## CONTROL OF NOx EMISSIONS FROM

GLASS MELTING FURNACES

25 Pa. Code Chapters 121 and 129 Advance Notice of Final Rulemaking

39 Pa. B. 5318 (September 12, 2009)
Environmental Quality Board Regulation #7-420 (Independent Regulatory Review Commission #2683)



# Comment/Response DocumentANFR Comment/Response Document

Control of NOx Emissions fr om Glass Melting Furnaces

In response to comments received during the o fficial public comment period on the proposed

rulem aking for glass melting furnaces (38 Pa. B . 1831, April 19, 2008), and following the Department's review of other related information, the Department prepared a draft final-form rulemaking for public comment. The draft final-form rulemaking contained significant changes from proposed in several areas, and the Department believed further disc ussion and an additional comment period would serve the public interest. An Advan ce Notice of Final Rulemaking (ANFR) was published in the Pennsylvania Bulletin on September 12, 2009 (39 Pa.B. 5318). The comment period opened on September 12 and closed on October 14, 2009.

The official public comment period held by th e Environmental Quality Board (Board) on the proposed rulemaking closed on June 23, 2008. Thr ee public hearings were held by the Board 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 written commen ts received from the public during the ANFR public comment period held by the Department that followed the Board’s official public comment period. Each comment is listed with an identifying number for each commentator that

made the comment. A list of the commentator s, including name, affiliation (if any), and location, can be found at the beginn ing of this document. If adopted by the Board, the final-form regulation will be submitted to the U.S. Environm ental Protection Agency (EPA) as a revision to the State Implementation Plan (SIP).

2ANFR Comment/Response Document



### Table of Commentators to the Department of Environmental Protection

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

ID Name/Address

1. Edward Hines Plant Manager PQ Corporation Chester, PA

2. Steven B. Smith Vice President, Environmental Affairs

Saint-Gobain Containers Muncie, IN

3. Steven F. Faeth

Senior Counsel EHS PPG Industries, Inc. Pittsburgh, PA

4. Louis A. Naugle Reed Smith LLP, for: Pittsburgh Corning Corporation Port Allegheny, PA

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

6. Matthew H. Gontarz Plant Manager Osram Sylvania Wellsboro, PA

7. Joseph D. Stas Pittsburgh Glass Works, LLC Pittsburgh, PA

8. Joel Daoust Plant Manager Guardian Industries Corp. Jefferson Hills, PA

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

3ANFR Comment/Response Document

10. Senator Ma ry Jo White Chairperson Senate Environmental Resources and Energy Committee Harrisburg, PA

11. Senator Raphael J. Musto

Democratic Chairman Senate Environmental Resources and Energy Committee Harrisburg, PA

12. Representative Scott E. Hutchinson Republican Chairman House Environmental Resources and Energy Committee Harrisburg, PA

13. Senator Jane Clare Orie Majority Whip Senate of Pennsylvania Harrisburg, PA

14. Senator Robert D. Robbins

State Senator Senate of Pennsylvania Harrisburg, PA

15. Representative Scott Perry State Representative House of Representatives Harrisburg, PA

16. Barbara A. McNees

President Greater Pittsburgh Chamber of Commerce Pittsburgh, PA

17. James E. Thompson

Air Director Allegheny County Health Department Pittsburgh, PA

4ANFR Comment/Response Document

General Support

1. Comment: The commentator supports 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 Ozone Transport Commission (OTC ). This commentator states that a performance standard based on 4.0 lbs/ton of gl ass pulled emission limit is a technologically feasible and pragmatic appr oach that requires implementation of low-NOx combustion technology. They further state that this emission limit is supported by regulatory precedent as it the same limit adopted by other jurisdictions and by the recommendation of the OTC, therefore creating uniformity in emission standards. (9)

Response: The Department of Environmental Protection (Department) appreciates the commentator’s support of the draft final-form ru lemaking for fiberglass plants. The Department agrees with the commentator that the OTC-reco mmended emission limit of 4.0 lbs NOx/ton glass pulled for fiberglass plants in the final-form rulemaking achieves consistency and uniformity among the 13 members (12 states and the Distri ct of Columbia) of the OTC, and that the emission limit for fiberglass furnaces can be ach ieved with technologies currently available.

Proposed NOx Emission Limits

2. Comment: The commentator stated that it is an arbitrary and capricious action to base the regulation’s proposed NOx emission limits on a Califor nia rule without an e xplanation as to why they are appropriate to Pennsylvania. (4)

Response: The Department disagrees with the co mmentator that the rule’s allowable NOx emission limit requirements are arbitrary and capricious. The Department proposed the allowable NOx emission requirements as a re sult of the research conducted by and the recommendations of the Northeast OTC. The Northeast OTC is a multi-state organization

created under Section 184 of the CAA. 42 U.S. C.A. § 7511c. The OTC is responsible for advising the EPA on ground-level ozone pollution transp ort issues and for developing and implementing regional solutions to the ground-le vel ozone problem in the Northeast and MidAtlantic regions. The members of the OTC (this Commonwealth, CT, DE, MA, MD, ME, NH, NJ, NY, RI, VA and VT, and the District of Colu mbia) are required to de monstrate attainment

with the 1997 8-hour ozone standard of 80 ppb. See 62 FR 38855 (July 18, 1997).

Additionally, 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. See 73 FR 16436 (March 27, 2008). The 2008 revised standard woul d require additional re ductions of emissions of ozone precursors, including NOx, that imp act each member’s nonattainment status. As required by the Federal Clean Air Act (CAA), the Commonwealth submitted recommendations to the EPA in 2009 to designate 29 counties as nonattainment for the 2008 8-hour ozone NAAQS. The EPA was expected to take final action on the designation recommendations by March 2010. However, the EPA has recons idered 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 e xpected, the EPA tightens the ozone standard,

5ANFR Comment/Response Document

the additional NOx e missions from the final-form rulemaking for glass melting furnaces will be even more important than if the current 2008 oz one standard remains in place. In addition, Northeast states are conducting attainment planning work to support development of PM2.5 and regional haze SIPs to satisfy obligations under the CAA and regulations issued under the CAA. See 74 FR 58688 (November 13, 2009) and 64 FR 35714 (July 1, 1999). NOx emissions are precursors to the developmen t of PM2.5 and regional haze.

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, anticipated

additional NOx emissions reductions from the c ontrol 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 Co mmissioners summarized 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 recomme nds that states may allow the owners or operators of glass melting furnaces to propose compliance 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 contro l measures summary document are the rates specified in the SJVAPCD Rule 4354. The Depart ment reviewed, analyzed and concurred with the OTC’s control measures summary document for glass melting furnaces with respect to the individual glass melting furnaces located in this Commonwealth, and determined that proposing

6ANFR Comment/Response Document

a glass m elting furnaces regulation based on the SJVAPCD Rule’s 4354 mix of control options to meet specified emission limits was the appr opriate implementation strategy for a rulemaking

to control NOx emissions from this Commonwealth’s glass melting furnaces.

This Commonwealth, along with the other 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 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 sc hedule contained in the petition process that is provided in s ubsections 129.304(b) and (c) (relating to emission requirements) of the final-form rulemaking.

3. Comment: A commentator requests that the Depart ment add to the final-form rulemaking a

definitive and feasible alternate standard or ex emption applicable to unique specialty glass operations such as theirs. (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 and pressed and blown) were not adequately consider ed in the proposed rulemaking. The furnaces that produce a glass product other than flat, container, fiberglass or pressed and blown glass were not considered during the glass melting furnaces control measures strategy and planning by the OTC, so providing them an altern ative emission limitation is also reasonable. As a result, the Department has added under § 129.304 in the final-form rulemaking an emission limit of 6.0 lbs NOx/ton glass pulled for any ot her glass melting furnace that does not produce flat, container, fiberglass and pressed and blown glass products. The Department, in researching and analyzing these types of furnaces in this Commonwealth, considered the limit of 6.0 lbs NOx/ton glass pulled to be a reasonable limit ba sed on the low NOx burner technology that is

available to reduce uncontrolled NOx emi ssions by 30-35%. Add itionally, subsection 129.304(c)(1) in the final-form rulemaking provides glass melting furnace owners and operators a petition process for an alternative emission lim itation for furnaces that produce a glass product other than flat, container, fibergla ss or pressed or blown glass.

4. Comment: Several commentators questioned why the draft final-form regulation only provided an alternative emission limitation peti tion process in subs ection 129.304(c) to the owners and operators of glass melting furnaces that produce an “other” glass product. (4,7,8)

Response: The glass melting furnaces in this Commonwealth that produce an “other” glass product were not considered during the glass melting furnace control measures strategy and planning within the OTC, so providing them an opportunity to petition the Department for an

alternative emission limitation is appropriate and reasonable.

5. Comment: The Senate and House Committees on Environmental Resources and Energy (Committees), several legislators, and other commentators commented that the Department should consider providing a variance procedure or exception from the regulation for a glass melting furnace that definitively demonstrates that its emissions are not materially contributing to the development of ground-level ozone. (3,7,10,11,12,14,15,16)

7ANFR Comment/Response Document

Response: The Departm ent maintains that a demons tration using air disp ersion modeling (pointsource 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 sta ndards for ozone” is not the determination of whether a facility is subject to a proposed ru lemaking. Air dispersion models are not designed to simulate source-specific cont ributions to ozone nonattainment areas. A finding that emission

reductions at one source of NOx does not contribute to the failur e 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 attainment

demonstrations is relativ ely "stiff" considering even large emission changes; that is, the model may not predict large changes in ozone concentr ations even when large emission reductions are made. Therefore, a variance relying on modeling would be inappropriate . The OTC undertook a study to identify a suite of control measures that could be used by the members as part of a regional effort to attain and maintain the 1997 NAAQS for ozone. The NOx emissions reductions from glass melting furnaces are a neces sary component in this regional strategy.

Certain areas of this Commonwealth continue to exceed the health-based 1997 8-hour NAAQS for ozone. This final-form rulemaking to control NOx emissions from glass melting furnaces

will result in additional NOx emission reduction s that are necessary to support attaining and maintaining the health-based 1997 8-hour ozone NAAQS of 80 ppb in this Commonwealth and downwind areas. See 62 FR 38855 (July 18, 1997) . Furthermore, on March 12, 2008, the EPA issued a more protective 8-hour ozone standa rd of 75 ppb that would require additional reductions of ozone precursor emissions, incl uding NOx, that impact each OTR member’s nonattainment status. See 73 FR 16436 (March 2 7, 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 th e 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 the ozone standard, th e additional NOx emissions from the final-form rulemaking for glass melting furnaces will be ev en more important than if the current 2008 ozone standard remains in place.

This final-form rulemaking will also reduce concentrations of PM2.5 and the formation of regional haze. The EPA, in its “Clean Air Fine Particle Implementation Rule,” determined that NOx emissions are also precursors to the formation of PM2.5. See 72 FR 20586 (April 25, 2007). Additionally, in November 2009, the EPA desi gnated six areas (all or part of 22 counties)

in this Commonwealth as not attaini ng the 2006 24-hour PM2.5 NAAQS. See 74 FR 58688 (November 13, 2009). The EPA is also evaluati ng the adequacy of the 2006 PM2.5 NAAQS as part of its periodic review required under Section 109(d)(1) of the CAA. 42 U.S.C.A. § 7409(d)(1). Furthermore, when initially adopting the visibility protec tion provisions of the 1977 Clean Air Act Amendments, C ongress specifically recognized that the “visibility problem is caused primarily by emission into the atmosphere of SO 2 , oxides of nitrogen, and particulate matter, especially fine particulate matter, from inadequate[ly] controlled sources.” See 64 FR 35713 at p.35715 (July 1, 1999). Section 169A(a)(1) of the CAA sets forth a National goal for visibility which is the “prevent ion of any future, and the remedying of any existing, impairment of visibility in Class I areas which impairment results from manmade air pollution.” 42 U.S.C.A. § 7491(a)(1). If adopted, the NOx emission reduc tion provisions of the final-form rulemaking for glass melting furnaces will help to reduce formation of ozone, PM2.5 and regional haze

8ANFR Comment/Response Document

pollution in this Comm onwealth and throughout th e OTR. As a result, this rulemaking is reasonably necessary to achieve and maintain the ozone and PM2.5 NAAQS.

Compliance Date of the Regulation

6. Comment: A comment made by numerous commentators, including the Committees, is that in order to avoid possible economic disruption to the operations at the affected furnaces, the Department should allow an existing furnace to operate through its full life cycle before requiring it to be replaced or rebuilt with cont rol technology in order to meet the regulation’s NOx emission limits. The commentators suggest that it may assist the Department as well as the regulated industry to not base the compliance tim eframe on a specific date. The commentators also state that other states permit furnaces to be upgraded after their normal and anticipated life expectancy has been exhausted. (3,4,10,11,12,13,14,15,16)

Response: The Department disagrees with the comme ntators. The Department agrees that it could possibly be infeasible for all affected owne rs or operators of glass melting furnaces to comply with the allowable emission limits by Janua ry 1, 2012. In recognition of this, subsection 129.304(b) in the final-form rulemaking provides a process to all glass melting furnace owners and operators to petition the Department for an alternative compliance schedule if they will be unable to meet the emission limits beginning Janu ary 1, 2012. The Department believes that a final compliance date specified in the regulation 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 proc ess for an alternative compliance schedule in subsection 129.304(c). Additionally, the SJVAPCD Rule 4354, whose NOx emission limits and compliance methods were recommended by the OT C control measures group, specifies a final compliance date.

7. Comment: Several commentators commented that the petition process described in subsections 129.304(b) and (c) of th e draft final-form rulemaking should specify what factors the Department will consider in order for a glas s melting furnace to qualify for an alternative compliance deadline. Comments were made that specifying such factors will avoid confusion and misunderstanding regarding what the owner or operator of a glass melting furnace must demonstrate and submit for the Department’s approval by January 1, 2011, and those factors should consist of whether the furnace in quest ion meets its existing emission limitations, the anticipated date of the next furnace rebricking, a nd whether the furnace will continue to meet its existing emission limitations. (2,3,4,7,8,10,11,12)

Response: The Department believes the petition pr ocess contained in subsections 129.304(b) and (c) is comprehensive but not overly prescripti ve and includes all the factors suggested by the commentators. In addition, the Department has re vised this section in the final-form rulemaking to require submittal of a petition request to, and not approval by, the Department by January 1, 2012, rather than approval by January 1, 2011. Th e Department maintains that the concerns expressed by the commentators regarding the petiti on process will be alleviated by the change to the final-form regulation that requires submittal of the peti tion by January 1, 2012, and does not require approval of the petition by January 1, 2011. This timeframe will provide the owners and

9ANFR Comment/Response Document

operato rs of glass melting furnaces the flexibility to coordinate with the Department on a caseby-case basis the exact information the Department requires in order to determine the approval of a petition submittal.

Applicability of the Regulation

8. Comment: A comment was made requesting that the short-term applicability criteria for a furnace that emits NOx at greater than 20 pounds per hour, but otherwise emits below 50 tons per year of NOx, be deleted from the rulemaking. The commentator states that the rulemaking’s short-term applicability criteria places an unr easonable burden on glass melting operations that have unique processes and may emit at times gr eater than 20 pounds of NOx per hour but on a long term basis emit below the primary criterion of 50 tons per year of NOx, and making these unique glass melting operations subject to the re gulation will not result in significant overall emission reductions. (5)

Response: The Department agrees with the commentat or that applying the regulation to these unique glass melting operati ons will not result in significant overall emission reductions. Section 129.302 (relating to applicability) in the final-form rulemaking has been revised to include only owners and operators of furnaces that emit NOx at greater than 50 tons per year as subject to the regulation.

9. Comment: The Allegheny County Health Departme nt (ACHD) commented that the finalform rulemaking should be modified to state that the regulation applies to furnaces under the jurisdiction of a local air pollu tion control agency, and in or der for ACHD to implement the provisions of the regulation, all reports and notifications requir ed under the regulation should be submitted directly to the local agency. (17)

Response: The Department agrees with the comme ntator. Applicability § 129.302 in the finalform rulemaking was modified to include those glass melting furnaces under the jurisdiction of an approved local air pollution c ontrol agency, and all references in the final-form rulemaking that reports and notifications are to be subm itted to the Department now also include the approved local air pollution control agency, which will ensure that ACHD can fully implement and enforce this regulation.

Exemptions

10. Comment: One commentator stated that the exem ptions section should be revised to require that the owner or operator of a gla ss melting furnace notify the Department within 24

hours after the initiation of an exemption operation, instead of within 24 hours prior to initiating the operation, because there are some instances wher e an unforseen problem requires a facility to immediately go into an unantic ipated idling position. (1)

Response: The Department agrees with the comment ator. Subsection 129.303( b) (relating to exemptions) was modified as reques ted in the final-form rulemaking.

10ANFR Comment/Response Document

11. Comme nt: One commentator stated that the tim ing of any written notification to the Department contained in the exemptions § 129.303 not be tied to the occurrence of the exemption event itself. (2)

Response: The Department disagrees with the commentat or. The Department maintains that the requirement in subsection 129.303(b) to notify the Department w ithin 24 hours of initiating the exempt operation, and the requirement in subs ection 129.303(d) to notify the Department in writing within 24 hours after co mpletion of the exempt operation, is reasonable and not burdensome to the facility claiming the exemption.

12. Comment: Several commentators commented that an exemption from the emission limits should be included for glass melting furnaces during “p eriods of upset or ma lfunction” that affect

an emission control device. Comments were also made that the routine maintenance exemption

of 144 hours in total for add-on emission cont rols is not long enough to account for the complexities of the control techniques likely to be employed, and that each major component of the control system should be exempted from th e emission limits for 144 hours each calendar year for routine maintenance. (2,3,7,10,11,12)

Response: The Department believes that an exemption 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 proposed a glass melting furnace regu lation based on the SJVAPCD Rule 4354 that was recommended by the OTC as an appropriate implementation strategy for a rulemaking to control NOx emissions from glass melting furn aces. The Department believes that the

SJVAPCD Rule 4354 addresses the issue of exemption from emission limits during maintenance appropriately, by allowing a total of 144 hours each calendar year for routine maintenance on all

add-on controls. The SJVAPCD Rule 4354 does not provide an exemption from the emission limits for periods of upset or malfunction. The De partment considered that the furnace itself

should be included within the framework of r outine maintenance, and has added subsection 129.304(d) to the final-form rulemaking to addr ess exemptions from emission limits for the maintenance or repair measures on the furnace components.

Furnace Start-Up Requirements

13. Comment: Several commentators commented that the furnace start-up section should be modified to require a plan approval application for a start-up exemption only ‘if required,’ and not for activities associated with routine repair or maintenance of the furnace. They comment further that the start-up exemption in the draft final-form rulemaking unn ecessarily restricts the exemption to a new furnace or furnace rebuild a nd does not account for an idled existing furnace, and implies that a plan approval would be requir ed in connection with a furnace start-up, which is not necessarily the case. (1,2,3,10,11,12)

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.

11ANFR Comment/Response Document

14. Comme nt: 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. (3,7,10,11,12)

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

Definitions

15. Comment: Several commentators commented that the definition of “start-up” should be revised consistent with the San Joaquin ru le to include necessary language on furnace stabilization, that is, the phras e “and systems and instrumentation are brought to stabilization”. (2,3,7,10,11,12)

Response: The Department agrees with the comment ators. The definition of “start-up” has been revised in the final-form rulemaking to in clude the furnace stabilization phrase suggested by the commentator, and to be consistent with the SJVAPCD Rule 4354.

16. Comment: Two commentators commented that th e definition of “rebricking” and the

revised definition of “furnace rebuild” in the draft final-form rulemaking are confusing, and further comment that they have concern over whether routine repairs to a furnace would be considered a rebuild or rebrick of the furnace. (1,6)

Response: The Department agrees with the commentators, and has delete d both definitions in the final-form rulemaking and has added a defini tion for “cold shutdown,” and included 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. The Depa rtment believes this will alleviate the concerns about routine repairs to a furnace.

Continuous Emissions Mo nitoring System (C EMS)

17. Comment: Several commentators commented th at the data substitution method for emissions monitoring in the compliance determina tion section that require s the highest valid 1- hour emission value during the reporting quarter be substituted for invalidated data is unreasonable and punitive. They comment furthe r that for periods of invalid data, the Department should allow substituting data that is more representative of the actual emissions. (1,2,4,6)

Response: The Department agrees with the commentators, and revised the data substitution method in the final-form rulemaking to require the highest valid 1-hour value that occurred under similar source operating conditions during the reporting quarter be su bstituted for the invalidated data. In addition, the Department added to subsection 129.308(c) (relating to compliance determination) an option for the owners and opera tors of glass melting furnaces to submit for the

12ANFR Comment/Response Document

Departm ent’s approval an alternative procedure to quantify the furnace NOx emissions and glass production data instead of using the data substitution method for invalidated data.

18. Comment: Several commentators commented that the requirements in §§ 129.308 and 129.309 (relating to compliance demonstration) to report CEMS data and daily glass production data on a quarterly basis is inc onsistent with existing Title V re porting requirements, and creates a duplicative and burdensome a dditional reporting ob ligation on the regulated community. (1,6,8)

Response: The Department disagrees with the comme ntators. The Department does not believe that maintaining records of daily glass production will present a significan t inconvenience to any owner or operator. Daily records may be need ed to enable the Department to verify the relationship between NOx emissions record ed by CEMS, and glass produced during the compliance period. Records sufficiently preci se to quantify glass produced by each glass melting furnace during a reporting quarter are nece ssary to enable owners and operators to demonstrate compliance. Continuous emission monitoring is the most precise means of determining emissions over extended time periods. Because the CEMS data is recorded and reported quarterly, in accordance with the procedures outlined in the Department’s Continuous Source Monitoring Manual (DEP 274-0300-001), the Department does not believe that submitting CEMS data on a quarterly basis in order to demonstrate compliance with the allowable emission limits is duplicative or burdensome.

Miscellaneous

19. Comment: Several commentators requested the Department work with the regulated industry in a transparent manner so that the true benefits and costs of the regulation will be

known. The commentators further st ate that although the Department asserts several times in the preamble to the proposed NOx regulation that reducing NOx emissions will also result in reduced emissions of fine particulate matter, they have not provided the regulated community

with data or information that supports this assertion. (14,15,16)

Response: The Department’s commitment to transp arency is supported by our decision to publish an ANFR on the draft final-form regulat ion to provide stakeholders with further opportunity to comment. The EPA, in its “Cl ean Air Fine Particle Implementation Rule,” determined that NOx emissions are precurs ors to the formation of PM2.5. See 72 FR 20586 (April 25, 2007). In November 2009, the EPA designate d six 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). The adoption of the final- form rulemaking for glass melting furnaces will help to reduce the formation of PM2.5.

20. Comment: A commentator stated that the Depart ment did not adequately address, while drafting and promulgating the draft rulemaki ng and in accordance with Executive Order 1996-1, whether the costs of the regulation exceed its be nefits or not, and also that the proposed rulemaking does not support a conclusion that its co sts will not exceed the benefits, and therefore the cost/benefit analysis must be provided. (4)

13ANFR Comment/Response Document

Response: The Departm ent 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 (38 Pa. B. 1831, April 19, 2008). 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.

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.

21. Comment: The commentator states that the EQB acknowledges in the ANFR Pennsylvania

Bulletin notice that the EPA advised Pennsylvania th at CAIR does not apply to glass melting furnaces, and therefore the draft final-form rulemaking imposes requirements on glass melting furnaces that are more stringent than Federal standards. (4)

Response: The purpose of the rulemaking is to addr ess reductions of NOx from glass melting furnaces, while the EPA’s CAIR addresses NOx reductions from electric generating units, certain boilers, stationary combustion turbines and stationary internal combustion engines. Therefore, these are two different regulatory strategies with the goal of reducing NOx emissions from various source types within this Comm onwealth. The EPA did not intend CAIR to comprise the entire solution to control NOx em issions from all types of sources, but only to address interstate transport of ozone and PM 2.5 precursors from the electric generating unit sector. In fact, this Commonwealth and other OTC members have determined that additional NOx reductions may be necessary in some areas, in combination with reduction of interstate transport, to attain and mainta in the NAAQS. This proposed rulemaking is reasonably necessary

to attain and maintain the 1997 8-hour ozone an d PM2.5 NAAQS. The criter ia for adopting state regulations 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 authorizes the Board to adopt re gulations more string ent than Federal requirements when the control measures are reasonably necessary to attain and maintain the ambient air quality

standards.

22. Comment: A commentator commented that the final-form rulemaking violates Section 4.2 of the Pennsylvania APCA, because Section 4.2 re stricts the EQB from adopting by regulation: “...only those control measures or other requirements which are reasonably required, in accordance with the Clean Air Act deadlines, to achieve and maintain the ambient air quality standards or to satisfy related Clean Air Act requirements...” They further quote Section 4.2: “Control measures or other requirements adopted under subsection (a) of this section shall be no more stringent than those require d by the Clean Air Act unless author ized or required by this Act

14ANFR Comment/Response Document

or specifically requ ired by the Clean Air Act.” The commentator maintains that NOx emissions from glass melting furnaces are not currently regul ated by the EPA, so therefore this rulemaking is prohibited by Section 4.2 since it is more stringent than requi red by the Clean Air Act. (4)

Response: The Department disagrees with the co mmentator. The Department has the legal authority to require glass melting furnaces to lim it their emissions of NOx. The law in this

Commonwealth is well-settled re garding whether a regulation is valid and binding. A court must evaluate if the regulation is 1) within the agency's granted pow er, 2) issued pursuant to proper procedures and 3) reasonable. See for ex ample, Rohrbaugh v. PUC, 556 Pa. 199, 727 A.2d 1080 (1999); and Housing Authority v. Pa. Civil Service Com'n, 556 Pa, 621, 730 A.2d 935 (1999). Section 5 of the APCA provides that the Boar d shall adopt rules a nd regulations, for the prevention, control, reducti on and abatement of air pollu tion, applicable throughout the Commonwealth. Clearly the intent of the glass melting furnace regulation is to reduce air pollution, and so therefore the Board has the requi site legal authority. The Board is proceeding with this rulemaking through the proper rulema king procedures, as id entified under the APCA, the Regulatory Review Act a nd the Commonwealth Documents Law. An environmental regulation is reasonable if it prevents the possibility of pollution (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.

23. Comment: The Department should consider de velopment of a pool of surplus NOx “credits” from glass melting furnaces and allow trading and use of these credits by owners and operators of said furnaces to demonstrate co mpliance with the regula tion, in light of the elimination of using CAIR NOx allowances as a compliance option in the draft final-form rulemaking. (6)

Response: The Department disagrees 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 Department therefore removed from the draft final-form regulation the compliance option to purchase CAIR NOx allowances. A replacement for the EPA’s CAIR program could possibly include interstate trading, and the Department could possibly grant an owner or operator of a glass melting furnace approval to voluntarily participate in an interstate trading program in the future. However, by creating a “pool of surplus NOx credits” to allo w owners and operators of glass melting furnaces in this Commonwealth to demonstrate complian ce with the allowable em ission limits in this final-form rulemaking and thereby avoid emissi on reductions, the Departme nt would essentially

15ANFR Comment/Response Document

16 be providing them the larger framework of an emissions trading program, which is beyond the scope and intent of the final-form rulemaking.