1. Final Omitted Rulemakings Repeals: Employer Trip Reduction; Portable Fuel Container Requirements; and St. Joe Resources Company Emission Limits Environmental Quality Board Meeting Harrisburg, PA March 20, 2012 Vincent J. Brisini Deputy Secretary for Waste, Air, Radiation and Remediation Department of Environmental Protection Commonwealth of Pennsylvania

2. Repeals: Final-Omitted Rulemakings Employer Trip Reduction; Portable Fuel Containers; and St. Joe Resources Company Background: The subject regulations in Chapters 126, 128, and 130 are being repealed using the “final-omitted” rulemaking process authorized under section 204 of the Commonwealth Documents Law (CDL) (45 P. S. § 1204). Subsection (3) of section 204 provides that an agency may omit the notice of proposed rulemaking if the agency finds for good cause that notice of proposed rulemaking is impracticable, unnecessary, or contrary to the public interest. For the three subject rulemakings, the notice of proposed rulemaking procedure is unnecessary since the regulations are obsolete.

3. Repeals: Final-Omitted Rulemakings Employer Trip Reduction; Portable Fuel Containers; and St. Joe Resources Company Background: The repeals of the subject regulations were recommended by the Department of Environmental Protection (DEP, Department) to Governor Corbett. These recommendations fulfill the call to DEP for an initial review of its regulations and technical guidance in order to ensure the Department is meeting its core mission of protecting the environment based on sound science.

4. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 126.201—126.208 Employer Trip Reduction Background: The purpose of this final-omitted rulemaking is to rescind the employer trip reduction (ETR) requirements for certain employers that were required to implement a program to reduce work- related vehicle trips in the Philadelphia severe 1-hour ozone nonattainment area. The final-omitted rulemaking also deletes 13 terms in § 121.1 (relating to definitions) that support the ETR requirements set forth at §§ 126.201—126.208.

5. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 126.201—126.208 Employer Trip Reduction Background: Section 182(d)(1)(B) of the Federal Clean Air Act (CAA) mandated that any state with a severe ozone nonattainment area submit a revision to the State Implementation Plan (SIP) requiring employers in the nonattainment area with 100 or more employees to reduce work-related vehicle trips and miles traveled by employees. In January 1994, the Environmental Quality Board (EQB, Board) adopted the ETR Regulation, which applied to affected employers in the 5-county Philadelphia Area, formerly a severe 1-hour ozone nonattainment area. (24 Pa. B. 693, January 29, 1994) Affected areas: Bucks, Chester, Delaware, Montgomery, and Philadelphia counties In May 1994, the Department submitted the ETR regulation to the U.S. Environmental Protection Agency (EPA) for approval as a SIP revision. The EPA did not act upon the SIP submittal.

6. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 126.201—126.208 Employer Trip Reduction Background: In November 1994, Act 95 of 1994 required the Governor to suspend implementation and enforcement of the ETR program until March 31, 1995, or until an alternative program with equivalent emission reductions was developed. The Act also provided that the ETR program or an alternative program shall not be required if the area classified as “severe” ozone nonattainment is reclassified as a “serious” ozone nonattainment area by the EPA. In 1995, Congress amended the CAA to make the ETR program voluntary. Additionally, the affected area is now classified as a “moderate” 8-hour ozone nonattainment area.

7. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 126.201—126.208 Employer Trip Reduction Affected Parties: Employers of 100 or more employees in the 5-county Philadelphia Area formerly classified as a 1-hour “severe” ozone nonattainment area at the time of the rulemaking. Compliance Information: Implementation of the program was suspended by the DEP in February 1995, and as a result, the Department exercised enforcement discretion.

8. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 126.201—126.208 Employer Trip Reduction Companion Federal Regulations: There are no companion Federal regulations for the ETR Program. Interested Parties The ETR Program is no longer mandated by the CAA. Therefore, the Department does not expect this final-omitted rulemaking to be controversial.

9. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 126.201—126.208 Employer Trip Reduction Advisory Committee Review: The final-omitted rulemaking was discussed with the Air Quality Technical Advisory Committee (AQTAC) on June 23, 2011. The AQTAC voted 11-2-2 to concur with the Department’s recommendation to forward the rulemaking to the Board. The final-omitted rulemaking was discussed with the Citizens Advisory Council (CAC) Air Committee on October 19, 2011. On the recommendation of the Air Committee, on November 15, 2011, the CAC voted to concur with proceeding to the Board.

10. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 126.201—126.208 Employer Trip Reduction Recommendation: DEP recommends that the Board approve the final-omitted rulemaking which repeals the Employer Trip Reduction provisions in Chapter 126, Subchapter B (relating to employer trip reduction).

11. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 130.101—130.108 Portable Fuel Containers Background: The portable fuel container regulation promulgated by the EQB on October 5, 2002, limits emissions of volatile organic compounds (VOC) into the atmosphere from the use of portable fuel containers designed to hold gasoline. (32 Pa. B. 4819) The regulation also restricts the sale, supply, offer for sale and manufacture of portable fuel containers and spouts for sale and for use in Pennsylvania on or after January 1, 2003. The purpose of this final-omitted rulemaking is to rescind the obsolete portable fuel container requirements in §§ 130.101 – 130.108.

12. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 130.101—130.108 Portable Fuel Containers Background: The regulation is superseded by a more stringent Federal regulation applicable Nationwide, which was promulgated by the EPA on February 26, 2007 (72 FR 8428). The Federal requirements, codified at 40 CFR §§ 59.600-59.699, apply to all portable fuel containers and spouts, including gasoline, diesel, and kerosene containers and spouts manufactured in or imported into the United States beginning January 1, 2009.

13. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 130.101—130.108 Portable Fuel Containers Affected Parties: Repeal of the Department’s portable fuel containers regulation will limit confusion among retailers, distributors, importers, and manufacturers of portable fuel containers about whether state or Federal standards apply to containers manufactured, imported, offered for sale, sold, or distributed in this Commonwealth. Compliance Information: Retailers, distributors, importers, and manufacturers Nationwide have been subject to the more stringent Federal portable fuel container provisions since January 2009. The Department refers complaints regarding the sale and distribution of non-compliant portable fuel containers in this Commonwealth to the EPA for investigation.

14. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 130.101—130.108 Portable Fuel Containers Interested Parties: While certain AQTAC members would prefer that DEP adopt and implement the Federal requirements in Pennsylvania, this final- omitted rulemaking repealing §§ 130.101—130.108 will not be controversial. The Federal portable fuel container requirements are more stringent, affect more types of fuel containers, and the regulated industry is already demonstrating compliance with the Federal requirements.

15. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 130.101—130.108 Portable Fuel Containers Companion Federal Requirements The requirements in §§ 130.101—130.108 are also incorporated in Pennsylvania’s SIP, which is codified at 40 CFR 52.2020. Following the repeal of §§ 130.101—130.108, DEP will submit a SIP revision to the EPA requesting the removal of the provision from the SIP.

16. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 130.101—130.108 Portable Fuel Containers Advisory Committee Review: The final-omitted rulemaking was discussed with the AQTAC on June 23, 2011. The AQTAC voted 12-2-2 to concur with the Department’s recommendation to forward the rulemaking to the Board. The final-omitted rulemaking was discussed with the CAC Air Committee on October 19, 2011. On the recommendation of the Air Committee, on November 15, 2011, the CAC voted to concur with proceeding to the Board.

17. Repeal: Final-Omitted Rulemaking 25 Pa. Code §§ 130.101—130.108 Portable Fuel Containers Recommendation: DEP recommends that the Board approve the final-omitted rulemaking which repeals the requirements for Portable Fuel Containers.

18. Repeal: Final-Omitted Rulemaking 25 Pa. Code § 128.21 St. Joe Resources Company Background: The purpose of this final-omitted rulemaking is to rescind an outdated facility-specific requirement for the reduction of SO 2 emissions as codified in § 128.21. In 1982, the owner of the St. Joe Resources Company facility (now doing business as Horsehead Industries, Inc.) requested the alternative SO 2 emission limitation for coal-fired boilers in excess of the SO 2 emission limitations in 25 Pa. Code § 123.22(d). Alternatively, the owners reduced SO 2 emissions from two other sources at the facility On February 22, 1986, the Board promulgated the alternative compliance option in § 128.21 (16 Pa. B. 521).

19. Repeal: Final-Omitted Rulemaking 25 Pa. Code § 128.21 St. Joe Resources Company Background: On December 16, 1988, Zinc Corporation of America (formerly St. Joe Resources Company, now doing business as Horsehead Industries, Inc.) requested a revision to their Operating Permit # 04-325-001A, removing the alternative SO 2 emission limitations and adding back the applicable requirements of § 123.22(d).

20. Repeal: Final-Omitted Rulemaking 25 Pa. Code § 128.21 St. Joe Resources Company Compliance Information: Continuous emissions monitoring system data indicate the coal-fired boilers now meet the standards in § 123.22(d) due to a change to low sulfur fuel with lime injection and natural gas. The standards of § 123.22(d) are Federally enforceable in the applicable Horsehead Title V Operating Permit. Companion Federal Regulations: No companion Federal regulations exist. The repeal of the § 128.21 requirements will not be more stringent than Federal requirements. The requirements are not codified in the Commonwealth’s SIP. The repeal of § 128.21 will remove the provisions from the Pennsylvania Code.

21. Repeal: Final-Omitted Rulemaking 25 Pa. Code § 128.21 St. Joe Resources Company Affected Parties: The alternative emission reduction limitations in § 128.21 only apply to the specified St. Joe Resources Company facility, now currently owned by the Horsehead Corporation. Interested Parties: The repeal of the obsolete source-specific alternative SO 2 emission limitation will not be controversial.

22. Repeal: Final-Omitted Rulemaking 25 Pa. Code § 128.21 St. Joe Resources Company Advisory Committee Review: The final-omitted rulemaking was discussed with the AQTAC on June 23, 2011. The AQTAC voted unanimously to concur with the Department’s recommendation to forward the rulemaking to the Board for consideration. The final-omitted rulemaking was discussed with the CAC Air Committee on October 19, 2011. On the recommendation of the Air Committee, on November 15, 2011, the CAC voted to concur with proceeding to the Board.

23. Repeal: Final-Omitted Rulemaking 25 Pa. Code § 128.21 St. Joe Resources Company Recommendation: DEP recommends that the Board approve the final-omitted rulemaking which repeals the St. Joe Resources Company alternative emission limitations.

24. Vincent J. Brisini Deputy Secretary for Waste, Air, Radiation and Remediation Joyce E. Epps Director, Bureau of Air Quality Kristen M. Furlan & Robert A. Reiley Bureau of Regulatory Counsel