF> source to implement RACT as required under sections 182 
and 184 of the Act and for the state to submit those rules for approval 
into the SIP. Specifically, the November 7, 1996 EPA policy memorandum 
from Sally Shaver,

[[Page 13793]]

Director, Air Quality Strategies and Standards Division, to all 
Regional Air Division Directors, sets forth the methods for determining 
whether all but a de minimis amount of emissions are covered by a RACT 
rule. For VOC sources subject to the generic RACT regulation under 
consideration (i.e., non-CTG VOC sources), the state would need to 
submit, and then EPA must approve, the RACT requirements for all but a 
de minimis amount of VOC source emissions. The method used to determine 
whether a state has met the VOC de minimis deferral level is to compare 
the baseline of 1990 non-CTG VOC emissions with those non-CTG VOC 
emissions that have yet to have RACT approved into the SIP. Generally, 
EPA does not expect to defer more than 5% of the emissions calculated 
in the above manner in order to fully approve a state generic VOC RACT 
regulation. For NO<INF>X</INF> sources, the de minimis deferral level 
is determined by using the 1990 NO<INF>X</INF> emissions, excluding the 
utility \1\ NO<INF>X</INF> emissions. The remaining 1990 non-utility 
emissions are then compared with the amount of non-utility 
NO<INF>X</INF> emissions that have yet to have RACT approved into the 
SIP. Generally, EPA expects all utility RACTs to be approved prior to 
application of this de minimis deferral policy and possible conversion 
of the generic RACT conditional approval to full approval. As with VOC 
source RACT, EPA does not expect to defer more than 5% of the emissions 
calculated in this manner in order to fully approve a state generic 
NO<INF>X</INF> RACT regulation. States that have used a de minimis 
argument to exempt certain NO<INF>X</INF> sources or groups of 
NO<INF>X</INF> sources from RACT requirements, or from making a 
demonstration that what is being required is RACT, cannot again apply 
the use of a de minimis rationale with respect to conversion of their 
generic RACT rules to full approval. For these states, conversion of 
the generic RACT rule to full approval requires submittal and approval 
of all the remaining RACT subject sources. EPA continues to believe 
that the November 1996 policy is appropriate for addressing rulemaking 
options for process-oriented SIPs. Consequently, through this rule EPA 
is requiring that to receive full approval of its generic 
NO<INF>X</INF> RACT regulation Pennsylvania will need to have had all 
utility RACT determinations approved by EPA and all but a de minimis 
level of non-utility RACT determinations approved into the SIP. Full 
approval of Pennsylvania's generic RACT regulation in accordance with 
this policy does not change Pennsylvania's statutory obligation to 
implement RACT for all major sources. No major VOC or NO<INF>X</INF> 
source is being exempted from RACT requirements through today's 
rulemaking.
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    \1\ ``Utility'' is defined as in 40 C.F.R. Part 72.2 (Acid Rain 
Program General Provisions--Definitions).
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Terms of the Conditional Approval

    The Commonwealth's September 23, 1996 commitment letter includes 
the following conditions: Case-by-case RACT proposals for all major VOC 
and NO<INF>X</INF> sources must be submitted as case-by-case SIP 
revisions including those sources covered by 25 Pa. Code 
Sec. 129.93(b)(1) by no later than [INSERT date 12 months after the 
effective date of EPA final conditional approval]. Furthermore, by no 
later than [INSERT date 12 months after the effective date of EPA final 
conditional approval], Pennsylvania will: (1) certify that it has 
submitted case-by-case RACT proposals for all sources subject to the 
RACT requirements currently known to PADEP; or (2) demonstrate that the 
emissions from any remaining subject sources represent a de minimis 
level of emissions, as defined in this rulemaking document.
    Once EPA has determined that the Commonwealth has satisfied this 
condition, EPA shall remove the conditional nature of this approval and 
the Pennsylvania VOC and NO<INF>X</INF> regulations SIP revision will, 
at that time, retain limited approval status. Should the Commonwealth 
fail to meet the condition specified above, the final conditional 
limited approval of the Pennsylvania VOC and NO<INF>X</INF> RACT 
regulation SIP revision shall convert to a disapproval.

Conversion From Limited Approval to Full Approval

    Conversion of the Pennsylvania VOC and NO<INF>X</INF> RACT 
regulation to full approval will occur when EPA has approved all of the 
case-by-case RACT proposals as SIP revisions.
    As indicated previously, other specific requirements of and the 
rationale for EPA's proposed action are explained in the NPR and will 
not be restated here. Further details are contained in the TSD which 
may be obtained from the EPA Region III office listed in the ADDRESSES 
section above.

Final Action

    EPA is granting conditional limited approval to the Pennsylvania 
VOC and NO<INF>X</INF> RACT regulation as a revision to the 
Pennsylvania SIP.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals and conditional approvals of SIP submittals under 
section 110 and subchapter I, part D of the CAA do not create any new 
requirements but simply approve requirements that the State is already 
imposing. Therefore, because the Federal SIP approval does not impose 
any new requirements, EPA certifies that it does not have a significant 
impact on any small entities affected. Moreover, due to the nature of 
the Federal-State relationship 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).
    If the conditional approval is converted to a disapproval under 
section 110(k)(3), based on the State's failure to meet the commitment, 
it will not affect any existing state requirements applicable to small 
entities. Federal disapproval of the state submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new Federal requirement. Therefore, EPA certifies 
that a conversion of this action to a disapproval action does not have 
a significant impact on a substantial number of small entities because 
it does not remove existing requirements nor

[[Page 13794]]

does it substitute a new federal requirement.

C. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under Section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action being promulgated does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is a 
``major rule'' as defined by 5 U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action, pertaining to the conditional limited 
approval of the Pennsylvania VOC and NO<INF>X</INF> RACT regulation, 
must be filed in the United States Court of Appeals for the appropriate 
circuit by May 22, 1998. Filing a petition for reconsideration by the 
Administrator of this final rule does not affect the finality of this 
rule for the purposes of judicial review nor does it extend the time 
within which a petition for judicial review may be filed, and shall not 
postpone the effectiveness of such rule or action. This action 
pertaining to the conditional limited approval of the Pennsylvania 
generic VOC and NO<INF>X</INF> RACT regulation may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: March 4, 1998.
W. Michael McCabe,
Regional Administrator, Region III.

    Chapter I, title 40, of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

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

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

Subpart NN--Pennsylvania

    2. Section 52.2020 is amended by adding paragraph (c)(129) to read 
as follows:


Sec. 52.2020  Identification of plan.

* * * * *
    (c) * * *
    (129) Limited approval of revisions to the Pennsylvania 
Regulations, Chapter 129.91 through 129.95, pertaining to VOC and 
NO<INF>X</INF> RACT submitted on February 4, 1994 by the Pennsylvania 
Department of Environmental Resources (now known as the Pennsylvania 
Department of Environmental Protection):
    (i) Incorporation by reference.
    (A) Letter of February 4, 1994 from the Pennsylvania Department of 
Enviromental Resources transmitting Pennsylvania VOC and NO<INF>X</INF> 
RACT regulations, Chapter 129.91 through 129.95.
    (B) Pennsylvania Reasonably Available Control Technology 
Requirements for Major Stationary Sources of Volatile Organic Compounds 
and Oxides of Nitrogen regulation, Chapter 129.91 through 129.95, 
effective on January 15, 1994, except for Chapter 129.93(b)(4).
    (C) Letter of May 3, 1994 from the Pennsylvania Department of 
Environmental Resources amending the Pennsylvania regulation, Chapter 
129.93 (b)(4).
    (D) Pennsylvania Reasonably Available Control Technology 
Requirements for Major Stationary Sources of Volatile Organic Compounds 
and Oxides of Nitrogen regulation, Chapter 129.93 (b)(4), effective 
April 23, 1994.
    (E) Letter for September 18, 1995 from the Pennsylvania Department 
of Environmental Protection amending Pennsylvania's February 4, 1994 
submittal to EPA by withdrawing Chapter 129.93(c)(6) and (7) from EPA 
consideration.
    (ii) Additional material.
    (A) Remainder of February 4, 1994 State submittal.
    (B) Letter of September 23, 1996 from Pennsylvania Department of 
Environmental Protection agreeing to meet certain conditions by no 
later than 12 months after the publication of the final conditional 
rulemaking. These conditions are:
    (1) Pennsylvania certify that it has submitted case-by-case RACT 
proposals for all sources subject to the RACT requirements (including 
those subject to 25 Pa. Code section 129.93(b)(1)) currently known to 
PADEP; or
    (2) Demonstrate that the emissions from any remaining subject 
sources represent a de minimis level of emissions, as defined in the 
final rulemaking.
    3. Section 52.2023 is amended by adding paragraph (k) to read as 
follows:


Sec. 52.2023  Approval status.

* * * * *
    (k) Conditional limited approval of revisions to the Pennsylvania 
Regulations, Chapter 129.91 through 129.95, pertaining to VOC and 
NO<INF>X</INF> RACT submitted on February 4, 1994 and amended on May 3, 
1994 by the Pennsylvania Department of Environmental Resources (now 
known as the Pennsylvania Department of Environmental Protection).
    4. Section 52.2026 is amended by adding paragraph (e) to read as 
follows:


Sec. 52.2026  Conditional approval.

* * * * *
    (e) Revisions to the Pennsylvania Regulations, Chapter 129.91 
through 129.95, pertaining to VOC and NO<INF>X</INF> RACT submitted on 
February 4, 1994 and amended on May 3, 1994 by the Pennsylvania 
Department of Environmental Resources (now known as the Pennsylvania 
Department of Environmental Protection) is conditionally approved. 
Pennsylvania must meet the following conditions by no later than 12 
months after the

[[Page 13795]]

publication of the final conditional rulemaking. These conditions are:
    (1) Pennsylvania certify that it has submitted case-by-case RACT 
proposals for all sources subject to the RACT requirements (including 
those subject to 25 Pa. Code section 129.93(b)(1)) currently known to 
PADEP; or
    (2) Demonstrate that the emissions from any remaining subject 
sources represent a de minimis level of emissions, as defined in the 
final rulemaking.

[FR Doc. 98-7306 Filed 3-20-98; 8:45 am]
BILLING CODE 6560-50-P