Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania VOC and NOX

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania. The revision was submitted by the Pennsylvania Department of Environmental Protection (DEP) to establish and require reasonably available control technology (RACT) for the National Fuel Gas Supply Corporation located in Pennsylvania. EPA is approving these revisions to establish RACT requirements in the SIP in accordance with the Clean Air Act (CAA).

EFFECTIVE DATE:

This final rule is effective on November 26, 2004.

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, 1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 1301 Constitution Avenue, NW., Room B108, Washington, DC 20460; Pennsylvania Department of Environmental Protection, Bureau of Air Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT:

Betty Harris, (215) 814-2168, or by e-mail at harris.betty@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On July 2, 2003, the Pennsylvania DEP submitted formal SIP revisions to establish RACT for two sources of VOC and NO_X located in Pennsylvania. On May 24, 2004 (69 FR 29444), EPA published a direct final rule (DFR) approving revisions to DEP-issued operating permits which establish and require RACT for the National Fuel Gas Supply Corporation's Roystone Compressor Station located in Sheffield, Warren County, Pennsylvania (OP 62-141F) and the Crompton Corporation's facility located in Fairview Township, Butler County, Pennsylvania (OP 10-037). A description of the RACT determinations and EPA's rationale for approving them were provided in the May 24, 2004 DFR and will not be restated herein. In accordance with direct final rulemaking procedures, on May 24, 2004 (69 FR 29480), EPA also published a companion notice of proposed rulemaking on these SIP revisions inviting interested parties to comment on the DFR. On May 26, 2004, EPA received adverse comment on its approval of the RACT determination for National Fuel Gas and Supply Corporation's Roystone Compressor Station (National). EPA received no adverse comments on its approval of the RACT determination for the Crompton Corporation's facility, and, therefore, EPA's May 24, 2004 DFR approving DEP's RACT determination for the Crompton facility became effective on July 23, 2004. On July 2, 2004 (69 FR 40324), due to receipt of the adverse comment on its approval of the DEP's RACT determination for National, EPA published a partial withdrawal of the DFR, specifically withdrawing its final rule approving DEP's RACT determination for National. A summary of the adverse comment and EPA's responses to the comment are provided in Section II of this document.

II. Public Comment and EPA Responses

Comment: On May 26, 2004, a citizen submitted adverse comment on EPA's approval of the DEP's RACT determination for National. The commenter states that the allowable NO_X limitation imposed by the DEP on National's Units 1, 2 and 3 should be decreased from 5.3 lbs per hour to 1.3 lbs per hour and that all the other NO_X rates set in the DEP's permit should be cut in half. The commenter contends that rather than simply re-stating state law which is too low, Federal officials should impose higher standards.

Response: EPA disagrees with the commenter. The EPA has no authority to modify the submitted RACT rules as requested by the commenter. The CAA requires that a state determine and impose RACT for existing major sources of NO_X and VOCs located in ozone nonattainment areas and the Ozone Transport Region. Those RACT requirements are then to be submitted to EPA as revisions to the SIP. EPA can only take action on a SIP revision as it submitted by a state, and cannot, through rulemaking action on a SIP revision, alter the state's submission to make its requirements more (or less) stringent. Therefore, even if EPA agreed that the commenter submitted convincing evidence that the state-submitted limits are not RACT for this facility (which, as explained below, we do not), EPA could not modify the limits as requested by the commenter, but instead could only disapprove the SIP revision submitted by the State.

With regard to the criteria EPA uses to determine whether to approve or disapprove RACT SIP revisions submitted by the Pennsylvania DEP pursuant to 25 Pa Code Chapter 129.91-129.95, we look to the provisions of those SIP-approved generic RACT regulations (see May 3, 2001 Federal Register, 66 FR 22123) and to the requirements of the Clean Air Act and relevant EPA guidance. In approving Pennsylvania's generic RACT regulations, 25 Pa Code Chapters 121 and 129, EPA, thereby, approved the definitions, provisions and procedures contained within those regulations under which the Commonwealth would require and impose RACT. Subsection 129.91, Control of major sources of NO _X and VOCs, requires subject facilities to submit a RACT plan proposal to the DEP in accordance with subsection 129.92, entitled, RACT proposal requirements. Under subsection 129.91, the DEP will approve, deny or modify each RACT proposal, impose the resulting RACT determination in an operating permit or plan approval, and submit each RACT determination to EPA for approval as a SIP revision. EPA reviews the case-by-case RACT plan approvals and/or permits submitted as individual SIP revisions by the Commonwealth to verify and determine if they are consistent with the RACT requirements of the Act and any relevant EPA guidance. EPA first reviews a SIP submission to ensure that the source and the Commonwealth followed the SIP-approved generic rule when applying for and imposing RACT, respectively. Then EPA reviews the technical and economic analyses conducted by the source and the state. If EPA believes additional information may further support or would undercut the RACT analyses submitted by the state, then we may add additional EPA-generated analyses to the record of our rule to approve or disapprove the SIP revision. EPA's review of the Commonwealth of Pennsylvania's submission of its RACT determination for National imposed in DEP operating permit (OP 62-141F) indicates that the requirements of its SIP-approved generic RACT regulation 25 Pa Code Chapter 129.91-129.95 have been met. See preamble of the Direct Final Rule, May 24, 2004, (69 FR 29444). The commenter did not submit any supporting technical information to support that the suggested alternative emission limitations for National's Roystone Compressor Station are RACT. Additionally, the commenter did not submit any justification or analysis to suggest that the RACT limits submitted by the State are inconsistent with the State's RACT regulations, the CAA or EPA guidance. Because the commenter has submitted no new information that would cause us to reconsider our analysis that accompanied the proposed rule, we continue to believe that analysis supports our approval of the RACT limit for National.

III. Final Action

EPA is approving the Pennsylvania DEP's RACT requirements for the National Fuel Gas Supply Corporation's Roystone Compressor Station, located in Sheffield, Warren County, Pennsylvania. EPA is approving this RACT SIP submittal because DEP established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved RACT regulations applicable to these sources. The DEP has also imposed record keeping, monitoring, and testing requirements on National Fuel Gas Supply Corporation's Roystone Compressor Station sufficient to determine compliance with the applicable RACT determinations.

IV. Statutory and Executive Order Reviews

A. General Requirements

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

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 27, 2004. 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 RACT for National Fuel Gas Supply Corporation's Roystone Compressor Station, located in Sheffield, Warren County, Pennsylvania, 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
• Incorporation by reference
• Nitrogen dioxide
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

40 CFR part 52 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)(213)(i)(B)( 1) to read as follows: