[37 Pa.B. 2365]
[Saturday, May 19, 2007]
[Continued from previous Web Page] The EPA commented that neither the Department's current or proposed regulations exclude fugitive emissions in determining applicability. It should be noted that the EPA's response to the Newmont Mining Petition for Reconsideration is to exclude fugitive emissions from applicability of NSR for all nonlisted source categories. The Department needs to provide information explaining how its program is at least equivalent, in this respect, to the requirements of the Federal program in 40 CFR 51.165(a)(4), regarding fugitive emissions. The Board believes the retention of fugitive emissions in this context is proper. Provisions for excluding fugitive emissions of criteria air pollutants for nonlisted sources do not exist in the Commonwealth's current NSR regulation. The Department relied on the inclusion of fugitive emissions of criteria air pollutants from all sources to demonstrate attainment and maintenance of the Federally-mandated NAAQS. It is reasonable and necessary to continue to include fugitive emissions from all sources in the determination of applicability to assure that facilities do not emit pollutants that have not been accounted for in the existing attainment plan. It should also be noted that the requirement to include fugitive emissions from all sources is being retained in accordance with the anti-backsliding provisions of section 172(e) of the CAA.
The Department's regulations proposed to lower the threshold for sources subject to NSR from 100 TPY to 70 TPY of PM-10. No justification for this decrease has been provided. The 100 TPY threshold should be retained. The Federal definition of the term ''major stationary source'' in 40 CFR 51.165(a)(1)(iv)(A) establishes a limit of 100 TPY, emitted or potential to emit, for any regulated pollutant, except in areas where the limit may be lower, as in 40 CFR 51.165(a)(1)(iv)(A)(vi) for serious nonattainment areas: ''70 tons per year of PM-10 in any serious nonattainment area for PM-10.'' The language for ''major facility'' in the final-form NSR regulation closely mirrors the Federal language for this definition. A facility is a major facility for PM-10 if it emits or has the potential to emit 100 TPY of PM-10 unless the facility is in a serious nonattainment area, then the facility is major if it emits or has the potential to emit 70 TPY of PM-10. The Board revised the NSR applicability test to incorporate a two-step test in the final-form NSR rulemaking.
The EPA commented that the definitions of the different ozone classifications in § 121.1 are no longer consistent with the design values under the 8-hour ozone standard. The Board deleted the following terms and definitions from § 121.1: ''extreme ozone nonattainment area,'' ''marginal ozone nonattainment area,'' ''moderate ozone nonattainment area,'' ''serious ozone nonattainment area'' and ''severe ozone nonattainment area.''
The EPA believes that the definition of the term ''PAL permit'' includes state operating permits despite the fact that the Federal regulations prohibit PALs from being established within these permits. The Board deleted the phrase ''State operating permits'' from the definition of ''PAL permit'' in the final-form rulemaking.
Commentators stated that the 5-year look-back period for determining the representative consecutive 24-month emissions baseline period is too restrictive. Many cited specific instances and examples of when a 5-year period would not have been representative. These commentators further stated that 10 years is much more representative for specific industrial or business cycles or even for the normal business cycle. Commentators indicated that the research done by the EPA to justify the Federal NSR 10-year look-back period is adequate. They commented that some neighboring states are using the 10-year look-back period without undue burden on the state agency and that the Commonwealth already uses the 10-year look-back period in its existing PSD program. The proposed 5-year look-back period will put businesses in this Commonwealth at a disadvantage with these neighboring states' businesses. Further, the Department is requiring a 15-year look-back period for the de minimis aggregation portion of this rulemaking, which serves to demonstrate that a 10-year look-back period is not too cumbersome. Commentators suggested the mandatory 10-year look-back but if the Board proceeds with a 5-year look-back, the rule should provide for a mandatory 5-year look-back period with the option to allow for another 2-year period in the last 10 years if that period is more representative of normal operations.
The Board disagrees that a 5-year look-back period is always too restrictive and finds that under many circumstances a 5-year look-back will be appropriate and environmentally beneficial. However, the Board agrees that there could be unusual circumstances when a 10-year look-back period for establishing the NSR continuous 24-month actual emissions baseline period will be appropriate. The 24-month period shall be from the preceding 5 years unless the owner can demonstrate to the satisfaction of the Department that a longer time frame is more representative. The Board revised § 127.203a(a)(4)(i) to include the following language: ''baseline actual emissions are the average rate, in TPY, at which the unit emitted the regulated NSR pollutant during a consecutive 24-month period selected by the owner or the operator within the 5-year period immediately prior to the date a complete plan approval application is received by the Department. The Department may approve the use of a different consecutive 24-month period within the last 10 years upon a written determination that it is more representative of normal source operation.''
Many commentators stated that the Board should adopt the Federal NSR regulatory language allowing for different 24-month emission baseline periods for each pollutant. They commented that different 24-month periods would be more representative of operations where complex business adjustments or shutdowns occurred.
The Board agrees that there could be unusual circumstances when different 24-month periods for establishing the actual emissions baselines for different pollutants will be appropriate. The 24-month period for each pollutant shall be the same unless the owner or operator of the facility can demonstrate to the satisfaction of the Department that a different 24-month period would be more representative. The Department revised § 127.203a (a)(4)(i)(D) to include the following language: ''The same consecutive 24-month period shall be used for all regulated NSR pollutants unless the owner or operator demonstrates, in writing, to the Department that a different consecutive 24-month period is more appropriate and the Department approves, in writing, the different consecutive 24-month period for a regulated NSR pollutant or pollutants.''
Several commentators stated that the proposed requirements that continue to treat the five-county Philadelphia area as severe, as it was under the 1-hour ozone standard, will put the area at a competitive disadvantage to other areas, cause the need for additional expensive control equipment and result in the cancellation of projects intended for economic growth. The Board disagrees. First the U.S. Court of Appeals for the D.C. Circuit in South Coast Air Quality Management District v. EPA, et al. found that NSR is a control measure and to withdraw it from the SIP would constitute impermissible backsliding. As a result, in implementing the 8-hour ozone NAAQS, all 1-hour ozone NAAQS major NSR requirements, in this Commonwealth and in the five-county Philadelphia area will remain in place. Moreover, under the moderate rules if an existing facility makes a modification, the triggering NSR threshold is 40 TPY of VOC or NOx. Under the severe rules, it was 25 TPY. So, a major facility under the moderate rules can increase its NOx or VOC emissions an additional 15 TPY before NSR is applicable. There are approximately 200 major facilities in the five-county Philadelphia area. Under the worst-case scenario, there could be an additional 3,000 TPY of VOC and 3,000 TPY of NOx emitted from these facilities before NSR can be applied under the moderate rule. Additionally, when facilities do trigger major NSR under the Federal regulation, the less stringent offset ratio of 1.15 to 1 instead of 1.3 to 1 applies. Under the EPA planning rules for SIPs, the Commonwealth would need to plan for this increase in emissions by finding offsetting decreases in emissions from other source categories.
Some commentators stated that the 5-year look back period for determining the representative consecutive 24-month emissions baseline period is too restrictive. Many cited specific instances and examples when a 5-year period would not have been representative. The Board agrees that under many circumstances the 5-year look back period will be appropriate and environmentally beneficial. However, the Board also agrees that there could be unusual circumstances when a 10-year look-back period for establishing the NSR continuous 24-month actual emissions baseline period will be appropriate. The 24-month period shall be from the preceding 5 years unless the owner can demonstrate to the satisfaction of the Department that a longer time frame is more representative. Language indicating this has been added to § 127.203a.
A commentator stated that the proposed PM-2.5 major thresholds should be lowered from the proposed 100 and 15 TPY to 25 and 10 TPY, respectively. Industry commented that the proposed PM-2.5 requirements are premature and should not be addressed until the EPA promulgates its regulation. The EPA commented that it strongly advises the Department to wait until the EPA promulgates the PM-2.5 implementation rule for NSR before adopting specific provisions for regulating PM-2.5 and its precursors under its nonattainment NSR program. As requested by the EPA, the Board will wait until the Federal PM-2.5 rule is promulgated. Consequently, all language referring to PM-2.5 has been removed from the final-form rulemaking.
Commentators suggested that project emissions should be calculated, monitored and reported in terms of 12-month periods consistent with the established policy and guidance and the Federal rule. The Board followed the lead of the EPA by designating the reporting requirement period as a calendar year basis from the language in the EPA's NSR rule pertaining to applicability procedures under 40 CFR 51.165(a)(6)(iii). The Board wishes to maintain the continuity between the final-form rulemaking and the Federal regulation so the language in the subparagraph will not be changed.
A commentator suggested that the final-form rulemaking should allow for ERCs generated by a facility located adjacent to or within another facility, but not under common control with that facility (for example, a portion of a facility sold to another entity) be considered a creditable decrease as an emission decrease. The Board disagrees. A net emissions increase calculation requires all increases and decreases in actual emissions at the major facility that are contemporaneous with the project and are otherwise creditable. The emission decreases used as a netting credit have to be generated at the same facility. ERCs generated at other facilities cannot be used by separate facilities for netting purposes, even if they are within a contemporaneous period.
Some commentators stated that the Board should allow the use of different 24-month emission baseline periods for each unit involved in a project as this would be more representative of varying and complex business conditions. The Board proposed that the same 24-month period shall be used for all units involved in a project. This is in accordance with 40 CFR 51.165(a)(xxxv)(A)(3). Since the final-form rulemaking must be at least as stringent as the Federal regulation, this stipulation will not be changed.
Commentators stated that the proposed rulemaking contained additional new recordkeeping and reporting requirements in § 127.203a(a)(7). Depending on the type of modification, it may not be possible to separate the actual annual emissions into baseline actual emissions, emissions that could have been accommodated during the baseline period, unrelated emissions due to the demand growth and emissions increase due to the project. The Board has not explained why it needs more data, or an additional report, from the same sources that are already required to file annual emission reports under Chapter 135 (relating to reporting of sources). This requirement is redundant, burdensome and creates more unnecessary paperwork for the Department to review. This provision should be deleted. The Board disagrees. Revised § 127.203a(a)(5) is consistent with 40 CFR 51.165(a)(6) (i)(B). Since the final-form NSR rulemaking must be at least as stringent as the Federal rule, recordkeeping and reporting requirements have not been revised in the final-form rulemaking.
Commentators found that a facility making improvements that are classified as BAT would apparently be prohibited from generating ERCs under the proposed rulemaking. In practice, this will prohibit many sources from conducting emissions netting. The Board believes that to allow for the generation of ERCs through the use of rules that are intended to safeguard the environment would defeat the purpose and effect of these regulations. The Board will not allow for the generation of ERCs through the enforcement of BAT.
Some commentators stated that the proposed ''advanced clean coal generation technology'' is unfair because this provision is not available for other equally viable technologies that it supports. Another commentator stated that although this technology does not apply directly to them, they support measures to encourage the use of clean coal technology. The EPA informed the Department that the ''EPA cannot, under any circumstance, approve this provision. LAER must be the more stringent of either: (1) a limit in a SIP for a class or category of source, or (2) an emissions limit that has been achieved in practice. A presumptive limit that is adopted as part of a regulation cannot be demonstrated to meet either of these qualifications.'' The Board removed the clean coal generation technology provision as a result of the EPA's concerns.
A commentator stated that § 127.218(c)(2) refers to the public participation requirements in subsection (d), but the public participation requirement is actually discussed in subsection (e). The Board agrees and changed the reference to the appropriate subsection.
Another commentator found that the requirement under § 127.218(g)(10) that any new source under a PAL must achieve BAT defeats the purpose of the PAL by eliminating the flexibility of a facility to allocate its allowable emissions among its sources. The Board disagrees. There are a number of provisions that provide for operational flexibilities. For example, § 127.14 (relating to exemptions) determines the conditions when new sources can be exempted from BAT. Exemptions can be determined from the existing list of sources or through the use of a request for determination. Many de minimis and trivial sources will be exempted through these provisions. Moreover, § 127.1 (relating to purpose) specifically states ''New sources shall control the emission of air pollutants to the maximum extent, consistent with the BAT as determined by the Department as of the date of issuance of the plan approval for the new source.'' Further, it is stated in § 127.12(a) (relating to content of applications): ''An application for approval shall: . . . (5) Show that emissions from a new source will be the minimum attainable through the use of best available technology.'' Since these regulatory provisions remained unchanged, BAT requirements for new sources remain in effect under § 127.218.
Commentators stated that conformance with the 2002 EPA final rule requires that the Board also abandon any proposed amendments to § 127.203a referencing the 1991 baseline period for contemporaneous change evaluations under the NSR program. Creditable reductions generated at a site often stay with prior owners or are consumed in unrelated operations for facilities, or parts of facilities, which are sold to new operators. Therefore, tying NSR compliance to an arbitrary baseline from 15 years ago represents an unfair burden, especially since the Board is silent on how to restate NSR baselines for facilities that are combined, divided or sold.
On the advice of the AQTAC, the Board revised the duration of the de minimis emissions aggregation period from 15 years as proposed to 10 years in the final-form rulemaking. The de minimis aggregation requirement includes both increases and decreases for the previous 10-year period allowing for the facility to take credit for any reductions that are surplus, permanent and enforceable while still being accountable for increases that are also to continue but have not previously been offset. Under the Federal regulation and implementing memorandums, facilities may add several nonrelated projects up to an emissions increase of 39.9 TPY or need only wait for 18 months to be able to propose continual 39.9 TPY increases per project without providing offsets and without having to account for any 39.9 TPY or less increases that occurred previous to the 5-year period. Under the final-form rulemaking, owners/operators of facilities in the five-county Philadelphia area will be able to avoid major NSR by keeping emission increases under 25 TPY but will still have to account for all emission increases under 25 TPY that occurred within the last 10 years but did not have offsets provided. For the rest of this Commonwealth, owner/operators of facilities will be able to avoid major NSR by keeping emission increases under 40 TPY but will still have to account for all emission increases under 40 TPY that occurred within the last 10 years but did not have offsets provided.
Commentators agreed that emissions from start-ups, shutdowns and malfunctions should not be treated differently under the definitions of ''baseline actual emissions'' and ''projected future actual emissions.'' Others also specify that § 123.203a(a)(5) indicates that emissions from start-ups and shutdowns are to be included in the baseline actual emissions only if they are ''authorized,'' while the projected future actual emissions include emissions from startups and shutdowns regardless if they are authorized. The proposed regulation is different and apparently more stringent than the Federal rule. The final-form rulemaking will not allow the use of emissions from malfunctions to be included in the baseline actual emissions because it is not representative of normal source operation. The Board removed the word ''authorized'' from this language.
The EPA objected to the Department's definition of ''plantwide applicability limit'' in that it does not include the provision that the limit must be practically enforceable. Rather, the Department requires the limit to be legally enforceable. Practical enforceability is not the same as legal enforceability. For instance, every term and condition in a permit issued by the Commonwealth is legally enforceable. However, it has long been recognized that for a limit to be practically enforceable for the purpose of effectively imposing a level of control on a unit or source, the limit must meet several criteria: it must be legally enforceable; there must be a short period of time over which compliance is to be determined; and the limit must include monitoring or recordkeeping, or both, to verify compliance. The EPA believes that this is a significant deviation from the Federal rule for which there is a minimum required program element. The Board agrees and revised the definition of ''plantwide applicability limit'' to change the phrase ''legally enforceable'' to ''enforceable as a practical matter.''
A commentator supported the common sense provision for ''demand growth'' exclusion but requested clarification on the phrase ''and that is unrelated to the particular project.'' Any emissions that could have been accommodated during the baseline period should inherently be excluded under the demand growth exclusion. A commentator requested an example of a situation when emissions could have been accommodated during the baseline period but cannot be excluded under the demand growth exclusion because the emissions are ''related to the particular project.''
The Board referred commentators to 67 FR 80202 and 80203 to the response to comment 7 ''Why Was the Demand Growth Exclusion Retained?'' It is the Board's intent to include the EPA's demand growth provision in the final-form rulemaking. The Department closely mirrored the EPA's NSR regulatory language from 40 CFR 51.165(a)(1)(xxviii)(A)(2) in revised § 127.203a(a)(5)(i)(C). The Board's interpretation and use of the EPA's regulatory language and commentary would be consistent. For example: (1) If an existing source before modification had the potential to emit 20% more of a regulated pollutant had the demand existed during the 24-month baseline chosen, but after the proposed modification has a projected actual emission rate of 40% more of the same regulated pollutant, then the projected actual emissions would be 140% of the baseline emissions. The emission increase would be the 140% level minus the ''could have been accommodated'' 20% and minus the original 100% actual baseline equaling a 20% emission increase. The new permit emission limit would be 140% of the baseline regardless of the new or modified unit's potential to emit which could be higher. The modification made to the emission unit in this example will not have altered the product or in any way created the demand growth. Another example: (2) A printing press can presently print in three colors and had the potential to accommodate a 20% higher level of actual emissions during the 24-month baseline period chosen had the demand existed, as in example 1. The owner wishes to modify the press to be able to print in four colors while increasing the unit output capacity and potential to emit and again as in example (1) the owner establishes a projected future actual emission level at 140% of the baseline which can be below the new potential. Here there is a 40% emission increase because the entire product demand growth could be attributable to the product alteration. The new permit emission limit would be 140% of the baseline as in example (1).
The EPA commented that the Department's definition of ''PEMS--predictive emissions monitoring system'' includes the language ''All of the equipment necessary to monitor parameters including . . . .'' The EPA recommended using the phrase ''including but not limited to'' since the types of parameters listed in the Commonwealth's definition clearly are not an exhaustive list of process or operational parameters. Alternatively, the text of the preamble to the final-form rulemaking could clarify that the definitions are not interpreted to be exclusive.
The Board disagrees. The meaning of this definition has not been changed. The formatting convention of the Legislative Reference Bureau does not allow the use of the phrase ''but is not limited to'' when listing items in a class. The word ''including'' is not interpreted to be exclusive and restricted to the list of items that follow the word ''including.'' The phrase ''but not limited to'' is unnecessary and is to be avoided. It is also important to note that use of the phrase ''shall include'' in a definition does not exclude or limit things, which do not follow the phrase.
In New York v. EPA, 45 F.3d 3 (D.C. Cir. June 24, 2005), the DC Circuit court remanded the EPA to either provide an acceptable explanation for its ''reasonable possibility'' standard or to devise an appropriately supported explanation. At this time, the EPA has not responded to the remand and the reasonable possibility standard still exists in the Federal regulations. The Commonwealth, therefore, must provide information as to how § 127.203a(7) is equivalent to 40 CFR 51.165(a)(6).
The Board believes the calculation method for determining the projected actual emissions for both the Federal and the final-form rulemaking are equivalent. The final-form rulemaking projected actual emissions are reflective of the actual emissions level that the facility expects and are not adjusted. With the Federal regulation, the projected actual emissions are reduced by the amount that could have been accommodated.
Commentators stated that under the EPA's approach, facilities are only required to track emissions for a period of time following a modification. The Commonwealth proposed a very complicated approach which involves using the summation of ''baseline actual emissions; emissions that could previously be accommodated prior to the proposed modification; and the projected actual emission increase due to the proposed project.'' These data would be used to determine compliance and tracked for 5 years (10 years if there is a capacity increase). In addition, facilities would be required to demonstrate compliance with the projected actual emission increase that is due solely to the project. These provisions are not only more stringent than the Federal equivalent, but are confusing. Commentators recommended that the Board adopt the Federal approach of recordkeeping and reporting to ensure that projects that do not trigger NSR do not in fact trigger NSR.
Most of the language in final-form § 127.203a(a)(5) duplicates the language used in the Federal regulation as it pertains to demand growth and reporting requirements. The EPA stipulates that the owner will keep records for 5 years or for 10 years if the project increases a unit's potential to emit. These records are to be reviewed annually by local or state agencies to ensure that the projected actual emission increases as proposed are not exceeded for existing electric generating unit (EGU) projects. For non-EGUs, the owner will report only if the projected emissions are exceeded. The Board changed the regulatory language to more closely duplicate the Federal language concerning recordkeeping and reporting requirements in the final-form NSR rulemaking to alleviate the commentators' concerns.
Most commentators agreed that projected actual emissions should not become permit restrictions. The EPA does not propose to limit a project's future emissions to the facility's projected actual emissions in a plan approval or permit. The EPA stipulates that the owner will keep records for 5 years or for 10 years if the project increases a unit's potential to emit. These records are to be reviewed annually by the local or state agencies to ensure that the projected actual emission increases as proposed are not exceeded for existing EGU projects. For non-EGUs, the owner will report only if the projected actual emissions are exceeded. If these emission rates are exceeded, the local or state agency or the EPA can then take whatever action they feel is necessary after an explanation by the owner or operator of a source. The Board does not agree that this approach would be beneficial to the environment or the regulated community. Under the Federal NSR regulation, when the 10-year recordkeeping requirements expire, there will be no restrictions to prevent an owner from increasing a unit to its full potential usage at a possibly substandard emission rate that was granted initially. For the regulated community, the consequences of exceeding the projected actual emissions during the 5- or 10-year reporting period are unknown to them under the new Federal NSR regulation. The owner's explanation as required would be the determining factor of what the consequences at the Federal level would be. In contrast, the Department's enforcement action would be based upon the proposed § 127.203a(a)(5) permit limit. The Federal regulation allows for the possibility that members of the regulated community could knowingly or unknowingly exceed their projected actual emission limits for 1 year or beyond before discovery or disclosure, again with unknown consequences for the owner or the environment. The final-form NSR rulemaking eliminates any confusion about the consequences to the owner or the environment that exist under the present Federal NSR proposal when the projected actual emissions are exceeded.
After reviewing the proposed PAL provisions of the proposed rulemaking, some commentators questioned whether the Commonwealth is committed to allowing PAL permits. They stated that the PAL provisions in the proposed rulemaking virtually remove any associated benefit of obtaining a PAL in this Commonwealth. The proposed 5-year look-back for PALs will result in less operational flexibility, which is one of the key benefits that the PAL regulations offer. Business cycles can be much longer than 5 years and a 10-year look-back will account for fluctuations in a company's emissions associated with its business cycle. A 10-year look-back is appropriate and representative. The proposed rulemaking is more restrictive than the Federal requirements and ultimately harmful to the PAL program. PALs should have a 10-year term and be fixed rather than declining.
The actual PAL level for a major facility is based on the definition of ''baseline actual emissions'' and is also determined in accordance with § 127.203a(a)(4). The Board believes that under many situations the 5-year look back period for calculating baseline actual emissions will be appropriate and environmentally beneficial. However, the Department agrees that there could be unusual circumstances when a 10-year look back period for establishing the NSR continuous 24-month actual emissions baseline period will be appropriate. The Board revised the final-form rulemaking to include the following language: ''baseline actual emissions are the average rate, in tons per year, at which the unit emitted the regulated NSR pollutant during a consecutive 24-month period selected by the owner or the operator within the 5-year period immediately prior to the year a complete plan approval application is received by the Department.'' The final-form regulation allows the use of a different consecutive 24-month period within the last 10 years upon a written determination that it is more representative of normal source operation.
A commentator stated that it is not clear from the proposed rulemaking as to how a PAL permit is to interact with existing plan approvals or operating permits, or both. The Board noted that the Department intends to incorporate each PAL for each pollutant into the owner's Title V operating permit as suggested by the EPA in the preamble for the Federal NSR regulation at 67 FR 80213 and 80214. The EPA suggested that the PAL be incorporated into the Title V permit upon issuance if the Title V permit does not already exist. The EPA further suggested that owners and operators of facilities request incorporation of the PAL into already existing Title V permits during Title V renewal. Since the term for a Title V permit is 5 years and the term for the PAL is 10 years, Title V renewal will not necessitate a PAL renewal the first time around. Each PAL for each pollutant will have its own expiration date that will have to be included in the Title V permit when the renewal dates are not concurrent.
G. Benefits, Costs and Compliance
Benefits. Overall, the citizens of this Commonwealth will benefit from this final-form rulemaking because it will result in improved air quality by reducing criteria pollutant emissions, recognize and encourage pollution prevention practices and encourage new technologies and practices which reduce emissions.
Compliance costs. The final-form rulemaking will reduce the operating costs of industry through enhanced operational flexibility under PALs.
Compliance assistance. The Department plans to educate and assist the public and regulated community with understanding 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 final-form rulemaking will not increase the paperwork that is already generated during the normal course of business. However, the owner or operator of a facility that voluntarily elects a 10-year PAL must retain records for at least 10 years to document that the emission limit was not exceeded.
H. Pollution Prevention
The Federal Pollution Prevention Act of 1990 established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally-friendly materials, more efficient use of raw materials and the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance. This final-form rulemaking incorporated the following pollution prevention incentives. As a result of the NSR requirements, a company has a significant incentive to minimize their emissions to avoid these additional regulatory requirements. If they are unable to avoid these requirements, they must demonstrate the employment of the lowest achievable emission reduction with existing technology. These minimized emissions can be achieved through process modifications and do not have to come from add-on control equipment. Pollution prevention is one of the most cost effective means to eliminate costly add-on controls or to reduce the costs of running add-on controls.
I. Sunset Review
The 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.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 16, 2006, the Department submitted a copy of the notice of proposed rulemaking, published at 36 Pa.B. 1991 (April 29, 2006), to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on April 4, 2007, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on April 5, 2007, and approved the final-form rulemaking.
K. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) This final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 36 Pa.B. 1991.
(4) This final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in section C of this preamble.
(5) This final-form rulemaking is necessary for the Commonwealth to achieve and maintain ambient air quality standards and to satisfy related CAA requirements.
(6) This final-form rulemaking is necessary for the Commonwealth to avoid sanctions under the CAA.
(7) This final-form rulemaking is will be submitted to EPA as an amendment to the Pennsylvania SIP.
L. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 121 and 127, are amended by amending §§ 121.1, 127.13, 127.201--127.210, 127.212, 127.213, 127.215 and 127.217; by deleting §§ 127.211 and 127.214; and by adding §§ 127.201a, 127.203a and 127.218 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(Editor's Note: The Department withdrew the proposal to amend § 127.214a which was included in the proposed rulemaking at 36 Pa.B. 1991. The amendment to § 127.13 was not included in the proposed rulemaking.)
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to the Independent Regulatory Review Commission and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect upon publication in the Pennsylvania Bulletin.
KATHLEEN A. MCGINTY,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 37 Pa.B. 1940 (April 21, 2007).)
Fiscal Note: Fiscal Note 7-399 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE III. AIR RESOURCES
CHAPTER 121. GENERAL PROVISIONS § 121.1. Definitions.
The definitions in section 3 of the act (35 P. S. § 4003) apply to this article. In addition, the following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Actual emissions--For purposes of Chapter 127, Subchapter E (relating to new source review), the actual rate of emissions of a regulated NSR pollutant from an emissions unit shall be determined in accordance with the following subparagraphs. This definition does not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under § 127.218 (relating to PALs). Instead, the definition of the terms ''projected actual emissions'' and ''baseline actual emissions'' apply for those purposes. This definition may not be used to calculate a baseline emissions rate under § 127.207(4) (relating to creditable emissions decrease or ERC generation and creation).
(i) Actual emissions as of a particular date must equal the average rate, in TPY, at which the unit actually emitted the regulated NSR pollutant during the consecutive 24-month period which immediately preceded the particular date and which is representative of normal source operations. The Department will authorize the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates and types of materials processed, stored or combusted during the selected time period.
(ii) For an emissions unit that has not begun normal operations on the particular date, actual emissions equal the potential to emit of the unit on that date.
Actual PAL for a major facility--A PAL based on the baseline actual emissions of all emissions units at a major facility that emit or have the potential to emit the PAL pollutant.
* * * * * Air contamination source--Any place, facility or equipment, stationary or mobile, at, from or by reason of which there is emitted into the outdoor atmosphere any air contaminant.
* * * * * Allowable emissions--The emissions rate of a facility calculated using the maximum rated capacity of the facility unless the facility is subject to Federally enforceable limits which restrict the operating rate, or hours of operation, or both, and the most stringent of the following:
(i) The applicable standards in 40 CFR Part 60 or 61 (relating to standards of performance for new stationary sources; and National emission standards for hazardous air pollutants).
(ii) An applicable SIP emissions limitation, including those with a future compliance date.
(iii) The emissions rate specified under a requirement or condition in a plan approval or operating permit that is Federally enforceable or enforceable as a practical matter, including those with a future compliance date.
(iv) For purposes of the PAL requirements in § 127.218 (relating to PALs), the allowable emissions shall be calculated considering the emission limitations that are enforceable as a practical matter on the emissions unit's potential to emit.
* * * * * BACT--Best available control technology--An emissions limitation (including a visible emissions standard) based on the maximum degree of reduction for each regulated NSR pollutant which would be emitted from any proposed major facility or major modification which the Department, on a case-by-case basis, taking into account energy, environmental and economic impacts and other costs, determines is achievable for the facility or modification through application of production processes or available methods, systems and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of the pollutant. The application of BACT may not result in emissions of a pollutant which would exceed the emissions allowed by any applicable standard under 40 CFR Part 60 or 61. If the Department determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the application of BACT. The standard must, to the degree possible, set forth the emissions reduction achievable by implementation of the design, equipment, work practice or operation, and provide for compliance by means which achieve equivalent results.
* * * * * Baseline actual emissions--The rate of emissions, in TPY, of a regulated NSR pollutant, as determined in accordance with § 127.203a(a)(4) (relating to applicability determination).
* * * * * Begin actual construction--Initiation of physical onsite construction activities on an emissions unit or a facility which are of a permanent nature. These activities include installation of building supports and foundations, laying of underground pipe work and construction of permanent storage structures. With respect to a change in method of operating, the term refers to those onsite activities other than preparatory activities which mark the initiation of the change.
* * * * * CEMS--Continuous emissions monitoring system--For purposes of Chapter 127, Subchapter E, all of the equipment that may be required to meet the data acquisition and availability requirements of Chapter 127, Subchapter E to sample, condition, analyze and provide a record of emissions on a continuous basis.
CERMS--Continuous emissions rate monitoring system--For purposes of Chapter 127, Subchapter E, the total equipment required for the determination and recording of the pollutant mass emissions rate, in terms of mass per unit of time.
* * * * * CO--Carbon monoxide.
CO2--Carbon dioxide.
* * * * * CPMS--Continuous parameter monitoring system--For purposes of Chapter 127, Subchapter E, all of the equipment necessary to meet the data acquisition and availability requirements to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents), and other information (for example, gas flow rate, O2 or CO2 concentrations), and to record average operational parameter values on a continuous basis.
* * * * * Commence--As applied to the construction, modification or installation of an air contamination source or facility the owner or operator has necessary approvals including plan approvals or permits and has either:
(i) Begun, or caused to begin, a continuous program of actual onsite construction of the facility, to be completed within a reasonable time.
(ii) Entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time.
* * * * * Creation--The process of generating usable and tradable ERCs to be used to offset emissions. This process includes the following elements:
(i) Application.
(ii) Documentation.
(iii) Quantification.
(iv) Verification.
(v) Entry into the registry.
Creditable emissions decrease--Emission changes at an existing major facility as determined in accordance with § 127.203a(a)(3).
* * * * * Deactivation--Cessation of the emissions of an air pollutant from air contamination source, emissions unit or facility.
* * * * * De minimis emissions increase--For purposes of Chapter 127, Subchapter E, an increase in emissions calculated in accordance with § 127.203a(a)(1)(i) which is less than the emissions rate that is significant as defined in this section.
* * * * * Electric utility steam generating unit--For purposes of the NSR requirements in Chapter 127, Subchapter E, a steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 MW electrical output to a utility power distribution system for sale. Steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility.
* * * * * Emissions unit--For purposes of Chapter 127, Subchapter E, a part of a facility that emits or has the potential to emit a regulated NSR pollutant including an electric utility steam generating unit as defined in this section. For the purposes of NSR requirements, there are two types of emissions units:
(i) A new emissions unit, which is or will be newly constructed and which has existed for less than 2 years from the date the emissions unit first operated.
(ii) An existing emissions unit is an emissions unit that does not meet the requirements in subparagraph (i). A replacement unit, as defined in this section, is an existing emissions unit.
* * * * * Extreme environmental conditions--Exposure to weather all of the time, temperature consistently above 203° F, detergents, abrasive and scouring agents, solvents, corrosive atmospheres or similar environmental conditions.
Extreme performance coatings--Coatings designed and used for harsh exposure or extreme environmental conditions.
* * * * * Federally enforceable--The limitations and conditions which are enforceable by the EPA, including:
(i) Requirements developed under 40 CFR Parts 60 and 61.
(ii) Requirements within an applicable SIP.
(iii) Plan approval or operating permit requirements established under 40 CFR 52.21 (relating to prevention of significant deterioration of air quality) or under regulations approved under 40 CFR Part 51, Subpart I (relating to review of new sources and modifications), including plan approvals or operating permits issued under an EPA-approved program that is incorporated into the SIP and expressly requires adherence to a permit issued under the program.
* * * * * Fugitive emissions--For purposes of Chapter 127 (relating to construction, modification, reactivation and operation of sources), those emissions which could not reasonably pass through a stack, chimney, vent or other functionally equivalent opening.
* * * * * Generation--With respect to ERCs, an action taken by an owner or operator of an air contamination source, emissions unit or facility that results in the actual reduction of emissions.
* * * * * Major emissions unit--For purposes of § 127.218, an emissions unit that emits or has the potential to emit the PAL pollutant in an amount that is equal to or greater than the major facility threshold as defined in this section for the PAL pollutant.
Major facility--
(i) A facility which emits or has the potential to emit 100 TPY or more of a regulated NSR pollutant, except that lower emissions thresholds apply as follows:
(A) Fifty TPY of VOCs in a serious nonattainment area for ozone.
(B) Fifty TPY of VOCs in an area within an ozone transport region except for a severe or extreme nonattainment area for ozone.
(C) Twenty-five TPY of VOCs in a severe nonattainment area for ozone.
(D) Ten TPY of VOCs in an extreme nonattainment area for ozone.
(E) Seventy TPY of PM-10 in a serious nonattainment area for PM-10.
(F) Fifty TPY of CO in a serious nonattainment area for CO.
(ii) For the purposes of applying the requirements of Chapter 127, Subchapter E to the owner or operator of a facility located in an ozone nonattainment area or in an ozone transport region which emits or has the potential to emit NOx, as follows:
(A) One hundred TPY or more of NOx in an ozone nonattainment area classified as marginal, basic or moderate.
(B) One hundred TPY or more of NOx in an ozone nonattainment area classified as a transitional, submarginal, or incomplete or no data area, when the area is located in an ozone transport region.
(C) One hundred TPY or more of NOx in an area designated under section 107(d) of the Clean Air Act (42 U.S.C.A. § 7407(d)) as attainment or unclassifiable for ozone that is located in an ozone transport region.
(D) Fifty TPY or more of NOx in a serious nonattainment area for ozone.
(E) Twenty-five TPY or more of NOx in a severe nonattainment area for ozone.
(F) Ten TPY or more of NOx in an extreme nonattainment area for ozone.
(iii) A physical change that occurs at a facility which does not exceed the major facility thresholds specified in Chapter 127, Subchapter E is considered a major facility if the change constitutes a major facility by itself.
(iv) A facility which is major for VOCs or NOx is considered major for ozone.
(v) Notwithstanding the provisions under subparagraphs (i) and (ii), a facility which emits or has the potential to emit 25 TPY or more of NOx or VOC and is located in Bucks, Chester, Delaware, Montgomery or Philadelphia County.
Major modification--
(i) A physical change in or change in the method of operation of a major facility that would result in the following:
(A) A significant emissions increase of a regulated NSR pollutant.
(B) A significant net emissions increase of that pollutant from the major facility.
(ii) A proposed de minimis increase that would result in a net emissions increase as determined under Chapter 127, Subchapter E that meets or exceeds the applicable emissions rate that is significant.
(iii) A significant emissions increase from an emissions unit or a net emissions increase at a major facility that is significant for VOCs or NOx is considered significant for ozone.
(iv) A physical change in or change in the method of operation of a major facility does not include:
(A) Routine maintenance, repair and replacement.
(B) The use of an alternative fuel or raw material by reason of an order under section 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (ESECA) (15 U.S.C.A. § 79(a) and (b)) (or superseding legislation) or by reason of a natural gas curtailment plan under the Federal Power Act (16 U.S.C.A. §§ 792--825r).
(C) The use of an alternative fuel by reason of an order or rule under section 125 of the Clean Air Act (42 U.S.C.A. § 7425).
(D) The use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste.
(E) The use of an alternative fuel or raw material by a facility which meets one of the following conditions:
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