## CONTROL OF NOx EMISSIONS FROM

GLASS MELTING FURNACES

25 Pa. Code Chapters 121 and 129

38 Pa.B. 1831 (April 19, 2008)

Environmental Quality Board Regulation #7-420 (Independent Regulatory Review Commission #2683)



# Comment/Response DocumentPublic Comment/Response Document

Control of NOx Emissions fr om Glass Melting Furnaces

On April 19, 2008, the E nvironmental Quality Boar d (Board, EQB) published a notice of public hearings and comment period on a proposed rulemaking concerning revisions to 25 Pa. Code Chapters 121 and 129 to control the emissions of nitrogen oxides (NOx) from glass melting furnaces during the ozone season (38 Pa. B. 1831). The public comment period closed on June 23, 2008.

Three public hearings were held on the proposed rulemaking as follows:

May 19, 2008 Department of Environmental Protection 2:00 p.m. Rachel Carson State Office Building

Room 105

400 Market Street Harrisburg, PA 17105

May 21, 2008 Department of Environmental Protection 2:00 p.m. Northeast Regional Office Susquehanna Room A, Second Floor 2 Public Square Wilkes-Barre, PA 18711

May 23, 2008 Department of Environmental Protection 2:00 p.m. Southwest Regional Office

Waterfront A & B Conference Room

400 Waterfront Drive Pittsburgh, PA 15222

This document summarizes the testimony receive d during the public hearings and the written comments received from the public during the pub lic comment period. Each public comment is listed with an identifying number for each comment ator that made the comment. A list of the commentators, including name, affiliation (if any) , and location, can be found at the beginning of

this document. The Board invited each comm entator to prepare a one-page summary of the commentator’s comments. One one-page summary was submitted to the Board for this rulemaking. If adopted by the Board, the fi nal regulation will be submitted to the U.S. Environmental Protection Agency (EPA) as a revi sion to the State Implementation Plan (SIP).

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### Table of Commentators to the Environmental Quality Board

Control of NOx Emissions fr om Glass Melting Furnaces Rulemaking # 7-420 (IRRC # 2683)

ID Name/Address One-Page Summary

Submitted

for

Distribution to EQB Provided Testimony Requested Copy of

Final Rulemaking

after EQB

Action

1. James M. Rowlett, CSP Manager, Environmental, Safety, and Health World Kitchen, LLC Charleroi, PA √

2. John W. Carroll Harrisburg, PA <<representing Saint-Gobain Containers>> Muncie, IN √

3. Steven F. Faeth

Senior Counsel EHS PPG Industries, Inc. Pittsburgh, PA √

4. Andrew L. Harris, P.E. Corporate Environmental Manager Pittsburgh Corning Corporation Port Allegheny, PA √

5. Thomas J. McDonald Manager, Environmental, Health and Safety SCHOTT North America, Inc. Duryea, PA

6. Angus E. Crane Vice President, General Counsel NAIMA (North American Insulation Manufacturers Association) Alexandria, VA

7. Senator Mary Jo White Chairperson Senate Environmental Resources and Energy

Committee Harrisburg, PA

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8. Senator Raphael J. Musto

Dem ocratic Chairman Senate Environmental Resources and Energy

Committee Harrisburg, PA

9. Independent Regulator y Review Commission Harrisburg, PA

10. Representative Scott E. Hutchinson Republican Chairman House Environmental Resources and Energy

Committee Harrisburg, PA

4Public Comment/Response Document

General Support

1. Comment: The commentator supports and strongly urges the adoption of the NOx emission limits for fiberglass plants consistent with the 4.0 pounds of NOx per ton of glass pulled (lbs NOx/ton glass pulled) adopted by the Oz one Transport Commission (OTC). (6)

Response: The Department of Environmental Protection (Department) appreciates the commentator’s support of the proposed rulemaking for fiberglass plants.

2. Comment: The commentator stated that the emi ssion limit for fiberglass plants in the proposed rule can be achieved by currently availa ble technologies, and the emission limit is a technologically feasible a nd pragmatic approach requiri ng implementation of low-NOx combustion technology. (6)

Response: The Department agrees with the comment ator that the emission limit for fiberglass

furnaces can be achieved with tec hnologies currently available.

3. Comment: The commentator stated that the OTC-recommended emission limit of 4.0 lbs NOx/ton glass pulled for fiberglass plants achieves consistency and uniformity with the standard

that the 13 members of the OTC effectively adopted in Novemb er 2006, and urges Pennsylvania to recognize the prudence and wisdom of a uni form standard throughout the various states because this provides the fiberglass industry w ith a predictable and manageable regulatory scheme. (6)

Response: The Department agrees with the commentator that proposing the OTC-recommended emission limit of 4.0 lbs NOx/ton glass for fiberg lass plants achieves cons istency and uniformity among the 13 members (12 states and the District of Columbia) of the OTC.

Proposed NOx Emission Limits

4. Comment: The commentator stated that it is arbitr ary to base the propos ed rule’s allowable emission requirements on a California rule without an explanation as to why they are suitable to Pennsylvania. (4)

Response: The Department disagrees with the co mmentator that the rule’s allowable NOx emission limit requirements are arbitrary. The Department proposed the allowable NOx emission requirements as a result of the rese arch conducted by, and the recommendations of, the

Northeast OTC. The Northeast OTC is a multi- state organization created under Section 184 of the Federal CAA. 42 U.S.C.A. § 7511c. Th e OTC is responsible for advising the EPA on ground-level ozone pollution transport issues and for developing and implementing regional solutions to the ground-level ozone problem in th e Northeast and Mid-Atlantic regions. The members of the OTC (this Co mmonwealth, CT, DE, MA, MD, ME, NH, NJ, NY, RI, VA and VT, and the District of Columbia) are required to demonstrate attainment with the 1997 8-hour ozone standard of 80 ppb throughout the OTR. See 62 FR 38855 (July 18, 1997). Furthermore, on March 12, 2008, the EPA issued a more protec tive 8-hour ozone standard of 75 ppb that

5Public Comment/Response Document

would require additional reducti ons of ozone precursor em issi ons, including NOx, that impact

each OTR member’s nonattainment status. Se e 73 FR 16436 (March 27, 2008). However, the EPA has reconsidered the 2008 ozone NAAQS and on January 19, 2010, published a proposed rulemaking to set a more protective 8-hour primary standard at a lower level within the range of 0.060-0.070 ppm; the final revised ozone standard is expected in August 2010. See 75 FR 2938. If, as is widely expected, the EPA tightens th e ozone standard, the a dditional NOx emissions from the final-form rulemaking for glass melting furnaces will be even more important than if the current 2008 ozone standard remains in pl ace. In addition, the Northeast states are conducting attainment planning work to support development of PM2.5 and regional haze SIPs to satisfy obligations under the CAA and regul ations issued under the CAA. See 74 FR 58688 (November 13, 2009) and 64 FR 35714 (July 1, 1999).

The OTC undertook a study to identify a suite of a dditional control measures that could be used by the members in attaining their goals. Wor kgroups of staff from within the OTC members

were established to evaluate control measures fo r specific sectors or issues. Department staff actively participated in these workgroups. Based on a review of 1,000 candidate control measures, the workgroups developed a short list of measures to be considered for more detailed analysis. The technical informa tion for this short list of measur es is found in the OTC report: Identification and Evaluation of Candidate Control Measures, Fi nal Technical Support

Document , prepared by MACTEC Federal Programs, Inc., Herndon, VA, February 28, 2007. Control of NOx emissions from glass melting furnaces in the six states within the OTR that have glass melting furnaces (this Commonwealth, MA, MD, NJ, NY and RI) was on the short list as a measure for further analysis by the workgroups . The workgroups reviewed information on current NOx emissions from the furnaces, contro ls already in place on the furnaces, anticipatedadditional NOx emission reductions from the control measures, preliminary cost and costeffectiveness data, and other implementation issu es. The workgroups discussed all the candidate control measures, including controlling NOx emissions from glass melting furnaces, during a series of conference calls and workshops to fu rther refine the emission reduction estimates, the cost data and implementation issues.

The workgroups also discussed comments from stakeholders, including glass melting furnace stakeholders (North American Insulation Manufac turers Association and Glass Association of North America). The OTC Commissioners su mmarized the glass melting furnace control

measures and made a recommendation at the Co mmissioners’ meetings in 2006 that the affected

member states consider NOx emission reducti ons from glass melting furnaces. The glass melting furnace stakeholders were provided multip le opportunities to review and comment on the glass melting furnace control measures summa ry. Public meetings were held as an opportunity for stakeholders to review and respond to the Commissioners’ recommendations, stakeholders provided written comments, and the workgroups conducted conference calls with specific stakeholders to allow the stakeholders to vocalize their concerns directly to state regulatory staff and to discuss the control options . The OTC staff and st ate workgroups carefully

considered the verbal and written comme nts received during this process.

The OTC’s control measures summary document fo r the glass melting furnaces located in this Commonwealth, MA, MD, NJ, NY and RI recommends the states “develop control strategies that recommend ‘oxyfiring’ for each furnace at the next furnace rebuild.” Alternatively, states

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m ay allow manufacturers to propose complian ce methods based on California’s San Joaquin Valley Air Pollution Control District (SJVAPCD) Rule 4354 (relating to glass melting furnaces) which allows a “mix of control options to meet specified emission limits.” The NOx emission rates recommended in the OTC control measures summary document are the rates specified in the SJVAPCD Rule 4354. The Department review ed, analyzed and concurred with the OTC’s control measures summary document for glass me lting furnaces with resp ect to the individual glass melting furnaces located in this Commonwealt h. Further, the Department determined that proposing a glass melting furnaces regulation based on the SJVAPCD Rule 4354 that incorporates a mix of control options to meet specified emi ssion limits was the appropriate implementation strategy for a rulemaking to cont rol NOx emissions from this Commonwealth’s glass melting furnaces.

5. Comment: The Independent Regulatory Review Commission (IRRC) requests that the Board provide a detailed explanation on the basis for the emission limits in the emission requirements section. (9)

Response: Please see the response to comment number 4.

6. Comment: The IRRC questioned whether imposing the proposed emission requirements in

the absence of a Federal deadlin e will place this Commonwealth ’s industry at a competitive disadvantage, and suggests the Board should review the situation carefully in conjunction with the OTC to take precautions to insure a level playing field in the industry. (9)

Response: The Department proposed the allowable emission requirements as a result of the research conducted by and the recommendations of the OTC. The OTC is a multi-state organization created under Secti on 184 of the Federal CAA. 42 U.S.C.A. § 7511c. The OTC is responsible for advising the EP A on ground-level ozone transport issues and for developing and implementing regional solutions to the ground-level ozone transport problem in the Northeast and Mid-Atlantic regions. The members of the OTC (this Commonw ealth, CT, DE, MA, MD, ME, NH, NJ, NY, RI, VA and VT, and the District of Columbia) are required to demonstrate attainment with the 1997 8-hour ozone NAAQS. See 62 FR 38855 (July 18, 1997).

Furthermore, on March 12, 2008, the EPA issued a more protective 8-hour ozone standard of 75 ppb that would require additional reductions of ozone precursor emissions, including NOx, that impact each OTR member’s nonattainment status. See 73 FR 16436 (March 27, 2008). However, the EPA has reconsidered the 2008 ozone NAAQS and on January 19, 2010, published a proposed rulemaking to set a more protective 8- hour primary standard at a lower level within the range of 0.060-0.070 ppm; the final revised ozone standard is expected in August 2010. See 75 FR 2938. If, as is widely expected, the EP A tightens the ozone standard, the additional NOx emissions from the final-form rulemaking for gl ass melting furnaces will be even more important than if the current 2008 ozone standard remains in place.

Control of NOx emissions from glass melting furnaces in the six states within the OTR that have glass melting furnaces (this Commonwealth, MA, MD, NJ, NY and RI) was on the short list as a

7Public Comment/Response Document

control m easure for further analysis by the OTC. 1 The OTC Commissioners summarized the glass melting furnaces control measures and made a recommendation at the Commissioners’ meetings in 2006 that the members consider NOx emission reductions from glass melting furnaces. This Commonwealth, along with the ot her affected OTC member states, agreed to establish NOx emission limits and controls for glass melting furnaces that are based on the

SJVAPCD Rule 4354 so that there would be a level playing field among the surrounding OTC states. The owners and operators of glass melting furnaces in this Commonwealth remain competitive with those states not in the OTC with the option of an alternative compliance schedule contained in the peti tion process that is provided in subsections 129.304(b) and (c) (relating to emission requirements) of the final-form rulemaking.

7. Comment: The commentator stated that the proposed rule does not include emission requirements for specialty glass manufacturing, and therefore the proposed rule does not apply to their glass melting furnace since it does not m eet the applicability criteria defined in the proposed rule. (5)

Response: The Department recognized that furnaces within this Commonwealth that produce a glass product other than the f our types listed in the proposed rulemaking (flat, container, fiberglass or pressed and blown) were not adequa tely considered in the proposed rulemaking. As a result, the Department has added to § 129.304 in the final-form rulemaking an emission limit of 6.0 lbs NOx/ton glass pulled for any other gla ss melting furnace that does not produce flat, container, fiberglass or presse d or blown glass products. The Department, in researching and analyzing these types of furnaces in this Commo nwealth, considered the limit of 6.0 lbs NOx/ton glass pulled to be a reasonable limit based on th e low NOx burner technology that is available to reduce uncontrolled NOx emissions by 30-35%.

8. Comment: The proposed rule’s compliance determ ination section should express NOx in the same units as in the emission requirements sec tion of the proposed rule (lbs/hr vs. lb NOx/ton glass). (3)

Response: The Department disagrees with the commentator. The continuous emissions monitoring system (CEMS) equipment is not desi gned to sample and report a source’s processderived emissions data, for example, tons of gl ass pulled at a glass melting furnace. The CEMS equipment samples on the basis of a ‘parts pe r million’ emissions concentration, and then automatically calculates a ‘pounds per hour’ emissions concentration. When the monitoring data is submitted to the Department every quarter , as required under subsection 129.309(a) (relating to compliance demonstration), the submittal sha ll include the CEMS monitoring data in pounds per hour and the glass production data in tons of glass pulled per da y for each furnace.

1 Identification and Evaluation of Candidate Control Measures, Final Technical Support Document . Prepared for the Ozone Transport Commission, Washington DC, by MACTEC Federal Programs, Inc., Herndon, VA, February 28, 2007.

8Public Comment/Response Document

2009 Compliance Date

9. Comment: The commentator stated that the emi ssion requirements compliance date of May 1, 2009, is unreasonable because there is le ss than a year until this deadline and the proposed rule is not yet final and may not be final before the end of 2008. (3)

Response: The Department acknowledges that the proposed rulemaking’s compliance date of May 1, 2009, is no longer possible. The Department revised the final-form rulemaking to require compliance with the emission limits by January 1, 2012. The final-form rulemaking also provides a petition process to all glass melti ng furnace owners and operators under subsection 129.304(b) for an alternative comp liance schedule, if they will be unable to meet the NOx emission limits beginning January 1, 2012.

10. Comment: The commentator stated that this regul ation will likely require permitting of air pollution control equipment which reasonably cannot occur by May 1, 2009, and suggests that the regulation’s compliance deadline become effective upon the next furnace rebuild but no sooner than May 1, 2012. (3)

Response: The Department revised the final-form rulemaking to require compliance with the emission limits by January 1, 2012. The final-form rulemaking also provides a petition process to all glass melting furnace owne rs and operators under subsection 129.304(b) for an alternative compliance schedule, if they will be unable to meet the emission limits beginning January 1,

2012.

11. Comment: The commentator stated that the NOx proposed rule creates an unreasonable timetable for compliance, and recommends post poning the compliance date until at least the 2010 ozone season. (2)

Response: Please see the response to comment number 10.

12. Comment: The IRRC commented that the Board s hould review the practicality of the 2009 compliance deadline, given the uncertainty of the future of the EPA Clean Air Interstate Rule (CAIR) allowance program, and questions if other compliance options will be available for providing flexibility to the affected industry. (9)

Response: The Department agrees with the comment ator. Subsequent to the closing of the public comment period on June 23, 2008, for the proposed rulemaking (38 Pa.B. 1831, April 19, 2008), but prior to the vacatur of the EPA’s CAIR , the Department held discussions with the EPA regarding the proposed rulemaking’s option to demonstrate compliance with the emission limits through the purchase of CAIR NOx allowa nces under the EPA’s CAIR regulation. During those discussions, the EPA indicated to the De partment that a glass melting furnace regulation that would provide a compliance option to purchase CAIR NOx allowances would be problematic as far as approvability by the EP A for the Commonwealth’s SIP, because glass melting furnaces are not specifically included in the EPA’s CAIR program as a source category able to purchase CAIR NOx allowances to ac hieve compliance. The EPA did not intend CAIR to comprise the entire solution to control NOx emissions from all types of sources, but only to

9Public Comment/Response Document

address interstate transport of ozone and PM 2.5 precursors from the electric generating unit (EGU) sector. Therefore, the Departm ent delete d from the final-form regulation the compliance option to purchase CAIR NOx allowances. Because of this change, the Department has revised the final-form rulemaking to require complian ce with the emission limits by January 1, 2012.

13. Comment: The Senate and House Environmental Committees commented, during the

Advance Notice of Final Rulemaki ng (ANFR) comment period (39 Pa.B . 5318, September 12, 2009), that it may assist the De partment as well as the regu lated industry to not base the compliance timeframe on a specific date. The Committees commented that glass melting furnaces could potentially be required by the regula tion to be replaced or upgraded prior to the end of their normal life expectancy, which woul d greatly increase the compliance costs of the regulation, if the regulation contains a speci fic compliance date. The Committees further commented that they understand several other st ates permit furnaces to be upgraded after their normal and anticipated life exp ectancy is exhausted. (7,8,10)

Response: The final-form rulemaking provides a pe tition process to all glass melting furnace owners and operators under subs ection 129.304(b) for an alternative compliance schedule, if they will be unable to meet the emission limits beginning January 1, 2012. The Department believes that a final compliance date specified in the regula tion is necessary to ensure that the owners and operators of the glass melting furnaces in this Commonwealth limit the NOx emissions from their furnaces by a date certain, either by Janua ry 1, 2012, or by the date specified on a case-bycase basis as determined through the petition pr ocess for an alternative compliance schedule under subsection 129.304(c). Additionally, th e SJVAPCD Rule 4354, whose NOx emission limits and compliance methods were recomm ended by the OTC control measures group, specifies a final compliance date.

CAIR

14. Comment: A commentator stated that the proposed rule limits the purchase of allowances to CAIR NOx allowances, and should allow for the use of NOx credits previously banked as a result of prior emission reductions. (3)

Response: The Department disagrees with the comment ator. The use of NOx credits previously banked due to prior emission reductions is clar ified by the Department’s NOx Budget Trading Program under subsection 145.90(a) (relating to emission reduction cred it provisions): “ERCs may not be used to satisfy NOx allowance requirements.” Additionally, as explained in the response to comment number 12, the Department removed from the final-form rulemaking the compliance option to purchase CAIR NOx allowances.

15. Comment: A commentator stated that the Depart ment did not adequately address, while drafting and promulgating the proposed regula tion and in accordance with Commonwealth Executive Order 1996-1, that when there are exis ting Federal regulations covering the subject matter as does the EPA’s CAIR regulation, that th e State’s regulations cannot be more stringent

than the Federal standards. The commentator st ated further that the EPA promulgated CAIR for

the control of NOx emissions at the Federal le vel, and the EPA focused the CAIR regulation on

10Public Comment/Response Document

EGUs. Glass m elting furnaces are not EGUs, thus under the EPA’s CAIR, specific regulation of glass manufacturing is notably absent. (4)

Response: The purpose of the Department’s proposed glass melting furnaces rulemaking is to address reductions of NOx from glass melting furnaces, while the EPA’s CAIR addresses NOx reductions from EGUs, certain boile rs, stationary combustion turbin es and stationary internal combustion engines. Therefore, these are two different regulatory strategies with the goal of reducing NOx emissions from various source ty pes within this Commonwealth. The EPA did not intend CAIR to comprise the entire soluti on to control NOx emissions from all types of sources, but only to address interstate transport of ozone and PM2.5 precursors. In fact, the EPA explicitly recognized that addi tional state regulation may be necessary in some areas, in combination with reduction of interstate transpor t, to attain and maintain the ozone and PM2.5 NAAQS.

Commonwealth Executive Order 1996- 1 applies to the final-form ru lemaking since there is not a companion Federal rule that reduces NOx emissi ons from glass melting furnaces. However, this proposed rulemaking is reasonably necessary to attain and maintain the 1997 8-hour ozone NAAQS. The criteria for adopting state regulatio ns more stringent than Federal regulations (when Federal regulations exist) are in the Air Pollution Control Act (APCA), Section 4.2 (35 P.S. § 4004.2). Section 4.2 of the APCA author izes the Board to adopt regulations more stringent than Federal requirement s when the control measures are reasonably necessary to attain and maintain the ambient air qua lity standards.

Vacatur of the EPA’s CAIR

16. Comment: The IRRC questioned the Board’s statut ory authority for the use of CAIR NOx

allowances and revised NOx emi ssion limits in the proposed regulation due to the fact that the EPA’s CAIR was vacated on July 11, 2008, by the D.C. Circuit Court. The IRRC goes on to say that the Court in its ruling st ated that the analysis done by th e EPA was “fundamentally flawed” and that the agency (EPA) must start its analysis anew. (9)

Response: The decision by the D.C. Circuit Court in North Carolina v. EPA only addressed CAIR, and did not address NOx emission limits for glass melting furnaces. Subsequent to the closing of the public comment period on June 23, 2008 for the proposed rulemaking (38 Pa.B. 1831, April 19, 2008), but prior to the vacatur of the EPA’s CAIR, the Department held discussions with the EPA regarding the pr oposed rulemaking’s option to demonstrate compliance with the emission limits through the purchase of CAIR NOx allowances under the EPA’s CAIR regulation. During those discussions, the EPA indicated to the Department that a final glass melting furnace regul ation that would provide a comp liance option to purchase CAIR NOx allowances would be problematic as far as approvability by the EPA for the Commonwealth’s SIP, because glass melting furnaces are not specifically included in the EPA’s CAIR program as a source category able to purchase CAIR NOx allowances to achieve compliance. The EPA did not intend CAIR to comprise the entire solution to control NOx emissions from all types of sources, but only to address interstate tran sport of ozone and PM2.5 precursors from the EGU sector. The Court deci ded to remand, and not vacate, the EPA’s CAIR in December 2008. The final Federal rule, expected in 2011, must be revised to be consistent

11Public Comment/Response Document

with the Court’s July 11, 2008, decision in State of North Carolina v. Environmental Protection Agency , 531 F.3d 896 (D.C. Cir. 2008). The Departm e nt agrees that while the EPA’s CAIR remains in place at this time, the EPA will propose and finalize in the next two years a replacement for CAIR that meets th e criteria set forth by the Court. In light of the pre-vacatur discussions with the EPA and the uncertainty a bout what a CAIR replacement will include, the Department removed from the final-form gla ss melting furnaces rulemaking the compliance option to purchase CAIR NOx allowances. Th erefore, the provision s of the final-form rulemaking contain significant changes from the provisions of the proposed rulemaking.

Additionally, a replacement for th e EPA’s CAIR program could possibly include interstate trading. Because participating in both a tr ading program and the emissions averaging compliance option provided in the proposed rule making could potentially provide a loophole to

the affected furnaces to avoid emissions reduc tions, glass melting furnaces for which the Department has granted approval to voluntarily part icipate in an interstate trading program will not be eligible for the emissions averaging option in the compliance demonstration under subsection 129.309(b) of the final-form rulemaking.

17. Comment: The Senate Committee commented on the ability of the Board to move forward with the regulation if the D.C. Court vacated the CAIR budget and allo wance system for NOx emissions in Pennsylvania and other states. Their concern is that on July 11, 2008, the U.S. Court of Appeals for the District of Columbia overturned CAIR, and specifically that the Court found that the state NOx budgets as determined by the EPA were “arbitrary and capricious.” (7,8)

Response: The decision by the D.C. Circuit Court in North Carolina v. EPA only addressed CAIR, and did not address NOx emission limits for glass melting furnaces. Please see the response to comment # 16.

18. Comment: The IRRC stated that the Department should address the concerns raised by the Senate Committee on the CAIR vacatur, and suggested that if the regulati on requires substantial changes, to consider submitting an Advance Noti ce of Final Rulemaking (ANFR) or publishing the changes as a new pro posed regulation in the Pennsylvania Bulletin . (9)

Response: The Department agrees with the comment ator. The provisions of the final-form rulemaking contain significant changes from the provisions of the proposed rulemaking. Most importantly, during discussions with th e EPA following the close of the Board’s public comment period for the proposed rulemaking, the EPA indicated to the Department that a final glass melting furnace re gulation that provides a complia nce option to purchase CAIR NOx allowances would be problematic as far as approvability by the EPA for the Comomnwealth’s SIP, because glass melting fu rnaces are not specifically included in the EPA’s CAIR program as a source category ab le to purchase allowances to achieve compliance. The EPA did not intend CAIR to comprise the entire solution to control NOx emissions from all types of sources, but only to address interstate tr ansport of ozone and PM2.5 precursors from the EGU sector. Therefore, the Department removed from the finalform rulemaking the compliance option to purchase CAIR NOx allowances.

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The Departm ent further revised the final-form rulemaking to require compliance with the NOx emission limits year-round because NOx is not only a precursor to ozone formation, but is also a precursor to the formation of PM2.5, which is monitored year-round. In addition, the proposed rulemaking addressed control of NOx emissions from glass melting furnaces only during the period of May 1 to September 30 of each year, and it is anticipated that the EPA will extend the ozone monitoring season in this Commonwealth to go from March 1 to October 31, each year, requiring monitoring fo r the 8-hour ozone NAAQS for a longer period each year. See 74 FR 34525 at p. 34538 (July 16 , 2009). The Department also added a NOx emission limit applicable to a glass melting furn ace that produces a glass product that is other than flat, container, fiberglass or presse d and blown. These changes are sufficiently significant that the Department believed furthe r discussion and an additional comment period served the public interest. An Advance Notice of Final Rulemaking (ANFR) to solicit comments from the public on the draft final-form regulation was published in the Pennsylvania Bulletin on September 12, 2009 (39 Pa.B. 5318).

System-Wide Averaging of NOx Emissions

19. Comment: The Senate Committee and the IRRC commented on the proposed provision to

allow facilities under common owners hip to trade NOx allowances for system-wide averaging of NOx emissions, while prohibiting the trading of NOx allowances to average NOx emissions

between facilities not under co mmon corporate ownership. Th e Senate Committee commented that they support th e concept of NOx allowance trading, and would favor removing the requirement for being “under common control of the same owner or operator in this Commonwealth” from the system-wide averagin g section of the rulemaking, and the IRRC

commented that the Board should address this issue. (7,8,9)

Response: The Department disagrees with the Se nate Committee’s suggestion to remove the requirement for being “under common control of the same owner or operator in this Commonwealth” from the system-wide averaging option under the compliance demonstration section of the rulemaking. The option to dem onstrate compliance with the emission limits by averaging the NOx emissions of several glass melting furnaces under the common control of the same owner or operator in this Commonwealth provides added flexibility to the glass companies in this Commonwealth with more than one facility. Allowing multiple owners and operators of glass melting furnaces in this Commonwealth to average their emissions in concert with each other in order to demonstrate compliance would essentially provide them the larger framework of an emissions trading progr am, which is beyond the scope of the final-form rulemaking provision to provide them with an emissions averaging option.

Continuous Emissions Mo nitoring System (C EMS)

20. Comment: One commentator stated that the proposed rule’s re quirement to install a NOx emissions monitoring system (CEMS or an alte rnate) does not impose a time requirement upon the Department for the review and approval of the monitoring system. (3) Response: The Department disagrees with the comment ator that the regulation should contain a time requirement. The owners or operators of gl ass melting furnaces who are planning to install, operate and maintain a CEMS or alternate mon itoring system or method have been advised to

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contact their Departm ent regional and central office contacts for specific information and guidance regarding the installati on, review and approval requiremen ts for any and all monitoring equipment. The timeframe to review and approve a monitoring system is coordinated with each individual company during the certification process of the monitoring system, in accordance with the Department’s Continuous Source Monitoring Manual (DEP 274-0300-001; 25 Pa. Code Chapter 139, Subchapter C (relating to require ments for source monitoring for stationary sources)). These monitoring-specific issues are not part of individual rulemakings.

21. Comment: Some commentators stated that the deadline of May 1, 2009, for the system to be installed and operational is unreasonable as th ere is less than a year until this deadline, and that it does not provide adequate time allowed for installation and operation of the CEMS. The commentators suggest that there should be a longer timeframe for the system to be installed and operational, and suggest that May 1, 2010, should be the earliest implementation date for the CEMS. (3,4)

Response: The Department agrees with the comme ntators. The deadline of May 1, 2009, to install, operate and maintain a CEMS or alternate monitoring system or method has been removed from the final-form rulemaking. A CEMS or alternate monitoring system or method to determine compliance with the emission limits specified in subsection 129.304(a) in the finalform rulemaking must be installed, operating and maintained no later than 14 days prior to the applicable date by which a glass melting furnace is required to meet the emission limits specified in subsection 129.304(b) or (c) in the final-form rulemaking.

22. Comment: A commentator stated that “to be cons istent with the requi rements of the CAIR,

CEMS installation should be reserved for fu rnaces undergoing reconstruction or modification and not simple rebricking.” (4)

Response: The Department disagrees with the co mmentator. The EPA’s CAIR requirements are not applicable to this rule making. In addition, a CEMS or alternate monitoring system or method to determine compliance with the emissi on limits specified in subsection 129.304(a) in the final-form rulemaking must be installed, operating and maintained no later than 14 days prior to the date by which a glass melting furnace is requ ired to meet the emission limits specified in subsection 129.304(b) or (c) in the final-form rulemaking.

23. Comment: One commentator stated that the ‘alt ernate NOx emissions monitoring system or method’ referenced in the proposed rule should be further clarified to explain what is an allowable alternate system. (1)

Response: The Department disagrees with the co mmentator. An alternate NOx emissions system or method is not designed to be a prescribed method or sy stem. The owners or operators of glass melting furnaces who are planning to in stall, operate and maintain an alternate monitoring system or method are ad vised to contact their Departme nt regional and central office contacts for specific information and guidance regarding the installation, review and approval requirements for any and all monitoring equipment. The timeframe to review and approve an alternate monitoring system or method is coor dinated with each individual company during the certification process of the monitoring system.

14Public Comment/Response Document

24. Comme nt: The IRRC questioned the lack of criteri a, process and timetable the Department will use to decide on an approva ble ‘alternate NOx emissions monitoring system or method’ in the compliance determination section. (9)

Response: Please see the response to comment number 23.

Start-Up Exemption

25. Comment: The commentator states that the star t-up exemption time of 104 days for a flat glass furnace is too short, and suggests that 208 days be allowed for a flat glass furnace that uses a NOx control not readily available from a commer cial supplier, not in co mmon use, or that is innovative. (3)

Response: The Department agrees with the commentat or with respect to the start-up exemption time of 104 days for a flat glass furnace. To be consistent with the SJVAPCD Rule 4354, on whose NOx emission limits the OTC based its recommendations to its member states with glass melting furnaces, the final-form rulemaking revi sed the length of the start-up exemption in subsection 129.305(d) (relating to star t-up requirements) for all types of glass furnaces. For flat glass furnaces, the maximum start-up exemption time is 208 days if the NOx control system is not in common use or is not readily ava ilable from a commer cial supplier.

26. Comment: The ‘not to exceed 5% excess oxygen’ restriction during a furnace combustion start-up should be eliminated, as it does not appe ar to have a relationshi p or a benefit to NOx emissions. (3)

Response: The Department retains in the final-form rulemaking the furnace start-up restriction in subsection 129.305(f) of ‘not to exceed 5% excess oxygen,’ which is consistent with the furnace start-up requirements in the SJVAPCD Rule 4354.

27. Comment: IRRC questioned the clarity of the st art-up exemption procedure section. (9)

Response: The Department believes that the star t-up requirements foun d under § 129.305 of the final-form rulemaking are clear and precise.

28. Comment: The Senate and House Environmenta l Committees commented to the Board on

behalf of PPG Industries dur ing the ANFR comment period th at the start-up exemption unnecessarily restricts the exemption to a ne w furnace or furnace rebuild and does not account for an idled existing furnace, and implies that a plan approval would be required in connection with a furnace start-up, which is not necessarily the case. (7,8,10)

Response: The Department has revised this secti on of the final-form rulemaking. Subsection 129.305(b) specifies that a plan approval applic ation for a furnace start-up exemption request shall be submitted ‘if required,’ in recognition that some furnace start-ups may not require a plan approval.

15Public Comment/Response Document

Definitions

29. Comment: The NOx proposal should adopt the 2007 National Emissions Standards for Hazardous Air Pollutants (NESHAP) definition of “glass melting furnace” instead of using the

outdated 1980 New Source Performance Standa rds (NSPS) definition. The NSPS definition includes a list of extraneous non-furnace equipment that goes against the intent of the proposed rule that requires monitoring NOx em issions from only the furnace. (2)

Response: The Department agrees with the comment ator. Section 121.1 (relating to definitions) has been revised in the final-form rulemaking to include the 2007 NESHAP definition of the term ‘glass melting furnace’ that was published in the Federal Register on December 26, 2007 (72 FR 73183).

30. Comment: A commentator stated that the defin ition of ‘furnace rebuild’ is unclear and appears to broaden the scope of repair activities that currently require permitting, and that the

definition should exclude rebricki ng activities as defined in 40 CFR Subpart CC and likewise exclude those activities from permitting. The te rm “complete reconstruction” in the furnace

rebuild definition should be stated as “reconstruc tion” and have the same meaning as the Federal definition of “reconstruction” provided in 40 CFR Part 60.15. (3)

Response: The Department agrees with the commentat or. The definition of the term “complete reconstruction” proposed under § 121.1 in the propos ed rulemaking has been deleted in the finalform rulemaking and a definition for “cold sh utdown” added. The final-form rulemaking

includes the term “scheduled” whenever the term “cold shutdown” is used within the final-form rulemaking to distinguish between furnace repair activities and a scheduled “cold shutdown” when the furnace is cold and does not contain molten glass.

31. Comment: The Senate and House Committees commented to the Board on behalf of PPG Industries during the ANFR comment period that the definition of the term “start-up” should be revised to be consistent with the San Joaqui n rule to include necessary language on furnace stabilization, that is, the phras e “and systems and instrumentation are brought to stabilization.” (7,8,10)

Response: The Department agrees with the commentat or. The definition of the term “start-up” proposed under § 121.1 has been revised in the final-form rulemaking to include the furnace stabilization phrase suggested by the commentator, and to be consistent with the SJVAPCD Rule

4354.

Miscellaneous

32. Comment: The IRRC commented on the phrase ‘in this Commonwealth’ in the compliance demonstration section, and questions if it means an owner or operator must be located in this Commonwealth, and what about when facilities are located in Penns ylvania but the owner is not. (9)

16Public Comment/Response Document

Response: The phrase “in this Com monwealth” in paragraph 129.309(b)(3) means that NOx emissions from glass melting furnaces operating at more than one location within this Commonwealth, and under the same ownership or operator, may be averaged. The owner or operator does not have to be located in this Commonwealth.

33. Comment: The proposed regulation should not expa nd the scope of what currently triggers permitting or plan approvals specified in the Pennsylvania Code and existing Federal regulations, and exemptions should be incl uded for furnace rebricking and repairs or replacements that do not cons titute a modification. (3)

Response: The final-form rulemaking will require compliance with the NOx emission limits by January 1, 2012. The plan approval issued for th e construction of a new glass melting furnace or

furnace modification shall include terms and cond itions consistent with the requirements of

25 Pa. Code , Chapter 127, Subchapter B (relating to plan approval requirements). The Department has added in the final-form rulemaking under § 121.1 a definition for the term “cold shutdown,” and the rulemaking includes the te rm “scheduled” whenever the term “cold

shutdown” is used within the final-form rule making to distinguish between furnace repair

activities and a scheduled “cold shutdown” when the furnace is cold and does not contain molten glass. The Department believes this will alleviate the concerns about routine repairs to a furnace.

34. Comment: The selective catalytic reduction (SCR) and selec tive non-catalytic reduction (SNCR) add-on control technologies for glass fu rnaces are not technically feasible control technologies for the intermittent NOx emissions from nitrate decomposition, and therefore are

not feasible add-on controls for this commen tator’s glass melting furnace facility. This commentator requests the EQB to explicitly exclude its facility from the proposed rule. (5)

Response: The Department disagrees with the comme ntator. The Department recognized that furnaces within this Commonwealth that produce a glass product other than the four types listed in the proposed rulemaking (flat, container, fiberglass or pressed and blown) were not adequately considered in the proposed rulemaking. As a result, the Department has added under § 129.304 in the final-form rulemaking an emission limit of 6.0 lbs NOx/ton of glass pulled for any other glass melting furnace that does not produce flat, container, fiberglass or pressed and blown glass products. The Department, in re searching and analyzing these t ypes of furnaces within this Commonwealth, considered the limit of 6.0 lbs NOx/t on of glass pulled to be a reasonable limit based on the low NOx burner technology that is available to reduce uncontrolled NOx emissions by 30-35%.

35. Comment: The proposed rule is directed at combustion sources of NOx, and the rule’s

intent is to limit emissions of thermal NOx. Since 95% of this commentator’s NOx emissions are from decomposition of n itrogen-containing raw material s and not from thermal NOx combustion processes, the EQB shoul d clarify that it is inappropri ate to apply the proposed rule to them. (5)

Response: The Department disagrees with the co mmentator. The purpose of the proposed rulemaking is to control NOx emissions from glass melting furnaces. Section 129.302 (relating to applicability) of the final-form rulemaking clear ly states that the provisions of the rulemaking

17Public Comment/Response Document

apply to an owner or op erator of a glass melti ng furnace that emits or has the potential to emit NOx at a rate greater than 50 tons per year. If a glass melting furnace in this Commonwealth meets the applicability criteria, the final-form rulemaking provisions apply.

36. Comment: The Senate and House Environmental Committees and another commentator questioned the legal authority of the Departmentand the EQB to require glass melting facilities to significantly reduce NOx emissions under the authority of the Pennsylvania Air Pollution Control Act, 35 P.S. §§ 4001-4015. The commentators al so stated that there is no legal basis to require significant reductions in NOx emissions when it can be demonstrated that their facility does not contribute to the failure of any nona ttainment area to comply with the air quality standards for ozone. (3,7,8,10)

Response: The Department disagrees with the comme ntators. The Department has the legal authority to require the owners and operators of glass melting furnaces to limit their emissions of

NOx. The law in this Commonwealth is well-set tled regarding whether a regulation is valid and binding. A court must evaluate if the regulation is 1) within the agency's granted power, 2) issued pursuant to proper procedures and 3) re asonable. See for example, Rohrbaugh v. PUC, 556 Pa. 199, 727 A.2d 1080 (1999); and Housing Author ity v. Pa. Civil Service Com'n, 556 Pa, 621, 730 A.2d 935 (1999). Section 5 of the APCA pr ovides that the Board shall adopt rules and regulations for the prevention, control, reducti on and abatement of air pollution, applicable throughout the Commonwealt h. Clearly the intent of the gla ss melting furnaces regulation is to reduce air pollution, and so therefore the Board ha s the requisite legal authority. The Board is proceeding with this rulemaking through the prop er rulemaking procedures, as identified under the APCA, the Regulatory Review Act and the Commonwealth Documents Law. An environmental regulation is reasonable if it prevents th e possibility of pollu tion (see Department of Environmental Resources v. Metzger, 347 A .2d 743 (Pa. Cmwlth. 1975)), protects the public health and safety (see Chambers Development Company, Inc. v. Department of Environmental Resources, 545 A.2d 404 (Pa. Cmwlth. 1988)), or re duces pollution (see Rochez Bros., Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975)). Since this rulemaking reduces pollution it is reasonable.

A demonstration using air dispersi on modeling (point-sou rce or regional scale) to show that a single facility “does not contribute to the failure of any nonattainment area to comply with the air quality standards for ozone” is not the determination of whether a fa cility is subject to a proposed rulemaking. Air dispersion models are not designed to simulate source-specific contributions to ozone nonattainment areas. A finding that emi ssion reductions at one source of NOx does not contribute to the failure of any nonattainment area to comply with the air quality standards for ozone is not surprising. Sensitivity analyses have often shown that the Community Multiscale Air Quality (CMAQ) model used by states for at tainment demonstrations is relatively "stiff" considering even large emission changes; that is, the model may not predict large changes in ozone concentrations even when large emission reductions are made. Therefore, a variance relying on modeling would be inappropriate.

18Public Comment/Response Document

The OTC undertook a study to identify a suite of control m easures that could be used by the members as part of a regional effort to attain and maintain the 1997 NAAQS for ozone. 2 The

additional NOx emission reductions from glass melting furnaces are a necessary component in this regional strategy.

37. Comment: The Senate and House Environmental Committees and another commentator stated that the proposed rule should provide for a va riance if it could be de monstrated that it is economically unreasonable for the glass melting furn ace facility to comply with the requirements of the rule, that the public interest is best se rved by granting the variance, and that the current operations at the glass melting furnace facility have no significant adverse impact on atmospheric NOx concentrations and do not affect the Commonwealth’s 8-hour ozone demonstration. (3,7,8,10)

Response: The Department disagrees with the commentator. A demonstration using air dispersion (point-source or region al scale) to show that a single facility “does not contribute to the failure of any nonattainment area to comply with the air quality stan dards for ozone” is not the determination of whether a facility is s ubject to a proposed rulemaking. A finding that

emission reductions at one sour ce of NOx does not contribute to the failure of any nonattainment area to comply with the air quality standards for ozone is not surprising. Sens itivity analyses have often shown that the Community Multiscale Air Quality (CMAQ) model used by states for attainment demonstrations is relatively "stiff" c onsidering even large emission changes; that is, the model may not predict large changes in ozone concentrations even when large emission reductions are made. Therefore, a variance re lying on modeling would be inappropriate.

Certain areas of this Commonwealth continue to exceed the health-based 1997 8-hour NAAQS for ozone. See 62 FR 38855 (July 18, 1997). Th e final-form rulemaking to control NOx emissions from glass melting furnaces will result in additional NOx emission reductions that are necessary to support attaining and maintaining the health-bas ed 1997 8-hour ozone NAAQS in

this Commonwealth and downwind areas. Furt hermore, on March 12, 2008, the EPA issued a more protective 8-hour ozone standard of 75 ppb that would require additional reductions of ozone precursor emissions, including NOx, that impact ozone attainment in this Commonwealth and throughout the OTR. See 73 FR 16436 (March 27, 2008). However, the EPA has reconsidered the 2008 ozone NAAQS and on January 19, 2010, published a proposed rulemaking to set a more protective 8-hour primary standard at a lower level within the range of 0.060-0.070 ppm; the final revised ozone standard is expected in August 2010. See 75 FR 2938. If, as is widely expected, the EPA tightens th e ozone standard, the a dditional NOx emissions from the final-form rulemaking for glass melting furnaces will be even more important than if the current ozone standard remains in place.

This final-form rulemaking will also contribut e to reduced formation of PM2.5 and regional haze. The EPA, in its “Clean Air Fine Partic le Implementation Rule,” determined that NOx emissions are also precursors to the formati on of PM2.5. See 72 FR 20586 (April 25, 2007). In

2 Identification and Evaluation of Candidate Control Measures, Final Technical Support Document . Prepared for the Ozone Transport Commission, Washington DC, by MACTEC Federal Programs, Inc., Herndon, VA, February 28, 2007.

19Public Comment/Response Document

Nove mber 2009, the EPA designated 6 areas (all or part of 22 counties) in this Commonwealth as not attaining the 2006 24-hour PM2.5 NAAQS . See 74 FR 58688 (November 13, 2009). Regional haze is visibility impairment that is produced by a multitude of sources and activities which emit fine particles and their precursors , including NOx, and which are located across a broad geographic area. See 64 FR 35713 at p.35715 (July 1, 1999). Therefore, the adoption of the final-form rulemaking for glass melting furn aces will help to reduce formation of ozone, PM2.5 and regional haze in this Commonwealth a nd downwind. As a result, this rulemaking is reasonably necessary to achieve and maintain the ozone and PM2.5 NAAQS.

38. Comment: A commentator stated that the Depart ment did not adequately address, while drafting and promulgating the proposed regula tion and in accordance with Executive Order 1996-1, whether the costs of the re gulation exceed its benefits or not, and also stated that the proposed rulemaking does not support a conclusion th at its costs will not exceed the benefits, and

therefore the cost/benefit analysis should be more thoroughly addressed. (4)

Response: The Department disagrees with the co mmentator. The Department addressed the benefits and the costs associated with the proposed rulemaking in the preamble to the proposed rulemaking’s public notice published in the Pennsylvania Bulletin on April 19, 2008 (38 Pa.B. 1831). Additionally, as part of the Commonwea lth’s comprehensive rulemaking process, the Department is required to evaluate all costs associated with the rulemaking on the affected industry as part of a detailed regulatory analysis form. This form is required to be submitted for

review to the Governor’s Offi ce of General Counsel, the Senate and House Environmental Committees and the Attorney General as part of the rulemaking package.

39. Comment: The Senate and House Environmenta l Committees commented to the Board on behalf of PPG Industries during the ANFR comment period that an exemption from the emission limits should be included for glass melting furnaces during “periods of upset or malfunction” that

affect an emission control device. The Senate and House Committees also commented that the routine maintenance exemption of 144 hours in to tal for add-on emission controls is not long enough to account for the complexities of the cont rol techniques likely to be employed, and that each major component of the control system be exempted from the emission limits for 144 hours each calendar year for routine maintenance. (7,8,10)

Response: The Department believes that an exemp tion for a furnace malfunction or upset period is not required. The Department does not routin ely provide exemptions from emission limits for periods of upset or malfunction in regulations to control emissions from sources. The Department believes that the SJVAPCD Rule 4354 addresses the issue of exemption from emission limits during maintenance appropriatel y, by allowing a total of 144 hours each calendar year for routine maintenance on all add-on cont rols. The SJVAPCD Rule 4354 does not provide an exemption from the emission limits for period s of upset or malfunction. The Department

considered that the furnace itself should be included within the framework of routine maintenance, and has added subsection 129.304(d) to the final-form rulemaking to address exemptions from emission limits for maintenance or repair measures on the furnace components.

40. Comment: The Senate and House Environmenta l Committees commented to the Board on behalf of PPG Industries during the ANFR comment period that the petition process described in

20Public Comment/Response Document

21 subsections 129.304(b) and (c) of the ANFR final- form rulemaking should specify what factors the Department will consider in order for a glass melting furnace to qualify for an alternative compliance deadline. The Committees commente d that specifying such factors will avoid confusion and misunderstanding regarding what a glass melting furnace must demonstrate and submit for the Department’s approval by Janua ry 1, 2011. Those factors should consist of whether the furnace in question meets its existing emission limitations, the anticipated date of the next furnace rebricking, and whether the furnace will continue to meet its existing emission limitations. (7,8,10)

Response: The Department believes the petition pr ocess contained in subsections 129.304(b) and (c) of the final-form rulemaking is compre hensive but not overly prescriptive and includes all the factors suggested by the Committee. In a ddition, the Department revised this section in the final-form rulemaking to require submittal, and not approval, of a petition request to the Department by January 1, 2012, and not by January 1, 2011. The Department maintains that the concern expressed by the Committees on behalf of PPG Industries regarding the petition process will be alleviated by the change to the final-form regulation that requires submittal of the petition by January 1, 2012, and does not require approval of the petition by January 1, 2011. This timeframe will provide the owners and operators of glass melting furnaces the flexibility to coordinate with the Department on a case-by-case basis the exact information the Department requires in order to determine the approval of a petition submittal.