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AIR QUALITY TECHNICAL ADVISORY COMMITTEE MEETING
February 12, 2009
Air Quality Technical Advisory Committee (AQTAC) Members Present:
Buddy Beach Gail M. Conner
Amy Earley Gary Merritt
Charles McPhedran Patrick O’Neill
Peter Adams Nancy Parks
John Romero Kevin Stewart
Michael Fiorentino Roger C. Westman
Nancy Herb Robert “Bo” Reiley
Dean Van Orden Richard Begley
Randy Bordner Janis Dean
Ron Davis Krish Ramamurthy
Charles Zadakis Dan Lapato
Martin Felion Virendra Trivedi
Susan Hoyle Susan Foster
Sean Nolan Jane Greber
Tom Keller, PPL Corp. Edward J. Brown, ESC, Inc.
John Slade, ALL4 John Shimshock, Reliant Energy
Harrison Thompson, Sunoco Pam Witmer, Bravo Group
Jeff McNelly, ARIPPA Andrew Radcliff, PA SBDC
CALL TO ORDER
Dr. Roger Westman, AQTAC Chair, called the February 12 meeting to order at 9:26 a.m. in Room
105 of the Rachel Carson State Office Building in Harrisburg, Pa.
Approval of Minutes
The minutes from October 30, 2008, were approved by a vote of 8-0-4. Nancy Parks made
the motion and Patrick O’Neill seconded the motion.
The committee conditionally approved the minutes from the December 11, 2008 meeting.
Charles McPhedran requested that the information on page 3 regarding a December 23
court ruling should be bracketed and noted since it occurred after the December 11
meeting. Roger Westman concurred with that request. The committee conditionally
approved the minutes with a vote of 7-0-5. Patrick O’Neill made the motion and John
Romero seconded the motion.
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The AQTAC discussed changes to the bylaws. The two areas debated related to Article V
regarding Ad Hoc Work Groups and Article VII.
Article V – for ad hoc workgroups, the bylaws currently provide that the AQTAC Chair
may appoint members of these groups. Most members want the AQTAC to establish the
ad hoc groups and the Chair to appoint the AQTAC members.
Article VII – the bylaws committee is considering alternate proposals to require the Chair
to vote on all actions, to invest the chair with the same responsibilities as the other
members (to vote) or to change the by-laws to follow Robert’s Rules of Order where the
chair votes only to break a tie.
Roger Westman requested Patrick O’Neill draft the language of the suggested changes in the
bylaws and to have it distributed to all the committee members prior to the March 2009 meeting
for their review. The suggested changes must be posted for a minimum of two weeks before the
committee can vote to adopt the changes.
Annex A: Fee Revision
Dean Van Orden briefed the committee on Annex A of the proposed fee schedule amendments.
The briefing addressed the following provisions and changes that were made since the December
The definition for CEMS (continuous emission monitoring system) has been rewritten.
The trial burn operating scenario found on page 5 is a new definition that was added to
address the concerns that were raised at the last AQTAC meeting.
On page 11, there is a new addition to subsection (e) that adds a request for determination
(RFD) for the operating permit. We assumed that the RFD was covered in the Plan
Approval/Modification Section, but it was not.
On page 11, regarding the annual operating permit administration fee that is due on or
before March 1, we changed it from previous calendar year to current calendar year.
On page 14, the Consumer Price Index (CPI) used for calculating the fees for 2010 will be
based on the inflation from the calendar year 2009, not the year 1994 as requested by the
AQTAC in December.
On page 17, there was a formatting change. Previously we had three (3) tables, one for
each time period (2010-2014, 2015-2019, 2020+). We combined them into one table to
On page 17, regarding the number of personnel that would be present for test observations,
we added the language that there would be a maximum of two people that we could charge
Roger Westman stated that the rulemaking has dollar amounts in the body of the document as well
as in the table. He asked if the table was for informational purposes. Response: The table is
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referred to under § 139.202, and states the fees listed in Table I. Table I is part of the rulemaking
Amy Earley asked if any thought has been given to the new CEMS quarterly report submittal
system (CEMSDP) when warning and errors are generated, and would they warrant a resubmittal.
Response: Warnings would not warrant a resubmittal because they would not be accepted into the
system. Errors would prevent representatives from a company submitting a quarterly report, so
they would have to be corrected before sending.
Nancy Parks asked if the fees listed in Table I were an across-the-board increase. Response: The
fees in Table I are all new fees. There were never before fees for the activities listed in Table I.
Nancy Parks asked why the definition for CEMS was completely changed, and what are the
significant changes. Response: DEP revised the language to clarify the meaning and assist in
understanding. There were no substantive changes made.
Amy Earley asked if there was a difference in fee between an electronic and paper copy for a RFD
submittal. Response: No.
John Romero asked how he would estimate the total fee charged for things such as annual relative
accuracy tests when you have many factors like protocols, final reports, sources, and the number
of observers sent. Response: The total fee would be based on the actual activities. He should be
able to budget for the fees based on past activities. Protocols, final reports, and sources are site
specific and generally it will be only one person observing. We would need a compelling reason
to send more than one person from the central office to observe.
John Shimshock of Reliant Energy asked if his company submitted the same protocol every year,
would they be required to pay the same fee every year. Response: The Bureau will request a copy
of the protocol every year whether it was from the past or not. Since a review by Department staff
would be required, there will be a fee. Currently, we have no provision for assessing a reduced
Tom Keller of PPL Corp. asked about the status of the Department’s new electronic submittal of
protocols and test reports, and will it have an effect on the fee schedule. Response: We have been
working with several companies on a voluntary basis to submit protocols and reports with the
PSIMS (Pennsylvania Source Test Information Management System), and it will not be available
for at least a few months. It will not become mandatory until we have the ability to have it in the
permit-writing process. PSIMS will become mandatory when permits are reevaluated. It will
have no significant change on the fee structure.
Tom Keller asked what is the criteria to determine when the Department is conducting a source
test. Response: Generally, it is at the request of the regional office if they suspect the site is not in
John Romero commented that Procter & Gamble Co. and other regulated manufacturers would
support the proposed fee increase so long as the fees were used to support air quality staff. He
stated that he hopes, since the Bureau is to be self-funded, that these fees would lead to an increase
in staffing in the regional offices. The northeast regional office’s staff was reduced from ten
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permit reviewers to five. Currently, there is a substantial backlog in the permit reviews because of
funding issues. He stated he would rather pay more and receive better services from the regional
office. Roger Westman requested that the Department take seriously the comments of John
Romero and to have them highlighted; not just in the minutes, but that they are conveyed to DEP
Tom Keller commented that the fee for test observation seemed very high and asked what was
taken into consideration in determining the amount. Response: The Department took into
consideration the staff costs, transportation cost, hotel and per diem cost if necessary. Department
staff are also required to write a test observation memorandum that is shared with internal and
regional staff. The fee was based on an average cost. Patrick O’Neill commented that there are
other supporting staff that need to be taken into consideration as well, such as computer and IT
staff, personnel staff, motor vehicle staff, etc., that give them the ability to do their work.
The committee voted 9-1-2 to have the proposed fee revision move forward to the EQB. Michael
Fiorentino made the motion and Kevin Stewart seconded it. Although John Romero stated he is
supportive of the new fee structure, he explained he voted against the proposed fee revision,
because if companies are going to be required to provide a check with the eRFD submittal, until
the Department develops other payment options that will not delay the eRFD request, the response
will be delayed by up to two weeks waiting on the internal check request to be processed.
Update on the MANE-VU Low Sulfur Heating and Residual Oil Initiative
The Department has worked in cooperation with MANE-VU (Mid-Atlantic, Northeastern states
Visibility Union) to develop a control strategy to reduce the sulfur content in fuel oil. At a future
meeting, we will present regulatory language to the committee and will be going through the
process with AQTAC. NESCAUM (Northeast States for Coordinated Air Use Management) has
been conducting modeling for MANE-VU and has been determining source proportionment to
find out who has been contributing to the fine particulate problem in the Northeast at the Class I
sites. NESCAUM has determined sulfur is a major problem. There is a large sulfur reduction
effort with the CAIR rule with solid fuel. Therefore, the remaining sulfur emissions are coming
from fuel oil. What we anticipate recommending for Pennsylvania is a two-step process:
a 500 ppm sulfur content in fuel oil by 2012, then
a 15 ppm sulfur content in fuel oil by 2016
The time frame is based on the refineries and their need to make changes in the process for fuel oil
production. Many may believe that diesel fuel and No. 2 fuel oil were interchangeable. What we
found is that diesel fuel will be readily available with a 15 ppm sulfur content, but there is an
additional cost to it. The No. 2 fuel oil will take some time. MANE-VU is looking for “inner-
zone”, generally along the I-95 corridor, that will go to the cleaner standards earlier and the
“outer-zone” would go at a later date.
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We met in December 2008 with distributors of the fuel oil who are encouraging the Department to
skip the 500 ppm standard and go directly to the 15 ppm standard. There would not be a need for
separate storage facilities and they could market a “greener fuel.” They point out that there are
some benefits that the home user would see. The distribution companies would like the 15 ppm
standard by 2015. We have a meeting [February 19] with refining representative to discuss their
concerns. The refineries had earlier expressed concerns that they are under several federal
mandates right now where much of their money is tied up at the moment.
Nancy Parks stated that there should be no need for the interim phase-in step of 500 ppm and the
state should go directly to the 15 ppm standard. Response: There are many factors to take into
consideration such as the scarcity of the fuel oil supply could have on the economy and the
volatility of the petroleum market. We can give an update on the meeting we have with the
Update on the Pennsylvania Mercury Rule Litigation
In October 2008, we had filed preliminary objections. PPL also filed an application to us to vacate
the rule. We filed a cross application saying the rule was valid. We had oral arguments on the
merits of the preliminary objections and on the merits of the rule on January 13, 2009. We
received an opinion from the court on January 30. The one-judge opinion vacated the mercury
rule. The argument that PPL had was that the New Jersey decision (NJ vs. EPA) essentially
vacated the delisting rule. In 2000, the EPA put EGUs on the Section 112(c) list so they could
develop MACT standards. Then in 2005, EPA took the EGUs off the 112(c) list and developed
the CAMR [Clean Air Mercury Rule] that was a separate action. Once the EPA did that, under
Section 6.6 of the APCA, the Environmental Quality Board then essentially has unlimited
rulemaking authority for sources of hazardous air pollutants that are not listed under Section
112(c). Since EGUs are not listed under 112(c), then we could develop a rule. In the NJ decision,
the courts said that EPA’s decision to delist in 2005 was not done properly. They basically
removed them. In Section 112(c)(9) of the CAA, there is a procedure to delist and the EPA did
not do that. There was language in the decision that says that EGUs remain on the list. PPL’s
argument was that if EGUs were to remain on the list, then DEP never had the authority to
develop the regulation to begin with.
On February 5, 2009, DEP filed an appeal to the Supreme Court. The appeal acts as a supersedeas
that means the rule remains in effect. However, we received something from PPL that asked us to
remove the supersedeas portion of the appeal which we will respond to. The mercury rule will
remain in effect. People will have to continue to comply with it unless the court grants PPL’s
motion. If they do not, we will go forward with our appeal.
Michael Fiorentino asked when the court is expected to rule on the stay issue. Response: We
Patrick O’Neill asked if there is anything that the EPA is doing at this point. Response: The EPA
filed a petition with the U.S. Supreme Court asking to have them review the EPA vs. NJ decision.
The court has not ruled on that yet, but the Solicitor General (on behalf of the EPA) has told the
court that they are now withdrawing the petition. The EPA has said that they will develop a
MACT standard, but that may take a while.
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Eight-hour Ozone Designation Recommendations
Nancy Herb briefed the committee on the proposed recommendations for nonattainment and
attainment areas in Pennsylvania since the new NAAQS was revised from 0.08 ppm to 0.075 ppm
on March 12, 2008. In December, the EPA issued guidance recommending evaluation of certain
factors as states are determining appropriate boundaries. Statistical areas are established by the
Office of Management and Budget. They consist of an urban core and adjacent counties that are
closely tied economically or socially. The air quality data that we used was 2008 ozone design
values based on 2006-2008 monitoring data. We looked at emissions and emissions density in
considering the impact of the emissions. Traffic and commuting, growth, and population are
considered when defining statistical areas. The statistical areas are a presumptive starting point
for the nonattainment areas. We also considered jurisdictional boundaries where it was
appropriate. Our ozone regulations are adopted state-wide with some exceptions. Where there are
exceptions, we discuss them in the document. We will be holding three (3) public meetings.
There will be a Pa. Bulletin notice published on February 14, 2009. After we close the public
comment period, we will submit the recommendations to the EPA. If the EPA plans to modify the
recommendations, then they will notify us and give us at least 120 days to respond. EPA is
expected to make the final designations by March 2010. The hearings are March 3 in Pittsburgh
and Harrisburg at 1 p.m. and in Norristown on March 4 at 1 p.m. We will accept comments until
A question was posed that since attainment is based on density (total emissions divided by square
miles of the county), then wouldn’t small counties be penalized. Response: If this was used as a
numerical factor in a calculation, that could happen, but in this case, it was just one way we
Final Designations for the 24-Hour PM2.5 National Ambient Air Quality Standard (NAAQS)
Sean Nolan briefed the committee on the final designations for the 24-hour PM2.5 NAAQS. On
December 22, 2008, the EPA established their official designations for nonattainment areas based
on the 2006 24-hour PM2.5 standard of 35 micrograms (10-6) per cubic meter (μg/m3).
The only significant change from our recommendations was the designation of a portion of
Greene County south of Pittsburgh area. That township was originally designated under
the 1997 standard of 65 μg/m3.
The areas are the same as the 1997 standard except for the addition of the
Allentown/Bethlehem/Easton area, which is a two-county area.
Michael Fiorentino asked what township in Greene County was designated and why. Response:
It is Monongahela Township and it is considered part of the Pittsburgh area. There is a large EGU
located there. What the EPA tried to do in the original 1997 designations for PM2.5 was to lock in
some of the large EGUs rather than designate the entire county.
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Michael Fiorentino asked since the purpose of designation of an area as nonattainment is to
develop a planning process to bring the area into attainment, so does this township have a
significant connection with the Pittsburgh metro area. Response: EPA determined in making
designations for the 1997 standard that the site has an impact on the nonattainment issues for the
Does the surrounding county and areas downwind of the designated township receive the added
protection from the control measures that would be imposed from a nonattainment designation?
Response: That is a major source in that region. There may not be other major sources near that
area. The direct impact, based on their EPA analysis, has an effect on the Pittsburgh area.
Remand of the Clean Air Interstate Rule (CAIR)
Randy Bordner briefed the committee on the status of the PA CAIR, Federal Implementation Plan
(FIP) and State Non- EGU Regulation. On December 23, the D.C. Court of Appeals remanded
CAIR to the EPA and did not vacate the rule. That means that CAIR is still in effect.
Pennsylvania is now under the FIP and will be until the EPA approves our [DEP’s] CAIR SIP that
was submitted in May 2008. Pennsylvania’s rule adopts EPA’s rule by reference for SO2. For
NOX, we adopted it almost in entirety, changing only the allocation for allowances. The dates of
concern with the FIP are:
September 30, 2008, was the date in the CAIR FIP that EPA was supposed to allocate NOX
CAIR allowances, which they have not yet done. We do not know if they would allow us
to allocate them under the SIP.
September 30, 2009, is the date that EPA was to fill the accounts with NOX allowances for
the control periods 2011, 2012, and 2013 in accordance with the FIP.
Given this timetable, it is important for EPA to approve our CAIR SIP as soon as possible
in order to allocate allowances under our own rule. The EPA has suggested it is moving
forward with SIP approvals, but the timeline is unknown.
In order to move quickly on CAIR, DEP staff have generated updated preliminary 2010,
2011, 2012 and 2013 CAIR NOX allowance allocations and will publish them in the Pa.
Bulletin as a notice and for public comment upon EPA’s approval of our CAIR Rule.
The non-EGUs portion of our rule, which was not part of the CAIR FIP, is in effect at this time:
Non-EGUs that were previously regulated under the NOX Budget Program are required to
meet the requirements for the 2009 Ozone Season in 25 Pa. Code Section 145.8 regarding
the transition requirements.
Non-EGUs are required to continue to monitor ozone season NOX emissions in accordance
with Part 75 as part of their continuous emissions monitoring program requirements.
Based upon preliminary 2008 data, there were 1,976 tons of NOX emissions in 2008. This
is under the state’s non-EGU NOX CAP of 3,438 tons of NOX.
The current difference between the NOX emission level and the NOx CAP level is 1,462
tons. Facilities can then determine their “preliminary 2009 individual unit limit” for the
2009 ozone season by multiplying each unit’s 2008 heat input by 0.209 lbs/MBtu. That
would give them their 2009 limit on a preliminary basis.
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The resulting unit limit is applicable in 2009 but only will be applied for compliance
purposes if the total ozone season emissions from all non-EGUs exceed the statewide cap
of 3,438 tons of NOX. Based upon our numbers, we are well within the cap.
Beginning with the 2009 ozone season, the small sources of NOX, diesel engines, boilers,
etc., that are affected by our rule will be required to retire CAIR NOX allowances for
excess ozone season NOx emissions. That is one (1) ozone season allowance and one (1)
annual CAIR allowance for each ton of excess emissions.
Kristen Furlan added that the D.C. Circuit Court made its final decision with CAIR. That was the
decision on the rehearing that the EPA petitioned for on its July 11 decision. The court has issued
its mandate. The remand was so that the CAIR is not to be vacated, so that means that is in effect.
EPA is required to revise CAIR in accordance with the court’s earlier ruling.
Nancy Parks asked what is the timeline from the July 11 ruling. Response: There is no timeline
required in the remand.
Tom Keller asked if the states submitted their SIPs and relied on CAIR, then what basis does the
EPA have for not approving any SIP. Response: This is specific to the CAIR SIP. We submitted
a SIP to EPA so that they would approve it and remove the federal limitations clause. The
argument before was that since CAIR was removed, we are not moving forward with it. Now,
they say they are moving forward with the approval of SIPs.
Gary Merritt asked if all the rules under the CAIR SIP are in effect. Response: All the EGUs are
under the CAIR SIP and the rule cannot be effective until the SIP is approved.
Outdoor Hydronic Heater Information Packet
Jane Greber and Ron Davis reported that the Department has recently made revisions to the Draft
Model Ordinance on Outdoor Wood-fired Boilers (OWB). The original version referred to them
as outdoor hydronic heaters (OHH) that was presented to the committee at its September meeting.
Since then we saw a need to revise the model ordinance. There were two significant changes
DEP is no longer referencing the EPA voluntary program’s Phase I emission standards of
0.60 pounds particulate matter per million Btu heat input. We are now only referencing
the EPA Phase II emissions standards of 0.32 pounds particulate matter per MBtu heat
We have revised Section 6 (Regulations) starting on page 8 with the intent to make the
document more concrete. This is still a model ordinance and not a requirement, but instead
of leaving the decisions wide-open, we are giving definite recommendations.
Other specific revisions to the model ordinance are as follows:
Under Section 5 (Definitions) on page 7, DEP added definitions for EPA and Phase 2
Outdoor Wood-Fired Boiler. DEP removed the definition for Yard Waste and changed
Chimney to Stack.
The major revisions are found under Section 6 (Regulations) starting on page 8.
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o DEP is now suggesting two alternatives. Alternative 1 is to prohibit the installation
of any new OWBs. Alternative 2 is to allow installation of new OWBs only in
accordance with certain provisions.
o Provision 1 (Zoning Requirements) is optional
o Provision 2 refers to the EPA voluntary program and only recommends Phase 2
qualifying OWBs for new installations.
o Provision 3 recommends a setback of at least 150 feet from nearest property lines
for new installations.
o Provision 4 and 5 are recommendations for stack height. DEP recommends a
minimum of 10 feet above the ground for all OWBs and at least 2 feet above the
peak of a residence located less than 150 feet for new OWBs and 500 feet for
existing OWBs (ADD: Unless the existing OWB is Phase II qualifying).
o Provisions 6 and 7 delineate the acceptable fuels and prohibited fuels. The one
difference in this list is bullet 3 under Provision 6 that brings this document in line
with regulations passed in other states.
o Provision 8 recommends prohibiting the operation of new and existing OWBs
between May 1 and September 30 when neighbors are outside.
o Provision 9 states that new and existing OWBs must comply with all existing state
and local regulations and lists some of the state regulations that could apply.
o Finally, Provision 10 is optional and refers to local permits for OWBs.
Several committee members suggested that the state should do more in regulating OWBs. Several
committee members believed it would be too difficult for the state to enforce compliance with
OWB, and that it should be left to the local governments.
Charlie McPhedran asked how the Department responds to complaints about improper operation
of an OWB. He further stated that even in municipalities that have OWB ordinances, the local
officials were not interested in enforcing it. In those situations, would the Department do so? He
asked if the Department has the ability to write an NOV [Notice of Violation] for any owner who
operates an OWB improperly. Response: If there is an existing OWB ordinance, the
Department’s regional office should be contacted. They could write an NOV, but if it went to
penalty phase, it would be through the local magistrate.
Roger Westman asked if the Department could enforce a local OWB ordinance. Response: No,
but it could enforce one of its existing regulations such as odor.
Roger Westman asked why the Department is not interested in adopting this as a model for its own
(i.e., state-wide) enforcement. Response: We are starting with the model for localities and will
see from there.
Peter Adams pointed out that there is a lot of wood-smoke PM2.5. In Allegheny County, it is
estimated that 5-10 percent of PM2.5 is from burning wood and most of that is from the
surrounding rural areas.
Roger Westman made a motion that AQTAC would highly recommend that the Department
pursue an ordinance to prohibit the sale or installation of OWB that does not meet the EPA
Phase II requirements. Nancy Parks seconded the motion. The committee voted to move forward
with the revised OWB ordinance that would include their recommendation by a vote of 12-0-0.
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Nancy Parks requested that the motion be incorporated into the Model Ordinance and presented at
the March 2009 AQTAC meeting. Response: It is unlikely we could have that available by the
Roger Westman noted that there was a request by Nancy Parks to receive a list of the ambient air
monitors that were relocated (where from and where to) and the reason why they were relocated.
[Note: The slide in the December presentation to which Nancy was referring appears to have been
in error in compiling monitoring site totals. DEP itself made no reductions to its ozone network
between 2007 and 2008 and actually added 2 sites in 2008. Philadelphia County stopped
operating the Northwest (Roxborough) and Southwest (Elmwood) sites in 2008. DEP added a
Lancaster Downwind and Kutztown (Reading Downwind) site in 2008.]
Next Meeting: The next AQTAC meeting will be held at 9:15 a.m. on Thursday, March 12, 2009,
in Room 105 of the Rachel Carson State Office Building, 400 Market Street, Harrisburg, Pa.
Adjournment: With no further business before AQTAC, Mr. Westman adjourned the meeting at
2:30 p.m. EST.
For additional information, please contact Martin T. Felion at email@example.com or 717-772
-3939, or visit our web sites at: http://www.dep.state.pa.us/dep/subject/advcoun/aqtac/aqtac.htm