RULES AND REGULATIONSRULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 121--123, 137 AND 139]
Air Quality-RBI 1
[27 Pa.B. 6804] The Environmental Quality Board (Board) by this order amends Chapters 121--123, 137 and 139.
The changes to § 121.1 (relating to definitions) conform the definitions related to coke ovens, ''major modification,'' ''modification,'' ''potential to emit,'' ''responsible official'' and ''secondary emissions'' to the Federal definitions of these terms. The changes to Chapter 122 (relating to National standards of performance for new sationary sources) incorporate by reference the new source performance standard guidelines established under section 111(d) of the Clean Air Act (42 U.S.C.A. § 7411(d)). The changes to Chapter 123 (relating to standards for contaminants) make this chapter consistent with the maximum achievable control technology (MACT) standards for coke ovens promulgated by the Environmental Protection Agency (EPA) under the Clean Air Act. The change to Chapter 137 (relating to air pollution episodes) eliminates the mandatory requirement for submission of standby plans to address air pollution episodes. The changes to Chapter 139 (relating to sampling and testing) make the provisions for particulate matter testing and monitoring of coke oven emissions consistent with Federal requirements. The changes to Chapter 139 also establish consistent data availability requirements for all continuous emission monitoring systems (CEMS) sources and extend the monitoring provisions applicable to municipal waste incinerators to hospital waste incinerators.
This order was adopted by the Board at its meeting of September 16, 1997.
A. Effective Date
These amendments will be effective upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact Terry Black, Chief, Regulation and Policy Development Section, Division of Compliance and Enforcement, Bureau of Air Quality, 12th Floor Rachel Carson State Office Building, P.O. Box 8468, Harrisburg, PA 17105-8468, (717) 787-1663, or M. Dukes Pepper, Jr., Assistant Counsel, Bureau of Regulatory Counsel, Office of Chief Counsel, 9th Floor Rachel Carson State Office Building, P.O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060.
C. Statutory Authority
This action is being taken under the authority of section 5(a)(1) of the Air Pollution Control Act (35 P. S. § 4005(a)(1)), which grants to the Board the authority to adopt regulations for the prevention, control, reduction and abatement of air pollution.
D. Background and Summary
The Regulatory Basics Initiative (RBI) was announced in August 1995 as an overall review of the Department of Environmental Protection's (Department) regulations and policies. The Department solicited public comments in August of 1995 by giving the regulated community, local governments, environmental interests and the general public the opportunity to identify specific regulations which are either more stringent than Federal standards, serve as barriers to innovation, or are obsolete or unnecessary, or which impose costs beyond reasonable environmental benefits or serve as barriers to adopting new environmental technologies, recycling and pollution prevention.
In February 1996, Governor Ridge executed Executive Order 1996-1 (Regulatory Review and Promulgation) establishing standards for the review, development and promulgation of regulations. The Department's RBI review is consistent with the directions and standards in Executive Order 1996-1. These amendments meet the requirements of Executive Order 1996-1.
These final-form regulations are the first in a series of regulatory proposals implementing changes to the Department's air resource regulations resulting from the RBI. In general, these final changes make the Department's regulations consistent with Federal requirements, delete obsolete and unnecessary provisions and apply the Department's monitoring requirements in a consistent fashion for all affected sources.
The Department worked with the Air Quality Technical Advisory Committee (AQTAC) in the development of these final-form regulations. At its July 21, 1997, meeting, AQTAC recommended adoption of the final-form amendments.
The Department is modifying the definitions of ''coke oven battery,'' ''coke oven gas collector main,'' ''door area,'' ''major modification,'' ''modification,'' ''potential to emit,'' ''responsible official'' and ''secondary emissions.'' In each case, the changes make the definitions consistent with Federal definitions of these terms promulgated under the Clean Air Act. The definition of ''major modification'' does not include the Federal exclusion for combustion of municipal waste and is, therefore, more stringent than the Federal definition. Because of the public concern about municipal waste combustion, the Department is retaining authority to evaluate municipal waste combustion on a case-by-case basis. These final-form regulations also retain the cross reference to § 127.203 for determining what emissions increases are considered significant.
Section § 122.3 (relating to adoption of standards) adopt by reference the Federal new source performance standards promulgated under section 111(b) of the Clean Air Act. The Department is amending § 122.3 to incorporate all Federal standards established under section 111 of the Clean Air Act. The existing language does not incorporate by reference emission guidelines established under section 111(d) of the Clean Air Act. However, Chapter 121 already defines section 111(d) guidelines to be ''applicable requirements.'' The Department's permitting regulations in §§ 127.12(a)(4) and 127.411(a)(5) (relating to content of applications) require permit applicants to demonstrate that they meet all applicable requirements. Consequently, the regulatory modification will simply codify in § 122.3 the Department's existing regulatory requirement. The final-form regulations make clear that portions of section 111 of the Clean Air Act are applicable to existing air contamination sources.
The amendments to § 123.44 make this regulation consistent with MACT for coke ovens promulgated by the EPA under the Clean Air Act.
The amendments to § 137.4 (relating to standby plans) change the provisions for standby plans to address air pollution episodes. Specifically, in subsection (b), the Department is classifying each county as an area requiring a standby plan based on monitored exceedances of any National ambient air quality standard (NAAQS). The existing regulation lists each pollutant along with its ambient concentration. The Department is referencing the NAAQS as the reference point for determining counties subject to the standby plan requirements. In addition, subsection (c) is being modified to only require standby plans when requested by the Department. This provision will conform § 137.4 to the existing requirements in § 127.411(a)(8). Finally, subsection (f) is being modified to make clear that the standby plan shall be provided to the Department by an individual responsible for the entire facility.
Chapter 139 is being modified in five ways. First, § 139.12 (relating to emissions of particulate matter) deletes a portion of the requirements for particulate matter sampling because the provision is more stringent than the applicable Federal requirement and provides little environmental benefit. Second, §§ 139.61 and 139.62 (relating to requirements; and waiver of certain monitoring requirements) are being deleted. These provisions establish monitoring standards for coke ovens which have been superseded by the promulgation of the coke oven MACT standard by the EPA. This change will make the Commonwealth's regulations consistent with Federal requirements. Third, § 139.101 (relating to general requirements) changes the requirements related to data availability for data captured by a continuous emissions monitor. A general data availability requirement in § 139.101 was adopted in 1990, and CEMS covered in § 139.104 (relating to sulfur dioxide and nitrogen oxides monitoring requirements for combustion sources) were grandfathered. With deletion of § 139.104, the general data availability standard in § 139.101 would apply. CEMS would be required to meet the following minimum data availability requirements: (1) in each calendar month, at least 90% of the time periods for which an emission standard or an operational parameter applies shall be valid; or (2) in each calendar quarter, at least 95% of the hours during which the monitored source is operating shall be valid. Fourth, the Department is deleting the requirements of § 139.104 and establishing these monitoring requirements under the general provisions of § 139.101. Finally, the Department is modifying § 139.111 (relating to waste incinerator monitoring requirements) to apply to hospital waste incinerators as well as municipal waste incinerators. These incinerators, generally, are similar in nature and the monitoring requirements are applicable to both. Section 139.111 also changes the data availability requirements to be consistent with the other proposed changes for continuous emission monitors described previously.
E. Summary of Comments and Responses on the Proposed Rulemaking
The Department received a comment based on section 415 of the Clean Air Act (42 U.S.C.A. § 7651n). The commentator requested a change in the proposed definition of ''modification,'' which is used for purposes of the new source review program, to make the definition consistent with section 415 of the Clean Air Act. The commentator asserted that under section 415(c) the reactivation of very clean units was exempt from Federal new source review requirements. Section 415 only exempts these units from the new source performance standards (42 U.S.C.A. § 7411) and the requirements for the prevention of significant deterioration contained in Part C of Subchapter I of the Clean Air Act. Section 415 contains no exemption from the new source review requirements of Part D of Subchapter I of the Clean Air Act. In addition, the final rule is consistent with the Federal definition of ''major modification.''
Another commentator suggested adding a definition of ''very clean units.'' Because there is no corresponding Federal definition, the Department is not making this change. The Department will implement this provision on a case-by-case basis in a manner consistent with Federal guidance developed under the Clean Air Act.
Another commentator recommended changes to § 123.23. The Department's proposal was to implement the MACT standard promulgated by the EPA related to coke oven batteries. The comment received relates to a section of the regulation that was not proposed for amendment; the comment is not required by implementation of the MACT standard for coke oven batteries and relates to pollutants not regulated by the MACT standard. The Department believes this comment enlarges the purpose of the regulatory proposal and cannot be considered at this time. In addition, the Department does not support the change proposed by the commentator because it would allow increased emissions of sulfur oxides from the affected sources. To relax the emission limitations, it would be necessary to submit a revision to the sulfur oxide SIP for the area, including a full modeling demonstration of continued attainment. The commentator has not demonstrated that the increased emissions of sulfur oxides will not jeopardize maintenance of the ambient air quality in the area.
Two commentators suggested modifying the definition of ''potential to emit'' to include language which would make it clear that secondary emissions are not to be included in the determination of a facility's potential to emit. This change has been made to make the Commonwealth's definition consistent with the Federal definition. One of these commentators also suggested a change to the definition of ''fugitive air contaminant.'' The suggested change would allow fugitive air contaminants if the fugitive emissions did not cause air pollution. The present provisions of § 123.1 (relating to prohibition of certain fugitive emissions) provide for a source operator to obtain an exemption from the prohibition against fugitive emissions if the operator shows that the emissions are not causing air pollution. This proposed change would place the burden on the Commonwealth to prove that fugitive emissions are causing air pollution before action could be taken to require reduction of emissions. The proposed change is not in the best interest of the Commonwealth because it would require excessive resources for the Department to conduct an analysis of each fugitive situation encountered and would eliminate an effective enforcement tool.
One commentator generally supported the revisions, but expressed concerns about elimination of the separate monitoring requirements for NOx and SOx from combustion sources and about the practical implications of the proposed revisions to the data availability requirements. The Department believes these revisions are appropriate and has not made modifications to the final-form regulations.
One commentator expressed concern about the Air Pollution Episode Strategy (APES) revisions which would require the submission of plans only at the request of the Department. Presently, essentially all significant sources must develop and maintain plans. Although the requirements for these plans have been in effect for 20 to 25 years, there has not been a need to implement them because of high pollutant levels. The Department believes that there is no compelling reason for requiring the development and submission of plans for facilities in areas for which there is essentially no possibility of ambient pollutant levels exceeding the plan implementation trigger levels. Another commentator pointed out that the Department failed to delete the ozone standard from the APES revisions. The final-form regulations corrects this oversight.
F. Pollution Prevention
The revisions to the definition of ''major modification'' contained in § 121.1 encourage and support pollution prevention. Under this definition, environmentally beneficial pollution prevention projects do not have to meet Federal requirements related to new source review.
G. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.
Benefits Overall, the citizens of this Commonwealth will benefit from these changes because they will make the Department's air quality program consistent with Federal requirements and apply monitoring provisions for affected sources in a consistent manner. These provisions reduce unnecessary paperwork while continuing to provide the appropriate level of air quality protection.
The revisions to the data availability requirements will result in an estimated savings in penalties to the regulated community of approximately $70,000 per year (1996 data were used). This would be the result of sources under § 139.104 complying with § 139.101. Data from 3rd quarter 1995 through 2nd quarter 1996 were used to estimate savings in penalties.
The revisions to Chapter 122 National standards of performance for new stationary sources provisions are anticipated to result in no additional costs for the regulated community. Savings estimated at $150,000 to $250,000/year can be expected after Chapter 122 is revised.
The additional annual cost to coke oven battery operators for providing daily readings to satisfy both current State and Federal regulations is approximately $190,000. The revisions to the coke oven requirements in §§ 123.44, 139.61 and 139.62 are anticipated to reduce costs to coke oven operators by approximately $190,000 annually.
The revisions to the particulate sampling requirements in § 139.12 are anticipated to result in annual savings to the regulated community of approximately $345,000.
The revisions to the APES requirements in Chapter 137 are estimated to reduce costs to the regulated community by approximately $250,000 annually.
No additional costs or cost savings are predicted to result from the revision of the § 121.1 definitions.
Compliance Costs
These final-form regulations will, in general, reduce compliance costs by deleting unnecessary monitoring, recordkeeping and permitting requirements.
Compliance Assistance Plan
The Department plans to educate and assist the public with understanding the newly revised requirements and how to comply with them. This will be accomplished through the Department's ongoing regional compliance assistance program.
Paperwork Requirements
The regulatory revisions delete unnecessary paperwork requirements related to permitting standby plans and monitoring.
H. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 1, 1997, the Department submitted a copy of the proposed amendments to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments as well as other documentation.
In preparing these final-form regulations, the Department has considered the comments received from IRRC and the public. These comments are addressed in the comment and response document and Section E of this Preamble. The Committees did not provide comments on the proposed rulemaking.
These final-form regulations were deemed approved by the House and Senate Committees on October 27, 1997. IRRC met on November 6, 1997, and approved the final-form regulations in accordance with section 5(c) of the Regulatory Review Act.
J. Findings of the Board
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period and public hearings were provided as required by law and all comments were considered.
(3) These final-form regulations do not enlarge the purpose of the proposal published at 27 Pa.B. 1822.
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble and are reasonably necessary to achieve and maintain the National ambient air quality standards.
K. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 121--123, 137 and 139, are amended by amending §§ 123.44, 139.12, 139.101 and 139.111 and deleting §§ 139.61, 139.62 and 139.104 to read as set forth at 27 Pa. B. 1822 and by amending § 121.1, 122.3 and 137.4 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect immediately upon publication.
JAMES M. SEIF,
Chairperson(Editor's Note: Amendments to § 121.1, which is amended in this document appeared at 27 Pa.B. 5601 (November 1, 1997) and 27 Pa.B. 5683 (November 1, 1997). These amendments will be codified in MTS 278 (January, 1998).)
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 6128 (November 22, 1997).)
Fiscal Note: Fiscal Note 7-313 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE III. AIR RESOURCES
CHAPTER 121. GENERAL PROVISIONS § 121.1. Definitions.
The definitions in section 3 of the act (35 P. S. § 4003) apply to this article. In addition, the following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Coke oven battery--A process consisting of a jointly operated group of slot-type coke ovens, the operation of which results in the destructive distillation of coal by the indirect application of heat to separate the gaseous and liquid distillates from the carbon residue and includes coal preparation, coal charging, coking, separation and cleaning of the distillate, coke pushing, hot coke transfer and coke quenching. A coke oven battery is a single source for the purpose of this article and shall include, but not be limited to, the following, when present: the ovens; coal preheaters; underfiring systems; waste heat stack; offtake piping; flues; closed charging systems; door hoods; and operating equipment including larry cars, jumper pipes, pusher machines, door machines, mud trucks and quench cars associated with the operation of a battery. Existing batteries are identified as follows:
Identifying Operator Plant Symbol Bethlehem Steel Bethlehem ''2A'' (includes batteries #2 and #3), ''A'' Erie Coke Corporation Erie #1 Koppers Industries Monessen #1B, #2 (operated as one battery for purposes of meeting the charging standard)
Coke oven gas collector main--The pipes or ducts by which the gaseous byproducts of coking are transported from the offtake piping of coke ovens to the byproduct plant.
* * * * * Door area--The vertical face of a coke oven between the bench and the top of the battery and between two adjacent buckstays.
* * * * * Major modification--
(i) A physical change or change in the method of operation of a major facility that would result in an increase in emissions equal to or exceeding an emission rate threshold or significance level specified in § 127.203.
(ii) A net emissions increase that is significant for VOCs or NOx will be considered significant for ozone.
(iii) A physical change or change in the method of operation does not include:
(A) Routine maintenance, repair and replacement.
(B) The use of an alternative fuel or raw material by reason of any order under section 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (ESECA) (15 U.S.C.A. § 79(a) and (b)) (or any superseding legislation) or by reason of a natural gas curtailment plan under the Federal Power Act (16 U.S.C.A. §§ 792--825r).
(C) The use of an alternative fuel by reason of an order or rule under section 125 of the Clean Air Act (42 U.S.C.A. § 7425).
(D) The use of an alternative fuel or raw material by a stationary source which meets one of the following conditions:
(I) The source was capable of accommodating before January 6, 1975, unless the change would be prohibited under an operating permit condition.
(II) The source is approved to use under an operating permit.
(E) An increase in the hours of operation or in the production rate, authorized under the conditions of an operating permit.
(F) Any change in ownership at a stationary source.
(G) The addition, replacement or use of a pollution control project at an existing source, unless the Department determines that the addition, replacement or use renders the source less environmentally beneficial, or except when the following apply:
(I) The Department has reason to believe that the pollution control project would result in a significant net increase in representative actual annual emission of any criteria pollutant, VOC or NOx over levels used for that facility in the most recent air quality impact analysis in the area conducted for the purpose of Title I of the Clean Air Act, if any (42 U.S.C.A. §§ 7401--7515).
(II) The Department determines that the increase will cause or contribute to a violation of any National ambient air quality standard or PSD increment, or visibility limitation.
(H) The installation, operation, cessation or removal of a temporary clean coal technology demonstration project, if the project complies with the following:
(I) The SIP.
(II) Other requirements necessary to attain and maintain the National ambient air quality standards during the project and after it is terminated.
(I) The installation or operation of a permanent clean coal technology demonstration project that constitutes repowering, if the project does not result in an increase in the potential to emit of any regulated pollutant emitted by the source. This exemption applies on a pollutant-by-pollutant basis.
(J) The reactivation of a very clean coal-fired electric utility system generating source.
* * * * * Modification--A physical change in a source or a change in the method of operation of a source which would increase the amount of an air contaminant emitted by the source or which would result in the emission of an air contaminant not previously emitted, except that routine maintenance, repair and replacement are not considered physical changes. An increase in the hours of operation is not considered a modification if the increase in the hours of operation has been authorized in a way that is Federally enforceable or legally and practicably enforceable by an operating permit condition.
* * * * * Potential to emit--The maximum capacity of a source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and limitations on hours of operation or on the type or amount of material combusted, stored or processed shall be treated as part of the design if the limitation or the effect it would have on emissions is Federally enforceable or legally and practicably enforceable by an operating permit condition. The term does not include secondary emission from an offsite facility.
* * * * * Responsible official--An individual who is:
(i) For a corporation: a president, secretary, treasurer or vice president of the corporation in charge of a principal business function, or another person who performs similar policy or decision making functions for the corporation, or an authorized representative of the person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for, or subject to, a permit and one of the following applies:
* * * * * (B) The delegation of authority to the representative is approved, in advance, in writing, by the Department.
* * * * * (iv) For affected sources:
* * * * * (B) The designated representative or a person meeting provisions of subparagraphs (i)--(iii) for any other purpose under 40 CFR Part 70 (relating to operating permit programs) or Chapter 127 (relating to construction, modification, reactivation and operation of sources).
* * * * * Secondary emissions--Emissions which occur as a result of the construction or operation of a major stationary source or major modification of a major stationary source, but do not come from the major stationary source or facility or major modification itself. The secondary emissions shall be specific, well defined, quantifiable and impact the same general area as the stationary source or modification which causes secondary emissions. The term includes emissions from an offsite support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. The term does not include emissions which come directly from a mobile source regulated under Title II of the Clean Air Act (42 U.S.C.A. §§ 7521--7589).
* * * * *
CHAPTER 122. NATIONAL STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES § 122.3. Adoption of standards.
Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources, promulgated in 40 CFR Part 60 (relating to standards of performance for new stationary sources) by the Administrator of the EPA under section 111 of the Clean Air Act (42 U.S.C.A. § 7411) are adopted in their entirety by the Department and incorporated herein by reference.
CHAPTER 137. AIR POLLUTION EPISODES
GENERAL § 137.4. Standby plans.
(a) This section applies to the following classes of sources located in the counties identified in subsection (b):
(1) Coal or oil-fired electric generating facilities.
(2) Coal or oil-fired steam generating facilities rated at more than 100 million Btu per hour of heat input.
(3) Manufacturing industries of the following classifications which employ more than 20 employes at any one location:
(i) Primary and secondary metals industries.
(ii) Petroleum refining and related industries.
(iii) Chemical and allied products industries.
(iv) Paper and allied products industries.
(v) Glass, clay and concrete products industries.
(4) Municipal and commercial refuse disposal and salvage operations other than incinerators rated at less than 1,000 pounds per hour or refuse.
(5) Other sources determined to be of significance by the Department. The persons responsible for the sources will be so advised by the Department.
(b) The Department will annually classify each county as an area requiring a standby plan based on monitored exceedance of any of the NAAQS.
(c) Any person responsible for the operation of a facility in subsection (a) and located in a county classified in subsection (b) as requiring a standby plan shall submit standby plans for reducing the emission of air contaminants from that facility during alert, warning and emergency levels to the Department within 90 days of the Department's request. The plans shall be designed to reduce or eliminate the emissions of air contaminants in accordance with the objectives in §§ 137.11--137.14 (relating to level actions). The plans shall be in writing on forms published and distributed by the Department and shall identify the approximate amount of reduction of various air contaminants and a description of the manner in which the reductions will be achieved.
(d) If the Department determines that a standby plan does not provide for effectively achieving the objectives in §§ 137.11--137.14, the Department may disapprove the plan, state its reasons for the disapproval and either order the preparation of an amended plan within a time period specified in the order or issue, by order, a plan to replace the disapproved plan.
(e) The Department may amend or otherwise change a standby plan if it determines that good cause exists for the action. An amendment or change will be in writing and will be accompanied by a notice of sufficient cause for the action.
(f) For facilities required to submit standby plans under subsection (e), during a forecast, alert, warning or emergency level, the standby plan shall be made available by the person responsible for the facility to employes of the Department on the premises of the source.
[Pa.B. Doc. No. 97-2080. Filed for public inspection December 26, 1997, 9:00 a.m.]
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