Title 25—ENVIRONMENTAL PROTECTION ENVIRONMENTAL QUALITY BOARD [ 25 PA. CODE CHS. 121 AND 129 ] Control of NOx Emissions from Glass Melting Furnaces [40 Pa.B. 3328]
[Saturday, June 19, 2010]The Environmental Quality Board (Board) amends Chapters 121 and 129 (relating to general provisions; and standards for sources) to read as set forth in Annex A. This final-form rulemaking controls nitrogen oxide (NOx) emissions from glass melting furnaces.
This order was adopted by the Board at its meeting of March 16, 2010.
A. Effective Date
This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
This final-form rulemaking will be submitted to the United States Environmental Protection Agency (EPA) as a revision to the Pennsylvania State Implementation Plan (SIP) upon publication.
B. Contact Persons
For further information, contact Jane Mahinske, Air Quality Program Specialist, Division of Air Resource Management, Bureau of Air Quality, 12th Floor, Rachel Carson State Office Building, P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 783-8949; or Robert ''Bo'' 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 by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available electronically through the Department of Environmental Protection's (Department) web site at www.depweb.state.pa.us.
C. Statutory Authority
This action is being taken under the authority of section 5(a)(1) of the Air Pollution Control Act (APCA) (35 P. S. § 4005(a)(1)), which grants to the Board the authority to adopt regulations for the prevention, control, reduction and abatement of air pollution.
D. Background and Summary
When ground-level ozone is present in concentrations in excess of the Federal health-based standards, public health is adversely affected. The EPA has concluded that there is an association between ambient ozone concentrations and increased hospital admissions for respiratory ailments, such as asthma. Further, although children, the elderly and those with respiratory problems are most at risk, even healthy individuals may experience increased respiratory ailments and other symptoms when they are exposed to ambient ozone while engaged in activities that involve physical exertion. Though these symptoms are often temporary, repeated exposure could result in permanent lung damage. The implementation of additional measures to reduce exposure to elevated ozone concentrations in this Commonwealth is necessary to protect the public health and the environment. The EPA established the 8-hour ozone National Ambient Air Quality Standard (NAAQS) at 0.08 parts per million (ppm) at 62 FR 38855, 38856 (July 18, 1997). On March 12, 2008, the EPA issued a more protective 8-hour ozone standard of 0.075 ppm that would require additional reductions of ozone precursor emissions in this Commonwealth. See 73 FR 16436 (March 27, 2008). However, the EPA has reconsidered the 2008 ozone NAAQS and published a proposed rulemaking at 75 FR 2938 (January 19, 2010) 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 NAAQS is expected in August 2010.
In addition, the adoption and implementation of this final-form rulemaking also allows the Commonwealth to make progress in attaining and maintaining the fine particulate matter (PM2.5) NAAQS, since NOx is a PM2.5 precursor. See 73 FR 28321, 28325 (May 16, 2008). The health effects associated with exposure to PM2.5 are significant. Epidemiological studies have shown a significant correlation between elevated PM2.5 levels and premature mortality. Other important effects associated with PM2.5 exposure include aggravation of respiratory and cardiovascular disease (as indicated by increased hospital admissions, emergency room visits, absences from school or work and restricted activity days), lung disease, decreased lung function, asthma attacks and certain cardiovascular problems. Individuals particularly sensitive to PM2.5 exposure include older adults, people with heart and lung disease and children. At 74 FR 58688, 58758 (November 13, 2009), the EPA designated 6 areas including all or portions of 22 counties in this Commonwealth as nonattainment areas for the 2006 24-hour PM2.5 NAAQS.
The purpose of this final-form rulemaking is to reduce emissions of NOx from glass melting furnaces to reduce levels of ground-level ozone and fine particulate. Ground-level ozone is not directly emitted by pollution sources, but is created as a result of the chemical reaction of NOx and volatile organic compounds in the presence of light and heat. The reduction of NOx emissions will also help protect the public health and environment from high levels of PM2.5, of which NOx is a precursor component. The reduction of NOx emissions also reduces visibility impairment and acid deposition. As a result, to the extent that it is more stringent than any corresponding Federal requirement, this final-form rulemaking is reasonably necessary to attain and maintain the NAAQS for both ozone and PM2.5.
The glass industry in this Commonwealth produces a variety of products, including flat glass, container glass, fiberglass and pressed and blown glass. In 2002, flat glass production accounted for approximately 7,450 tons of NOx emissions; container glass production accounted for approximately 1,800 tons of NOx emissions; fiberglass production accounted for approximately 150 tons of NOx emissions; and pressed and blown glass, including picture tube glass, accounted for approximately 2,500 tons of NOx emissions. Total glass melting furnace NOx emissions in 2002 were approximately 11,900 tons. Since 2002, a number of furnaces or facilities, or both, have discontinued operation or made process changes and total NOx emissions during 2005 were approximately 9,814 tons. As a result, the glass industry in this Commonwealth remains one of the largest sources of NOx emissions in this Commonwealth.
This Commonwealth, along with Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont and Virginia, and the District of Columbia, are members of the Ozone Transport Commission (OTC), which was created under section 184 of the Clean Air Act (CAA) (42 U.S.C.A. § 7511c) to develop and implement regional solutions to the ground-level ozone problem in the Northeast and Mid-Atlantic regions. To date, states from the OTC, including the Commonwealth, have established a number of regulatory programs to reduce ozone precursor emissions, including programs regarding portable fuel containers, architectural and industrial maintenance coatings and consumer products. Consistent with its strategy to achieve equitable ozone precursor emission reductions from all industrial sectors, the Commonwealth, along with other OTC states, has met with representatives of the glass industry to discuss reductions of NOx emissions from glass melting furnaces. There is general agreement that the NOx emission regulatory limits for the glass industry developed by the San Joaquin Valley Air Pollution Control District (SJVAPCD) in California are appropriate NOx emission limits for glass melting operations located in this Commonwealth and the other OTC States. The SJVAPCD Rule was first adopted in 1994 and subsequently amended in 1998, 2002 and 2006; this amended regulation was used to develop the Commonwealth's regulations, which serve as the OTC model rule for glass melting furnaces. The Department reviewed, analyzed and concurred with the OTC's control measures summary document for glass melting furnaces with respect to the individual glass melting furnaces in this Commonwealth and determined that proposing a glass melting furnaces regulation based on the SJVAPCD Rule's mix of control options to meet specified emission limits was the appropriate implementation strategy for a rulemaking to control NOx emissions from this Commonwealth's glass melting furnaces.
As part of the proposed rulemaking, the Board proposed under § 129.309 (relating to compliance demonstration) that the owner or operator of a glass melting furnace may demonstrate compliance with the requirements of § 129.304 (relating to emission requirements) by surrendering Clean Air Interstate Rule (CAIR) NOx Ozone Season allowances for each ton of NOx emissions that exceeds the allowable emissions of the applicable glass melting furnaces. In response to comments received during the official public comment period on the proposed rulemaking for glass melting furnaces, 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 in several areas and the Department believed that, while not legally required, further discussion and an additional comment period would serve the public interest. An Advance Notice of Final Rulemaking (ANFR) was published at 39 Pa.B. 5318 (September 12, 2009). The most significant change made in the draft final-form rulemaking concerned deletion of the NOx surrender compliance option which allowed for the purchase of CAIR NOx allowances. 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 CAIR NOx allowances under the EPA's CAIR regulation. During these discussions, the EPA indicated to the Department that providing a compliance option to purchase CAIR NOx allowances in the final-form rulemaking would jeopardize the approval of the Commonwealth's CAIR SIP revision, because glass melting furnaces are not specifically included in the EPA CAIR program as a source category. Therefore, the compliance option to purchase CAIR NOx allowances was deleted from the final-form rulemaking.
There are three additional significant changes to the final-form rulemaking:
(1) The provision requiring compliance with the emission limits during the ozone season from May-September has been deleted. The Department further revised the final-form rulemaking to require compliance with the NOx emission limits year-round because NOx is a precursor to the formation of PM2.5, which is monitored year-round. In addition, NOx is also a precursor to the formation of ozone 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 for the 8-hour ozone NAAQS for a longer period each year. See 74 FR 34525, 34538 (July 16, 2009).
(2) The 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, or pressed or blown.
(3) The final-form rulemaking provides a petition process for an alternative emission limitation to the owner or operator of a glass melting furnace that demonstrates it is economically or technologically infeasible to meet the NOx emission limitations specified in § 129.304(a). An alternative emission limitation approved by the Department must be included in either a plan approval or an operating permit issued by the Department or a permit issued by the appropriate approved local air pollution control agency. Moreover, the petition process in the final-form rulemaking also allows an owner or operator to submit a petition for an alternative compliance schedule if compliance with the NOx emission limitations is not achieved by the January 1, 2012, compliance deadline specified in § 129.304(b).
The Department worked with the Air Quality Technical Advisory Committee (AQTAC) in the development of this final-form rulemaking. At its November 18, 2009, meeting, the AQTAC recommended revisions to the final-form rulemaking and concurred with the Department's recommendation to advance the regulation to the Board for consideration as a final-form rulemaking. The AQTAC recommended that the Department evaluate the requirements for exemptions in § 129.303 (relating to exemptions), specify the role of local air pollution control agencies and re-evaluate the invalidated data substitution method. These revisions were considered and incorporated into the final-form rulemaking.
The Department also conferred with the Citizens Advisory Council (CAC) concerning the final-form rulemaking on December 15, 2009. The CAC concurred with the Department's recommendation to advance the regulation to the Board for consideration as a final-form rulemaking.
E. Summary of Final-Form Rulemaking and Changes from Proposed to Final-Form Rulemaking
Summary of Final-Form Rulemaking
The final-form rulemaking adds the following definitions and terms to § 121.1 (relating to definitions) used in the substantive provisions under §§ 129.301—129.310 (relating to control of NOx emissions from glass melting furnaces): ''blown glass,'' ''cold shutdown,'' ''container glass,'' ''fiberglass,'' ''flat glass,'' ''glass melting furnace,'' ''idling,'' ''permitted production capacity,'' ''pressed glass,'' ''primary furnace combustion system,'' ''pull rate,'' ''shutdown'' and ''start-up.''
The following proposed definitions and terms were deleted between proposed and final-form rulemaking: ''100% air-fuel fired,'' ''air-fuel firing,'' ''complete reconstruction,'' ''furnace battery,'' ''furnace rebuild,'' ''multiple furnaces,'' ''oxyfuel fired'' and ''oxygen-assisted combustion.''
Section 129.301 (relating to purpose) annually limits the emissions of NOx from glass melting furnaces.
Section 129.302 (relating to applicability) specifies that the regulation applies to an 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.
Section 129.303 (relating to exemptions) provides, among other things, that the emission requirements in § 129.304 do not apply during periods of start-up, shutdown or idling as defined in § 121.1 if the owner or operator complies with the requirements of §§ 129.305—129.307 (relating to start-up requirements; shutdown requirements; and idling requirements). Owners and operators claiming the exemption shall notify the Department or approved local air pollution control agency within 24 hours after initiation of the operation for which the exemption is claimed. Additionally, the owner or operator of a glass melting furnace granted an exemption under § 129.303 shall maintain operating records or documentation, or both, necessary to support the claim for the exemption.
Section 129.304 provides that the owner or operator of a glass melting furnace shall determine allowable NOx emissions by multiplying the tons of glass pulled by each furnace by: 4.0 pounds of NOx per ton (lbs NOx/ton) of glass pulled for container glass furnaces; 7.0 lbs NOx/ton of glass pulled for pressed or blown glass furnaces; 4.0 lbs NOx/ton of glass pulled for fiberglass furnaces; 7.0 lbs NOx/ton of glass pulled for flat glass furnaces; and 6.0 lbs NOx/ton of glass pulled for all other glass melting furnaces. The owner or operator of a glass melting furnace shall comply with the allowable NOx emissions by January 1, 2012, unless a petition for an alternative emission limitation or compliance schedule is submitted, in writing, to the Department or approved local air pollution control agency by January 1, 2012, and subsequently approved, in writing, by the Department or approved local air pollution control agency.
The final-form rulemaking provides a petition process for an alternative NOx emission limitation to the owner or operator of a glass melting furnace that demonstrates to the Department's satisfaction that it is economically or technologically infeasible to meet the established emission limitations in § 129.304. An alternative NOx emission limitation approved by the Department must be included in either a plan approval or an operating permit issued by the Department or a permit issued by the appropriate approved local air pollution control agency. Moreover, this final-form rulemaking also includes a petition process for an alternative compliance schedule if an owner or operator of a glass melting furnace demonstrates that compliance cannot be achieved by the January 1, 2012, compliance date specified in § 129.304(b).
Section 129.305 (relating to start-up requirements) requires the owner or operator to submit specific information requested by the Department or approved local air pollution control agency to assure proper operation of the furnace. The owner or operator of a glass melting furnace may submit a request for a start-up exemption in conjunction with the plan approval application, if required. The length of the start-up exemption may not exceed a finite number of days depending on the type of furnace. The Department or approved local air pollution control agency may approve start-up exemptions to the extent that the request identifies, among other things, the control technologies or strategies to be used. Additionally, the owner or operator shall place the emission control system in operation as soon as technologically feasible during start-up to minimize emissions.
Section 129.306 (relating to shutdown requirements) provides, among other things, that the duration of a glass melting furnace shutdown, as measured from the time the furnace operations drop below 25% of the permitted production capacity or fuel use capacity to when all emissions from the furnace cease, shall not exceed 20 days.
Section 129.307 (relating to idling requirements) provides, among other things, that the owner or operator of a glass melting furnace shall operate the emission control system whenever technologically feasible during idling to minimize emissions.
Section 129.308 (relating to compliance determination) provides, among other things, that no later than 14 days prior to the applicable date under § 129.304, the owner or operator of a glass melting furnace subject to this section and §§ 129.301—129.307 and 129.309 and § 129.310 (relating to recordkeeping) shall install, operate and maintain continuous emissions monitoring systems (CEMS) (as defined in § 121.1) for NOx and other monitoring systems to convert data to required reporting units in compliance with Chapter 139, Subchapter C (relating to requirements for source monitoring for stationary sources), and calculate actual emissions using the CEMS data reported to the Department or approved local air pollution control agency. However, the owner or operator of a glass melting furnace may elect to install and operate an alternate NOx emissions monitoring system or method approved, in writing, by the Department or approved local air pollution control agency. Data invalidated under Chapter 139, Subchapter C shall be substituted with other values if approved, in writing, by the Department or approved local air pollution control agency.
Section 129.309 provides that the owner or operator of a glass melting furnace shall calculate and report to the Department or approved local air pollution agency on a quarterly basis no later than 30 days after the end of the quarter the CEMS data and glass production data used to show compliance with the allowable NOx emission limitations. The glass production data must consist of the quantity of glass in tons pulled per day for each furnace. Compliance can be demonstrated on a furnace-by-furnace basis; facility-wide emissions averaging basis; or a system-wide emissions averaging basis among glass melting furnaces under common control of the same owner or operator in this Commonwealth. The owner or operator for which the Department has granted approval to voluntarily opt into a market-based program may not demonstrate compliance on an emissions averaging basis. Moreover, an emission reduction obtained by emission averaging to demonstrate compliance with the emission requirements will not be considered surplus for emission reduction purposes.
Section 129.310 (relating to recordkeeping) provides that the owner or operator of a glass melting furnace subject to the requirements of this section and §§ 129.301—129.309 shall maintain certain records to demonstrate compliance.
Changes from Proposed to Final-Form Rulemaking
In addition to the revisions for definitions previously discussed in this section, changes from the proposed rulemaking to final-form rulemaking are summarized as follows.
In § 129.302, the metric ''20 pounds per hour'' and the May 1, 2009, applicability date were deleted from the final-form regulation. The phrase ''appropriate approved local air pollution control agency'' was added to this section.
Changes to § 129.303 between proposed and final-form rulemakings include, among other things, the deletion of the exemption regarding glass melting furnaces heated by an electric current from electrodes submerged in molten glass. The final-form regulation includes a requirement that owners and operators of glass melting furnaces claiming an exemption shall notify the Department or appropriate approved local air pollution control agency within 24 hours after the initiation of the operation for which the exemption is claimed. As part of the notification requirements, the owner or operator shall identify the emission control system operating during the exemption period. Finally, the phrase ''appropriate approved local air pollution control agency'' was also added to subsections (b)—(d).
Changes to § 129.304, among other things, include the requirement that the owner or operator of a glass melting furnace may not operate a glass melting furnace that results in NOx emissions in excess of the allowable emissions established therein or the NOx emission limits contained in the plan approval or operating permit, whichever is lower. This section has also been revised to allow the owners and operators of glass melting furnaces to submit a petition for an alternative emission limitation or compliance schedule, if the owners or operators are unable to meet the allowable NOx emission limits. In addition, the final-form rulemaking sets forth the information necessary to be included in a petition that will be considered by the Department or appropriate approved local air pollution control agency as it relates to an alternative NOx emission limitation or compliance schedule. However, the alternative compliance schedule for a cold shutdown which occurs after the effective date of this final-form rulemaking may not be extended beyond 180 days from the start-up of the furnace after the cold shutdown, unless approved, in writing, by the Department. Lastly, an exemption from the NOx emission limits is provided under certain conditions during routine maintenance of an add-on emission control system, maintenance or repair of certain components of the glass melting furnace.
Final-form changes to § 129.305 include, among other things, start-up exemption periods for all other glass melting furnaces not otherwise covered under the proposed rulemaking. The final-form regulation also includes maximum start-up exemption periods for certain glass melting furnaces that employ NOx control systems not in common use or not readily available from a commercial supplier. Section 129.305 also includes language that allows, in addition to the Department, an approved local air pollution control agency to be notified and to make certain determinations related to start-up requirements.
Changes to §§ 129.306 and 129.307 authorize an approved local air pollution control agency, in addition to the Department, to determine when the operation of an emission control system is technologically feasible.
In § 129.308, the final-form regulation allows the highest valid 1-hour emission values to be substituted if data is invalidated under Chapter 139, Subchapter C. An approved local air pollution control agency may also make compliance determinations under this section.
Changes to § 129.309 between proposed and final-form rulemaking include the deletion of language regarding the use and surrender of CAIR NOx ozone season allowances.
In § 129.310, the owner or operator claiming that a glass melting furnace is exempt from the requirements of §§ 129.301—129.309 based on the furnace's potential to emit shall maintain records that clearly demonstrate to the Department or appropriate approved local air pollution control agency that the furnace is not subject to those regulatory requirements.
F. Summary of Comments and Responses on the Proposed Rulemaking
Comments and Responses on the Proposed Rulemaking
A commentator supports and strongly urges the adoption of the NOx emission limits for fiberglass plants consistent with the 4.0 lbs NOx/ton of glass pulled adopted by the OTC. The Board appreciates the commentator's support of the proposed rulemaking for fiberglass plants.
A commentator stated that the emission limit for fiberglass plants in the proposed rulemaking can be achieved by currently available technologies and the emission limit is a technologically feasible and pragmatic approach requiring implementation of low-NOx combustion technology. The Board agrees with the commentator that the emission limit for fiberglass furnaces can be achieved with technologies currently available.
The commentator stated that it is an arbitrary and capricious action to base the regulations proposed NOx emission limits on a California rule without an explanation as to why they are appropriate to this Commonwealth. The Board disagrees with the commentator. The Board proposed the allowable NOx emission requirements as a result of the research conducted by and the recommendations of the Northeast OTC. The Northeast OTC is a multistate organization created under section 184 of the CAA. The 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 the Northeast and Mid-Atlantic regions. The members of the OTC are required to demonstrate attainment with the 1997 8-hour ozone standard of 80 parts per billion (ppb). See 62 FR 38855.
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. The 2008 revised standard requires additional reductions of emissions of ozone precursors, including NOx, that impact each member's nonattainment status. As required by the 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 reconsidered the 2008 ozone NAAQS and published a proposed rulemaking at 75 FR 2938 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. If, as is widely expected, the EPA tightens the ozone standard, the additional 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 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 and 64 FR 35713 (July 1, 1999). NOx emissions are precursors to the development of PM2.5 and regional haze.
The OTC undertook a study to identify a suite of additional control measures that could be used by the members in attaining their goals. Workgroups of staff from within the OTC members were established to evaluate control measures for 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 information for this short list of measures is found in the OTC report Identification and Evaluation of Candidate Control Measures, Final 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 Ozone Transport Region (OTR) that have glass melting furnaces (this Commonwealth, Maryland, Massachusetts, New Jersey, New York and Rhode Island) 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, controls already in place on the furnaces, anticipated additional NOx emissions reductions from the control measures, preliminary cost and cost-effectiveness data, and other implementation issues. 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 further 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 Manufacturers Association and Glass Association of North America). The OTC Commissioners summarized the glass melting furnace control measures and made a recommendation at the Commissioners' meetings in 2006 that the affected member states consider NOx emission reductions from glass melting furnaces. The glass melting furnace stakeholders were provided multiple opportunities to review and comment on the glass melting furnace control measures summary. 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 state workgroups carefully considered the verbal and written comments received during this process.
The OTC's control measures summary recommends that states may allow the owners or operators of glass melting furnaces to propose compliance methods based on California's 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 SJVAPCD Rule 4354. The Department reviewed, analyzed and concurred with the OTC's control measures summary document for glass melting furnaces with respect to the individual glass melting furnaces in this Commonwealth, and determined that proposing a glass melting furnaces regulation based on SJVAPCD Rule 4354 mix of control options to meet specified emission limits was the appropriate implementation strategy for a rulemaking to control NOx emissions from this Commonwealth's glass melting furnaces.
The 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 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 schedule contained in the petition process that is provided in § 129.304(b) and (c).
The commentator questioned whether imposing the proposed emission requirements in the absence of a Federal deadline 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. The Board proposed the allowable emission requirements as a result of the research conducted by and the recommendations of the OTC. In addition, the Commonwealth also conducted its own independent research and verified the OTC recommendation. Control of NOx emissions from glass melting furnaces in the six states within the OTR that have glass melting furnaces (this Commonwealth, Maryland, Massachusetts, New Jersey, New York and Rhode Island) was identified by the OTC as a control measure for further analysis. Moreover, 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 petition process that is provided in § 129.304(b) and (c).
The commentator stated that the proposed rulemaking does not include emission requirements for specialty glass manufacturing, and therefore the proposed rulemaking does not apply to their glass melting furnace since it does not meet the applicability criteria defined in the proposed rulemaking. The Board recognizes this and as a result, this final-form rulemaking also includes a petition process for an alternative compliance schedule if the owner or operator of a glass melting furnace demonstrates that compliance will not be achieved by the January 1, 2012, compliance date specified in § 129.304(b).
The proposed rulemaking's compliance determination section should express NOx in the same units as in the emission requirements section of the proposed rulemaking (lbs/hr vs. lbs NOx/ton glass). The Board disagrees with the commentator. The CEMS' equipment is not designed to sample and report a source's process-derived emissions data, for example, tons of glass pulled at a glass melting furnace. The CEMS equipment samples a ''parts per 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 § 129.309(a), the submittal shall include the CEMS monitored data in pounds per hour and the glass production data in tons of glass pulled per day for each furnace.
The commentator stated that the emission requirements compliance date of May 1, 2009, is unreasonable because there is less than 1 year until this deadline and the proposed rulemaking was not yet final and may not be final before the end of 2008. The Board acknowledges that the proposed rulemaking's compliance date of May 1, 2009, is impractical. Therefore, the final-form rulemaking requires compliance with the NOx emission limits by January 1, 2012.
The commentator stated that this regulation 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. The Board agrees with the commentator that the proposed rulemaking's compliance date of May 1, 2009, is impractical. The final-form rulemaking requires compliance with the emission limits by January 1, 2012.
The Independent Regulatory Review Commission (IRRC) commented that the Board should review the practicality of the 2009 compliance deadline, given the uncertainty of the future of the EPA's CAIR allowance program and questioned if other compliance options will be available for providing flexibility to the affected industry. The Board agrees with the commentator. Subsequent to the closing of the public comment period on June 23, 2008, 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 allowances under the EPA's CAIR regulation. The EPA indicated to the Department that the glass melting furnace regulation that would provide a compliance 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. Therefore, the Board removed from the final-form rulemaking the compliance option to purchase CAIR NOx allowances.
The House and Senate Environmental Resources and Energy Committees (Committees) commented that it may assist the Department as well as the regulated industry to not base the compliance time frame on a specific date. The Committees commented that glass melting furnaces could potentially be required by the regulation to be replaced or upgraded prior to the end of their normal life expectancy, which would greatly increase the compliance costs of the regulation, if the regulation contains a specific compliance date. The Committees further commented that they understand several other states permit furnaces to be upgraded after their normal and anticipated life expectancy is exhausted. The Board has modified the final-form rulemaking to provide for a petition process to all glass melting furnace owners and operators under § 129.304(b) for an alternative compliance schedule if they will be unable to meet the emission limits beginning January 1, 2012. The Board 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 January 1, 2012, or by the date specified on a case-by-case basis as determined through the petition process for an alternative compliance schedule under § 129.304(c). Additionally, the SJVAPCD Rule whose NOx emission limits and compliance methods were recommended by the OTC control measures group specifies a final compliance date.
A commentator stated that the proposed rulemaking 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. The Board disagrees with the commentator. The use of NOx credits previously banked due to prior emission reductions is clarified in the Department's NOx Budget Trading Program under § 145.90(a) (relating to emission reduction credit provisions): ''ERCs may not be used to satisfy NOx allowance requirements.'' Further, as previously explained, the final-form regulation no longer provides the compliance option to purchase CAIR NOx allowances.
A commentator stated that the Board did not adequately address, while drafting and promulgating the proposed rulemaking and in accordance with Executive Order 1996-1, ''Regulatory Review and Promulgation,'' that when there are existing Federal regulations covering the subject matter as does the EPA's CAIR regulation, that a state's regulations cannot be more stringent than the Federal standards. The commentator stated further that the EPA promulgated CAIR for the control of NOx emissions at the Federal level and the EPA focused the CAIR regulation on electric generating units (EGU). Glass melting furnaces are not EGUs, thus under the EPA's CAIR, specific regulation of glass manufacturing is notably absent. The purpose of the Department's rulemaking is to address reductions of NOx from glass melting furnaces, while the EPA's CAIR addresses NOx reductions from EGUs, 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 Commonwealth. 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 transport of ozone and PM2.5 precursors from the EGU 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 maintain the NAAQS. Executive Order 1996-1 applies to the final-form rulemaking since there is not a companion Federal rule that reduces NOx emissions from glass melting furnaces. However, this final-form rulemaking is reasonably necessary to attain and maintain the 8-hour ozone and PM2.5 NAAQS. The criteria for adopting state regulations more stringent than Federal regulations (when Federal regulations exist) are in section 4.2 of the APCA, (35 P. S. § 4004.2). Section 4.2 of the APCA authorizes the Board to adopt regulations more stringent than Federal requirements when the control measures are reasonably necessary to attain and maintain the ambient air quality standards.
The Senate Committee commented on the ability of the Board to move forward with the regulation if the United States Court of Appeals for the District of Columbia (D.C. Circuit Court) vacated the CAIR budget and allowance system for NOx emissions in this Commonwealth and other states. Their concern is that on July 11, 2008, the D.C. Circuit Court overturned CAIR and specifically that the D.C. Circuit Court found that the state NOx budgets as determined by the EPA were ''arbitrary and capricious.'' 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.
IRRC questioned the Board's statutory authority for the use of CAIR NOx allowances and revised NOx emission 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. IRRC goes on to say that the D.C. Circuit Court in its ruling stated that the analysis done by the EPA was ''fundamentally flawed'' and that the EPA must start its analysis anew. The Board disagrees with this analysis. 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. The D.C. Circuit Court decided to remand, not vacate, the EPA's CAIR in December 2008. The final Federal rule, expected in 2011, must be revised to be consistent with the D.C. Circuit Court's July 11, 2008, decision in State of North Carolina v. Environmental Protection Agency, 531 F.3d 896 (2008). The Board agrees that while the EPA's CAIR remains in place at this time, the EPA will propose and finalize a replacement for CAIR that meets the criteria set forth by the court. In light of the SIP-approvability issues raised by the EPA, the compliance option to purchase and surrender CAIR NOx allowances was deleted from the final-form regulation.
IRRC stated that the Board should address the concerns raised by the Senate Committee on the CAIR vacatur, and suggested that if the regulation requires substantial changes, to consider submitting an ANFR or publishing the changes as a new proposed rulemaking in the Pennsylvania Bulletin. The Department agrees with the commentator. The provisions of the final-form rulemaking contain significant changes from the proposed rulemaking. Most importantly, during discussions with the 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 regulation that provides a compliance 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 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 transport of ozone and PM2.5 precursors from the EGU sector. Therefore, the Board removed from the final-form rulemaking the compliance option to purchase CAIR NOx allowances. The Board 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 for the 8-hour ozone NAAQS for a longer period each year. See 74 FR 34525, 34538. The Board also added a NOx emission limit applicable to a glass melting furnace that produces a glass product that is other than flat, container, fiberglass or pressed and blown. These changes are sufficiently significant that the Board believed further discussion and an additional comment period served the public interest. An ANFR to solicit comments from the public on the draft final-form rulemaking was published at 39 Pa.B. 5318.
The Senate Committee commented that they support the 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 averaging section of the rulemaking and IRRC commented that the Board should address this issue. The Board disagrees. Allowing multiple owners and operators of glass melting furnaces in this Commonwealth to average their emissions in concert with each other to demonstrate compliance would essentially provide them the larger framework of an emissions trading program, which is beyond the scope of the final-form rulemaking provision to provide them with an emissions averaging option.
One commentator stated that the proposed rulemaking's requirement to install a NOx emissions monitoring system (CEMS or an alternate) does not impose a time requirement upon the Department for the review and approval of the monitoring system. The Board disagrees with the commentator that the regulation should contain a time requirement. The time frame 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). These monitoring-specific issues are not part of individual rulemakings.
Some commentators stated that the deadline of May 1, 2009, for the system to be installed and operational is unreasonable as there is less than 1 year until this deadline, and that it does not provide adequate time allowed for installation and operation of the CEMS. The commentators suggest there should be a longer time frame for the system to be installed and operational, and suggest that May 1, 2010, should be the earliest implementation date for the CEMS. The Board agrees with the commentators. A CEMS or alternate monitoring system or method to determine compliance with the emission limits specified in § 129.304(a) in the final-form 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 § 129.304(b) or (c) in the final-form rulemaking.
A commentator stated that ''to be consistent with the requirements of the CAIR, CEMS installation should be reserved for furnaces undergoing reconstruction or modification and not simple rebricking.'' The Board disagrees with the commentator. The EPA's CAIR requirements are not applicable to this final-form rulemaking. In addition, a CEMS or alternate monitoring system or method to determine compliance with the emission limits specified in § 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 required to meet the emission limits specified in § 129.304(b) or (c) in the final-form rulemaking.
One commentator stated that the ''alternate NOx emissions monitoring system or method'' referenced in the proposed rulemaking should be further clarified to explain what is an allowable alternate system. The Board disagrees with the commentator. An alternate NOx emissions system or method is not designed to be a prescribed method or system.
A commentator stated that the start-up exemption time of 104 days for a flat glass furnace is too short, and suggests an additional 208 days be allowed for a flat glass furnace that uses a NOx control not readily available from a commercial supplier, not in common use, or that is innovative. The Board agrees with the commentator with respect to the start-up exemption time of 104 days for a flat glass furnace. To be consistent with 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 revised the length of the start-up exemption in § 129.305(d) 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 available from a commercial supplier.
The commentator stated that the ''not to exceed 5% excess oxygen'' restriction during a furnace combustion start-up should be eliminated, as it does not appear to have a relationship or a benefit to NOx emissions. The Board retains in the final-form rulemaking the furnace start-up restriction under § 129.305(f) of ''not to exceed 5% excess oxygen,'' which is consistent with the furnace start-up requirements in SJVAPCD Rule 4354.
The Committees commented to the Board on behalf of one commentator that the start-up exemption unnecessarily restricts the exemption to a new 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. The Board revised this section of the final-form rulemaking. Section 129.305(b) specifies that a plan approval application 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.
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 Standard (NSPS) definition. The NSPS definition includes a list of extraneous nonfurnace equipment that goes against the intent of the proposed rulemaking that requires monitoring NOx emissions from only the furnace. The Board agrees with the commentator. The final-form rulemaking adopted the 2007 NESHAP definition of the term ''glass melting furnace'' that was published at 72 FR 73180 (December 26, 2007).
The definition of ''furnace rebuild'' is unclear and appears to broaden the scope of repair activities that currently require permitting, and the definition should exclude rebricking activities as defined in 40 CFR Part 60, Subpart CC (relating to standards of performance for glass manufacturing plants) and likewise exclude those activities from permitting. The term ''complete reconstruction'' in the definition of ''furnace rebuild'' should be stated as ''reconstruction.'' The Board agrees and made the necessary changes.
The Committees commented to the Board that the definition of ''start-up'' should be revised to be consistent with the SJVAPCD Rule to include necessary language on furnace stabilization, that is, the phrase ''and systems and instrumentation are brought to stabilization.'' The Board agrees with the commentator. The proposed definition of the term ''start-up'' in § 121.1 has been revised.
The proposed regulation should not expand the scope of what currently triggers permitting or plan approvals specified in the Pennsylvania Code and existing Federal regulations, and exemptions should be included for furnace rebricking and repairs or replacements that do not constitute a modification. The final-form rulemaking will require compliance with the NOx emission limits by January 1, 2012. The plan approval issued for the construction of a new glass melting furnace or furnace modification shall include terms and conditions consistent with the requirements of Chapter 127, Subchapter B (relating to plan approval requirements). The Board added in § 121.1 in the final-form rulemaking a definition for ''cold shutdown'' and the final-form rulemaking includes ''scheduled'' whenever ''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 Board believes this will alleviate the concerns about routine repairs to a furnace.
The selective catalytic reduction and selective noncatalytic reduction add-on control technologies for glass furnaces are not technically feasible control technologies for the intermittent NOx emissions from nitrate decomposition, and therefore are not feasible add-on controls for this commentator's glass melting furnace facility. This commentator requested the Board to explicitly exclude its facility from the proposed rulemaking. The Board disagrees with the commentator. The Board recognized that furnaces within this Commonwealth that produce a glass product other than the four types listed in the proposed rulemaking (flat, container, fiberglass and pressed and blown) were not adequately considered in the proposed rulemaking. As a result, the Board added under § 129.304 in the final-form rulemaking an emission limit of 6.0 lbs NOx/ton of glass pulled for a glass melting furnace that does not produce flat, container, fiberglass or pressed and blown glass products. The Board, in researching and analyzing these types of furnaces within this Commonwealth, considered the limit of 6.0 lbs NOx/ton 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%.
The proposed rulemaking was 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 nitrogen-containing raw materials and not from thermal NOx combustion processes, the Board should clarify that it is inappropriate to apply the proposed rulemaking to them. The Board disagrees with the commentator. The purpose of the final-form rulemaking is to control NOx emissions from glass melting furnaces. Applicability § 129.302 of the final-form rulemaking clearly states that the provisions of the rulemaking apply to an 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. If a glass melting furnace in this Commonwealth meets the applicability criteria, the final-form rulemaking provisions would apply.
The Committees and another commentator questioned the legal authority of the Department and the Board to require glass melting facilities to significantly reduce NOx emissions under the APCA. The commentators also stated that there is not a 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 nonattainment area to comply with the air quality standards for ozone. The Board disagrees with the commentators. The Board 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-settled 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 under proper procedures; and (3) reasonable. See, for example, Rohrbaugh v. PUC, 727 A.2d 1080 (1999) and Housing Authority v. Pa. Civil Service Com'n, 730 A.2d 935 (1999). Section 5 of the APCA provides that the Board will adopt rules and regulations for the prevention, control, reduction and abatement of air pollution, applicable throughout this Commonwealth. Clearly the intent of this regulation is to reduce air pollution, and so therefore the Board has the requisite legal authority. The Board is proceeding with this rulemaking through the proper rulemaking procedures, as identified under the APCA, the Regulatory Review Act (71 P. S. §§ 745.1—745.12) and the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204(3)), known as the Commonwealth Documents Law (CDL). 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 reduces pollution (see Rochez Bros., Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975)). Since this final-form rulemaking reduces pollution, it is reasonable.
The Committees and another commentator stated that the proposed rulemaking should provide for a variance if it could be demonstrated that it is economically unreasonable for the glass melting furnace facility to comply with the requirements of the rule, that the public interest is best served 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. The Board disagrees with the commentator. The Department disagrees with the commentator. A demonstration using air dispersion modeling (point-source 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 facility is subject to a proposed rulemaking. Moreover, a finding that emission reductions at one source of NOx does not contribute to the failure of a 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 model used by states for attainment 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. The Department maintains that an atmospheric dispersion model such as CALPUFF is not appropriate to use to determine an ozone concentration because ozone is formed chemically and not solely by dispersion. Atmospheric chemistry plays a role in ozone formation, and modeling just the NOx emissions, as is the case with CALPUFF, does not address this atmospheric chemistry. Certain areas of this Commonwealth continue to exceed the health-based 1997 8-hour NAAQS for ozone. See 62 FR 38855. The 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-based 1997 8-hour ozone NAAQS in this Commonwealth and downwind areas. 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 ozone attainment in this Commonwealth and throughout the OTR. See 73 FR 16436. However, the EPA has reconsidered the 2008 ozone NAAQS and published a proposed rulemaking at 75 FR 2938 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. If, as is widely expected, the EPA tightens the ozone standard, the additional 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.
Nevertheless, the final-form rulemaking provides a petition process, rather than a variance, for an alternative emission limitation compliance deadline to the owner or operator of a glass melting furnace that demonstrates to the Department's satisfaction that it is economically or technologically infeasible to meet the NOx emission limitations in § 129.304(a). The alternative emission limitation must be included in either a plan approval or an operating permit issued by the Department or a permit issued by the appropriate approved local air pollution control agency. Moreover, this final-form rulemaking also includes a petition process for an alternative compliance schedule, rather than a variance, if an owner or operator of a glass melting furnace demonstrates that compliance with the NOx emission limitations will not be achieved by the January 1, 2012, compliance date in § 129.304(b).
This final-form rulemaking will also contribute to reduced formation of PM2.5 and 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). In November 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. 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, 35715. Therefore, the adoption of the final-form rulemaking for glass melting furnaces will help to reduce formation of ozone, PM2.5 and regional haze in this Commonwealth and downwind. As a result, the regulation is reasonably necessary to attain and maintain the NAAQS for ozone and PM2.5.
A commentator stated that the Board did not adequately address, while drafting and promulgating the proposed regulation and in accordance with Executive Order 1996-1, whether the costs of the regulation exceed its benefits or not, and also that the proposed rulemaking does not support a conclusion that its costs will not exceed the benefits, and therefore the cost/benefit analysis should be more thoroughly addressed. The Board disagrees with the commentator. The Board addressed the benefits and the costs associated with the proposed rulemaking in the preamble published at 38 Pa.B. 1831 (April 19, 2008).
The 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 Board believes that an exemption for a furnace malfunction or upset period is not required. The Department does not routinely provide for exemptions from emission limits from a source for periods of upset or malfunction in regulations to control emissions from sources.
The Committees commented to the Board on behalf of PPG Industries during the ANFR comment period that the petition process described in § 129.304(b) and (c) of the ANFR final-form rulemaking should specify what factors the Department will consider for a glass melting furnace to qualify for an alternative compliance deadline. The Board believes the petition process in § 129.304(b) and (c) of the final-form rulemaking is comprehensive but not overly prescriptive and includes the factors suggested by the Committees. In addition, the Board 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.
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[Continued from previous Web Page] Comments and Responses on the ANFR
As previously noted, an ANFR was published at 39 Pa.B. 5318 and the comment period closed on October 14, 2009. The draft final-form rulemaking contained significant changes in several areas, and the Department believed that while not legally required, further discussion and an additional comment period would serve the public interest. The most significant change made to the draft final-form rulemaking concerned the NOx surrender compliance option under § 129.309(c) which allowed for the purchase of CAIR NOx allowances. Three additional significant changes were made to the draft final-form rulemaking regarding: 1) year-round compliance; 2) an additional NOx emission limit applicable to the owner or operator of a glass melting furnace that produces a glass product that is other than flat, container, fiberglass or pressed or blown; and 3) the final-form rulemaking provides a petition process for an alternative NOx emission limitation to the owner or operator of a glass melting furnace that demonstrates it is economically or technologically infeasible to meet the established emission limitations under § 129.304. The alternative NOx emission limitation must be included in either a plan approval or an operating permit issued by the Department or a permit issued by the appropriate approved local air pollution control agency. Moreover, this final-form rulemaking also includes a petition process for an alternative compliance schedule to an owner or operator of any glass melting furnace that demonstrates that compliance will not be achieved by the January 1, 2012, compliance date established in § 129.304(b).
Seventeen commentators submitted comments on the ANFR: the Committees; the Allegheny County Health Department (ACHD); two organizations; three legislators; and eight glass companies.
A commentator supports the adoption of the NOx emission limits for fiberglass plants consistent with the 4.0 lbs NOx/ton of glass pulled adopted by the OTC. The Department appreciates the commentator's support of the draft final-rulemaking for fiberglass plants. The Department agrees with the commentator that the OTC-recommended emission limit of 4.0 lb NOx/ton of glass pulled for fiberglass plants in the final-form rulemaking achieves consistency and uniformity among the 13 members of the OTC and that the emission limit for fiberglass furnaces can be achieved with technologies currently available.
The commentator stated that it is an arbitrary and capricious action to base the regulation's proposed NOx emission limits on a California rule without an explanation as to why they are appropriate to this Commonwealth. The Department proposed the allowable NOx emission requirements as a result of the research conducted by and the recommendations of the Northeast OTC. The Northeast OTC is a multistate organization created under section 184 of the CAA. The 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 the Northeast and Mid-Atlantic regions. The members of the OTC are required to demonstrate attainment with the 1997 8-hour ozone standard of 80 ppb. See 62 FR 38855.
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. The 2008 revised standard requires additional reductions of emissions of ozone precursors, including NOx, that impact each member's nonattainment status. As required by the 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 reconsidered the 2008 ozone NAAQS and published a proposed rulemaking at 75 FR 2938 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. If, as is widely expected, the EPA tightens the ozone standard, the additional NOx emissions reductions from the final-form rulemaking for glass melting furnaces will be even more important than if the current 2008 ozone 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 and 64 FR 35713, 35714. NOx emissions are precursors to the development of PM2.5 and regional haze.
The OTC undertook a study to identify a suite of additional control measures that could be used by the members in attaining their goals. Workgroups of staff from within the OTC members were established to evaluate control measures for 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 information for this short list of measures is found in the OTC report Identification and Evaluation of Candidate Control Measures, Final 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, Maryland, Massachusetts, New Jersey, New York and Rhode Island) 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, controls already in place on the furnaces, anticipated additional NOx emissions reductions from the control measures, preliminary cost and cost-effectiveness data and other implementation issues. 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 further 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 Manufacturers Association and Glass Association of North America). The OTC Commissioners summarized the glass melting furnace control measures and made a recommendation at the Commissioners' meetings in 2006 that the affected member states consider NOx emission reductions from glass melting furnaces. The glass melting furnace stakeholders were provided multiple opportunities to review and comment on the glass melting furnace control measures summary. 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 state workgroups carefully considered the verbal and written comments received during this process.
The OTC's control measures summary recommends that states may allow the owners or operators of glass melting furnaces to propose compliance methods based on California's SJVAPCD Rule 4354 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 reviewed, analyzed and concurred with the OTC's control measures summary document for glass melting furnaces with respect to the individual glass melting furnaces in this Commonwealth and determined that proposing a glass melting furnaces regulation based on the SJVAPCD Rule 4354 mix of control options to meet specified emission limits was the appropriate implementation strategy for a rulemaking to control NOx emissions from this Commonwealth's glass melting furnaces.
The 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 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 schedule or alternative emission limitation contained in the petition process that is provided in § 129.304(b) and (c) of the final-form rulemaking.
A commentator requested that the Department add to the final-form rulemaking a definitive and feasible alternate standard or exemption applicable to unique specialty glass operations such as theirs. The final-form rulemaking includes a petition process for an alternative compliance schedule or alternative NOx emission limitation if an owner or operator of any glass melting furnace demonstrates that compliance will not be achieved by the January 1, 2012, compliance date.
Several commentators questioned why the draft final-form regulation only provided an alternative emission limitation petition process in § 129.304(c) to the owners and operators of glass melting furnaces that produce an ''other'' glass product. The final-form rulemaking includes a petition process for an alternative compliance schedule or alternative NOx emission limitation if an owner or operator of a glass melting furnace that demonstrates that compliance will not be achieved by the January 1, 2012, compliance date.
The 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. The Department maintains that a demonstration using air dispersion modeling (point-source 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 facility is subject to a proposed rulemaking. Air dispersion models are not designed to simulate source-specific contributions to ozone nonattainment areas. A finding that emission 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 model used by states for attainment 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. The Department maintains that an atmospheric dispersion model such as CALPUFF is not appropriate to use to determine an ozone concentration because ozone is formed chemically and not solely by dispersion. Atmospheric chemistry plays a role in ozone formation, and modeling just the NOx emissions, as is the case with CALPUFF, does not address this atmospheric chemistry.'' Moreover, 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 necessary 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 reductions 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. 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. However, the EPA reconsidered the 2008 ozone NAAQS and published a proposed rulemaking at 75 FR 2938 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. If, as is widely expected, the EPA tightens the ozone standard, the additional NOx emissions reductions from the final-form rulemaking for glass melting furnaces will be even more important than if the current 2008 ozone standard remains in place.
Nevertheless, the final-form rulemaking provides a petition process, rather than a variance, for an alternative NOx emission limitation or compliance schedule to the owner or operator of any glass melting furnace that demonstrates it is economically or technologically infeasible to meet the NOx emission limitations specified in § 129.304(a). The alternative NOx emission limitation must be included in either a plan approval or an operating permit issued by the Department or a permit issued by the appropriate approved local air pollution control agency. Moreover, this final-form rulemaking also includes a petition process for an alternative compliance schedule, rather than a variance, to an owner or operator of a glass melting furnace that demonstrates that compliance will not be achieved by the January 1, 2012, compliance date.
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. Additionally, in November 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. The EPA is also evaluating 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 protection provisions of the 1977 CAA Amendments, Congress specifically recognized that the ''visibility problem is caused primarily by emission into the atmosphere of SO2, oxides of nitrogen, and particulate matter, especially fine particulate matter, from inadequate[ly] controlled sources.'' See 64 FR 35713, 35715. Section 169A(a)(1) of the CAA (42 U.S.C.A. § 7491(a)(1)) sets forth a National goal for visibility which is the ''prevention of any future, and the remedying of any existing, impairment of visibility in Class I areas which impairment results from manmade air pollution.'' If adopted, the NOx emission reduction provisions of the final-form rulemaking for glass melting furnaces will help to reduce formation of ozone, PM2.5 and regional haze pollution in this Commonwealth and throughout the OTR. As a result, the regulation is reasonably necessary to attain and maintain the NAAQS for ozone and PM2.5
A primary comment made by numerous commentators, including the Committees, is that 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 control technology 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 time frame 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. The Department disagrees with the commentators. The Department agrees that it could possibly be infeasible for all affected owners or operators of glass melting furnaces to comply with the allowable emission limits by January 1, 2012. In recognition of this, § 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 January 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 January 1, 2012, or by the date specified on a case-by-case basis as determined through the petition process for an alternative compliance schedule under § 129.304(c). Moreover, the EPA would not approve revisions to the California SIP contained in the SJVAPCD Rule addressing NOx emissions from glass melting furnaces, because the Compliance Schedule section of the rule did not specify a final date for facilities to achieve full compliance with the emission limits specified in the rule's requirements section. See 67 FR 20078 (April 24, 2002). As a result, the Department believes that a final compliance date specified in the final-form regulation is necessary to receive SIP approval from the EPA.
Several commentators commented that the petition process described in § 129.304(b) and (c) of the draft final rulemaking should specify what factors the Department will consider for the owner or operator of a glass melting furnace to qualify for an alternative compliance deadline. The Department believes the petition process in § 129.304(b) and (c) is comprehensive but not overly prescriptive and includes all the factors suggested by the commentators. In addition, the Department revised 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. The Department maintains that the concerns expressed by the commentators 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.
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 final-form rulemaking. The Department agrees with the commentator in that applying the regulation to these unique glass melting operations will not result in significant overall emission reductions. Section 129.302 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.
The ACHD commented that the final-form rulemaking should be modified to state that the regulation applies to furnaces in the jurisdiction of a local air pollution control agency, and for ACHD to implement the provisions of the regulation, all reports and notifications required under the regulation should be submitted directly to the local agency. The Department agrees with the commentator, and the change has been made.
One commentator stated that the exemptions section should be revised to require that the owner or operator of a glass 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 where an unforeseen problem requires a facility to immediately go into an unanticipated idling position. The Department agrees with the commentator, and that change has been made.
One commentator stated that the timing of written notification to the Department contained in the exemptions in § 129.303 not be tied to the occurrence of the exemption event itself. The Department disagrees with the commentator. The Department maintains that the requirement in § 129.303(b) to notify the Department within 24 hours of initiating the exempt operation, and the requirement in § 129.303(d) to notify the Department in writing within 24 hours after completion of the exempt operation, is reasonable and not burdensome to the facility claiming the exemption.
Several commentators commented 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. Comments were also made that the routine maintenance exemption of 144 hours in total for add-on emission controls 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 be exempted from the emission limits for 144 hours each calendar year for routine maintenance. The Department believes that an exemption for a furnace malfunction or upset period is not required. The Department does not routinely provide for exemptions from emission limits for periods of upset or malfunction in regulations to control emissions from sources.
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. The Department has revised this section of the final-form rulemaking. Section 129.305(b) specifies that a plan approval application 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.
Commentators note that the ''not to exceed 5% excess oxygen'' restriction during a furnace combustion start-up should be eliminated, as it does not appear to have a relationship or a benefit to NOx emissions. The Department retains in the final-form rulemaking the furnace start-up restriction in § 129.305(f) of ''not to exceed 5% excess oxygen,'' which is consistent with the furnace start-up requirements in SJVAPCD Rule 4354.
Several commentators commented that the definition of the term ''start-up'' should be revised consistent with SJVAPCD Rule 4354 to include necessary language on furnace stabilization, that is, the phrase ''and systems and instrumentation are brought to stabilization.'' The Department agrees with the commentators, and that change was made.
Two commentators commented that the 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. The Department agrees with the commentators and deleted both definitions in the final-form rulemaking and has added a definition for ''cold shutdown,'' and included ''scheduled'' whenever ''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.
Several commentators commented that the data substitution method for emissions monitoring in the compliance determination section that requires the highest valid 1-hour emission value during the reporting quarter be substituted for invalidated data is unreasonable and punitive. They comment further that for periods of invalid data, the Department should allow substituting data that is more representative of the actual emissions. 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 substituted for the invalidated data.
Several commentators commented that the requirements in §§ 129.308 and 129.309 to report CEMS data and daily glass production data on a quarterly basis are inconsistent with existing Title V reporting requirements and create a duplicative and burdensome additional reporting obligation on the regulated community. The Department disagrees with the commentators. The Department does not believe that maintaining records of daily glass production will present a significant inconvenience to owners or operators. Daily records may be needed to enable the Department to verify the relationship between NOx emissions recorded by CEMS, and glass produced during the compliance period. Records sufficiently precise to quantify glass produced by each glass melting furnace during a reporting quarter are necessary to enable owners and operators to demonstrate compliance. Continuous emission monitoring is the most precise means of determining emissions over extended time periods.
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 state 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. The Department's commitment to transparency is supported by its decision to publish an ANFR on the draft final-form regulation. The EPA, in its ''Clean Air Fine Particle Implementation Rule,'' determined that NOx emissions are precursors to the formation of PM2.5. See 72 FR 20586. In November 2009, the EPA designated 6 areas (all or part of 22 counties) as not attaining the 2006 24-hour PM2.5 NAAQS. See 74 FR 58688. Therefore, the adoption of the final-form rulemaking for glass melting furnaces will help to reduce formation of PM2.5 and is reasonably necessary to attain and maintain the PM2.5 NAAQS.
A commentator stated that the Department did not adequately address, while drafting and promulgating the proposed rulemaking and in accordance with Executive Order 1996-1, whether the costs of the regulation exceed its benefits or not, and also that the proposed rulemaking does not support a conclusion that its costs will not exceed the benefits, and therefore the cost/benefit analysis must be provided. The commentator states further that the Board acknowledges in the ANFR that the EPA advised the Commonwealth that the EPA's 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. The Department disagrees with the commentator. The Department addressed the benefits and the costs associated with the proposed rulemaking in the preamble to the proposed rulemaking's public notice published at 38 Pa.B. 1831. The purpose of this final-form rulemaking is to address reductions of NOx from glass melting furnaces, while the EPA's CAIR addresses NOx reductions from EGUs, 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 Commonwealth. 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 transport of ozone and PM2.5 precursors. Moreover, this final-form rulemaking is reasonably necessary to attain and maintain the 8-hour ozone NAAQS.
The commentator stated that the Board acknowledges in the ANFR that the EPA advised the Commonwealth that 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. The purpose of the rulemaking is to address reductions of NOx from glass melting furnaces, while the EPA's CAIR addresses NOx reductions from EGUs, 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 Commonwealth. 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 transport of ozone and PM2.5 precursors from the EGU sector. In fact, this Commonwealth and other OTC members determined that additional NOx reductions may be necessary in some areas, in combination with reduction of interstate transport, to attain and maintain the NAAQS. In addition to the PM2.5 NAAQS, this final-form rulemaking is reasonably necessary to attain and maintain the 1997 8-hour ozone NAAQS. The criteria for adopting state regulations more stringent than Federal regulations (when Federal regulations exist) are in section 4.2 of the APCA. Section 4.2 of the APCA authorizes the Board to adopt regulations more stringent than Federal requirements when the control measures are reasonably necessary to attain and maintain the ambient air quality standards.
A commentator commented that the final-form rulemaking violates section 4.2 of the APCA, because section 4.2 of the APCA restricts the Board to 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 of the APCA: ''Control measures or other requirements adopted under subsection (a) of this section shall be no more stringent than those required by the Clean Air Act unless authorized or required by this act or specifically required by the Clean Air Act.'' The commentator maintains that NOx emissions from glass melting furnaces are not currently regulated by the EPA, so therefore this rulemaking is prohibited by section 4.2 of the APCA since it is more stringent than required by the CAA. The Department disagrees with the commentator. The Department has the legal authority to require glass melting furnaces to limit their emissions of NOx. The law in this Commonwealth is well-settled 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 under proper procedures; and (3) reasonable. See for example, Rohrbaugh v. PUC, 727 A.2d 1080 (1999); and Housing Authority v. Pa. Civil Service Com'n, 730 A.2d 935 (1999). Section 5 of the APCA provides that the Board shall adopt rules and regulations, for the prevention, control, reduction and abatement of air pollution, applicable throughout this Commonwealth. Clearly the intent of this regulation is to reduce air pollution, and so therefore the Board has the requisite legal authority. The Board is proceeding with this rulemaking through the proper rulemaking procedures, as identified under the APCA, the Regulatory Review Act and the CDL. 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 reduces pollution (see Rochez Bros., Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975)). Since this final-form rulemaking reduces pollution it is reasonable.
The commentator indicated the Department should consider development of a pool of surplus NOx ''credits'' from glass melting furnaces and allow trading and use of these credits by owners and operators of glass melting furnaces to demonstrate compliance with the regulation, in light of the elimination of using CAIR NOx allowances as a compliance option in the draft final-form rulemaking. The Department disagrees with the commentator. Subsequent to the closing of the public comment period on June 23, 2008, 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 allowances under the EPA's CAIR regulation. During those discussions, the EPA indicated to the Department 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 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 Department therefore removed from the draft final-form regulation the compliance option to purchase CAIR NOx allowances.
G. Benefits, Costs and Compliance
Benefits
Overall, the citizens of this Commonwealth will benefit from this final-form rulemaking because these amendments will result in improved air quality by reducing ozone and PM2.5 precursor emissions. The final-form rulemaking will also encourage the development of new technologies and practices, which will reduce emissions of NOx.
Compliance Costs
The owners and operators of glass melting furnaces in this Commonwealth will be required to install and operate an emissions monitoring system or equipment necessary for an emissions monitoring method to comply with the final-form rulemaking. If an owner or operator elects to install and operate a CEMS, the cost could be as high as $300,000. However, the final-form rulemaking provides for the installation and operation of an alternate emissions monitoring system or method approved by the Department, in writing, which could significantly reduce the monitoring costs. The estimated cost of the alternate emissions monitoring system or method, if elected by an owner or operator of a glass melting furnace, would cost approximately $100,000, and would include any one of a number of alternatives including computer modeling or a predictive emissions monitoring system.
Compliance Assistance Plan
The Department plans to educate and assist the public and regulated community in understanding the newly revised requirements and how to comply with them. This will be accomplished through the Department's ongoing compliance assistance program.
Paperwork Requirements
The final-form rulemaking will not significantly increase the paperwork that is already generated during the normal course of business operations.
H. Pollution Prevention
The Pollution Prevention Act of 1990 (42 U.S.C.A. §§ 13101—13109) established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally friendly materials, more efficient use of raw materials and the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance. This final-form rulemaking provides the owners and operators of glass melting furnaces the opportunity to improve the energy efficiency of their operations, which will result in lower NOx emissions.
I. Sunset Review
This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation effectively fulfills the goals for which it was intended.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 7, 2008, the Department submitted a copy of the notice of proposed rulemaking, published at 38 Pa.B. 1831, to IRRC and the Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on May 12, 2010, the final-form rulemaking was deemed approved by the Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on May 13, 2010, and approved the final-form rulemaking.
K. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the CDL (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) At least a 60-day public comment period was provided as required by law and all comments were considered.
(3) These regulations do not enlarge the purpose of the proposal published at 38 Pa.B. 1831.
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.
(5) These regulations are reasonably necessary to attain and maintain the ozone and PM2.5 NAAQS.
L. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 121 and 129, are amended by amending § 121.1 and by adding §§ 129.301—129.310 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to IRRC and the Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This final-form rulemaking will be submitted to the EPA as an amendment to the Pennsylvania SIP.
(f) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
JOHN HANGER,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 2838 (May 29, 2010).)
Fiscal Note: Fiscal Note 7-420 remains valid for the final adoption of the subject regulations.
Annex A TITLE 25. ENVIRONMENTAL PROTECTION PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION Subpart C. PROTECTION OF NATURAL RESOURCES ARTICLE III. AIR RESOURCES CHAPTER 121. GENERAL PROVISIONS § 121.1. Definitions.
The definitions in section 3 of the act (35 P. S. § 4003) apply to this article. In addition, the following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Blown glass—Glassware shaped by blowing air into a molten glass gather.
* * * * * Cold shutdown—A cold repair or replacement of damaged or worn refractory parts of a glass melting furnace while the furnace does not contain molten glass.
* * * * * Container glass—Glass manufactured by pressing, blowing in molds, drawing, rolling or casting which is used as a container.
* * * * * Fiberglass—For purposes of §§ 129.301—129.310 (relating to control of NOx emissions from glass melting furnaces), material consisting of fine filaments of glass that are combined into yarn and woven or spun into fabrics, or that are used as reinforcement in other materials or in masses as thermal or as acoustical insulating product.
* * * * * Flat glass—Glass produced by the float, sheet, rolled or plate glass process which is used in windows, windshields, tabletops or similar products.
* * * * * Glass melting furnace—A unit comprising a refractory-lined vessel in which raw materials are charged and melted at high temperature to produce molten glass.
* * * * * Idling—For purposes of §§ 129.301—129.310, the operation of a glass melting furnace at less than 25% of the permitted production capacity or fuel use capacity as stated in the plan approval or operating permit.
* * * * * Permitted production capacity—The maximum pull rate as stated in the plan approval, operating permit or Title V permit.
* * * * * Pressed glass—Glassware formed by placing a blob of molten glass in a metal mold, then pressing it with a metal plunger or ''follower'' to form the inside shape. The resultant piece, termed ''mold-pressed,'' has an interior form independent of the exterior, in contrast to mold-blown glass, whose interior corresponds to the outer form.
* * * * * Primary furnace combustion system—The burners in a glass melting furnace that are used during production of glass.
* * * * * Pull rate—The amount of glass withdrawn from a glass melting furnace, expressed in short tons per day.
* * * * * Shutdown—For purposes of §§ 129.301—129.310, the period of time during which a glass melting furnace is taken from an operational to a non-operational status by allowing it to cool down from its operating temperature to a cold or ambient temperature as the fuel supply is turned off.
* * * * * Start-up—For purposes of §§ 129.301—129.310, the period of time, after initial construction, shutdown or cold shutdown, during which a glass melting furnace is heated to stable operating temperature by the primary furnace combustion system, and systems and instrumentation are brought to stabilization.
* * * * * CHAPTER 129. STANDARDS FOR SOURCES CONTROL OF NOx EMISSIONS FROM GLASS MELTING FURNACES § 129.301. Purpose.
The purpose of this section and §§ 129.302—129.310 is to annually limit the emissions of NOx from glass melting furnaces.
§ 129.302. Applicability.
This section, § 129.301 (relating to purpose) and §§ 129.303—129.310 apply to an owner or operator of a glass melting furnace in this Commonwealth, including those within the jurisdiction of local air pollution control agencies in Philadelphia and Allegheny Counties approved under section 12 of the act (35 P. S. § 4012), that emits or has the potential to emit NOx at a rate greater than 50 tons per year.
§ 129.303. Exemptions.
(a) The emission requirements in § 129.304 (relating to emission requirements) do not apply during periods of start-up, shutdown, or idling as defined in § 121.1 (relating to definitions), if the owner or operator complies with the requirements in §§ 129.305, 129.306 and 129.307 (relating to start-up requirements; shutdown requirements; and idling requirements).
(b) The owner or operator of a glass melting furnace claiming an exemption under subsection (a) shall notify the Department or the appropriate approved local air pollution control agency in writing within 24 hours after initiation of the operation for which the exemption is claimed. The methods for submitting the written notice may include e-mail, hand or courier delivery, certified mail or facsimile transmissions to the appropriate regional office described in § 121.4 (relating to regional organization of the Department) or appropriate approved local air pollution control agency. The notification must include:
(1) The date and time of the start of the exempt operation.
(2) The reason for performing the operation and an estimated completion date.
(3) Identification of the emission control system operating during the exemption period.
(c) The owner or operator of a glass melting furnace granted an exemption under this section shall maintain operating records or documentation, or both, necessary to support the claim for the exemption. The records shall be maintained for 5 years onsite and made available or submitted to the Department or appropriate approved local air pollution control agency, upon request.
(d) The owner or operator of a glass melting furnace shall notify the Department or the appropriate approved local air pollution control agencies in writing within 24 hours after completion of the operation for which the exemption is claimed.
§ 129.304. Emission requirements.
(a) Except as specified in §§ 129.303, 129.304(c), 129.305, 129.306 and 129.307, the owner or operator of a glass melting furnace may not operate the glass melting furnace in a manner that results in NOx emissions in excess of the following allowable limits or NOx emission limits contained in the plan approval or operating permit, whichever are lower:
(1) 4.0 pounds of NOx per ton of glass pulled for container glass furnaces.
(2) 7.0 pounds of NOx per ton of glass pulled for pressed or blown glass furnaces.
(3) 4.0 pounds of NOx per ton of glass pulled for fiberglass furnaces.
(4) 7.0 pounds of NOx per ton of glass pulled for flat glass furnaces.
(5) 6.0 pounds of NOx per ton of glass pulled for all other glass melting furnaces.
(b) The owner or operator of a glass melting furnace shall comply with subsection (a) by January 1, 2012, unless a petition for an alternative emission limitation or compliance schedule is submitted, in writing, to the Department and appropriate approved local air pollution control agency by January 1, 2012, in accordance with subsection (c) and approved, in writing, by the Department or appropriate approved local air pollution control agency.
(c) An owner or operator of a glass melting furnace that does not meet the NOx emission limits specified under this section by January 1, 2012, may petition the Department and appropriate approved local air pollution control agency for an alternative emission limitation or compliance schedule as follows:
(1) The owner or operator of a glass melting furnace subject to this section may submit, in writing, a petition requesting an alternative emission limitation. The petition must demonstrate to the satisfaction of the Department and appropriate approved local air pollution control agency that it is economically or technologically infeasible to meet the emission limitation under this section. The alternative emission limitation must be included in either a plan approval or an operating permit issued by the Department or a permit issued by the appropriate approved local air pollution control agency.
(2) The owner or operator of a glass melting furnace for which the schedule for cold shutdown does not allow compliance by January 1, 2012 may submit a petition, in writing, requesting an alternative compliance schedule. The alternative compliance schedule for a cold shutdown which occurs after June 19, 2010, may not be extended beyond 180 days from the start-up of the furnace after the cold shutdown, unless approved, in writing, by the Department.
(3) A petition must include the following:
(i) A brief description, including make, model and location, of each affected glass melting furnace.
(ii) A list of all air pollution control technologies and measures that have been installed on each affected glass melting furnace and are operating to control emissions of NOx.
(iii) The date of installation and original commencement of operation for each of the technologies and measures listed in accordance with subparagraph (ii).
(iv) An explanation of how the NOx control technology or measure installed has been optimized for the maximum NOx emission reduction for each of the technologies and measures listed in accordance with subparagraph (ii).
(v) The results of each stack test and other emissions measurements for the affected glass melting furnace following the installation and commencement of operation of the air pollution control technologies and measures listed in accordance with subparagraph (ii).
(vi) The date of last scheduled cold shutdown for each affected furnace.
(vii) The date of next scheduled cold shutdown of each affected furnace.
(viii) Other relevant information requested, in writing, by the Department or appropriate approved local air pollution control agency.
(4) If an alternative compliance schedule is sought to meet the requirements of this section, the owner or operator shall submit a proposed schedule containing proposed interim milestone dates for completing each phase of the required work and a proposed final compliance date. The petition must also include a proposed interim emission limitation until compliance is achieved with the requirements specified in this section.
(5) If an alternative emission limitation is sought to meet the requirements of this section, the conditions or special circumstances which demonstrate that the applicable requirements are technologically or economically infeasible.
(6) If an alternative emission limitation is sought to meet the requirements of this section, the owner or operator shall propose emission limitations in the petition.
(7) Approved interim milestone dates or emission limitations determined to be necessary for effective monitoring of progress toward full compliance with the requirements of this section, §§ 129.301—129.303 and 129.305—129.310 shall be specified in a plan approval or operating permit issued by the Department or a permit issued by the appropriate approved local air pollution control agency.
(d) During routine maintenance of an add-on emission control system or systems, or maintenance or repair measures on furnace components, the owner or operator of a glass melting furnace subject to the emission limits specified under subsection (a) is exempt from these limits if:
(1) All routine maintenance of an add-on emission control system or maintenance or repair measures on furnace components, or both, combined, in each calendar year does not exceed 144 hours total.
(2) The routine maintenance or maintenance or repair measure, or both, is conducted in a manner consistent with good air pollution control practices for minimizing emissions.
§ 129.305. Start-up requirements.
(a) The owner or operator of the glass melting furnace shall submit, in writing, to the Department or appropriate approved local air pollution control agency, no later than 30 days prior to the anticipated date of start-up, information requested by the Department or appropriate approved local air pollution control agency to assure proper operation of the furnace. The information must include the following:
(1) A detailed list of activities to be performed during start-up and an explanation for the length of time needed to complete each activity.
(2) A description of the material process flow rates and system operating parameters and other information that the owner or operator plans to evaluate during the process optimization.
(b) The owner or operator of a glass melting furnace may submit a request for a start-up exemption in conjunction with the plan approval application if required. The actual length of the start-up exemption, if any, will be determined by the Department or appropriate approved local air pollution control agency at the time of the issuance of the plan approval or operating permit.
(c) The length of the start-up exemption following activation of the primary furnace combustion system may not exceed:
(1) Seventy days for a container, pressed or blown glass furnace.
(2) Forty days for a fiberglass furnace.
(3) One hundred and four days for a flat glass furnace and for all other glass melting furnaces not covered under paragraphs (1) and (2).
(d) The requirements of subsection (c) notwithstanding, if the NOx control system is not in common use or is not readily available from a commercial supplier, the length of the maximum start-up exemption following activation of the primary furnace combustion system is as follows:
(1) One hundred days for a container, pressed or blown glass furnace.
(2) One hundred and five days for a fiberglass furnace.
(3) Two hundred and eight days for a flat glass furnace and for all other glass melting furnaces not covered under paragraphs (1) and (2).
(e) The Department or appropriate approved local air pollution control agency may approve start-up exemptions, as appropriate, to the extent that the submittal clearly:
(1) Identifies the control technologies or strategies to be used.
(2) Describes the physical conditions that prevail during start-up periods that prevent the controls from being effective.
(3) Provides a reasonably precise estimate as to when physical conditions will have reached a state that allows for the effective control of emissions.
(f) During the start-up period, the owner or operator of a glass melting furnace shall maintain the stoichiometric ratio of the primary furnace combustion system so as not to exceed 5% excess oxygen, as calculated from the actual fuel and oxidant flow measurements for combustion in the glass melting furnace.
(g) The owner or operator shall place the emission control system in operation as soon as technologically feasible during start-up to minimize emissions.
§ 129.306. Shutdown requirements.
(a) The duration of a glass melting furnace shutdown, as measured from the time the furnace operations drop below 25% of the permitted production capacity or fuel use capacity to when all emissions from the furnace cease, may not exceed 20 days.
(b) The owner or operator of a glass melting furnace shall operate the emission control system whenever technologically feasible, as approved by the Department or appropriate approved local air pollution control agency, during shutdown to minimize emissions.
§ 129.307. Idling requirements.
(a) The owner or operator of a glass melting furnace shall operate the emission control system whenever technologically feasible, as approved by the Department or appropriate approved local air pollution control agency, during idling to minimize emissions.
(b) The NOx emissions during idling may not exceed the amount calculated using the following equation:
Pounds per day emission limit of NOx = (Applicable NOx emission limit specified in § 129.304(a) (relating to emission requirements) expressed in pounds per ton of glass produced) x (Furnace permitted production capacity in tons of glass produced per day)
§ 129.308. Compliance determination.
(a) Not later than 14 days prior to the applicable compliance date under § 129.304(b) or (c), the owner or operator of a glass melting furnace subject to this section, §§ 129.301—129.307, 129.309 and 129.310 shall install, operate and maintain continuous emissions monitoring systems (CEMS, as defined in § 121.1 (relating to definitions)) for NOx and other monitoring systems to convert data to required reporting units in compliance with Chapter 139, Subchapter C (relating to requirements for source monitoring for stationary sources) and calculate actual emissions using the CEMS data reported to the Department. The owner or operator of a glass melting furnace may install or operate, or both, an alternate NOx emissions monitoring system or method, approved in writing by the Department or appropriate approved local air pollution control agency.
(b) Data invalidated under Chapter 139, Subchapter C, shall be substituted with the following if approved in writing by the Department or appropriate approved local air pollution control agency:
(1) The highest valid 1-hour emission value that occurred under similar source operating conditions during the reporting quarter.
(2) If no valid data were collected during the reporting quarter, one of the following shall be reported to the Department or appropriate approved local air pollution control agency:
(i) The highest valid 1-hour emission value that occurred under similar source operating conditions during the most recent quarter for which valid data were collected.
(ii) The highest valid 1-hour emission value that occurred under similar source operating conditions during an alternative reporting period.
(3) An alternative method of data substitution.
(c) Instead of data substitution, the Department or appropriate approved local air pollution control agency may approve an alternative procedure to quantify NOx emissions and glass production.
(d) The owner or operator of a glass furnace subject to this section shall submit to the Department or the appropriate approved local air pollution control agencies quarterly reports of CEMS monitoring data in pounds of NOx emitted per hour, in a format approved by the Department and in compliance with Chapter 139, Subchapter C, or a format approved by the appropriate approved local air pollution control agencies.
(e) The CEMS or approved monitoring system or method for NOx installed under this section must meet the minimum data availability requirements in Chapter 139, Subchapter C.
§ 129.309. Compliance demonstration.
(a) The owner or operator of a glass melting furnace shall calculate and report to the Department or appropriate approved local air pollution control agency on a quarterly basis, no later than 30 days after the end of the quarter, the CEMS data and glass production data used to show compliance with the allowable NOx emission limitation specified in § 129.304 (relating to emission requirements). The glass production data must consist of the quantity of glass, in tons, pulled per day for each furnace.
(b) The owner or operator of a glass melting furnace shall demonstrate compliance with the emission requirements of § 129.304(a) using one of the following methods:
(1) On a furnace-by-furnace basis.
(2) Facility-wide emissions averaging.
(3) System-wide emissions averaging among glass melting furnaces under common control of the same owner or operator in this Commonwealth.
(c) The owner or operator of a glass melting furnace for which the Department or the appropriate approved local air pollution control agency has granted approval to voluntarily opt into a market-based program may not demonstrate compliance on an emissions averaging basis under subsection (b). An emission reduction obtained by emissions averaging to demonstrate compliance with the emission requirements of § 129.304(a) will not be considered surplus for emission reduction credit purposes. The owner or operator of a glass melting furnace shall demonstrate compliance with the emission requirements of § 129.304(a) in accordance with subsection (d).
(d) Compliance with the emission requirements of § 129.304(a) shall be determined on a 30-day rolling average basis.
§ 129.310. Recordkeeping.
(a) The owner or operator of a glass melting furnace subject to this section and §§ 129.301—129.309 shall maintain records to demonstrate compliance. The records must include an operating log maintained for each glass melting furnace that includes, on a daily basis:
(1) The total hours of operation.
(2) The type and quantity of fuel used.
(3) The quantity of glass pulled.
(b) The owner or operator of a glass melting furnace shall maintain records of:
(1) Source tests and operating parameters established during the initial source test.
(2) Maintenance, repairs, malfunctions, idling, start-up and shutdown.
(c) The owner or operator claiming that a glass melting furnace is exempt from the requirements of §§ 129.301—129.309 based on the furnace's potential to emit shall maintain records that clearly demonstrate to the Department or appropriate approved local air pollution control agency that the furnace is not subject to §§ 129.301—129.309.
(d) The records required under this section shall be maintained onsite for 5 years. The records shall be made available or submitted to the Department or appropriate approved local air pollution control agency upon request.
[Pa.B. Doc. No. 10-1114. Filed for public inspection June 18, 2010, 9:00 a.m.]
