The Clean Air Act Amendments of 1990, considered to be the most complex and comprehensive environmental law ever considered by any Congress, not only set more specific pollution limits than the Clean Air Act Amendments of 1977, but included a series of rapid-fire dates by which states and regulated industries were required to implement pollution control measures in order to comply with these pollution limits. To meet these deadlines, the Department had to move rapidly on drafting and enacting new regulatory language. Some of the new Pennsylvania regulations were even finalized before the final Federal guidelines were published. Circumstances such as these have resulted in some regulations which were either not drafted in concise, clear language, or are too general in nature, which in turn have resulted in uncertainty, misinterpretation, and confusion. The Bureau of Air Quality therefore, in response to the August 4, 1995 "Regulatory Basics Initiative" memorandum from Secretary Seif, has reviewed Title 25, chapters 121 through 141, to determine which regulations lack clarity.
Section 121.1 includes definitions of terms
applicable to 25 PA Code Article III (Air Resources). Although
these definitions are meant to clarify the key terms used throughout
the regulations, some do not meet that objective and should be
amended. These definitions are addressed as applicable within
the discussions of each chapter.
Section 123.1 states that no person may permit the emission of a fugitive air contaminant from any source other than those specified in Subsections 123.1(a)(1)-(8). This regulation requires zero emissions. Subsection 123.1(a)(9) allows the Department to exempt other sources and classes of sources, on a case-by-case basis, from this zero emission requirement, following a determination that fugitive emissions from the source, after appropriate control, are of minor significance with respect to causing air pollution and do not prevent or interfere with the attainment or maintenance of an ambient air quality standard. The concepts of "appropriate controls" and "minor significance" are neither defined nor spelled out in the regulation. This leads to inconsistent interpretations between and within the Regions when the field staff attempt to apply this rule.
Section 123.31(b) prohibits the emission into the outdoor atmosphere of malodorous air contaminants in a manner such that the malodors are detectable outside the property of the person on whose land the source is being operated. Enforcement of this regulation is difficult because the definition of "malodor" in Section 121.1 is unclear and subjective. Department staff typically seek compliance by requiring the source owner to either install controls (Best Available Technology - "BAT") if appropriate, or to amend a process or an exhaust system to abate odors.
This chapter includes the requirements for permitting of air contamination sources which range from general plan approvals and operating permits through Prevention of Significant Deterioration of air quality (PSD), Emission Reduction Credits (ERCs), New Source Review (NSR), and Title V operating permits. Several inconsistencies and ambiguities exist throughout the breadth of this set of regulations, which are causing difficulties in interpreting and applying these rules. Although Chapter 127 is cumbersome, some readily apparent examples of such inconsistencies and ambiguities follow.
"Best available technology" is defined in Section 121.1 as "Equipment, devices, methods or techniques as determined by the Department which will prevent, reduce or control emissions of air contaminants to the maximum degree possible and which are available or may be made available." This term is used at Section 127.1 which requires new air contamination sources to "control the emission of air pollutants to the maximum extent, consistent with the best available technology as determined by the Department as of the date of issuance of the plan approval for the new source." This requirement has been in existence since July 1972. Since its promulgation, the Department has provided best available technology guidance for only a handful of the infinite number of different types of air contamination sources. This results in a vast majority of situations where best available technology determinations are made on a case-by-case basis. This, in turn, has led to inconsistencies from Region to Region and case to case.
Subsections 127.11(a) (Plan approval requirements for reactivation of sources) and 127.215 (Reactivation under Subchapter E. New Source Review) are inconsistent with each other. Subsection 127.11(a) requires a reactivation plan to be submitted at least 60 days before reactivation, while Subsection 127.215 requires a reactivation plan to be submitted 30 days before reactivation. Subsection 127.215 requires the Department to act on the reactivation plan within 30 days, while Subsection 127.11(a) does not contain any such requirement. Also, if one takes the strict interpretation of Subsection 127.215, this requirement allows a deactivated source to be reactivated only during the term of its permit. Once the permit expires, the deactivated source cannot be reactivated under the provisions of Subsection 127.215.
Section 127.14 addresses types of air contamination sources which are exempt from the plan approval and operating permit requirements, including in Subsection 127.14(a)(9): "Physical changes to sources when the Department has determined the physical changes to be of minor significance." A source, however, must submit a "Request for Determination for the Need of Plan Approval" before a determination can be made whether a plan approval is needed or not. These determinations are made on a case by case basis which has resulted in inconsistencies between Regions.
Subsection 127.202(a) states the special permit requirements in this subchapter apply to a facility submitting a complete plan approval application to the Department after January 15, 1994. New sources which are being constructed now or are in the planning stages of construction must meet a set of very stringent requirements if NSR is applicable to such installations. Meeting these requirements is not easy even for a new source. A strict interpretation of this Subsection requires that sources illegally constructed prior to January 15, 1994 which submit plan approvals after January 15, 1994, be subjected to the same standards (in this case NSR) as new sources constructed since January 15, 1994 or still in the planning stages. Is this the intent of this regulation?
Clarification is needed on the interpretation in several subsections, including 127.203(b) and (c), 127.204, and 127.211, of the language "increase in the potential to emit". Increase over what? Previous potential to emit? Previous actual emissions? 1990 baseline? Major source threshold? Major source limits?
Sections 127.206-209 pertain to the general requirements, generation, use, and registration of Emission Reduction Credits (ERCs). These regulations are extremely unclear on the differences between emission reductions for netting purposes, ERCs for internal credits, and ERCs for external credits. Explicit regulatory language or policy guidance for the field staff is needed to understand and implement the many nuances of ERCs. For example, Subsection 127.208(5) allows interstate ERC trades only upon approval by PA and the other state through SIP approved rules and procedures including an EPA SIP revision. Does this mean that each and every interstate ERC trade must be approved by a SIP revision? In addition, the process of registering emission reduction credits, particularly from nonmajor sources, needs to be clarified by making the procedures less burdensome and time- consuming.
Section 121.1 does not include definitions of the terms "actual emissions" and "allowable emissions". EPA's New Source Review regulations require State Implementation Plans to include numerous definitions, including definitions of "actual emissions" and "allowable emissions". These terms are used in Subchapter E, New Source Review, at Section 127.207, which defines how ERCs are generated and created. With no definitions of these terms provided in Section 121.1, confusion results on what these terms mean, especially when attempting to apply the definitions cited at 40 CFR 51.165(a)(1)(xi) and 40 CFR 51.165(a)(1)(xii).
"Major modification" and "modification" as defined in Section 121.1 are inconsistent. The definition of "major modification" excludes: "...routine repairs, maintenance and a change in the hours of operation or an increase in the rate of production unless prohibited by a permit condition.", but does not specifically exclude a replacement. In contrast, the Section 121.1 definition of "modification" excludes replacement but does not exclude: "...a change in the hours of operation/increase in the rate of production unless prohibited by a permit condition." This inconsistency leads to misinterpretation about what constitutes a modification and what does not.
Another issue which needs to be addressed in the definition of "modification" is the Department's policy whereby if the cost of the changes or modifications being proposed for an existing air contamination source or process equals or exceeds 50% of the cost of a new unit, a modification will occur.
A third area under this category deals with the utilities' request for an exemption from the definition of "major modification" of a "pollution control project" at an electric utility. Providing for such an exemption would exclude these projects from the New Source Review requirements. Presently, this exemption does not exist in the definition of major modification at Section 121.1 nor does Section 121.1 define a "pollution control project". Although this issue does not pose a problem of clarity, it could result in a ticklish situation. For example, a utility may undertake a "pollution control project" in order to minimize the emissions of NOx. In so doing, the project results in an increase of VOC emissions which triggers the applicability of the New Source Review regulations. The amount of NOx reductions dwarfs the VOC increase but with the definition of "major modification" as presently written, this project becomes subject to NSR.
Section 127.449 is unclear as to the type of emission that is referred to for de minimis increases. Does the de minimis emission increase refer to actual, allowable, or potential emissions?
If a Title V source names its acid rain designated representative as the "responsible official", the Department's definition of "responsible official" allows the designated representative of an acid rain affected source to serve as the responsible official for other purposes under the regulatory requirements for the Title V program. However, a designated representative is not allowed to serve as the responsible official for the Department's state only plan approval and operating permit program.
Different programs within the Department address or impact open burning operations. The requirements differ between the programs, which creates confusion about whether open burning is allowed or not.
The Air Quality regulations at 25 PA Code Section 129.14 prohibit open burning in Air Basins (129.14(a)). Open burning is allowed in areas outside of the Air Basins provided that the smoke and odors from the burning are not detectable outside of the property on which the burning is occurring (129.14(b)). Enforcement of the property line provision is extremely difficult in rural areas. A list of exceptions to the property line limitation contained in Subsection 129.14(b) are provided at Subsection 129.14(c). All of the exceptions have been used at one time or another by the regulated community to escape prosecution under Subsection 129.14(b). These exceptions add to the confusion as to what can be burned and where. Subsections 129.14(c)(4) pertaining to fires set in conjunction with the production of agricultural commodities; - (5) fires set for the purpose of burning domestic refuse; and - (6) fires set for recreational and ceremonial purposes are the exceptions most often misinterpreted, resulting in numerous fires about which the Air Quality Program receives complaints. Upon investigation, it is found that the person doing the burning is burning items which should not be burned but because the situation may fall under an exception, the field inspector exercises enforcement discretion and dismisses the event. Staff time, in turn, is wasted, the burning continues, and public dissatisfaction continues.
Conversely, the Solid Waste Management Act (Act 97) prohibits the burning of waste without a permit from the Department (35 P.S. Section 6018.610(3)). The Department does not issue permits for open burning operations; open burning therefore is banned under the Solid Waste Management Act.
The Bureau of Mining and Reclamation's regulation at 25 PA Code Section 211.61(cc) impacts open burning issues also. This regulation requires that the wood, paper, and fiber materials used to wrap explosives shall be burned in an isolated area after the blast has been fired. This situation is not addressed in the Air Resources regulations, thereby creating confusion.
Subsection 129.52(a) applies to all surface coating processes, regardless of the size of the facility, which emit or have emitted VOCs into the outdoor atmosphere in quantities greater than 3 pounds per hour, 15 pounds per day or 2.7 tons per year during any calendar year since January 1, 1987. With such a low applicability trigger, the regulations have been extended to a number of operators which, as a group, emit a very small percentage of the total overall VOC emissions, which in turn has little impact on the environment relative to ozone. Also, if an operator triggers the applicability level any time after January 1, 1987, he must continue to use compliant coatings even if subsequent emissions drop under these thresholds. Is it necessary to concern ourselves with such small sources?
NB In the document pertaining to regulations with significant noncompliance, the statement is made that "Our permitting guidelines generally exempt VOC sources below 10 tons per year". This is somewhat misleading. If the new source of VOCs is one which: a) is not covered by Table I of Section 129.52, b) is part of a facility whose total VOC emissions are less than 25 tons per year, and c) has emissions of less than 10 tons per year, then the new source is exempt from the plan approval requirements. If the new VOC source is one which is covered by Table I of Section 129.52, then the plan approval requirements apply if the new source's VOC emissions are greater than 3 pounds per hour, 15 pounds per day, or 2.7 tons per year.
Subsection 129.52(b)(1) creates confusion about what constitutes compliance. To evaluate compliance, a coating user must compare the weight of VOCs per gallon of coating (minus water) of the coating being used to the applicable limit contained in Table I of Subsection 129.52(b)(1), after adjustment to a standard solvent density of 7.36 pounds per gallon and to a solids basis. Program staff do not fully understand the application of these requirements, let alone the coating user. How does one account for water? What use does one make of the standard solvent density of 7.36 pounds per gallon? The solvent density adjustment and solids basis requirements have complicated the procedure for determining compliance. Furthermore, Section 129.52 makes no mention of exempt solvents, but EPA guidance discusses both water and exempt solvents. Can the field staff account for exempt solvents within the scope of Section 129.52 as currently written? Last but not least, independent evaluation of compliance is difficult, if not impossible, to achieve since EPA Reference Method 24 (found at 40 CFR 60 Appendix A) does not include an independent analytical test to determine the volume percent of solids in the coating, which piece of data is required in order to evaluate compliance of a coating on a pounds of VOC per gallon of solids basis.
Although Section 129.52 is legally applicable to all types of surface coating application techniques, the regulations make no provision for the differences in transfer efficiencies inherent in the different techniques. Field staff therefore do not know how to apply this section to situations where transfer efficiency should be included as part of the compliance evaluation. As a result, enforcement of the current regulations discriminates against the more efficient application methods. Dip coating, for example, is more efficient than spray coating and usually generates lower VOC emissions, even if additional thinner must be added to the diptank to maintain proper viscosity of the coating. For example, a metal furniture operation could purchase and use a coating that has 3.00 pounds of VOC per gallon of coating (minus water). This coating, as purchased, meets the Table I limit of 3.00 pounds of VOC per gallon of coating (minus water). One hundred gallons of this coating could then be put into a diptank. To bring this coating up to the proper dipping viscosity, however, one must add some thinner, and fifty gallons of a typical thinner are added to the diptank. The addition of the thinner now brings the coating in the diptank (as applied) to a value of 4.42 pounds of VOC per gallon of coating (minus water), which exceeds the Table I limit of 3.00 pounds of VOC per gallon of coating (minus water). The coating therefore is now considered to be out of compliance. The amount of coating solids transferred to the metal furniture from this coating mixture is 47.7 gallons and the total VOC emissions from using this 150 gallons of coating and thinner are 662.5 pounds of VOC. Alternatively, this coating could be applied, as purchased, to the metal furniture using a spray coating technique. Because spray coating is a less efficient method than dip coating, one must use more coating to achieve the same amount of solids applied. To apply 47.7 pounds of solids when spraying this coating, one must use 360 gallons of the coating. The total VOC emissions arising from the spray application of this amount of coating is 1080 pounds of VOC. So although the coating in the diptank is technically out of compliance when compared to the appropriate Table I limit (because of the additional thinner), the VOC emissions from the dip operation are almost half the VOC emissions from the spray operation using the same coating, because the spray application method is much less efficient. The spray operation is considered to be in compliance with Table I, however, because the coating is used in the "as purchased" state, which complies with Table I. Therefore the company which fulfills the overall intent of the Department's goal of reducing atmospheric emissions of VOC is penalized because of the inadequacies of the regulation with respect to transfer efficiency, while the company which complies with the regulation is actually creating more emissions.
Table I of Subsection 129.52(b)(1) includes automobile and light duty truck coating. Item 6(c) of Table I provides an emissions limit for repair coatings used in automobile and light duty truck coating operations. It is possible to construe that refinishing, repair coating, and customized top coating of vehicles at small facilities such as autobody shops is covered by this requirement. The definition of "miscellaneous metal parts" at 25 PA Code Section 121.1, however, specifically exempts refinishing and customized top coating of automobiles and trucks if production does not exceed 34 vehicles per day.
Subsection 129.52(c) pertains to record keeping. The existing regulations are vague and foster inconsistency between permits because the permit writers define the record keeping requirements on a case by case basis.
"Miscellaneous metal parts and products" is defined broadly at Section 121.1, which leads to a variety of interpretations. As written, the definition has been interpreted to include everything constructed of metal except for those metal parts listed separately in Table I of Section 129.52 (those categories in Table I separate from miscellaneous metal parts). A more appropriate definition would include only those items listed in the current definition, including those found under the SIC Codes cited.
"Semitransparent wiping and glazing stains" and "semitransparent spray stains" are included in the definitions of Section 121.1. However, these wood furniture and cabinet coatings are no longer regulated under Section 129.52, having been deleted from Table I several years ago. Such coatings contain no solids, so compliance is undefined. If the history of these stains is not known, it is possible that their use as either wipe, spray, spatter, or pad stains may be lumped in with "all other coatings" which are regulated under Table I, item 11, of Section 129.52. When stains and toners were deleted from item 11 of Table I, however, this was done for the purpose of deregulating them.
The Chapter 121.1 definitions that address wood cabinet and furniture coatings (clear coat, wash coat, final repair coat, opaque ground coats and enamels, and clear sealers) need clarification and revision. Presently, as defined, these coatings are subject to different interpretations. For example, a wood furniture manufacturer uses several coatings that the company considers "stains", the coating manufacturer considers "clear tone enamels", and the Department considers "opaque ground coats and enamels" because the coating completely hides the color of the substrate in a single coat, whereas a "stain" does not. By calling the coatings "stains", however, the wood furniture manufacturer escapes regulation since stains are no longer regulated under Table I, item 11, of Section 129.52.
The General Requirements, Section 139.101, addresses data availability for Continuous Emission Monitoring Systems (CEMS). Subsection 139.101(12) states in part "...For purposes of calculating data availability, "process down" time, as specified in the manual referenced in Subsection 139.102(3), shall be considered valid time." Subsection 139.101(12)(ii) states "In each calendar quarter, at least 95% of the hours during which the monitored source is operating shall be valid as set forth in the quality assurance section of the manual referenced in Subsection 139.102(3)." This subsection can be misconstrued to mean that if a source only operates two hours during a quarter and has invalid data for one hour, the source is in violation of Subsection 139.101(12)(ii).