EQB Members and Alternates Page 3 April 4, June 29, 2010

EQB Members and Alternates Page 3 April 4, June 29, 2010

January 7, 2009 2012

DATE:April 4, 2012 June 29, 2010 January 7, 2009

SUBJECT:April 17, 2012, July 13, 2010, January 20, 2009, EEnvironmental Quality Board (EQB) Meeting

TO:EQB Members and Alternates

FROM:Michele L. Tate

Regulatory Coordinator

The next meeting of the Environmental EQB Quality Board (BoardEQB)) is scheduled for Tuesday, April 17, 2012, Tuesday, July 13, 2010, Tuesday, January 20, 2009, at 9:00 a.m. in Room 105 of the RachelCarsonStateOfficeBuilding, 400Market Street, Harrisburg, PA. The Board will consider the following items:

1.) Consideration of Proposed Rulemaking: Triennial Review of Water Quality Standards (25 Pa Code Chapter 93): Section 303(c)(1) of the federal Clean Water Act requires that states periodically, but at least once every three years, review and revise as necessary their water quality standards. This proposed regulatory package will fulfill Pennsylvania’s triennial review obligation. Pennsylvania’s water quality standards, which are codified in Chapter 93 and portions of Chapter 92a, are designed to implement the requirements of Sections 5 and 402 of The Clean Streams Law and Section 303 of the Federal Clean Water (33 U.S.C.A. § 1313). The water quality standards consist of the designated uses of the surface waters of this Commonwealth, along with the specific numerical and narrative criteria necessary to achieve and maintain those uses and an antidegradation policy. Thus, water quality standards are in-stream water quality goals that are implemented by imposing specific regulatory requirements, such as treatment requirements and effluent limitations, on individual sources of pollution. The proposed regulations are comprised of:

• Updates to definitions and terms in Section 93.1 in order to reflect their current use in Chapter 93 and the water quality standards program.
• Revisions and updates to cross references in Chapter 93 pertaining to Chapter 92a in order to correct obsolete references to old Chapter 92.
• Amendments to Section 93.4d(a) to improve the public notification process associated with a redesignation.
• Updates to Specific Water Quality Criteria in §93.7 Table 3, including Chloride and Sulfate and Dissolved Oxygen.
• Updates to Metals Criteria in §93.8b Conversion Factors Table, including Chromium III conversion factor, which was updated by the U.S. EPA

• Updates to Water Quality Criteria for Toxic Substances - §93.8c. Table 5, including Aquatic Life Criteria for Acrolein (EPA Update – Aug 2009); Nonylphenol (EPA Update – Feb 2006); Molybdenum; and Resorcinol and sulfonates - site-specific criteria (Beazer & BCACS); and Human Health Criteria Updates for Acrolein (EPA Update – May 2009); Phenol (EPA Update – May 2009); Benzyl chloride; 2-Butoxyethanol; Cyclohexylamine; 1,2 cis-dichloroethylene; 1,2,4 and 1,3,5-trimrthylbenzene; Acrylamide and 1,4-dioxane (currently in Ch 16, App A, Table 1A); Strontium; Molybdenum; and Resorcinol (added by DEP for site-specific criteria (Beazer & BCACS))

• Updates, revisions and corrections in Chapter 93 for typos, translation errors and missed references associated with prior rulemaking and/or publication activities; including corrections to use designations and stream entries in Drainage List in Sections 93.9a-93.9z, which are not being addressed by other stream redesignation rulemakings.

The Department of Environmental Protection (Department) consulted with the Water Resources Advisory Committee (WRAC) in its development of the proposed rulemaking at the committee’s July 14, 2010, April 13, 2011, June 15, 2011, October 12, 2011, December 16, 2011 and January 11, 2012 meetings. On January 11, 2012, the WRAC voted to present this rulemaking package to the Board.

The Department recommends the Board’s approval of the proposed rulemaking, with a 45-day public comment period and at least one public hearing to be held in Harrisburg.

1. Consideration of

2.) Consideration of Rulemaking Petition: Upper and Middle Delaware River Watershed: On December 14, 2011, the Department received a rulemaking petition submitted by the Delaware Riverkeeper Network. The petitioner requests the amendment of 25 Pa Code § 93.9a, § 93.9b, and

§ 93.9c in order to redesignate the main stem Delaware River and all Pennsylvania tributaries that flow into the Upper and Middle Delaware River from their current designated use status of High Quality or lower designation to Exceptional Value (EV) status. Co-petitioners include American Rivers, the PA Council of Trout Unlimited, Clean Water Action and over twenty other organizations. Over 150 watershed residents have joined as original co-petitioners as well. The petition was submitted with a number of appendices and supporting documentation, which is available to the Board upon request.

Based upon the administrative completeness of the petition, including meeting the requirements for acceptability as defined in §23.2 of the Board’s petition policy, the Department recommends the Board accept the petition for further study.

3.) Consideration of Proposed Rulemaking: Measurement and Reporting of Condensable Particulate Matter Emissions (25 Pa Code Chapters 121 and 139): This proposed rulemaking includes amendments to 25 Pa. Code Chapters 121 and 139 in order to clarify certain requirements for owners and operators of affected stationary sources regarding compliance demonstrations for particulate matter (PM) emissions. From 1971 through 1997, the Department’s regulations required stationary sources – including power plants, industrial boilers and other industrial burning or combustion-related activities – to use both dry filters and wet impingers to test for PM emissions. In 1997, the Department removed the requirement to use wet impingers—which measured condensable PM—because that provision was more stringent than the applicable federal requirement. Subsequent federal regulations have defined two sub-categories of particulate matter (PM-10 and PM2.5), which include both filterable and condensable PM. Sources in Pennsylvania subject to both PM-10 and PM2.5 emission standards monitoring in their operating permits are currently measuring both fractions of PM using filterable and condensable methods, while other sources are only required to measure the filterable fraction of PM. The proposed regulation updates Chapter 139 to clarify the sampling and testing methods necessary to demonstrate compliance with the relevant PM emission limitations. As such, the proposed amendments do not impose new or additional requirements or compliance costs on the owners and operators of existing stationary sources.

The Department discussed the draft proposed rulemaking with the Air Quality Technical Advisory Committee (AQTAC) at its October 20, 2011, meeting. Prior to concurring with the Department’s recommendation to present the proposed rulemaking to the Board for consideration, the AQTAC recommended that clarifications be made regarding the definition of "condensable particulate matter" and the effective compliance date for the provisions in § 139.12(b) and (d). The proposed rulemaking has been revised to address the Committee's concerns. The Department also consulted with the Citizens Advisory Council Air Committee on January 31, 2012.

The Department recommends the Board’s approval of the proposed rulemaking, with a 60-day public comment period and three public hearings in Norristown, Harrisburg and Pittsburgh.

4.) Consideration of Final Rulemaking: Noncoal Mining Fees (25 Pa Code Chapter 77): This final rulemaking includes amendments to 25 Pa Code Chapter 77 in order to modify and establish permit fees to fund the noncoal mining program. The existing fees are nominal and have not been adjusted in the history of the program. The proposed fees are calculated to provide full funding for the program, which costs about $2,500,000 per year. The rulemaking includes two types of fees, including the permit application fee and the administration fee. The permit application fee is intended to cover the Department’s cost to review noncoal mining permit applications. The permit fees have been set according to the type of permit application submitted, with the amount of the fees based on the number of hours typically required by the Department to review a specific type of permit application. The annual administration fee is intended to cover the Department’s costs to administer the permit. These include, among other things, the cost of performing inspections of noncoal mining operations, compliance assistance, and other compliance related activities, as well as tracking of required reporting and monitoring by permittees. As with the permit fees, the annual administration fees have been set based on workload analyses conducted by the Department.

The proposed regulation was approved by the Board on June 15, 2010, and published in the Pa Bulletin for comment on August 28, 2010, at 40 Pa.B. 4963. Twenty commentators, predominantly representing noncoal mine operators and industry groups, provided comments to the Board on the rulemaking. On January 28, 2012, DEP solicited additional comment on the rulemaking through a notice in the Pa Bulletin at 42 Pa.B. 553. As a result, comments were submitted from twenty commentators. While there was some support for the proposal, the majority of comments were in opposition to the imposition, and the amounts, of the increased fees. Many of the comments focused on the negative financial impacts the increased fees will have on small businesses that operate bluestone operations and sand and gravel pits. The large aggregate producers, commenting through PACA, recognized the reason for the increased fees but requested increased program efficiencies and questioned DEP’s fee calculation method.

There is no advisory board to the Department for the Noncoal Mining Program. However, the Department has initiated significant outreach with the regulated community on the rulemaking.

The Department recommends the EQB’s approval of the final rulemaking.

Final Rulemaking: Outdoor Wood-Fired Boilers (25 Pa Code, Chapters 121 and 123): This final-form rulemaking adds requirements in 25 Pa Code Chapter 123 for the operation of outdoor wood-fired boilers (OWBs), also commonly referred to as outdoor wood-fired furnaces, outdoor wood-burning appliances, or outdoor hydronic heaters. The final-form rulemaking will affect manufacturers, suppliers, distributors, sellers, receivers, and lessors, lessees, owners and operators of OWBs. Unlike indoor woodstoves that are regulated by the EPA, no Federal standards exist for OWBs. The majority of OWB models are not equipped with air pollution controls and therefore generate air pollution in far greater quantities than indoor woodstoves, even when they are operated according to manufacturer’s specifications. The emissions are intensified if the OWB is improperly fired or used to burn waste. Air pollution generated from the OWBs not only effect human health, but are also a source of many odor and nuisance complaints.

In lieu of Federal standards, the EPA initiated a voluntary program that encourages manufacturers of OWBs to improve air quality through developing and distributing cleaner-burning, more efficient OWBs. Phase 1 of the program was in place from January 2007 through October 15, 2008, and included EPA certification of OWB models that demonstrated they were 70% cleaner-burning than unqualified models by meeting the EPA’s air emissions level of 0.6 pounds of PM/mmBtu heat input. Phase 2 of the program was recently announced and includes EPA certification of OWBs that meet a particulate matter emission limit of 0.32 pounds per million Btu output. In comparison, most older model OWBs emit about 2.0 pounds of particulate matter per million Btu (PM/mmBtu) heat input.

The proposal was adopted by the EQB at its September 15, 2009, meeting, and was published in the October 17, 2009, edition of the PA Bulletin, commencing a 119-day public comment period that closed on February 12, 2010. Five public hearings were conducted by the Board during the comment period in Harrisburg, Wilkes-Barre, Cranberry Township, Williamsport and Coudersport. The Board received comments from over 2,000 commentators during the public comment period. After serious consideration of all the comments received, including those from the Independent Regulatory Review Commission and members of the PA General Assembly, the final-form regulation was amended to be a prospective regulation, whereby all retrofit requirements for existing and operational OWBs were eliminated from the rulemaking. The final rulemaking maintains the proposed requirement that only Phase 2 OWBs may be installed in the Commonwealth after the effective date of the regulation, but also incorporates a new sell through provision until May 31, 2011, for existing in-stock non-Phase 2 OWBs. A 150 feet setback requirement and stack height specifications for all non-Phase 2 OWBs purchased during the sell-through period is now included in the final-form rulemaking. Other significant changes in the final-form rulemaking include revisions to stack height and setback requirements for new Phase 2 OWB installations in order to be consistent with industry recommendations and the elimination of all written notice and recordkeeping requirements. As required in the proposed rulemaking, all OWBs operating within this Commonwealth can burn only those allowed fuels specified in the rulemaking, including clean wood.

The additional particulate matter emission reductions that will occur as a result of the final rulemaking are reasonably necessary as part of this Commonwealth’s efforts to attain and maintain the 1997 and 2006 health-based 24-hour National Ambient Air Quality Standard for fine particulates. The final form regulation, if adopted by the Board, will be submitted to the U.S. Environmental Protection Agency (EPA) as a revision to the State Implementation Plan (SIP).

The Department consulted with the Air Quality Technical Advisory Committee (AQTAC) during the development of the final-form rulemaking, as well as the Small Business Compliance Advisory Committee, the Agricultural Advisory Board and the Citizens Advisory Council. AQTAC unanimously concurred with the Department’s recommendation to seek Board approval of the rulemaking but identified several concerns with the rulemaking, which are identified in the Executive Summary of the rulemaking package.

The Department recommends the Board’s approval of the final-form rulemaking.

2. Consideration of Proposed Rulemaking: Commercial Fuel Oil Sulfur Limits for Combustion Units (25 Pa Code, Chapters 121, 123, and 139): The purpose of this proposed rulemaking is to amend 25 Pa Code Chapter 123 to lower the allowable sulfur content of commercial fuel oil used in oil-burning combustion units in this Commonwealth and to replace the existing area-specific sulfur content limits of commercial fuel oils with a statewide sulfur limit. Combustion of sulfur-containing commercial fuel oils releases sulfur dioxide (SO2) emissions into the atmosphere, which contributes to the formation of regional haze and fine particulate matter (PM2.5), both of which are serious public welfare and human health threats. The use of lower sulfur-content commercial fuel oil will not only reduce SO2 emissions but will also improve furnace and boiler combustion efficiency, which will lead to a reduction in nitrogen oxides emissions, which contribute to unhealthy levels of PM2.5 and ground-level ozone and carbon dioxide. The proposed control measures in the rulemaking are an important part of the Commonwealth’s efforts to meet the 2018 reasonable progress goals for reducing regional haze established by the Commonwealth in consultation with the member states of the Mid-Atlantic/Northeast Visibility Union (MANE-VU) and is also reasonably necessary to attain and maintain the PM2.5 National Ambient Air Quality Standards (NAAQS) in this Commonwealth.

The proposed rulemaking adds provisions for sampling and testing, recordkeeping and reporting and would affect the owner or operator of a refinery, pipeline, terminal, carrier, distributor or retail outlet that produces, conveys or stores commercial fuel oil, as well as the ultimate consumer that uses the commercial fuel oil. The proposed amendments would reduce the sulfur limit in commercial fuel oil to 15 ppm for Number (No.) 2 and lighter commercial fuel oils on and after May 1, 2011; and to less than 0.25% sulfur for No. 4 commercial fuel oil and less than 0.5% sulfur for Nos. 5, 6 and heavier commercial fuel oils on and after July 1, 2012. The Northeast States for Coordinated Air Use Management estimates the annual SO2 emission reduction benefits in Pennsylvania from this rulemaking would be approximately 29,000 tons. If adopted as a final-form rulemaking, the regulation will be submitted to EPA as a revision to the SIP.

Stakeholder consultation occurred at various levels of development of this rulemaking. The Department along with the MANE-VU consulted with stakeholders during the initial development of the regional strategy, including meeting with oil distributors and terminal operators in December 2008 and with refinery owners and operators in February 2009. The Department also met with the Pennsylvania Associated Petroleum Industries of Pennsylvania, representatives of the American Petroleum Institute and their member companies, and with individual refiners and distributors such as Sunoco, United Refining Company and the American Refining Group, the Pennsylvania Petroleum Marketers and Convenience Store Association, and the National Oilheat Research Alliance. The Department also consulted with owners and operators of terminals and retail outlets to get background information and input in drafting the proposed regulation. In addition, the Department discussed the rulemaking with the Air Quality Technical Advisory Committee who on February 18, 2010, voted 12-0 to concur with the Department’s recommendation to present the proposed amendments, with suggested revisions, to the Board for consideration as a proposed rulemaking. In addition, the proposed rulemaking was discussed with the Citizens Advisory Council (CAC) Air Committee at its February 16, 2010, meeting. The CAC Air Committee had no objections and the full CAC concurred with the proposed rulemaking on March 16, 2010. The proposed amendments were also discussed with the Agricultural Advisory Board on April 21, 2010, and the Small Business Compliance Advisory Committee on April 28, 2010.

The Department recommends the Board’s approval of the proposed rulemaking, with a 60-day public comment period and three public hearings.

3. Consideration of Final Rulemaking: Water Quality Standards Implementation (25 Pa Code, Chapter 96):

This final-form rulemaking codifies into regulation the Department’s existing policy and guidance for nutrient credit trading as it relates to nutrient and sedimentation pollution in the Chesapeake Bay. In 2005, new water quality standards under the Federal Clean Water Act were announced to address nutrient and sediment pollution in the Chesapeake Bay. To meet these new requirements under federal law, EPA and the affected states developed a maximum nutrient load (or “cap load”) for each major tributary to the Chesapeake Bay. As a result, approximately 200 municipal sewage treatment plants and others discharging nutrients to Pennsylvania’s Bay tributaries must cap those discharges or they will be in violation of the downstream water quality standards, under both state and federal law.