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Environmental Regulatory Update

Environmental Regulatory Update. November 2003. PA Chamber of Business & Industry Fall 2003 Jeffrey N. Hurwitz jhurwitz@morganlewis.com. Review Areas 6-Month Timeframe. Clean Air Clean Water Solid Waste Tanks Miscellaneous. Clean Air. Clean Air Developments.

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Environmental Regulatory Update

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

  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 2000-2003 data

  13. 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

  14. Proposed “Small” NOxSource 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

  15. Proposed “Small” NOxSource 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

  16. 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

  17. 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)

  18. Clean Water

  19. 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

  20. 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

  21. 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

  22. 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

  23. 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

  24. 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

  25. 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

  26. 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

  27. 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

  28. Solid Waste

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

  30. 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

  31. 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

  32. Tanks

  33. 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

  34. 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

  35. 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

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