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PA Bulletin, Doc. No. 97-1350


[25 PA. CODE CHS. 121 AND 123]

Regulatory Basics Initiative #3 (Malodors)

[27 Pa.B. 4340]

   The Environmental Quality Board (Board) proposes to amend Chapters 121 and 123 (relating to general provisions; and standards for contaminants) to read as set forth in Annex A.

   The changes to Chapter 121 modify the definition of ''malodor'' and add a definition of ''odor investigation.'' The changes to Chapter 123 modify the Department of Environmental Protection's (Department) existing program for investigating and addressing malodor complaints. These changes are in response to comments received as part of the Regulatory Basics Initiative concerning malodors.

   This notice is given under Board order at its meeting of June 17, 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 of the Amendments

   The Regulatory Basics Initiative was announced in August 1995, as an overall review of the Department's 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, 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, the Governor issued Executive Order 1996-1 (Regulatory Review and Promulgation) establishing standards for the development and promulgation of regulations. This proposal meets the requirements of Executive Order 1996-1.

   These proposed amendments are the third in a series of regulatory proposals implementing changes to the Department's air resource regulations resulting from the Regulatory Basics Initiative. These proposed changes implement recommendations received from both the public and the regulated community concerning the Department's program for addressing malodors.

   Approximately 30% of the citizen complaints received by the Department's regional air program offices relate to malodors. The Department investigates each of these complaints and works with facility owners and operators and the public to resolve the complaints. The existing regulations and Court decisions interpreting them make it difficult and time consuming to document and resolve malodor problems. This proposal streamlines both the complaint and investigation process and establishes clear limits of responsibility for facility owners.

   The Department worked with the Air Subcommittee of the Air and Water Quality Technical Advisory Committee (AWQTAC) in the development of these regulations. At its April 17, 1997, meeting, the Air Subcommittee acting on behalf of AWQTAC recommended adoption of the proposed amendments.

E.  Summary of Regulatory Revisions

   The proposed change to the definition of ''malodor'' retains the existing procedure that a member of the public must initially report the malodor and authorizes the Department to document that malodor in the course of an odor investigation. This complaint driven process authorizes the Department to conduct an investigation in response to a citizen complaint. The new definition of ''odor investigation'' requires the Department to investigate the source and frequency of the odors and establishes that facility inspection, surveillance, affidavits or odor logs can be used to document a malodor.

   The changes to the substantive provisions of § 123.31 (relating to limitations) provide, in subsection (c), that a facility which controls malodorous air contaminants through the use of best available technology (BAT) will not be required to further reduce residual odors for a 5-year period. This provision establishes a limit on a facility's obligation based on the technology available to control odors. This limitation on responsibility lasts for a single permit term of 5 years. This provision creates certainty for both the public and facility operators concerning the extent of responsibility for emissions of malodorous air contaminants. Section 123.31(a) is being retained because it establishes the minimum requirements for reducing malodors resulting from volatile organic compounds (VOCs).

   The revisions to § 123.31(d) excludes certain types of activities from the regulatory requirement. The exclusions include agricultural commodities in their unmanufactured state, private residences, restaurants and materials odorized for safety purposes such as natural gas. In addition, the Department is authorized by paragraph (5) to identify additional sources for exclusion. Section 123.31(e) requires the Department to establish a list of additional sources through a public notice and comment process which provides both the public and the regulated community an opportunity for input. This provision is patterned after the existing requirement in § 127.14 (relating to exemptions) of the Department's regulations.

   Under the proposed revisions to the Department's malodor regulations, a complaint from an individual member of the public will result in an investigation by the Department's Air Quality technical staff to determine the source and frequency of the odor complained of. This investigation will include discussions with the owner of the facility at which the source creating odors is located as well as discussion with the complainants. If as a result of this investigation, the Department documents the objectionable odor, the Department will work with the facility owner to identify control technology, improved housekeeping or other strategies to eliminate the objectionable odor. For objectionable odors caused by the emission of VOCs, the reductions achieved through incineration establish the minimum requirements a facility must meet. For objectionable odors resulting from other pollutants, there is no minimum requirement. In all cases, the facility owners responsibility is limited by the best available technology for odors.

   This regulatory revision will be submitted to the Environmental Protection Agency as an amendment to the State Implementation Plan.

F.  Benefits, Costs and Compliance

   Executive Order 1996-1 requires a cost/benefit analysis of the proposed amendments.


   Overall, the citizens of this Commonwealth will benefit from these recommended changes because they streamline the procedures for implementing the Department's air quality program for addressing malodors.

   Compliance Costs

   These proposed amendments should, in general, reduce compliance costs by streamlining the complaint and investigation process and by establishing a best available technology based compliance requirement.

   Compliance Assistance Plan

   The Department plans to educate and assist the public and the regulated community 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 will reduce the paperwork related to complaints and odor investigations.

   G.  Sunset Review

   These proposed amendments will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the amendments effectively fulfill the goals for which they were intended.

H.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 12, 1997, the Department submitted a copy of the proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposed amendments, the Department has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department. A copy of this material is available to the public upon request.

   If IRRC has objections to any portion of the proposed amendments, it will notify the Department within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for the Department, the Governor and the General Assembly to review these objections before publication of the final-form regulations.

I.  Public Comment and Board Public Hearings

   The Department is specifically requesting comments on three aspects of this proposal:

   1.  In documenting whether an odor is objectionable, how should the frequency of occurrence and the extent of public objection be evaluated?

   2.  Should the Department retain its long-standing minimum requirements for malodors resulting from emissions of VOCs?

   3.  Is the 5-year review period for BAT the appropriate time frame?

   Public Hearings

   The Board will hold three public hearings for the purpose of accepting comments on the proposed amendments. The hearings will be held at 1 p.m. on the following dates and at the following locations:

September 23, 1997 Department of Environmental
1st Floor Meeting Room
Rachel Carson State Office
400 Market Street
Harrisburg, PA
September 25, 1997 Department of Environmental
Southwest Regional Office
500 Waterfront Drive
Pittsburgh, PA
September 29, 1997 Upper Merion Township Building
175 West Valley Forge Road
King of Prussia, PA

   Persons wishing to present testimony at the hearings must contact Kate Coleman at the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477, (717) 787-4526, at least 1 week in advance of the hearing to reserve a time to present testimony. Oral testimony will be limited to 10 minutes for each witness and three written copies of the oral testimony must be submitted at the hearing. Each organization is requested to designate one witness to present testimony on its behalf.

   Persons with a disability who wish to attend the hearings and require an auxiliary aid, service or other accommodations in order to participate, should contact Kate Coleman at (717) 787-4526 or through the Pennsylvania AT&T relay service at (800) 654-5984 (TDD) to discuss how the Department may accommodate their needs.

Written Comments

   In lieu of or in addition to presenting oral testimony at the hearings, interested persons may submit written comments, suggestions or objections regarding the proposed amendments to the Environmental Quality Board, 15th Floor Rachel Carson State Office Building, P. O. Box 8477, Harrisburg, PA 17105-8477. Comments received by facsimile will not be accepted. Comments must be received by October 29, 1997. In addition to the written comments, interested persons may also submit a summary of their comments to the Board. This summary may not exceed one page in length and must be received by October 29, 1997. The summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final-form regulations will be considered.

   Electronic Comments

   Comments may be submitted electronically to the Board at A subject heading of the proposal and return name and address must be included in each transmission. Comments submitted electronically must also be received by the Board by October 29, 1997.


   (Editor's Note: Proposals to amend § 121.1 remain outstanding at 27 Pa.B. 1822, 1829 and 2130 (April 12 and May 3, 1997).)

   Fiscal Note: 7-325. No fiscal impact; (8) recommends adoption.

Annex A






§ 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:

*      *      *      *      *

   Malodor--An [odor which causes annoyance or discomfort to the public and which the Department determines to be objectionable to the public] objectionable odor which is first identified by a member of the public and subsequently documented by the Department in the course of an odor investigation to be an objectionable odor.

*      *      *      *      *

   Odor investigation--An investigation of the source and frequency of odors which may include, but is not limited to, an inspection of a facility, surveillance activities in the area of a facility, affidavits or odor logs.

*      *      *      *      *



§ 123.31.  Limitations.

*      *      *      *      *

   (c)  Notwithstanding subsections (a) and (b), if a person controls malodorous air contaminants from a source through the use of the best available technology for odors for that source, as determined by the Department, then no additional measures will be required to further reduce residual odors. After 5 years following implementation of the best available technology, if a malodor exists, the Department may require a new determination of and implementation of best available technology for odors.

   (d)  The prohibition in subsection (b) does not apply [to odor emissions arising from the production of agricultural commodities in their unmanufactured state on the premises of the farm operation.] when the odor results from the following:

   (1)  The production of agricultural commodities in their unmanufactured state.

   (2)  Private residences.

   (3)  Restaurants.

   (4)  Materials odorized for safety purposes.

   (5)  Other sources or classes of sources determined to be of minor significance by the Department.

   (e)  The Department may establish a list of sources or classes of sources meeting the requirements of subsection (d)(5). The Department will publish notice of its intention to establish or modify the list in the Pennsylvania Bulletin and will establish a comment period of at least 30 days. After the close of the comment period, the Department will publish the final list or any modifications to the final list in the Pennsylvania Bulletin.

[Pa.B. Doc. No. 97-1350. Filed for public inspection August 22, 1997, 9:00 a.m.]

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