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PA Bulletin, Doc. No. 12-1162



[ 25 PA. CODE CHS. 121, 123 AND 139]

Commercial Fuel Oil Sulfur Limits for Combustion Units; Advance Notice of Final Rulemaking

[42 Pa.B. 3596]
[Saturday, June 23, 2012]

 The Department of Environmental Protection (Department) is soliciting comments on changes it recommends be made to the commercial fuel oil sulfur limits for combustion units proposed rulemaking published at 40 Pa.B. 5456 (September 25, 2010).

 The draft final rulemaking establishes in Chapter 123 (relating to standards for contaminants) lower maximum allowable sulfur limits in commercial fuel oils used in oil-burning combustion units in this Commonwealth by replacing existing area-specific sulfur content limits with a Statewide sulfur content limit. The draft final rulemaking adds two terms and revises definitions of eight terms in Chapter 121 (relating to general provisions). The new terms are ''ASTM'' and ''ultimate consumer'' and the revised terms are ''carrier,'' ''commercial fuel oil,'' ''distributor,'' ''noncommercial fuel,'' ''retail outlet,'' ''terminal,'' ''transferee'' and ''transferor.'' The draft final rulemaking also updates methods for testing sulfur in petroleum products in Chapter 139 (relating to sampling and testing). The American Society for Testing and Materials documents referenced in this chapter are available for public review at the Department's headquarters at the Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA.

 Combustion of sulfur-containing commercial fuel oils releases sulfur dioxide (SO2) emissions, which contribute to the formation of regional haze and fine particulate matter (PM2.5), both of which are serious human health and public welfare threats. The control measure in the draft final rulemaking is an important part of the Commonwealth's efforts to meet the 2018 reasonable progress goals for reducing regional haze established by the Commonwealth in consultation with the member states of the Mid-Atlantic/Northeast Visibility Union (MANE-VU). The control measure in the draft final rulemaking is also reasonably necessary to attain and maintain the National Ambient Air Quality Standards in this Commonwealth. If published in the Pennsylvania Bulletin as a final-form rulemaking, the regulations will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the State Implementation Plan (SIP).

A. Summary of the Advance Notice of Final Rulemaking Changes

 In response to comments received during the official public comment period on the proposed rulemaking for commercial fuel oil limits for combustion units and following the Department's review of other related information, the Department has prepared a draft final rulemaking for public comment. The draft final rulemaking contains significant changes in several areas. These changes include the following:

 • The proposed rulemaking contained a sulfur limit of 15 parts per million (ppm) for No. 2 and lighter commercial fuel oil. The draft final rulemaking changes this limit to 500 ppm. The Department received a number of comments indicating that the 15 ppm limit was not necessary to reduce SO2 and PM2.5 emissions from heating oil and was not necessary for use in high efficiency boilers. Representatives of refineries commenting on the proposed rulemaking also pointed out that the cost of lowering the maximum sulfur content to 15 ppm was significantly greater than the cost of lowering the maximum content to 500 ppm and that the cost effectiveness (cost per ton) was too high for a reduction to 15 ppm. Several commentators indicated support for a 500 ppm sulfur limit in conjunction with a revised compliance date. Sulfur limits for fuel oils heavier than No. 2 are not changed in the draft final rulemaking. The draft final rulemaking expresses the new maximum allowable sulfur content limits in both ppm and percentages to improve clarity. The Department seeks updated information from commentators on the cost of the limits contained in the proposed final rulemaking.

 • The proposed rulemaking contained a compliance date of May 1, 2012, for revised sulfur limits. The draft final rulemaking changes the compliance date for revised sulfur content limits to July 1, 2016. The Department received a number of comments indicating that the proposed compliance date and the timespan for compliance would present significant challenges to fuel producers to provide an adequate supply of compliant fuel at the 15 ppm content limit. In addition to providing an additional 2 years to achieve compliance, the Department changed the month in the draft final rulemaking to be consistent with the timing of requirements in New York and New Jersey. The Department seeks comment on the ability of the industry to meet the new compliance date taking into account the change in maximum allowable sulfur content limit.

 • The proposed rulemaking included a provision for temporary suspension of the fuel limit and the ability of the Department to increase the applicable limit in certain conditions. The Department is making two changes to this provision. First, the Department removed the requirement that the Department would implement the provision only ''with the written concurrence of the Administrator of the EPA.'' While consultation with the EPA will be necessary if and when the EPA approves the final-form rulemaking as a SIP revision, the Department does not believe that this consultation needs to be formalized in the regulation itself. Second, the Department removed the requirement that establishes a maximum allowable sulfur content of 500 ppm for a temporary increase. This change resolves the inconsistency in setting a temporary content limit that is the same as a permanent content limit. More importantly, the Department intends this provision to be rarely used and only after consideration of supply factors in an air basin; a specific content maximum above 500 ppm would not adequately allow the Department to consider use of fuel from all available sources.

 • The proposed rulemaking would have required terminal owners or operators to develop and implement written procedures for sampling and testing to be made available to the Department upon request. These requirementswould have been in addition to the testing required of refineries that produce fuel oil intended for use in this Commonwealth. It was the intention of the Department to ensure that parties, including the ultimate consumer, could be assured that records of sulfur content required to be provided by transferor to transferee were supported by sampling and testing. The Department received comments that these requirements were duplicative. The Department agrees. Therefore, the draft final rulemaking requires sampling, testing and calculating of the sulfur content by a transferor only if records of sulfur content are not otherwise provided with the shipment of commercial fuel oil.

 • In the draft final rulemaking, recordkeeping and reporting requirements specify that the sulfur content may be recorded in either ppm by weight or weight percent and clarify that the actual sulfur content (not the regulated maximum allowable sulfur content) must be in the record.

 In performing the analysis for MANE-VU in February 2008, the Northeast States for Coordinated Air Use Management (NESCAUM) estimated that the annual SO2 emission reduction benefits in this Commonwealth from the proposed rulemaking sulfur content limits (that is, 15 ppm sulfur content by 2018 and proposed limits for heavier oils) would be approximately 29,000 tons per year and that reducing sulfur content in No. 2 oil from existing levels to 500 ppm would account for approximately 21,000 tons per year of that reduction. An additional 4,000 tons per year reduction was for the decrease from 500 ppm to 15 ppm and 4,000 tons per year reduction for the decrease from existing levels to 500 ppm for Nos. 4 and 6 commercial fuel oils. Removing the requirement of 15 ppm sulfur content in commercial fuel oil in the draft final rulemaking from consideration at this time reduces the estimated maximum annual SO2 emission reduction from 29,000 tons per year to 25,000 tons per year. However, because the use of commercial fuel oils has been declining overall in this Commonwealth since the time frame of the analysis performed by NESCAUM for MANE-VU, the actual annual reduction in SO2 is expected to be less than the estimated maximum.

 While there is not a legal requirement to provide an opportunity to comment upon the Department's recommendations for final-form rulemaking, the Department believes comments on the draft final rulemaking would serve the public interest in this instance. The Department particularly seeks comments on the issues of cost and fuel availability.

B. Contact Persons

 For further information or to request a copy of the draft final rulemaking, contact Arleen Shulman, Division of Air Resource Management, Bureau of Air Quality, Rachel Carson State Office Building, 12th Floor, P. O. Box 8468, Harrisburg, PA 17101-8468, (717) 772-3436,; or Kristen Furlan, Assistant Counsel, 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, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). The draft final rulemaking is available on the Department's website at

C. Public Comments

 Written or electronic comments should be sent to Arleen Shulman at the previous address. Comments must be received by July 23, 2012. A subject heading of the rulemaking and a return name and address must be included in each letter or transmission. Comments will not be accepted by facsimile or voice mail.


[Pa.B. Doc. No. 12-1162. Filed for public inspection June 22, 2012, 9:00 a.m.]

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