NOTICES
INDEPENDENT REGULATORY REVIEW COMMISSION
Notice of Comments Issued
[38 Pa.B. 4328]
[Saturday, August 2, 2008]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 645.5b).
The Commission has issued comments on the following proposed regulations. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of
the Public
Comment PeriodIRRC
Comments Issued7-419 Environmental Quality Board
Control of NOx Emissions from Cement Kilns
38 Pa.B. 1838
(April 19, 2008)6/23/08 7/23/08 7-420 Environmental Quality Board
Control of NOx Emissions from Glass Melting Furnaces
38 Pa.B. 1831
(April 19, 2008)6/23/08 7/23/08
_____
Environmental Quality Board
Regulation #7-419 (IRRC #2682)
Control of NOx Emissions from Cement Kilns
July 23, 2008 We submit for your consideration the following comments on the proposed rulemaking published in the April 19, 2008 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Environmental Quality Board (Board) to respond to all comments received from us or any other source.
1. 25 Pa. Code Chapters 121, 129 and 145--Control of NOx Emissions from Cement Kilns.--Statutory authority; Implementation procedures; Clarity.
On July 11, 2008, the U.S. Court of Appeals for the D.C. Circuit vacated CAIR and its associated federal implementation plan. In ruling that the complete CAIR must fail rather than just merely its more problematic components (such as the regional cap and trade system for power plant emissions), the Court in State of North Carolina v. EPA, et al. ruled that the analysis of the U.S. Environmental Protection Agency (EPA) was ''fundamentally flawed'' and that the federal agency must start its analysis anew. Consequently, what is the Board's statutory authority for the use of CAIR NOx allowances and revised NOx emission limits in this proposed regulation?
In their letter dated July 18, 2008, Senators Mary Jo White and Raphael J. Musto, Majority and Minority Chairmen of the Senate Environmental Resources and Energy Committee (Senate Committee Chairmen) jointly expressed similar concerns relating to the impact of the Court decision on this proposed rulemaking. They noted that the Court found the state NOx budgets as determined by the EPA were ''arbitrary and capricious,'' and the Senate Committee Chairmen questioned the Board's ability to move forward with the regulation.
We urge the Board to address the concerns of the Senate Committee Chairmen, and if substantial changes to this regulation are necessary due to the Court case, then the Board should consider submitting an Advanced Notice of the Final Rulemaking or publishing the changes as a new proposed regulation in the Pennsylvania Bulletin.
The Preamble refers to the PA Department of Environmental Protection's (Department) ''Regional Compliance Assistance Program.'' Has this program been defined by regulation or statute? If so, then the Board should include a cross-reference to the appropriate citation, or the final-form regulation should include a definition. Additionally, how can operators access this program?
The Preamble also mentions several different types of control technologies to achieve NOx emission reductions of greater than 20% from cement kilns. CEMEX questions whether use of these control types implies that facilities can use any of these technologies to meet their reduction targets, without the need for a permitting process. Is this the Board's intent? If not, has the Board considered streamlining the permitting process for installing the NOx reducing technologies?
2. Section 121.1. Definitions.--Clarity.
CEMS--Continuous emissions monitoring system
The original definition stated ''[f]or purposes of Chapter 127, Subchapter E. . . .'' The proposed regulation removes this language and now refers to ''[i]n accordance with the standards set forth by the Department under Chapter 139, Subchapter C. . . . .'' (Emphasis added.) The Board should explain why a different Chapter of the regulation now applies to the proposed definition.
3. Section 129.401. Applicability.--Implementation procedures.
This section requires Portland cement kilns to begin to comply with the proposed emission requirements beginning May 1, 2009. This date is also mentioned in Sections 129.403 and 145.141. Will all the cement kilns in Pennsylvania be able to meet this deadline?
4. Section 129.402. Emission requirements.--Reasonableness; Need; Clarity.
Emission deadlines
While other sections mention an exact date for compliance with emission requirements, Sections 129.402 (a) and (b), 129.404 (a)(1), (c)(1), (d) and (g)(1) refer to the period of May 1 through September 30 (2009). The final-form regulation should explain the need for this distinction and how it applies to each of the relevant sections listed above.
Determination of allowable emissions
Section 129.402(b) establishes allowable NOx emission limits for the following types of cement kilns: long wet-process cement kilns; long dry-process cement kilns; preheater and precalciner cement kilns.
Armstrong Cement & Supply Corp. (Armstrong) questions whether the basis for the proposed emission limits is the guidelines adopted by the Ozone Transportation Commission (OTC), of which Pennsylvania is a member. In addition, Armstrong asserts that the emission limit in Section 129.402 (b)(1) for wet kilns (3.88 pounds of NOx per ton of clinker) is not based on supportable data. The Board should provide the basis for the limits and explain the data used to make these determinations. If the emission limits are based upon an OTC resolution, then the Preamble to the final-form regulation should compare Pennsylvania's program with how other OTC states are complying with this resolution.
Furthermore, Armstrong states that the EPA has proposed revisions to the new source performance standards for cement kilns, which includes limits for NOx emissions for cement kilns. See 73 Fed. Reg. 34072 (June 16, 2008). Should these standards and limits be approved, how will they impact Pennsylvania's regulations? Will their approval result in additional changes to Pennsylvania's NOx emission limits in the near future?
5. Section 129.403. Compliance determination.--Fiscal impact; Implementation procedures; Clarity.
This section explains cement kilns' compliance requirements for NOx emissions limits. We raise five issues.
First, Subsection (a)(1) requires owners or operators of cement kilns to ''install, operate and maintain CEMS for NOx emissions'' by May 1, 2009. What will the costs be for owners and operators as a result of requiring kilns to install this device in less than a year? Are there alternative methods for compliance other than the use of the CEMS product? The Board should review the fiscal impact of this regulation and consider whether such expedient compliance methods would place an undue financial burden on the regulated community.
Second, Subsection (b) refers to ''data invalidated . . .'', yet this Subsection does not explain how data becomes ''invalidated.'' It should be noted that Subsection (b)(1)(2) also refers to an ''invalid data period.'' The final-form regulation should include a definition for ''invalidated data.'' In addition, the Board also should explain the difference between an ''invalid data period'' and an ''alternative reporting period'' as mentioned in Subsection (b)(2)(ii).
Third, Subsection (b)(1) refers to the ''potential emission rate'' for the cement kiln, but does not explain how this rate is determined. The final-form regulation should define this term.
Fourth, Armstrong argues that the data substitution provisions in Subsection (b) are ''punitive and unreasonable.'' How did the Board determine that the requirements contained in Subsection (b) are appropriate methods of data substitution?
Finally, Subsection (c) states that Portland cement kiln operators shall submit quarterly reports of CEMS monitoring data in ''pounds of NOx emitted per hour.'' Why does this data not refer to ''pounds of NOx per ton of clinker,'' as Section 129.402 (b) does? (Emphasis added.) The final-form regulation should clarify this distinction.
6. Section 129.404. Compliance demonstration.--Implementation procedures; Reasonableness; Need; Clarity.
Subsection (a)
Subsection (a) requires cement kiln operators to report various information to the Department ''by October 31, 2009.'' Certain sections of the regulation require compliance with emission limits by September 30, 2009. Will cement plants be able to collect and deliver all the required reports within a month?
This subsection also requires cement kiln operators to submit a report to the Department ''in a format approved, in writing, by the Department.'' This phrase is vague, and the final-form regulation should provide more detail on the type of format. How will operators be notified of the acceptable reporting format? Will the report form be accessible on the Department's web site? This information also should be included in the final-form regulation.
Subsection (b)
Subsection (b) provides three different methods to demonstrate compliance with the emission requirements in Section 129.402. CEMEX recommends that the Board include a fourth option which would establish a site specific emission limit in tons of NOx during the ozone season. Has the Board considered including this option? In addition, will the Department provide compliance assistance to cement plants?
The Senate Committee Chairmen also expressed concern with subsection (b)(3). They assert that not only is there no environmental justification for allowing system-wide averaging for NOx emissions for facilities under common ownership, but it also could yield impractical results. For example, two facilities located close to each other would not be able to trade allowances simply because they are owned by the same corporation. The Board needs to explain why allowance trading should be limited to facilities under common ownership.
Subsection (c)
The difference between Subsection (b) and (c) is unclear. Subsection (b) lists compliance options that cement kilns must follow, however Subsection (c) includes various requirements kilns may fulfill. (Emphasis added.) The final-form regulation should clarify what circumstances would necessitate compliance with Subsection (c).
In addition, Subsection (b) refers to ''a Portland cement kiln or multiple Portland cement kilns,'' and subsection (c) only references ''a Portland cement kiln.'' Does this subsection also apply to multiple kilns?
Subsection (c)(1)
Subsection (c)(1) refers to ''CAIR NOx Ozone Season allowance,'' as defined in ''§ 145.202 (relating to definitions).'' However, this section of the Code does not include a definition for this term. The final-form regulation should provide the appropriate cross-reference in this subsection.
Subsection (d)
This subsection indicates that cement kilns that commence operation after the final-form regulation has been approved may average only those emissions that are below the permitted NOx limit for the kiln or ''below the 1.52 pounds of NOx per ton of clinker.'' (Emphasis added.) However, this pound limit is well below that included in the emission limits provided in Section 129.402(b). The final-form regulation should explain why new cement kilns will be subject to a different emission limit than existing kilns.
Subsection (e)
Subsection (e) requires the cement kiln operators to surrender the required CAIR NOx ozone allowances by ''November 1, 2009, and each year thereafter.'' This subsection indicates that such surrender is a requirement, while Subsection (c) includes it as a possible method of compliance. The final-form regulation should explain when each of these subsections would apply.
Furthermore, since Subsection (a) requires cement kilns to report their emission data to the Department by October 31, 2009, is it feasible to require cement kilns to surrender NOx ozone season allowances one day later?
Subsection (g)(1)
This subsection explains how to determine the number of days of violation if a facility has excess emissions for the period May 1 through September 30. The subsection states that ''[e]ach day in that period . . . constitutes a day in violation unless the owner or operator of the Portland cement kiln demonstrates that a lesser number of days should be considered.'' (Emphasis added.) The Board should explain what circumstances would warrant such consideration.
7. Section 129.405. Recordkeeping.--Implementation procedures; Clarity.
Subsection (b)(1)
There should be a period at the end of the sentence in this subsection. The final-form regulation should correct this typographical error.
Subsection (c)
Subsection (c) requires cement kiln owners or operators to maintain records for 5 years. How did the Board determine this was an appropriate time frame?
Subsection (c) also requires owners and operators to make their records available to the Department ''upon request.'' It is unclear whether the Department's requests will be in writing. The final-form regulation should specify that the Department will make these requests in writing.
This concern also applies to requests for information by the Department that are described in Section 129.405(a). The final-form regulation should specify that the Department also will make these requests in writing.
_____
Environmental Quality Board
Regulation #7-420 (IRRC #2683)
Control of NOx Emissions from Glass Melting Furnaces
July 23, 2008 We submit for your consideration the following comments on the proposed rulemaking published in the April 19, 2008 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the Environmental Quality Board (Board) to respond to all comments received from us or any other source.
1. General--Statutory authority; Fiscal impact; Reasonableness; Implementation procedure; Consistency with other regulations; Clarity.
On July 11, 2008, the U.S. Court of Appeals for the D.C. Circuit vacated CAIR and its associated federal implementation plan. In ruling that the complete CAIR must fail rather than just merely its more problematic components (such as the regional cap and trade system for power plant emissions), the Court in State of North Carolina v. EPA, et al. ruled that the analysis of the U.S. Environmental Protection Agency (EPA) was ''fundamentally flawed'' and that the federal agency must start its analysis anew. Consequently, what is the Board's statutory authority for the use of CAIR NOx allowances and revised (nitrogen oxides) NOx emission limits in this proposed regulation?
In their letter dated July 18, 2008, Senators Mary Jo White and Raphael J. Musto, Majority and Minority Chairmen of the Senate Environmental Resources and Energy Committee (Senate Committee Chairmen) jointly expressed similar concerns. They questioned ''the ability of the Board to move forward with these regulations . . . '' and they noted that the Court found the state NOx budgets as determined by the EPA were ''arbitrary and capricious.''
We urge the Board to address the concerns of the Senate Committee Chairmen, and if substantial changes to this regulation are necessary due to the Court case, then the Board should consider submitting an Advanced Notice of the Final Rulemaking or publishing the changes as a new proposed regulation in the Pennsylvania Bulletin.
If the Board determines it has the statutory authority to use CAIR allowances and emission limits, serious questions remain for both the Board and the industry. Commentators expressed concerns over the industry's ability to meet the 2009 deadline imposed by the proposed regulation. Some segments of the industry may be able to use the allowances system set forth in Section 129.309(c). One commentator recommended the use of a variance. There three concerns.
First, Section 129.304 uses the 2009 deadline set in the EPA's CAIR for reducing NOx emissions. Given the uncertainty of the future of CAIR, the Board should review the practicality of the 2009 deadline in this proposed regulation. If the Board determines that NOx emission reductions can be implemented effectively despite the recent federal court decision, it should consider phasing in reductions in NOx emissions via a series of deadlines that will protect public health while also giving the industry adequate time to adapt to the changes without placing it at a competitive disadvantage.
Second, Section 129.309(c) references the allowance program under CAIR. It is now unclear whether these allowances will be available. In the Preamble, the allowance program is described as part of the flexibility that will assist glass furnace owners and operators in demonstrating compliance with this regulation. Given the uncertainty with the CAIR allowance program, what other options will be available for providing flexibility to the industry in achieving compliance?
Third, our neighboring states in the Ozone Transport Commission (OTC) have not yet finalized their rules for the glass industry. Therefore, we question whether imposing the proposed emission requirements in the absence of a federal deadline will place Pennsylvania industry at a competitive disadvantage. The Board should carefully review the situation in conjunction with the OTC and take precautions to insure a level playing field in the industry.
On a related issue, the Preamble states that the Department of Environmental Protection (Department) plans to assist the regulated community in understanding the proposed regulation and references its ongoing ''Regional Compliance Assistance Program.'' This term is not mentioned in the text of the proposed regulation and does not appear in the Department's existing regulations. Section 127.701 in the existing provisions refers to the ''Small Business Stationary Source Technical and Environmental Compliance Assistance Program, Compliance Advisory Committee and the Office of Small Business Ombudsman.'' Would these programs be available to the glass industry? Where can the regulated community get more information about the ''Regional Compliance Assistance Program''?
2. Section 121.1. Definitions.--Reasonableness; Implementation procedure; Consistency with other regulations; Need; Clarity.
100% Air-fuel fired, Air-fuel firing, Oxyfuel fired and Oxygen-assisted combustion
The proposed regulation adds four new definitions for the terms ''100% Air-fuel fired,'' ''Air-fuel firing,'' ''Oxyfuel fired'' and ''Oxygen-assisted combustion.'' However, these terms do not appear elsewhere in Chapters 121 and 129 or the proposed regulation. The Board needs to explain the need for these four definitions or delete them from the final-form regulation.
Complete reconstruction and Furnace rebuild
The term ''complete reconstruction'' only appears in the definition of ''furnace rebuild'' and nowhere else in the proposed regulation. The definition of ''complete reconstruction'' should be added as a subpart of the definition of ''furnace rebuild.'' This would add immediate and direct clarity to the definition of ''furnace rebuild'' rather than expecting readers to search elsewhere for clarification of the term ''complete reconstruction.''
Multiple furnaces
This term is not used elsewhere in the proposed regulation. The phrase ''multiple glass melting furnaces'' is used in at least six different places in the proposed regulation. If the definition for ''multiple furnaces'' is intended to apply to the term ''multiple glass melting furnaces,'' then the title of the definition needs to be changed in the final-form regulation to reflect the actual term used repeatedly in the regulation.
Pull rate
The term ''pull rate'' only appears twice in the proposed regulation. Once is in the title of this definition, and the other is in the definition of ''permitted production capacity.'' The definition of ''pull rate'' should be included in the definition of ''permitted production capacity'' in the final-form regulation.
Shutdown and Start-up
Both these definitions include the phrase ''for the purposes of § 129.303'' and one also includes the parenthetical phrase ''(relating to exemptions)'' as an additional part of the phrase. However, both terms appear in other sections of the proposed regulation, which are referenced in Section 129.303. It is unclear why the phrase ''for the purposes of § 129.303'' is necessary. If the terms ''shutdown'' and ''start-up'' have the same definitions in the other sections of the proposed regulation, then the phrase ''for the purposes of § 129.303'' should be deleted from the proposed regulation. If the two terms have different meanings in different provisions, the Board needs to explain the differences and use different terms.
3. Section 129.303. Exemptions.--Implementation procedure; Reasonableness; Clarity.
Subsection (c) establishes procedures for an owner or operator to file a notice claiming an exemption with the Department. The purpose of the notice is unclear. While this section does not indicate whether Department approval of the exemption is necessary, Section 129.305(c) refers to submitting a request with the Department for a ''start-up exemption.'' If Department approval is required, there is no indication of the process that the Department will use to determine approval, or how and when it will notify the owner or operator that an exemption has been granted. The final-form regulation needs to specify whether Department approvals of exemptions are necessary. If they are, the final-form regulation should also identify the process and timetable for the Department's determination.
Requirements for recordkeeping are addressed in Subsection (d). Owners and operators must maintain records for five years and make them available to the Department ''upon request.'' It is unclear whether the Department's requests will be in writing. They should be, and the final-form regulation should specify that the Department will make these requests in writing.
This concern also applies to requests for information by the Department that are described in Sections 129.305(a) and 129.310(c). The final-form regulation should specify that the Department will make these requests in writing.
4. Section 129.304. Emission requirements.--Fiscal impact; Implementation procedure; Reasonableness; Feasibility.
Pittsburgh Corning Corporation (PCC) stated that the Board failed to provide technical support for the allowable nitrogen oxide (NOx) emissions set forth in Subsection (b). The PCC declared that the allowable emission rates are ''arbitrary and do not reflect actual operating conditions'' and described the required emission limits as ''overly burdensome.'' When the Board submits the final-form regulation, it should provide a detailed explanation of the basis for the emission levels set forth in Subsection (b).
5. Section 129.308. Compliance determination.--Fiscal impact; Implementation procedure; Reasonableness; Clarity.
By May 1, 2009, Subsection (a) requires that owners or operators of glass furnaces install continuous emissions monitoring systems. It also allows an owner or operator to use ''an alternate NOx emissions monitoring system or method, approved in writing by the Department.'' However, there is no indication of how an owner or operator would apply for approval of an alternate system or method. There is also no indication of the criteria, process or timetable that the Department will utilize in making a decision. This information should be set forth in the final-form regulation.
6. Section 129.309. Compliance demonstration.--Clarity.
In their comments, the Senate Committee Chairmen expressed concerns related to ''emissions averaging'' in Subsection (b)(3). They questioned the prohibition on trading or averaging NOx emissions or allowances between facilities under different corporate ownership. They ''favor removing the requirement for being 'under common control of the same owner or operator in this Commonwealth' . . .'' from this subsection. The Board needs to justify its ''under common control of the same owner or operator'' rule or delete it.
In particular, we question the purpose of the phrase ''in this Commonwealth'' in Subsection (b)(3). Does this phrase mean that the owner or operator must be located in this Commonwealth? Why is it necessary? What happens in situations when the facilities are located in Pennsylvania but the owner is not?
Subsection (c)(1) includes the term ''CAIR NOx Ozone Season allowance'' and refers to an existing provision in Section 145.202. However, a term including the word ''allowance'' does not appear in Section 145.202. The term ''CAIR NOx Ozone Season allowance'' does appear in Sections 145.211 and 145.212 and elsewhere in Chapter 145. It is also defined in federal regulations at 40 CFR §§ 96.102 and 96.302. The final-form regulation should be revised to include a correct reference for this term.
ARTHUR COCCODRILLI,
Chairperson
[Pa.B. Doc. No. 08-1439. Filed for public inspection August 1, 2008, 9:00 a.m.]
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