(1) Natural light.

(i) Each dog shall have exposure to light from natural

sources passing through external windows, external sky

lights or other external openings.

(ii) The minimum combined total of net glazed area of

external windows, external sky lights or area of other

external openings through which natural light passes

within each room where dogs are housed may not be less

than 8% of the floor space. All external windows, external

skylights and external openings must be transparent and

unobstructed to satisfy this section.

(iii) Dogs shall be protected from excessive light.

(iv) Outdoor exercise areas shall provide an area of

shade large enough to protect all the dogs utilizing the

exercise area from the direct rays of the sun.

(v) If a kennel is granted a waiver for indoor exercise

under section 207(i)(6)(x)(B) of the act (3 P. S. § 459-

207(i)(6)(x)(B)), the primary enclosure must be configured

to allow natural light to come into each primary enclosure.

(vi) If a kennel is granted a waiver for indoor exercise

under section 207(i)(6)(x)(B) of the act (3 P. S. § 459-

207(i)(6)(x)(B)), full spectrum lighting shall be provided

for the entirety of the daytime cycles in areas that house

dogs.

(2) Artificial light.

(i) Artificial, indoor, daytime lighting must provide full

spectrum lighting between 50—80 foot candles at standing shoulder level of the dogs for daytime lighting.

(ii) Night time artificial lighting must be 1—5 foot

candles at standing shoulder level of the dogs of lighting.

(iii) Artificial lighting provided must approximately coincide with the natural diurnal cycle.

(iv) Lighting sources may not have a visible flicker.

(v) Light sources, whether their primary purpose is to

provide heat or light, shall be provided in a manner that

prevents dogs from touching a light, fixture, bulb, switch

or cord.

(3) Applicable codes. All lighting must comply with the

latest edition of applicable codes.

§ 28a.4. Flooring.

Proper flooring is essential for normal behavior and

proper orthopedic development of the dogs. For dogs over

12 weeks of age, the flooring must meet the standards in

the act or as set forth as follows:

(1) In addition to the flooring already approved in

section 207(i)(3) of the act (3 P. S. § 459-207(i)(3)), solid

flooring is approved for use.

(2) Solid flooring must be sloped to a drain that is free

of debris and in good repair.

(3) Drain covers shall be provided and shall be securely

fixed and made of a noncorrosive substance.

(4) Flooring may not be metal nor any other material

with high thermal conductance. This does not exclude the

use of radiant heat flooring, or a flooring system to cool,

provided that a dog has an area to escape the heat if it

gets too warm or too cold.

(5) All floors and drains must comply with the latest

edition of applicable codes.

(6) The surface of the flooring must provide the dogs

with good footing. Examples include sealed concrete,

painted concrete, epoxy flooring, sealed wood, textured

and sealed tile.

(7) Flooring shall be cleaned in accordance with section

207(h)(14) of the act and may be subject to microbial

assessment.

(8) Flooring may not be made of or coated with materials that are toxic to dogs.

[Pa.B. Doc. No. 09-1682. Filed for public inspection September 11, 2009, 9:00 a.m.]

ENVIRONMENTAL

QUALITY BOARD

[ 25 PA. CODE CHS. 121 AND 129 ]

Control of NOx Emissions from Glass Melting

Furnaces

The Department of Environmental Protection (Department) is soliciting comments on changes it recommends

be made to the glass melting furnaces proposed rulemaking published at 38 Pa.B. 1831 (April 19, 2008).

The draft final-form rulemaking establishes in 25

Pa. Code Chapter 129 (relating to standards for sources)

NOx emission control requirements, emission limit standards, and emission limitations for glass melting furnaces

and related administrative requirements for glass melting

furnaces. The draft final-form rulemaking contains definitions of terms in Chapter 121 (relating to general provisions) including ‘‘blown glass,’’ ‘‘container glass,’’ ‘‘fiberglass,’’ ‘‘flat glass,’’ ‘‘furnace rebuild,’’ ‘‘glass melting

furnace,’’ ‘‘pressed glass,’’ ‘‘pull rate,’’ ‘‘rebricking,’’ ‘‘shutdown’’ and ‘‘start-up.’’ Compliance with the NOx emission

limits may be demonstrated on a furnace by furnace

basis, facility-wide emissions averaging or by system-wide

emissions averaging among glass melting furnaces under

common control of the same owner or operator in this

Commonwealth. This draft final-form rulemaking to reduce NOx emissions from glass melting furnaces assures

that the Commonwealth will continue to experience improved ozone, fine particulate and visibility benefits. NOx

is a precursor to ozone and fine particulates, which in

turn facilitate the formation of haze. Adoption of NOx

emission limits for glass melting furnaces is part of the

Commonwealth’s strategy, in concert with other Ozone

Transport Region (OTR) jurisdictions, to reduce transport

of ozone to attain and maintain the health-based 8-hour

ozone National Ambient Air Quality Standard (NAAQS).

In addition, the adoption of this measure will improve

public health and social well being by reducing emissions

of NOx and the subsequent formation of ozone, fine

particulates and haze and is reasonably necessary to

attain and maintain the health-based ozone and fine

particulate NAAQS. To the extent that this regulation is

more stringent than any corresponding Federal requirements, it is reasonably necessary to achieve and maintain

the health-based 8-hour ozone and the fine particulate

NAAQS. This draft final-form rulemaking, if adopted as a

final-form regulation, will also be submitted to the Environmental Protection Agency (EPA) as a revision to the

Pennsylvania State Implementation Plan (SIP).

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PENNSYLVANIA BULLETIN, VOL. 39, NO. 37, SEPTEMBER 12, 2009
A. Summary of the Advance Notice of Final-Form Rulemaking Changes

In response to comments received during the official

public comment period on the proposed rulemaking for

glass melting furnaces (38 Pa.B. 1831) and following the

Department’s review of other related information, the

Department has prepared a draft final-form rulemaking

for public comment. The draft final-form rulemaking

contains significant changes in several areas. These

changes include:

• The draft final-form rulemaking revises the definition

of the term ‘‘glass melting furnace’’ to be consistent with

the definition in EPA’s final rule for Hazardous Air

Pollutants for Area Sources: Clay Ceramics Manufacturing, Glass Manufacturing, and Secondary Nonferrous

Metals Processing (72 FR 73180, December 26, 2009).

• The draft final-form rulemaking adds the term

‘‘rebricking’’ in Chapter 121. The rebricking definition is

consistent with the EPA’s Standards of Performance for

New Sources definition. (65 FR 61759, October 17, 2000).

Furnace rebricking is an important distinction from a

furnace rebuild in the glass melting industry, and therefore the draft final-form rulemaking adds the ‘‘rebricking’’

definition to address industry’s concerns.

• The proposed rulemaking required compliance by

May 1, 2009, for any owner or operator of a glass melting

furnace that emits or has the potential to emit NOx at a

rate greater than 50 tons per year or 20 pounds per hour.

The draft final-form rulemaking requires compliance by

January 1, 2011.

• The NOx surrender compliance option, which allowed

for the purchase NOx Clean Air Interstate Rule (CAIR)

allowances, has been eliminated from the draft final-form

rulemaking. The EPA held discussions with the Department subsequent to the closing of the public comment

period on June 23, 2008, regarding the proposed rulemaking’s option to demonstrate compliance with the emission

limits through the purchase of NOx CAIR allowances

under the Federal CAIR regulation. During these discussions, the EPA indicated to the Department that providing a compliance option to purchase NOx CAIR allowances in the final-form rulemaking would not result in

the approval of a revision to the SIP because glass

melting furnaces are not specifically included in the EPA

CAIR program as a source category.

• The provision requiring compliance with the emission

limits during the ozone season from May—September has

been deleted. The draft final-form rulemaking requires

compliance with the NOx emission limits year-round

because NOx is a precursor to both the 8-hour ozone and

fine particulate National ambient air quality standards.

In addition, it is anticipated that EPA will extend the

ozone season in this Commonwealth from March 1 to

October 31, each year.

• The draft final-form rulemaking adds a NOx emission

limit applicable to a glass melting furnace that produces

a glass product that is other than flat, container, fiberglass, pressed or blown. The Department considered

commentators who suggested that their furnaces do not

produce a glass product listed in the proposed rulemaking, and therefore an ‘‘other’’ category of glass product was added in the draft final-form rulemaking.

• The draft final-form rulemaking deletes the exemption from the NOx emission limits for a glass melting

furnace where the heat is supplied solely by an electric

current from electrodes submerged in the molten glass.

The Department believes that for furnaces that supply

heat from solely electrical electrodes will not emit NOx

emissions greater than 50 tons per year or 20 pounds per

hour, and therefore the exemption is unnecessary.

• The draft final-form rulemaking adds an exemption

from the NOx emission limits for a glass melting furnace

during idling. The Department concurred with commentators who requested the exemption because during an

idling scenario, a glass melting furnace would be producing at less than 25% of the permitted production capacity

or fuel use capacity in accordance with the applicable

requirements in a Federally-enforceable plan approval or

operating permit. When technologically feasible, controls

must be operated to minimize emissions during idling.

• The draft final-form rulemaking adds a petition

process for an alternative compliance deadline for any

glass melting furnace that demonstrates to the Department’s satisfaction that it is economically or technologically infeasible to meet the January 1, 2011, compliance

deadline. The Department considered public comments

which suggested that some furnaces cannot meet the

emission limits without furnace rebuilds or furnace

rebricks, and the furnaces are not anticipated to do

rebuilds or rebricks before 2011, so allowing for an

alternative compliance deadline is reasonable.

• The draft final-form rulemaking provides a petition

process for alternative emission limitations for glass

melting furnaces that produce a glass product other than

flat, container, fiberglass, pressed or blown glass. 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 within the Ozone Transport Commission, so providing them an alternative emission limitation is also reasonable.

• The draft final-form rulemaking adds a longer furnace start-up exemption time for furnaces that install

NOx controls that are not in common use or are not

readily available from a commercial supplier. The approach is consistent with other states’ glass melting

furnace’s regulations and affords the same flexibility for

owners and operators installing NOx controls in the

Commonwealth.

• The draft final-form rulemaking provides an owner or

operator of a glass melting furnace the option to demonstrate compliance with the emission limits on a furnaceby-furnace basis, facility-wide averaging basis, or a

system-wide averaging basis among glass melting furnaces under common control of the same owner or

operator in this Commonwealth. The draft final-form

rulemaking includes a prohibition against demonstrating

compliance using emissions averaging if an owner or

operator of a glass melting furnace, having been granted

approval by the Department, has voluntarily opted into a

market-based program. The draft final-form rulemaking

stipulates that an emission reduction obtained by emissions averaging to demonstrate compliance with the

emission limits will not be considered surplus for emission reduction credit purposes. This prohibition is required to ensure that actual emission reductions due to

the implementation of the rulemaking are occurring, and

not being traded in a market-based NOx program promulgated in the future as part of a Federal CAIR replacement rule. (CAIR was remanded to the EPA on December

23, 2008, by the United States Court of Appeals for the

District of Columbia Circuit. The final rule which is

expected in 2011, must be revised to be consistent with

PROPOSED RULEMAKING 5319

PENNSYLVANIA BULLETIN, VOL. 39, NO. 37, SEPTEMBER 12, 2009
the Court’s July 11, 2008, decision in State of North

Carolina v. Environmental Protection Agency, No. 05-1244

(D.C. Cir.).)

• The draft final-form rulemaking requires a demonstration of compliance with the emission limits on a

30-day rolling averaging basis. Use of an arithmetic

average of the daily emissions over a contiguous 30-day

period to demonstrate compliance with the NOx emission

limitations is consistent with the OTC’s model rule and

rulemakings adopted or proposed by other OTR jurisdictions.

While there is no legal requirement to provide an

opportunity to comment upon the Department’s recommendations for final-form rulemaking, the Department

believes further discussion would serve the public interest

in this instance.

B. Contact Persons

For further information or to request a copy of the draft

final-form rulemaking, contact Jane Mahinske, Division

of Air Resource Management, Bureau of Air Quality,

Rachel Carson State Office Building, 12th Floor, P. O. Box

8468, Harrisburg, PA 17101-8468, (717) 783-8949,

jmahinske@

state.pa.us; or Robert Reiley, Assistant Counsel, Bureau

of Regulatory Counsel, 9th Floor, Rachel Carson State

Office Building, P. O. Box 8464, Harrisburg, PA 17105-

8464, (717) 787-7060. Persons with a disability may use

the Pennsylvania AT&T Relay Service, (800) 654-5984

(TDD users) or (800) 654-5988 (voice users). The draft

final-form rulemaking is available electronically through

the Department’s web site (http://www.dep.state.pa.us),

(Quick Access Keyword: Public Participation).

Written or electronic comments should be sent to Jane

Mahinske at the previous address. Comments must be

received by October 14, 2009. A subject heading of the

rulemaking and a return name and address must be

included in each letter or transmission. Comments will

not be accepted by facsimile or voice mail.

JOHN HANGER,

Secretary

[Pa.B. Doc. No. 09-1683. Filed for public inspection September 11, 2009, 9:00 a.m.]

5320 PROPOSED RULEMAKING

PENNSYLVANIA BULLETIN, VOL. 39, NO. 37, SEPTEMBER 12, 2009