RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 123 AND 145]
Interstate Ozone Transport Reduction
[30 Pa.B. 4899] The Environmental Quality Board (Board) by this order amends Chapter 123 (relating to standards for contaminants) and adopts Chapter 145 (relating to interstate ozone transport reduction) to read as set forth in Annex A.
The amendments establish a program to limit the emission of nitrogen oxides (NOx) from fossil-fired combustion units with rated heat input capacity of greater than 250 MMBtu per hour and electric generating facilities of greater than 25 megawatts. This program which will begin in May 2003 will replace the existing NOx allowance requirements contained in Chapter 123. The program will be applicable to sources located in other states that significantly contribute to nonattainment in this Commonwealth if related Clean Air Act programs are not sufficient to control these sources.
The emission limitations for NOx emissions from stationary reciprocating internal combustion engines and cement manufacturing operations that were included in the proposed rulemaking in Subchapters B and C (relating to emissions of NOx from stationary reciprocating internal combustion engines; and emissions of NOx from cement manufacturing) are not being finalized at this time.
The Board approved the final regulations at its meeting of July 18, 2000.
A. Effective Date
This rulemaking will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information contact J. Wick Havens, Chief, Division of Air Resources Management, Bureau of Air Quality, 12th Floor, Rachel Carson State Office Building, P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 787-4310 or M. Dukes Pepper, Jr., Assistant Director, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464 (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). The final regulations are available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
This action is being taken under the authority of section 5(a)(1) of the Air Pollution Control Act (APCA) (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
In the 1990 amendments to the Federal Clean Air Act (CAA), Congress recognized that ground level ozone (smog) is a regional problem not confined to state boundaries and established special provisions to address ozone nonattainment areas. Section 182 of the Clean Air Act (42 U.S.C.A. § 7511a) establishes mandatory control requirements based on the severity of the ozone problem. Section 184 of the Clean Air Act (42 U.S.C.A. § 7511(c)) establishes the Northeast Ozone Transport Commission (OTC) to assist in developing recommendations for the control of interstate air pollution.
Ozone is not directly emitted by pollution sources, but is created as a result of the chemical reaction of NOx and volatile organic compounds (VOCs), in the presence of light and heat, to form ozone in the air masses traveling over long distances. Exposure to ozone causes decreased lung capacity, particularly in children and elderly individuals. Decreased lung capacity from ozone exposure can frequently last several hours after the initial exposure. All states in the OTC, except for Vermont, have, since 1990, experienced levels of ozone during the months of May through September in excess of the National Ambient Air Quality Standard (NAAQS).
To address the ozone problem, section 182 of the CAA requires that, for areas which exceed the NAAQS for ozone, states must develop and implement reasonably available control technologies (RACT) for existing major stationary sources emitting NOx and VOCs. Because this Commonwealth is included in the OTC, these RACT requirements are applicable throughout this Commonwealth. The Commonwealth adopted regulations implementing the RACT requirements at 24 Pa.B. 459 (January 15, 1994). Implementation of RACT reductions was not sufficient to allow Pennsylvania and other OTC states to achieve the ozone NAAQS.
Because NOx from large fossil-fired combustion units is a major contributor to regional ozone pollution, the OTC member states, including the Commonwealth, proposed development of a regional approach to address NOx emissions. This regional approach resulted in a model rule applicable to ''NOx affected sources.'' NOx affected sources are fossil-fired combustion units with a rated capacity of 250 MMBtus per hour or more and electric generating units of 15 megawatts or greater. This regional approach was adopted by the Commonwealth at 27 Pa.B. 5683 (November 1, 1997). These NOx allowance requirements in §§ 123.101--123.120, establish an OTC region-wide market based ''cap and trade'' program. The ''cap and trade'' program sets a regulatory limit on mass emissions from the NOx affected sources, allocates allowances (the limited authorization to emit 1 ton of NOx from May 1 through September 30) to the sources authorizing emissions up to the regulatory limit, and permits trading of allowances to effect cost efficient compliance with the cap. This program is designed to effectuate least cost NOx emission reductions for the years 1999--2002.
As additional air quality modeling and analysis was developed, it became apparent that reductions of NOx emissions in the OTC states alone would not result in attainment of the NAAQS along the eastern seaboard (including the Philadelphia Ozone Nonattainment Area). In 1995, the Ozone Transport Assessment Group (OTAG) was formed by the Environmental Council of States and the United States Environmental Protection Agency (EPA). The OTAG's express goal was to ''identify and recommend a strategy to reduce transported ozone and its precursors which, in combination with other measures, will enable attainment and maintenance of the National Ambient Ozone Standard in the OTAG region.'' The OTAG was composed of the 37 eastern most states and included participation by the EPA, industry and environmental groups. The OTAG undertook a comprehensive modeling effort to evaluate the impact on ozone formation and transport resulting from imposition of various emission reduction strategies. The OTAG found that ozone transport does occur and that control of NOx reduces this regional transport. The OTAG recommended NOx controls on large fossil fuel-fired combustion units in 22 of the 37 states.
As a result of both the OTAG analysis and independent analysis conducted by the Commonwealth and other northeastern states, on August 14, 1997, Governor Ridge filed a Petition with EPA Administrator Browner for abatement of excess emissions under section 126(b) of the CAA (42 U.S.C.A. § 742.6(b)). The Commonwealth's Petition requested a finding that large fossil-fired combustion units and electric generating units in mid-western and southern states significantly contribute to nonattainment of the ozone NAAQS in this Commonwealth. The Commonwealth requested that the Administrator of the EPA establish emission limitations for these large NOx emitters. Specifically, the Commonwealth petitioned the Administrator to establish a cap and trade compliance system to provide for the most cost effective emission reductions. Seven other northeastern states filed similar petitions with the EPA.
On January 18, 2000, the EPA issued the ''Findings of Significant Contribution and Rulemaking on Section 126 Petitions for Purposes of Reducing Interstate Ozone Transport; Final Rule.'' See 65 FR 2674. In that rulemaking, the EPA made a finding that a number of large electric generating units (EGUs) and large industrial boilers and turbines emit in violation of the CAA prohibition against significantly contributing to nonattainment or interfering with maintenance of the ozone NAAQS in the petitioning states. The EPA also finalized the Federal NOx Budget Trading Program as the control remedy for sources affected by the final rule. See 40 CFR Part 97 (relating to Federal NOx Budget Trading Program). The EPA's action on the States 126 Petitions has been challenged in the United States Circuit Court for the District of Columbia Circuit. The cases have been consolidated into a single docket, Appalachian Power Company, et al. v. United States Environmental Protection Agency, Docket No. 99-1200.
Because the EPA's analysis demonstrated that 22 states and the District of Columbia significantly contribute to nonattainment of the ozone NAAQS in other states, on October 27, 1998, the EPA promulgated a final rule requiring those 22 states and the District of Columbia to modify their State Implementation Plans (SIPs) to prevent this significant contribution. This ''SIP call'' establishes a State NOx budget and requires states to develop mechanisms to ensure that the budget is achieved beginning in 2003. One of the mechanisms proposed by the EPA to meet the budget is a cap and trade program for large fossil fired combustion boilers and electric generating units greater than 25 megawatts. The EPA developed a model cap and trade rule similar to the OTC model rule. The EPA's proposal would extend the market for developing least cost controls to the 22 states and District of Columbia. States were required, by the EPA's final SIP call rule, to establish NOx emission programs on or before September 30, 1999. If states fail to establish SIP based programs, the EPA indicated that it would impose a Federal Implementation Plan (FIP) under section 110 of the CAA (42 U.S.C.A. § 7410).
The EPA's SIP call was challenged in the United States Circuit Court for the District of Columbia Circuit. The challenges were consolidated into a single docket, State of Michigan et al. v. United States Environmental Protection Agency, Docket No 98-1497. Midwestern States requested that the Court stay the September 30, 1999, submission deadline until April 27, 2000. The Court issued a stay but did not include a termination date. On March 3, 2000, the Court issued its substantive decision in the case, upholding most of the NOx SIP call rule, but vacating its applicability, in whole or in part, with respect to three states, and remanding certain discrete portions of the rule to the EPA for further action. On June 22, 2000, the Court lifted the stay and required the NOx SIP to be submitted within 128 days.
Chapter 145 is designed to meet the requirements of the NOx SIP call and the portion of the section 126 remedy that is applicable to sources located within this Commonwealth. The regulations are necessary for attainment of the ozone NAAQS in the Philadelphia area and are included in the Philadelphia attainment plan. The Commonwealth used the EPA's model cap and trade program rule found in 40 CFR Part 96 (relating to NOx Budget Training Program for State Implementation Plans) and the section 126 remedy found in 40 CFR Part 97 as the template for the Chapter 145 rulemaking.
The regulations also represent the Commonwealth's continuing commitment to do its fair share in reducing ozone transport both within this Commonwealth and throughout the northeast.
E. Summary of the Regulatory Revisions
The final amendments to Chapter 145, Interstate Ozone Transport Reduction, contain one subchapter. Subchapter A (relating to NOx budget trading program) establishes the NOx budget trading program for fossil-fired combustion boilers with a maximum design heat input greater than 250 million MMBtus per hour and electric utility generators with a rated capacity greater than 25 megawatts. The final-form rulemaking modifies § 123.115 (relating to initial NOx allowance NOx allocations) and adds § 123.121 (relating to NOx allowance program transition) to eliminate the existing NOx allowance requirements in 2003. Action is being deferred on proposed Subchapters B and C that establish emission limitations for internal combustion engines and cement kilns.
Subchapter A establishes definitions for the following terms: ''account certificate of representation,'' ''account number,'' ''acid rain emissions limitation,'' ''act,'' ''administrator,'' ''allocate or allocation,'' ''boiler,'' ''CAA,'' ''CEMS--continuous emission monitoring system,'' ''combined cycle system,'' ''combustion turbine,'' ''commence commercial operation,'' ''commence operation,'' ''common stack,'' ''compliance account,'' ''compliance certification,'' ''control period,'' ''DAHS--automated data acquisition and handling system,'' ''electricity for sale under firm contract to the electric grid,'' ''emissions,'' ''energy information administration,'' ''excess emissions,'' ''fossil fuel,'' ''fossil fuel-fired,'' ''general account,'' ''generator,'' ''heat input,'' ''heat input rate,'' ''life-of-the-unit, firm power contractual arrangement,'' ''maximum design heat input,'' ''maximum potential hourly heat input,'' ''maximum potential NOx emission rate,'' ''maximum rated hourly heat input,'' ''monitoring system,'' ''most stringent State or Federal NOx emissions limitation,'' ''nameplate capacity,'' ''NOx allowance,'' ''NOx allowance deduction or deduct NOx allowances,'' ''NOx allowances held or hold NOx allowances,'' ''NOx allowance tracking system,'' ''NOx allowance tracking system account,'' ''NOx allowance transfer deadline,'' ''NOx authorized account representative,'' ''NOx Budget Administrator,'' ''NOx budget emissions limitation,'' ''NOx budget opt-in source,'' ''NOx budget source,'' ''NOx budget trading program,'' ''NOx budget unit,'' ''operating,'' ''operator,'' ''opt-in,'' ''overdraft account,'' ''owner,'' ''percent monitor data availability,'' ''potential electrical output capacity,'' ''receive or receipt of,'' ''recordation, record or recorded,'' ''reference method,'' ''serial number,'' ''source,'' ''state,'' ''State trading program budget,'' ''submit or serve,'' ''ton or tonnage,'' ''unit,'' ''unit operating day'' and ''unit operating hour or hour of unit operation.'' These defined terms are used in the substantive provisions of Subchapter A. Definitions of the terms ''fossil fuel-fired,'' ''nontitle V permit,'' ''NOx budget opt-in permit,'' ''Title V operating permit,'' ''Title V operating permit regulations,'' ''unit load'' and ''utilization'' have been deleted from the final-form regulations.
Subchapter A implements the EPA NOx SIP Call, the portion of the Section 126 remedy applicable to the sources in this Commonwealth and the CAA attainment requirements applicable to the Commonwealth. Subchapter A is necessary for the Philadelphia ozone nonattainment area to attain the 1-hour ozone standard. Subchapter A uses the framework from the EPA's model rule developed and promulgated at 40 CFR Part 96 and from the EPA's Section 126 remedy promulgated at 40 CFR Part 97. The Commonwealth cap and trade rule identifies the facilities subject to § 145.4 (relating to applicability) and describes the process for NOx allowance allocation for the May 1 through September 30 control periods in § 145.42 (relating to NOx allowance allocations). The rule also describes the accounting process for deposit, use and transfer of allowances between NOx budget sources in §§ 145.50--145.62 (relating to accounting process for deposits use and transfer of allowances). This includes the compliance requirements in § 145.54 (relating to compliance). The rule also establishes a process for sources not otherwise covered to ''opt in'' to the provisions of the rule. The opt-in process is described in §§ 145.80--145.88 (relating to opt-in process).
Monitoring, recordkeeping and reporting requirements for sources covered by the rule are contained in §§ 145.70--145.76 (relating to recordkeeping and reporting requirements). In general, the monitoring requirements are consistent with the provisions for the existing NOx budget rule and the EPA acid rain requirements at 40 CFR Part 75 (relating to continuous emission monitoring). For sources located within this Commonwealth, the Department plans to integrate this trading rule into its existing permitting program.
Emission reduction credit provisions are contained in § 145.90 (relating to emission reduction credit provisions).
Section 145.100 (relating to applicability) has been added to respond to comments raised by facility owners, the General Assembly and the Independent Regulatory Review Commission (IRRC). These comments raised concern about program implementation of the rule in this Commonwealth placing facilities in this Commonwealth at a competitive disadvantage and about the importance of ensuring that NOx budget sources located in other states do their fair share to ensure attainment and maintenance of the 1-hour NAAQS in this Commonwealth. To address this concern, § 145.100 would, under certain circumstances, implement the Interstate Ozone Transport Reduction program in states that significantly contribute to nonattainment in this Commonwealth. These states are: Ohio, West Virginia, Maryland, Delaware, North Carolina, New Jersey, New York and Washington D.C. This provision of the rule would only be applicable if the Section 126 remedy was overturned, the State or Washington D.C. failed to submit a SIP meeting the CAA requirements related to significant contribution and the EPA failed to impose FIP under the CAA requirements.
Finally, the permitting requirements in §§ 145.20--145.25 have been deleted because they are duplicative. The Department will use the existing permit provisions in Chapter 127 (relating to construction, modification, reactivation and operation of sources) to administer applicable permit requirements.
F. Summary of Comments and Changes to the Proposal
The Board held three public hearings during the 66-day comment period on the proposed rulemaking. Comments were received from 45 commentators. As a result of those comments and the significant public interest in the rulemaking, the Department prepared draft final regulations for additional comment. The Department held three public hearings during this 30-day additional public comment period. Comments were submitted by 134 commentators.
The final-form rulemaking makes the substantive requirements of this Commonwealth program consistent with the remedy established by the EPA under section 126 of the CAA. The Commonwealth requested that the EPA establish this remedy in the Petition filed by Governor Ridge in August of 1997. The final rulemaking also addresses a concern raised by a number of commentators, including IRRC, and by the General Assembly related to implementation of the rule in surrounding states. These changes as well as a number of other issues are discussed in more detail as follows:
Summary of Public Comments
A number of commentators suggested that the facilities covered by the rule and the allocation methodology contained in the rule be consistent with those covered under the EPA model rule published in 40 CFR Part 96. The proposed rule was more protective than the EPA model rule in a number of areas. Subsequent to the close of the public comment period, the EPA finalized the remedy under section 126 of the CAA. That cap and trade program is codified in 40 CFR Part 97 and is an updated version of the model rule. This final rulemaking covers the same facilities and provides the same exemptions as Part 97. In addition, the substantive provisions of the final-form rulemaking have been revised to be consistent with Part 97. The Department believes that Part 97 establishes an environmentally sound program that can be implemented regionally.
Section 145.4 of the final-form rulemaking has been modified to cover electric generating units of greater than 25 MW (rather than 15 as proposed) and includes an exception provision allowing units to avoid coverage by taking appropriate permit restrictions. In addition, § 145.42 of the rule has been modified to establish allocations for 5 year periods using average heat input data and an emission rate of 0.15lb/MMBtu for electric generating units and 0.17 lb/MMBtu for nonelectric generating units. In addition to being consistent with the EPA rule, these changes address a number of specific comments received on the proposal.
A number of commentators suggested that the Department make the permitting provisions as simple as possible. Because the Department already has a comprehensive permitting program in Chapter 127, the permitting provisions of the proposed rule have been eliminated. The Department will, when appropriate, as required by the CAA, incorporate the applicable requirements of this rule into permits issued under Chapter 127.
The Board received numerous comments related to the development of the database used to establish the Commonwealth budget and allocations. The Department proposed use of the EPA database and budget. A number of the commentators from the regulated community indicated that the EPA emission inventory contained errors and should not be used. Instead, they suggested that the Department develop its own inventory and consequently its own budget. The Department disagrees with the approach suggested by these commentators.
The final-form rulemaking uses the EPA inventory to establish the Commonwealth budget. This inventory was prepared by the EPA with extensive input from states and the regulated community. The EPA provided numerous comment periods with opportunities for states, source owners and operators and the public to comment. The Commonwealth worked cooperatively with the EPA during this inventory development process. The inventory that was used is one of the best and most comprehensive ever developed. It is based, in large part, on information submitted by sources, and has been subject to numerous public comment periods. The Department has determined that it is the best inventory available at this time and is using it both to establish the Pennsylvania budget and will be using it to establish the allocations to Pennsylvania sources.
The Board received numerous comments requesting that the regulation include a ''trigger'' provision that would tie implementation of the rule to implementation in surrounding states and to implementation of the EPA NOx SIP Call Rule and the EPA Section 126 Remedy. The basis for these comments was that there needs to be a level playing field between all states subject to the rule to address issues of competitiveness and ensure that all states do their fair share to address ozone pollution in this Commonwealth and the northeast. The final-form regulations do not include this ''trigger'' because doing so could unnecessarily delay the important public health and environmental benefits of these regulations. In response to these comments, the final-form regulations contain a provision that ensures that all facilities that significantly contribute to this Commonwealth's ozone problem reduce their emissions to address the problem. Section 145.100 of the final-form regulations would, in certain circumstances, require facilities located in states significantly contributing to nonattainment in this Commonwealth to meet the same emission limitations as facilities located in this Commonwealth. This provision of the regulation does not become effective unless the Section 126 remedy fails, the State does not meet the SIP requirements of the CAA related to significant contribution and the EPA does not establish a FIP to meet those requirements. A discussion of the comments received on this provision is included in the Advance Notice of Final Rulemaking in this Preamble.
A number of the commentators raised issues regarding the compliance supplement pool. The major issue raised was that the pool should not establish a cap on the amount of banked credits allowed to be transitioned from the existing program established in Chapter 123. The Department has retained this cap. First, it is a reasonable limitation on the size of the bank that gets brought into the new program. Second, this issue was litigated in the Federal court challenge to the NOx SIP call and the court upheld EPA's approach.
Several commentators also questioned the compliance provisions contained in § 145.54. Specifically, it was suggested that the 3:1 allowance penalty and a failure to hold sufficient allowances being treated as a violation for the entire ozone season were inappropriate. The final-form regulations retain these provisions. First, these provisions are identical to the provisions in the Department's existing cap and trade rule in Chapter 123. Second, these provisions are designed to provide a strong incentive for facility owners to comply with the rule. Only facilities that violate the rule are subject to the imposition of these enforcement tools. Finally, in assessing any civil penalty, the Department will use the factors established in section 9.1 of the APCA (35 P. S. § 4009.1). These factors take into account the specific factual circumstances of the violation in developing the penalty.
A number of commentators suggested that the monitoring provisions of this rulemaking should be identical to the provisions in existing Chapter 123. The final-form regulations include the monitoring provisions established by the EPA in 40 CFR Part 97. The Department believes that these monitoring provisions will provide consistent and reliable data for reporting of emissions from facilities participating in the cap and trade program.
Advance Notice of Final Rulemaking (ANFR)
The majority of the commentators expressed strong support for the rulemaking. Environmental and public health organizations as well as the public, including a number of physicians, testified about the real and substantial public health problems caused by ozone pollution and the need for the rule to address these problems in this Commonwealth and surrounding states. These commentators strongly urged the Department to implement this rulemaking in this Commonwealth regardless of what occurred in other states. They asserted that it would be particularly inappropriate for the Commonwealth, a leader in ozone pollution control, to wait until the most recalcitrant of states implemented a regulation before implementing the program in this Commonwealth. In fact, many of these commentators suggested that the Commonwealth should take the next step and implement additional controls to address acid rain, global warming and mercury contamination.
Virtually all commentators provided comments on § 145.100 of the ANFR. A number of commentators representing the regulated community asserted that this section violated both the Supremacy and Commerce Clauses of the United States Constitution. These same commentators generally suggested that the regulation be made nonseverable so that if a court overturned § 145.100, the remainder of the rulemaking would not be implemented. The commentators generally asserted that they were seeking a level playing field with other states. A number of these commentators are actively litigating in Federal court to prevent imposition of the level playing field they assertedly support in their comments.
Other commentators, primarily those representing environmental, public health and the public supported § 145.100 but suggested that, because of the possibility of successful challenges to that section, it should be severable from the remainder of the rulemaking.
The final-form regulations retain § 145.100 but provide that this section is not applicable unless the Section 126 remedy fails, the State fails to implement a SIP that meets the significant contribution provisions of the CAA and the EPA fails to promulgate a FIP to meet those CAA requirements. The Department believes that the provision can be supported under both the Commerce and Supremacy Clauses of the United States Constitution. However, if it becomes necessary to implement the provision and the matter is litigated, this will be a case of first impression in a very difficult area of environmental law. Consequently, the Department is following the general provisions of statutory construction that this provision is severable from the remainder of this rulemaking.
A number of commentators raised concerns about the 1% set aside for addressing errors in the allocations to individual facilities. The final-form regulations eliminate this additional set aside and, instead, allow the 5% set aside to be used for this purpose. This will make the allocations consistent with the approach taken by the EPA.
A number of commentators suggested changes to the compliance supplement pool provisions to encourage the development, installation and operation of control technology. Other commentators suggested that the Department require reductions for additional pollutants including sulfur dioxide, carbon dioxide and mercury. The final-form regulation in § 145.43 includes incentives for the installation and operation of NOx control equipment and for the development of innovative technology that will reduce NOx as well as other pollutants.
Finally, a number of commentators repeated the comments they submitted on the proposed regulation in areas where the ANFR did not make the changes they recommended.
The Department worked with the Air Quality Technical Advisory Committee (AQTAC) technical aspects of this regulation. At that May 23, 2000, meeting the AQTAC recommended that the Department forward the final-form regulations to the Board. The AQTAC did, however, express concern about several issues in the area where the Department has not made the recommended changes. Specifically, the AQTAC expressed concern over the allocation methodology, monitoring requirements, source coverage, penalties and renewable energy. In each area, the Department has followed the approach included by the EPA in the NOx SIP Call and 126 remedy. This supports the National approach for addressing the issues.
G. Benefits, Cost and Compliance
Benefits
Executive Order 1996-1 requires a cost benefit analysis of the amendments. Overall, the citizens of this Commonwealth will benefit from the amendments because the regulations will provide appropriate protection of air quality both in this Commonwealth and the entire eastern United States. In addition to reducing ozone pollution, this program will assist the Commonwealth in meeting its requirements for reasonable further progress and attainment under the CAA.
Compliance Cost
The controls required to implement these amendments are highly cost effective. Compliance costs for sources covered by the trading program are expected to be less than one half of one percent of revenues for the utility sector.
Compliance Assistance Plan
The Department plans to educate and assist the regulated community and the public with understanding these new regulatory requirements.
Paperwork Requirements
These regulatory changes will have little additional paperwork impact on the regulated entities. These regulations simply extend and build upon the existing NOx allowance requirements in Chapter 123.
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 16, 1997, the Department submitted a copy of the proposed rulemaking to IRRC and the Chairpersons of the Senate and House Environmental Resources and Energy Committees.
In compliance with section 5(c) of the Regulatory Review Act (71 P. S. § 745.5(c)), 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 Preamble. The Committees did not provide comments on the proposed rulemaking.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5(d)), these final-form regulations were deemed approved by the House and Senate Environmental Resource and Energy Committees on August 23, 2000. Under section 5.1(e) of the Regulatory Review Act, IRRC met on August 24, 2000, and approved the final-form regulations.
J. Findings of the Board
The Board finds that:
(1) Public notice of the 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 the 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.
(3) The modifications to the amendments do not enlarge the purpose of the proposed amendments published at 29 Pa.B. 1319 (March 6, 1999).
(4) This rulemaking is necessary and appropriate for the administration, enforcement and implementation of the APCA.
(5) This rulemaking is necessary and appropriate to satisfy obligations imposed under the Clean Air Act.
(6) This rulemaking is necessary to achieve and maintain the National Ambient Air Quality Standard for ozone.
K. Order
The Board orders that:
(a) The regulations of the Department, 25 Pa. Code, are amended by amending §§ 123.115 and 123.121; and by adding §§ 145.1--145.7, 145.10--145.14, 145.30, 145.31, 145.40--145.43, 145.50--145.57, 145.60--145.62, 145.70--145.76, 145.80--145.88, 145.90 and 145.100, to read as set forth in Annex A.
(b) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(c) This order shall take effect upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 30 Pa.B. 4780 (September 9, 2000))
Fiscal Note: Fiscal Note 7-345 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 123. STANDARDS FOR CONTAMINANTS
NOx ALLOWANCE REQUIREMENTS § 123.115. Initial NOx allowance NOx allocations.
(a) The sources contained in Appendix E are subject to the requirements of §§ 123.101--123.114, 123.116--123.120 and this section. These sources are allocated NOx allowances for the 1999-2002 NOx allowance control periods as listed in Appendix E.
(b) The Department may allocate allowances to Duquesne Light Company's Phillips and Brunot Island facilities. The allowances allocated to these facilities are limited as follows:
(1) The facility shall be fully operational.
(2) The allowances allocated to the facility may only be used by the baseline sources located at that facility, and may not be banked or transferred.
(3) The allocation to Brunot Island source identification numbers 001--012 may not exceed an aggregate 246 allowances for the period May 1--September 30.
(4) The allocation to Phillips Station boilers 1--6 may not exceed an aggregate 1,686 allowances for the period May 1--September 30.
§ 123.121. NOx Allowance Program transition.
(a) NOx allocations for the NOx allowance control periods starting May 1, 2003, will be distributed in accordance with Chapter 145 (relating to interstate pollution transport reduction).
(b) The emission limitations and monitoring requirements established in §§ 123.101--123.120 are replaced by the requirements in Chapter 145 beginning with the May 1, 2003, control period. If a source has failed to demonstrate compliance with § 123.111 (relating to failure to meet source compliance requirements), the provisions in § 145.54(d) (relating to compliance) shall be used to withhold NOx allowances in calendar year 2003 and beyond. If no NOx allowances are provided to the source under § 145.42 (relating to NOx allowance allocations), the source will be obligated to acquire and retire a number of NOx allowances as specified in § 145.54.
CHAPTER 145. INTERSTATE POLLUTION TRANSPORT REDUCTION
Subchapter A. NOx BUDGET TRADING PROGRAM GENERAL PROVISIONS
Sec.
145.1. Purpose. 145.2. Definitions. 145.3. Measurements, abbreviations and acronyms. 145.4. Applicability. 145.5. Retired unit exemption. 145.6. Standard requirements. 145.7. Computation of time. NOx ACCOUNT
Sec.
145.10. Authorization and responsibilities of the NOx authorized account representative. 145.11. Alternate NOx authorized account representative. 145.12. Changing the NOx authorized account representative and the alternate NOx authorized account representative; changes in the owners and operators. 145.13. Account certificate of representation. 145.14. Objections concerning the NOx authorized account representative. COMPLIANCE CERTIFICATION
Sec.
145.30. Compliance certification report. 145.31. Department's action on compliance certifications. NOx ALLOWANCE ALLOCATIONS
Sec.
145.40. State Trading Program budget. 145.41. Timing requirements for NOx allowance allocations. 145.42. NOx allowance allocations. 145.43. Compliance supplement pool. ACCOUNTING PROCESS FOR DEPOSIT USE AND
TRANSFER OF ALLOWANCESSec.
145.50. NOx Allowance Tracking System accounts. 145.51. Establishment of accounts. 145.52. NOx Allowance Tracking System responsibilities of NOx authorized account representative. 143.53. Recordation of NOx allowance allocations. 145.54. Compliance. 145.55. Banking. 145.56. Account error. 145.57. Closing of general accounts. NOx ALLOWANCE TRANSFERS
Sec.
145.60. Submission of NOx allowance transfers. 145.61. NOx transfer recordation. 145.62. Notification. RECORDKEEPING AND REPORTING REQUIREMENTS
Sec.
145.70. General monitoring requirements. 145.71. Initial certification and recertification procedures. 145.72. Out of control periods. 145.73. Notifications. 145.74. Recordkeeping and reporting. 145.75. Petitions. 145.76. Additional requirements to provide heat input data. OPT-IN PROCESS
Sec.
145.80. Applicability for opt-in sources. 145.81. Opt-in source general provisions. 145.82. NOx authorized account representative for opt-in sources. 145.83. Applying for a NOx budget opt-in approval. 145.84. Opt-in process. 145.85. NOx budget opt-in application contents. 145.86. Opt-in source withdrawal from NOx Budget Trading Program. 145.87. Opt-in source change in regulatory status. 145.88. NOx allowance allocations to opt-in units. EMISSION REDUCTION CREDIT PROVISIONS
Sec.
145.90. Emission reduction credit provisions. INTERSTATE POLLUTION TRANPORT REDUCTION REQUIREMENTS
Sec.
145.100. Applicability to upwind states.
GENERAL PROVISIONS § 145.1. Purpose.
This subchapter establishes general provisions and the applicability, allowance, excess emissions, monitoring and opt-in provisions for the NOx Budget Trading Program as a means of mitigating the interstate transport of ozone and nitrogen oxides, an ozone precursor.
§ 145.2. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Account certificate of representation--The completed and signed submission certifying the designation of a NOx authorized account representative for a NOx budget source or a group of identified NOx budget sources who is authorized to represent the owners and operators of the sources and of the NOx budget units at the sources with regard to matters under the NOx Budget Trading Program.
Account number--The identification number given by the Administrator to each NOx Allowance Tracking System account.
Acid rain emissions limitation--A limitation on emissions of sulfur dioxide or NOx under the Acid Rain Program under Title IV of the Clean Air Act (42 U.S.C.A. §§ 7651--7651o).
Act--The Air Pollution Control Act (35 P. S. §§ 4001--4015).
Administrator--The Administrator of the EPA or the Administrator's authorized representative.
Allocate or allocation--The determination by the Department of the number of NOx allowances to be initially credited to a NOx budget unit or an allocation set-aside.
Boiler--An enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam or other medium.
CAA--The Clean Air Act (42 U.S.C.A. §§ 7401--7642).
CEMS--continuous emission monitoring system--The equipment required under this subchapter and Chapter 139 (relating to sampling and testing) to sample, analyze, measure and provide, by readings taken at least once every 15 minutes of the measured parameters, a permanent record of NOx emissions, expressed in pounds per hour for NOx. The following systems are component parts included, consistent with this subchapter and 40 CFR Part 75 (relating to continuous emission monitoring), in a continuous emission monitoring system:
(i) Flow monitor.
(ii) NOx pollutant concentration monitors.
(iii) Diluent gas monitor (O2 or CO2).
(iv) A continuous moisture monitor.
(v) A DAHS.
Combined cycle system--A system comprised of one or more combustion turbines, heat recovery steam generators and steam turbines configured to improve overall efficiency of electricity generation or steam production.
Combustion turbine--An enclosed fossil or other fuel-fired device that is comprised of a compressor, a combustor and a turbine, and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine.
Commence commercial operation--With regard to a unit that serves a generator, to have begun to produce steam, gas or other heated medium used to generate electricity for sale or use, including test generation.
(i) Except as provided in § 145.4(b), § 145.5 or §§ 145.80--145.88 (relating to applicability; and opt-in process), for a unit that is a NOx budget unit under § 145.4 on the date the unit commences commercial operation, the date shall remain the unit's date of commencement of commercial operation even if the unit is subsequently modified, reconstructed or repowered.
(ii) Except as provided in § 145.4(b), § 145.5 or §§ 145.80--145.88, for a unit that is not a NOx budget unit under § 145.4 on the date the unit commences commercial operation, the date the unit becomes a NOx budget unit under § 145.4 is the unit's date of commencement of commercial operation.
Commence operation--To have begun any mechanical, chemical or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber.
(i) Except as provided in § 145.4(b), § 145.5 or §§ 145.80--145.88, for a unit that is a NOx budget unit under § 145.4 on the date of commencement of operation, the date shall remain the unit's date of commencement of operation even if the unit is subsequently modified, reconstructed or repowered.
(ii) Except as provided in § 145.4(b), § 145.5 or §§ 145.80--145.88, for a unit that is not a NOx budget unit under § 145.4 on the date of commencement of operation, the date the unit becomes a NOx budget unit under § 145.4 shall be the unit's date of commencement of operation.
Common stack--A single flue through which emissions from two or more units are exhausted.
Compliance account--A NOx Allowance Tracking System account for a NOx budget unit under this subchapter, in which the NOx allowance allocations for the unit are initially recorded and in which are held NOx allowances available for use by the unit for a control period for the purpose of meeting the unit's NOx budget emissions limitation.
Compliance certification--A submission to the Department and the Administrator that is required under this subchapter to report a NOx budget source's or a NOx budget unit's compliance or noncompliance with this subchapter and that is signed by the NOx authorized account representative in accordance with this subchapter.
Control period--The period beginning May 1 of a year and ending on September 30 of the same year, inclusive.
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