Title 25

ENVIRON

ENVIRONMENTAL QUALITY BOAR])

125 PA. CODE CH. 127]

Air Quality Permit Streamlining

[38 Pa.13. 23651

[Saturday, May 24, 2008]

The Environmental Quality Board (Board) amends Chapter 127 (relating to construction,

modification, reactivation and operation ofsources) to read as set forth in Annex A.

A. Effective Date

These final-form amendments will be effective upon final-form publication in the

Pennsylvania Bulletin.

B. Contact Persons

For further information, contact Virendra Trivedi, Chief, New Source Review Section,

Division of Permits, Bureau of Air Quality, 12th Floor, Rachel Carson State Office

Building, P. 0. Box 8468, Harrisburg, PA 17105-8468, (717) 772-3979; or Robert Reiley,

Assistant Counsel, Bureau ofRegulatory Counsel, 9th Floor, Rachel Carson State Office

Building, P. 0. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060.

C. Statutory Authority

This final-form rulemaking is promulgated under the authority in section 5(a)(1) ofthe

Air Pollution Control Act (APCA) (35 P. S. § 4005(a)(1)), which grants to the Board the

authority to adopt regulations for the prevention, control, reduction and abatement of air

pollution, and section 6.1(b.3) of the APCA (35 P. S. § 4006.l(b.3)), which requires the

Board by regulation to establish adequate, streamlined and reasonable procedures for

expeditiously determining when applications are complete and for expeditious review of

applications.

D. Background and Summary

As part of an effort to streamline the air quality permitting process, the Department of

Environmental Protection (Department) investigated ways to reduce the plan approval

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effort, the Board has approved final amendments to extend the authorization of a source to

temporarily operate to facilitate shake-down, and to revise the public notice provisions

which address receipt of applications for plan approval and intent to issue certain plan

approvals. In addition, the Board has.flnalized provisions regarding completeness criteriafor applications for plan approval. The Board believes that this final-form rulemaking willcontinue to protect air quality, allow business to respond to market changes and allow foradequate public participation.

The final-form rulemaking contains several amendments to the Department’s air quality

regulations. The Department consulted with the Air Quality Technical Advisory Committee

(AQTAC) during the development ofthis final rulemaking. At its July 26, 2007, meeting,

the AQTAC concurred with the Department’s recommendation that the Board consider the

final amendments on February 19,2008. The Department also consulted with the Citizens

Advisory Council during the development ofthe final-form rulemaking.E. Summary ofthe Final-Form Rulemaking

The final-form rulemaking amends § l27.l2b (relating to plan approval terms and

conditions) to extend from 120 days to 180 days the duration for temporary “shake-down”

operation of new air contamination sources and air cleaning devices subject to the planapproval requirements. This section was not modified between proposed and final-form

rulemaking.

Section 127.1 2d (relating to completeness determination) sets forth the criteria the

Department will use to determine if an application for plan approval is complete. This

section was modified between proposed and final-form rulemaking to provide that the

Department would make an administrative completeness determination within 30 days of

receipt ofthe application. This section was also modified to require an applicant to provide

supplemental information to the Department within 10-working days ofreceipt of a written

request for supplemental information. The supplemental information must be providedwithin 10-working days ofreceipt ofthe Department’s written request for additionalinformation for the administrative completeness determination. The Department will return

an application if an applicant fails to provide the requested information. Other minorclarifying changes were made as well.

Section 12744 (relating to public notice) has been amended to, among other things,

require the Department to publish in the Pennsylvania Bulletin a notice ofreceipt and intentto issue certain minor plan approvals. This section was modified between proposed and

final-form rulemaking to provide that the Department will prepare a notice ofreceipt and

intent to issue in accordance with § 127.45 (relating to contents of notice). The information elements to be included in the public notice were deleted from this section and moved to

§ 127.45. In addition other minor clarifying changes were made as well.

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The fmal-form rulemaking will be submitted to the United States Environmental

Protection Agency (EPA) as a revision to Pennsylvani&s State Implementation Plancodified in 40 CFR 52.2020 (relating to identification ofplan).

This notice is given under the Board’s order at its meeting of February 19, 2008.

F. Summary ofComments and Responses

Twelve commentators submitted comments during the public comment period. hi

addition, the Independent Regulatory Review Commission (IRRC) and the Senate

Environmental Resources and Energy Committee submitted comments during the extendedcomment periods authorized by the Regulatory Review Act (71 P. S. § 745.1--745.l5).

The following is a summary ofthe maj or comments that were received and responses.

Several commentators supported the Board’s efforts to streamline the air quality

permitting process. The Board agrees that the proposed changes wifi improve the overall

permitting process by reducing both the plan approval application processing time andunnecessary costs to the applicants and the Department, while still providing timely notice

to the public for comment on all complete plan approval applications submitted to the

Department.

Several commentators supported the proposed change to § 127.l2b that extends the

temporary shakedown period for a facility for additional limited periods from 120 days to

180 days. The Board believes that extending the temporary shakedown period from 120

days to 180 days will allow companies adequate time to test newly permitted sources in

accordance with the more complicated stack test requirements, rather than reapply for

another extension for “shakedown” purposes.

Several commentators recommended that the Board adopt a deadline for issuance ofthe

“completeness determination” under § 127. 12d. The Board agrees and has revised § 127. 12d

(a) to provide that the Department will provide written notice ofthe completenessdetermination to the applicant “within 30 days ofreceipt of an application.”

A commentator requested that the term “other documents” in § 127.1 2d(b) be expanded to

be more specific. The Board agrees. Section 127.l2d(b) ofthe fmal-form rulemaking has

been revised to clarify that the minimum requirements for documentation to be submitted

with a plan approval application include “other documents requested in the plan approvalapplication.”

Several commentators urged the Board to reject the proposed revisions because several

aspects ofthe proposed rulemaking will severely curtail opportunities for effective citizen

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The Board disagrees with the commentators that public participation in the plan approval

application process will be severely curtailed by the proposed changes to the plan approval

requirements. Rather, the proposed changes to 127.44 clarify the Department’s current

practice in publishing notices ofreceipt for plan approval applications for sources for whichthere is little to no public interest or concern. As a result, all plan approval actions will haveat least a 30-day public comment peñod. The amendatory provisions in the final-formregulation are consistent with section 6.1(b.3) ofthe APCA, which requires the Board toestablish adequate, streamlined and reasonable procedures by regulation for expeditiouslydetermining when applications are complete and for expeditious review of applications. See

35 P. S. § 4006.1(b.3). In addition, the changes to § 127.45 merely clarify the Department’s

general practice in publishing a brief description of the proposed action. Section 2 oftheAPCA provides, in part, that it is”. - . the policy ofthe Commonwealth of Pennsylvania to

protect the air resources ofthis Commonwealth to the degree necessary for the (i) protection

of public health, safety and well-being ofthe citizens of Pennsylvania. . .“ See 35 P. S.

§ 4002(a)(i). The permit streamlining amendments set forth in the final-form rulemaking

will not adversely impact the protection ofpublic health and the environment nor curtail

public involvement in the permitting process.

One commentator requested that the Board amend the regulations to allow for a

reasonable time period for approval oftrial burns of “opportunity fuels” of previouslyknown characteristics. The Board disagrees. The Department is taking a number ofsteps to

provide operational flexibilities for approval oftrial burns of “opportunity fuels.” Section

127.14 (relating to exemptions) provides an exemption from the permit requirements for

approval oftrial burns of “opportunity fuels.” Exemptions can be determined from the

existing list ofsources or through the use of a request for determination.

A commentator noted that as amended, § 127.45(b)(5) would no longer require a

“description ofthe reasons” for including conditions and was concerned with this change.The Board notes that while the requirements of existing of § 127.45(5) could be interpretedas requiring that the entire plan approval conditions need to be published in the notice of

action to be taken, to do so presents significant costs to the Department as well as theapplicant. Consequently, new § 127.45(b)(5) has been clarified to require a brief descriptionofthe conditions being placed in the plan approval with reference to applicable State and

Federal requirements. The entire plan approval will be available for review at the location

specified in the notice and will also be provided upon requestG. Benefits, Casts and Compliance

Benefits

Overall, the citizens ofthis Commonwealth will benefit from this final-form rulemaking

because the Department’s air quality program staff will be afforded additional time for

evaluating major source permit applications that will likely have significant environmental

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shakedown ofsources and air 

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notice provisions will be reduced substantially because publication ofthe plan approval will

no longer be required.

Compliance Assistance

The Department plans to educate and assist the public and regulated community with

understanding the amendments to the plan approval requirements. This outreach effort will

be accomplished through the Departinent tsongoing compliance assistance program.Paperwork Requirements

The final-form rulemaking will not increase the paperwork that is already generated

during the normal course of business.H. Pollution Prevention

The Pollution Prevention Act of 1990 (42 U.S.C.A. § 13101--13109) 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 ofraw 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 will allow industry to be responsive to free market changes,

while at the same time ensuring that those changes do not degrade existing air quality.

1. Sunset Review

The final-form rulemaking will be reviewed in accordance with the sunset review

schedule published by the Department to determine whether the regulations effectively

fulfill the intended goals.J. Regulatory Review

Under section 5(a) ofthe Regulatory Review Act (71 P. S. § 745.5(a)), on March 9, 2007,

the Department submitted a copy ofthe notice of proposed rulemaking, published at 37

Pa.B. 1317, to IRRC and to the Chairpersons ofthe House and Senate Environmental

Resources and Energy Committees (Committees) for review and comment.

Under section 5(c) ofthe Regulatory Review Act, IRRC and the Committees were

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K. Findings

The Board finds that:

(1) Public notice of proposed rulemaking was given under sections 201 and 202 ofthe act

ofJuly 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1201 and 1202) and regulations

promulgated thereunder at 1 Pa. Code § 7.1 and 7.2.

(2) At least a 60-day public comment period was provided as required by law, and all

comments were considered.

(3) This final-form rulemaking does not enlarge the purpose ofthe proposal published at

37 Pa.B. 1317 (March 24, 2007).

(4) This final-form rulemaking is necessary and appropriate for administration and

enforcement ofthe authorizing acts identified in Section C ofthis order.

L. Order

The Board, acting under the authorizing statutes, orders that:

(a) The regulations ofthe Department, 25 Pa. Code Chapter 127 are amended by

amending 127.12b, 127.44, 127.45 and 127.48; and by adding § 127.12d to read as set

forth in Annex A.

(b) The Chairperson ofthe 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 legalityand form, as required by law.

(c) The Chairperson ofthe Board shall submit this order and Annex A to IRRC and the

Committees as required by the Regulatory Review Act.

(d) The Chairperson ofthe Board shall certify this order and Annex A and deposit them

with the Legislative Reference Bureau, as required by law.

(e) This fmal-form rulemaking will be submitted to the EPA as an amendment to the

Pennsylvania State Implementation Plan.

(f) This order shall take effect immediately upon publication in the Pennsylvania

Bulletin.

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Annex A

TITLE 25. ENVIRONMENTAL PROTECTION

PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION

Subpart C. PROTECTION OF NATURAL RESOURCES

ARTICLE III. AiR RESOURCES

CHAPTER 127. CONSTRUCTION, MODIFICATION, REACTWATION

AND OPERATION OF SOURCES

Subchapter B. PLAN APPROVAL REQUIREMENTS

§ 12712b. Plan approval terms and conditions.

(a) A plan approval may contain terms and conditions the Department deems necessary tO

assure the proper operation ofthe source including the requirement for a compliance

demonstration prior to issuance of an operating permit.

(b) At a minimum, each plan approval must incorporate by reference the emission and

performance standards and other requirements ofthe act, the Clean Air Act or the

regulations adopted under the act or the Clean Air Act.

(c) The plan approval must incorporate the monitoring, recordkeeping and reporting

provisions required by Chapter 139 (relating to sampling and testing) and other monitoring,

recordkeeping or reporting requirements ofthis article and additional requirements related

to monitoring, recordkeeping and reporting required by the Clean Air Act and the

regulations thereunder, including, if applicable, the enhanced monitoring requirements of 40

CFR Part 64 (relating to enhanced monitoring).

(d) The plan approval must authorize temporary operation to facilitate shakedown of

sources and air cleaning devices, to permit operations pending issuance of a permit under

Subchapter F (relating to operating permit requirements) or Subchapter G (relating to Title

V operating permits) or to permit the evaluation ofthe air contamination aspects ofthe

source. This temporary operation period will be valid for a limited time, not to exceed 180

days, but may be extended for additional limited periods, each not to exceed 180 days.

(e) Temporary operation will not be authorized or extended under this section which may

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(b) For purposes ofthis section, an application is administratively complete ifit contains

the necessary information, maps, fees and other documents requested in the plan approval

application, regardless of whether the information, maps and documents would be sufficientto justify issuance ofthe plan approval.

(c) Ifthe Department determines that the application is not administratively complete, the

Department will send the applicant a written statement ofthe specific information, maps,

fees and documents that are required to make the application administratively complete. If

the applicant does not provide the requested information to the Department within 10working days ofreceipt ofthe request, the Department will return the application and fees

to the applicant.

§ 127.44. Public notice.

(a) The Department will publish in the Pennsylvania Bulletin a notice of receipt and

intent to issue for each plan approval application, except plan approval applications subject

to the notice requirements ofsubsection (b). The Department will prepare a notice ofreceiptand intent to issue in accordance with § 127.45(a) (relating to contents of notice).

(b) The Department will prepare a notice, in accordance with § 127.45(b), of action to be taken on applications for plan approvals for the following:

(1) Sources subject to Subchapter D (relating to prevention ofsignificant deterioration of

air quality).

(2) Sources subject to Subchapter E (relating to new source review).

(3) Sources of VOCs that submit plan approval applications demonstrating compliance

with Chapter 129 (relating to standards for sources) using 129.51(a) (relating to general).

(4) Sources located within a Title V facility.

(5) Other sources for which the Department has determined there is substantial public

interest or for which the Department invites public comment.

(c) The notice required by subsection (b)(1)--(4) will be completed and sent by the

Department to the applicant, the EPA, any state within 50 miles ofthe facility and any statewhose air quality may be affected and that is contiguous to this Commonwealth. Theapplicant shall, within 10 days ofreceipt of notice, publish the notice on at least 3 separatedays in a prominent place and size in a newspaper of general circulation in the county in

which the source is to be located; proof ofthe publication shall be filed with the Departmentwithin 1 week thereafter. A plan approval will not be issued by the Department in the event

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(f) The notice will state, at a minimum, the following:

(1) The location at which the application may be reviewed. This location must be in the

region affected by the application.

(2) A 30-day comment period, from the date of publication, will exist for the submission

of comments.

(3) Plan approvals issued to sources identified in subsection (b)(1)--(4) or plan approvals

issued to sources with limitations on the potential to emit may become part ofthe SIP and

will be submitted to the EPA for review and approval.

§ 127.45. Contents of notice.

(a) The notice ofreceipt and intent to issue for each plan approval required by § 127.44

(a) (relating to public notice) must include the following:

(1) The name and address ofthe applicant.

(2) The location and name ofthe source or facilty at which the construction,

modification, reactivation or installation is proposed.

(3) A brief description ofthe proposed action, including a brief description ofthe:

(i) Air contamination source to be constructed, modified, reactivated or installed.

(ii) Air cleaning device or control technology required including best available

technology.

(iii) Type of conditions being placed in the plan approval with reference to applicable

State and Federal requirements.

(4) The type and quantity of air contaminants being emitted.

(5) The name and telephone number of a person to contact at the Department for

additional information.

(6) A statement that a person may oppose the proposed plan approval by filing a written

protest with the Department, at the appropriate regional office described in § 121.4 (relating

to regional organization ofthe Department).

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(3) The type and quantity of air contaminants being emitted.

(4) For sources subject to Subchapter D (relating to prevention ofsignificant deterioration

of air quality), the degree ofincrement consumption expected to result from the operation of

the source or facility.

(5) A brief description ofthe conditions being placed in the plan approval with reference

to applicable State and Federal requirements.

(6) A description ofthe procedures for reaching a final decision on the proposed plan

approval action including:

(i) The ending date for the receipt of written comments or written protests.

(ii) Procedures for requesting a hearing and the nature ofthat hearing.

(iii) Other procedures by which the public may participate in the final decision.

(7) The name and telephone number of a person to contact at the Department for

additional information.

(8) A statement that a person may oppose the proposed plan approval by filing a written

protest with the Department, at the appropriate regional office described in § 121.4 (relating

to regional organization ofthe Department).

§ 127.48. Conferences and hearings.

(a) Prior to any plan approval issuance, the Department may, in its discretion, hold a fact

finding conference or hearing at which the petitioner, and any person who has properly flIeda protest under § 127.46 (relating to filing protests) may appear and give testimony; provided, however, that in no event will the Department be required to hold such a

conference or hearing.

(b) The applicant, the protestant, commentators and other participants will be notified of

the date, time, place and purpose of a conference or hearing, in writing or by publication ina newspaper of general circulation in the county in which the source is to be located and the

Pennsylvania Bulletin, except when the Department determines that notification by

telephone will be sufficient.

[Pa.B. Doe. No. 08-972. Filed for public inspection May 23, 2008, 9:00 a.m.l

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