Legal Intelligencer
(by Gina Falaschi and Christina Puhnaty)
The Pennsylvania Environmental Quality Board (EQB) will soon publish amendments to the Department of Environmental Protection’s (PADEP) regulations in 25 Pa. Code Chapters 121 and 129 for all major stationary sources of nitrogen oxides (NOx) or volatile organic compound (VOC) emissions, commonly known as the RACT III rule. The rule would require major sources of either or both of these air pollutants in existence on or before August 3, 2018 to meet “reasonably available control technology” (RACT) emission limits and requirements by January 1, 2023.
These regulations are being promulgated to address Federal Clean Air Act (CAA) RACT requirements to meet the 2015 ozone National Ambient Air Quality Standards (NAAQS) in the Commonwealth. The CAA requires a reevaluation of RACT when new ozone NAAQS are promulgated. RACT is required in nonattainment areas, including the Ozone Transport Region which includes Pennsylvania. The RACT III rulemaking establishes presumptive RACT requirements and emission limits for specific source categories of affected facilities. The RACT III rulemaking also imposes additional requirements for all major sources of NOx and/or VOCs, not just those subject to the presumptive RACT requirements and limitations.
RACT III applies to all major sources of VOCs and NOx. Because the Commonwealth is in the Northeast Ozone Transport Region, the major source threshold is 50 tons per year of VOCs and 100 tons per year of NOx. PADEP estimates that 425 Title V facility owners and operators will be subject to the final rule. Affected source categories include combustion units; municipal solid waste landfills; municipal waste combustors; process heaters; turbines; stationary internal combustion engines; Portland cement kilns; glass melting furnaces; lime kilns; direct-fired heaters, furnaces or ovens; and other sources that are not regulated elsewhere under Chapter 129. The sources included in these categories are located at various facility types including: fossil fuel-burning and other electric generation; natural gas pipeline transport and distribution; petroleum refining; petroleum and coal products manufacturing; iron and steel milling; nonferrous metal smelting and refining; chemicals manufacturing; Portland cement manufacturing; pharmaceuticals manufacturing; and biotechnology. RACT III imposes presumptive RACT limitations and requirements on additional categories of facilities that were not previously subject to any presumptive RACT limitations or requirements. These categories include glass melting furnaces, lime kilns, and certain combustion units.
Owners and operators of existing major sources without presumptive requirements or limitations, or those unable to meet the presumptive RACT limitations or requirements may submit a proposed alternative RACT limitation or requirement (case-by-case RACT analysis). PADEP has established an aggressive deadline of December 31, 2022 by which case-by-case RACT proposals must be submitted.
Sources that previously proposed and obtained a case-by-case RACT under a prior rule (e.g., RACT II) are still required to address RACT III requirements. The final rulemaking does, however, provide an option for an owner or operator to demonstrate that the applicable RACT II requirements satisfy RACT III requirement in lieu of a full case-by-case analysis. PADEP reviews these analyses and submits those that are approved to the United States Environmental Protection Agency (EPA) as revisions to the Commonwealth’s State Implementation Plan (SIP).
The final rulemaking establishes presumptive RACT requirements at Section 129.112 for certain source categories of major NOx or VOC emitting facilities. For some source categories, such as fugitive VOC air contamination sources at natural gas compression and transmission facilities that have the potential to emit less than 2.7 TPY of VOC, PADEP determined that RACT requires only that these sources “install, maintain, and operate the sources in accordance with the manufacturer’s specifications and with good operating practices.” For several source categories, however, PADEP established NOx and/or VOC emission limitations as presumptive RACT. For example, at affected facilities, the following NOx emission limitations apply to the following source categories:
Glass Melting Furnaces (Section 129.112(i)(4))
- 4.0 pounds of NOx per ton of glass pulled for container glass and fiberglass furnaces
- 7.0 pounds of NOx per ton of glass pulled for pressed or blown glass and flat glass furnaces
- 6.0 pounds of NOx per ton of glass pulled for all other glass melting furnaces
Cement Kilns (Section 129.112(h))
- 3.88 pounds of NOx per ton of clinker produced for a long wet-process cement kiln
- 3.0 pounds of NOx per ton of clinker produced for a long dry-process cement kiln
- 2.30 pounds of NOx per ton of clinker produced for a preheater and precalciner cement kiln
Lime Kilns (Section 129.112(j))
- 4.6 pounds of NOx per ton of lime produced
The owner or operator of a NOx air contamination source with a potential emission rate equal to or greater than 5.0 tons of NOx per year for which presumptive RACT requirements are not outlined in Section 129.112 is required to propose a NOx RACT requirement or RACT emission limitation to PADEP. Similarly, the owner or operator of a VOC air contamination source with a potential emission rate equal to or greater than 2.7 tons of VOC per year for which presumptive RACT requirements are not outlined in Section 129.112 is required to propose a VOC RACT requirement or RACT emission limitation to PADEP.
Notably, Section 129.115 requires that all major VOC or NOx emitting facilities submit a written notification to PADEP or the appropriate local air pollution control agency by December 31, 2022, identifying air contamination sources at the facility as covered by—or exempt from—RACT III requirements. This written notification requirement applies to all major sources of NOx and VOC emissions, even if those facilities are not subject to the presumptive RACT provisions of Section 129.112. The written notification must include the following for each identified air contamination source:
- A description of each identified air contamination source at the facility, including make, model, and location;
- The applicable RACT requirement or RACT emission limitation;
- How the owner or operator shall comply with the application RACT requirement or RACT emission limitation; and
- The reason why a source is exempt from the RACT requirements and RACT emission limitations, if applicable.
Operators are not required to immediately amend operating permits to include RACT III, but as of January 1, 2023, the final rulemaking will apply to those sources covered by the rulemaking. As of this compliance date, RACT III’s requirements could supersede any conflicting requirements and emissions limitations in a facility’s permit or Pennsylvania regulations, unless those conflicting requirements are more stringent than RACT III. See Section 129.112(l)–(m). These superseded regulations include those that exempt glass manufacturing sources from emission requirements during periods of start-up, shutdown, or malfunction (SSM). PADEP has determined that such SSM exemptions do not contain enforceable emission limitations and, therefore, do not constitute RACT.
EQB adopted the proposed rulemaking in May of 2021. The proposed rulemaking was published for public comment and PADEP held public hearing on the proposal. PADEP reviewed and responded to comments on the proposed rule and presented the final rule to the EQB at its August 9, 2022 meeting, where it was approved. Upon approval, the regulation was submitted to the House and Senate Environmental Resources & Energy standing committees of the General Assembly and the Pennsylvania Independent Regulatory Review Commission (IRRC). The House and Senate Committees approved the regulation on September 14, 2022 and IRRC approved the regulation on September 15, 2022. Once the regulation is approved by the Office of the Attorney General, the final rulemaking can be published in the Pennsylvania Bulletin. Thereafter, the PADEP will submit it to EPA for incorporation into Pennsylvania’s SIP.
The RACT III compliance date established by EPA is January 1, 2023 and this regulation will go into effect upon publication in the Pennsylvania Bulletin. As publication prior to the end of 2022 is likely, owners and operators should take note of the impending December 31, 2022 notification deadline described above.
Gina Falaschi is an associate in the Environmental Group of Babst Calland. Ms. Falaschi provides advice to clients in the energy, transportation, and technology sectors regarding compliance with state and federal environmental regulations. She has assisted companies with disclosure of regulatory violations to state and federal agencies and has counseled clients in negotiations with the U.S. Department of Justice, U.S. EPA, and California Air Resources Board. Contact her at 202-853-3483 or gfalaschi@babstcalland.com
Christina Puhnaty is an associate in the Environmental Group of Babst Calland. She assists clients with matters encompassing a broad range of environmental issues, including those related to state and federal permitting, regulatory compliance, and environmental litigation. Contact her at 412-394-6514 or cpuhnaty@babstcalland.com.
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Reprinted with permission from the October 6, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved.
