1. Environmental Regulatory Update
November 2003
PA Chamber of Business & Industry
Fall 2003
Jeffrey N. Hurwitz

2. Review Areas 6-Month Timeframe
Clean Air
Clean Water
Solid Waste
Tanks
Miscellaneous

3. Clean Air

4. Clean Air Developments
Title V Annual Compliance Certification
NSR Equipment Replacement Provision
Proposed PADEP Ozone Designations
Architectural/Maintenance Coatings Rule
Status of Proposed “Small” NOx Source Rule
New Source Review Reforms (12/31/02)

5. Title V Annual Compliance Certifications
Sources with Title V clean air permits must submit annual compliance certifications
EPA revised rules on annual compliance certifications; Fed. Reg. notice on 6/27/03
Certifications must now specify whether compliance is continuous or intermittent
DEP then changed its certification package; created new, additional form

6. Title V Annual Compliance Certifications
New PA Form (“Certification of Continuous or Intermittent Compliance”) is facility specific: includes permit terms DEP believes are relevant
Potential issues:
May include boilerplate conditions and omit substantive terms or portions thereof
Creates need to cross-reference detailed explanations on original compliance form

7. NSR Equipment Replacement Provision (ERP)
Important final rule published in Fed. Reg. 10/27/03
Specifies activities that will automatically qualify for routine, maintenance, repair and replacement (RMRR) exclusion from NSR definition of “major modification”
Effective 12/26/03 in PA for purposes of attainment (“PSD”) pollutants

8. NSR ERP
Specifically, provides that RMRR includes replacement of any component of a process unit with an identical or functionally equivalent component (and maintenance and repair activities that are part of the replacement), if three conditions are met

9. NSR ERP — Three Conditions Must be Met
First, fixed capital cost of replacement components (plus cost of associated maintenance and repair) may not exceed 20% of replacement value of the process unit
Replacement value = cost of constructing new unit, or current appraised value, or alternatively, insurance value, investment value (adjusted for inflation), or other GAAP

10. NSR ERP — Three Conditions Must be Met
Second, the replacement may not change basic design parameters for any process unit
Basic design parameters = maximum rate of fuel or heat input, maximum rate of material input, or maximum rate of product output
Third, replacement may not cause process unit to exceed legally enforceable emission limitations or operational limitations that have the effect of constraining emissions

11. NSR ERP — Challenge
12 States, including PA, and several cities have challenged EPA’s final rulemaking
Assert that ERP will increase air emissions and place additional burdens on sources to offset upwind emissions
EPA states that ERP will allow plants to be more efficient and thereby reduce emissions

12. Proposed PADEP Ozone Nonattainment Designations
Submitted to EPA on 8/15/03
Are initial recommendations for designation of areas in PA not in attainment with new 8-hour ozone standard
34 counties proposed as NA
EPA to provide comments, and final designations slated for 4/04, based on data

14. PA Architectural and Industrial Maintenance Coatings Rule
A&IM rule originally proposed in 12/01
Notice of final rulemaking published in Pa. Bull. on 9/27/03
Rule establishes VOC content limits for app. 48 categories of A& IM coatings
Content limits effective 1/1/05, and apply principally to manufacturers and suppliers
Container labeling/reporting requirements

15. Proposed “Small” NOx Source Rule
Starting 2005, would, as originally proposed by DEP in Fall/02, establish NOx limits or technology requirements during ozone control period for:
certain boilers, combustion turbines, and internal combustion engines in 5-county Philadelphia area,
certain internal combustion engines in PA, and
Portland cement kilns in PA

16. Proposed “Small” NOx Source Rule
ANFR to substantially revise proposed rule — anticipated 12/03 or early 2004
Will apparently allow utilization of NOx Allowances to comply with limitations and provide other flexibility measures
Will be an additional comment period

17. Final New Source Review Reform Rules (12/31/02)
Final EPA regulations address five basic areas:
Baseline Actual Emissions
“Actual-to-Projected Actual” Methodology for determining emissions increases
Plant-Wide Applicability Limits (“PALs”)
Clean Unit Applicability Test
Pollution Control Projects

18. Final New Source Review Reform Rules (12/31/02)
Subject of ongoing litigation and challenge by a number of States, including PA, environmental groups, and others
However, to date, rule not stayed, and is effective in PA as of March 3, 2003 (PSD Program only)

19. Clean Water

20. Key PA Clean Water Developments
Triennial Review-Water Quality Standards
Proposed Amendments to Water Quality Toxics Management Strategy
Water Resources Planning Act Registration
Proposed General Permit for Maintenance, Repair, Rehabilitation, Replacement of Water Obstructions and Encroachments
Stormwater Permit Guidelines for Phased Construction Activity

21. Triennial Review of Water Quality Standards
Clean Water Act requires States to review water quality standards at least once every three years
Most recent DEP review published in Pa. Bulletin on 10/18/03
Proposes revisions to certain sections of 25 Pa. Code Chapter 93 — Water Quality Standards

22. Triennial Review of Water Quality Standards
Proposal would:
clarify that Chapter 93 standards apply not only to discharges, but also whenever statutes authorize DEP to make decisions relating to stream quality protection
update water quality criteria for dissolved oxygen
correct several stream listings
Comments due 12/17/03

23. Water Quality Toxics Management Strategy
Proposed amendments published in 10/18/03 Pa. Bulletin
Would revise certain provisions of 25 Pa. Code Chapter 16 (Water Quality Toxics Management Strategy — Statement of Policy)
Complements Triennial Water Quality review (Chapter 93), because Chapter 16 is support policy document for Chapter 93

24. Water Quality Toxics Management Strategy
Proposed revisions primarily technical in nature — Would, among other things:
update the chronic conversion factor for Hg
update aquatic life criterion for cadmium
update and correct analytical methods and detection limits
Comments due 12/17/03

25. Registration under Water Resources Planning Act
Act 220 of 2002
Requires DEP to update the State Water Plan and conduct a statewide water withdrawal and use registration and reporting program
Effects public water supply agencies, hydropower facilities, and persons who withdraw or use more than 10,000 gallons of groundwater or surface water per day, over any 30-day period

26. Registration under Water Resources Planning Act
Registration process has begun:
“Pre-registration” forms to be submitted by 10/31 (have been mailed to many); identifies whether want to register by paper or electronically
Actual registration forms accepted between 1/04 and 3/16/04

27. General Permit for Maintenance, Repair, Rehabilitation, or Replacement of Water Obstructions and Encroachments
Proposed in Pa. Bulletin on 10/04/03
Would eliminate need to file application for individual permit under 25 Pa. Code Ch. 105
However, would require registration and notice to DEP
Conduct work per general permit conditions
Comments due by 12/17/03

28. Permit Guidelines for Phased NPDES Stormwater Discharges Associated with Construction Activity Permits
Effective March 29, 2003
Establishes phased permitting procedures for phased construction and waterway restoration activities
Applies to individual/general NPDES Stormwater Discharges from Construction Activity Permits, and individual Erosion and Sediment Control Permits/Water Obstruction and Encroachment Permits

29. Solid Waste

30. Key Solid Waste Developments
Safe Fill Rulemaking
Proposed EPA Revisions to Definition of Solid Waste

31. Safe Fill Rulemaking Proposed Rule February 2002
ANFR published in Pa. Bulletin on 6/21/03
Comment period closed on 8/5/03; 35 commentators
Tentative date to EQB: February 2004
Materials meeting “safe fill” definition will not be regulated as a waste

32. Proposed EPA Revisions to RCRA Definition of Solid Waste
Proposed 10/28/03; comments due 1/26/04
Would revise RCRA definition of solid waste to exclude secondary materials “generated and reclaimed in a continuous process within the same industry”
Would also establish criteria for “legitimate recycling”
Expected to be incorporated-by-reference into PA program

33. Tanks

34. Tanks EPA approved PA UST program on 9/11/03
Final DEP Technical Guidance: Evaluation of UST Liners (10/18/03)
Provides procedures and guidelines for UST lining evaluations

35. Tanks Future Proposed Rules (tentative 3/04):
May expand definition of regulated substances to include certain non-petroleum oils and substances; ethanol and other alcohol additives used as gasoline oxygenates
May narrow exemption for ASTs storing heating oil for consumptive use on premises, with 30,000-gallon tank cutoff

36. Miscellaneous
10/18/03 Draft Revision of Policy for Consideration of Local Comprehensive Plans & Zoning Ordinances in DEP Review of Permits; comment period ends 11/18/03
Interim Environmental Justice Policy; effective 10/18/03, but open for comment until 12/18/03