PRIOR PRINTER'S NOS. 2047, 2060, 2352 PRINTER'S NO. 2355
No. 1650 Session of 1992
INTRODUCED BY MUSTO, BRIGHTBILL, MELLOW, LOEPER, JUBELIRER,
BODACK, CORMAN, WENGER, STAPLETON, LINCOLN, O'PAKE, STEWART,
SALVATORE, HOLL, RHOADES, LEMMOND, LAVALLE, PETERSON,
ANDREZESKI, AFFLERBACH, HOPPER, FISHER, ARMSTRONG, HELFRICK,
MADIGAN, SHUMAKER, SHAFFER, HART, SCANLON, LEWIS, FUMO,
LYNCH, BELAN, STOUT, TILGHMAN AND PECORA, MARCH 25, 1992
AS AMENDED ON THIRD CONSIDERATION, JUNE 16, 1992
AN ACT
1 Amending the act of January 8, 1960 (1959 P.L.2119, No.787),
2 entitled, as amended, "An act to provide for the better
3 protection of the health, general welfare and property of the
4 people of the Commonwealth by the control, abatement,
5 reduction and prevention of the pollution of the air by
6 smokes, dusts, fumes, gases, odors, mists, vapors, pollens
7 and similar matter, or any combination thereof; imposing
8 certain powers and duties on the Department of Environmental
9 Resources, the Environmental Quality Board and the
10 Environmental Hearing Board; establishing procedures for the
11 protection of health and public safety during emergency
12 conditions; creating a stationary air contamination source
13 permit system; providing additional remedies for abating air
14 pollution; reserving powers to local political subdivisions,
15 and defining the relationship between this act and the
16 ordinances, resolutions and regulations of counties, cities,
17 boroughs, towns and townships; imposing penalties for
18 violation of this act; and providing for the power to enjoin
19 violations of this act; and conferring upon persons aggrieved
20 certain rights and remedies," adding and amending certain
21 definitions; further providing for the powers and duties of
22 the Department of Environmental Resources, the Environmental
23 Quality Board and the Environmental Hearing Board; further
24 providing for plans and permits; providing for certain fees
25 and civil penalties, for acid control, for hazardous air
26 pollutants and for control of volatile organic compounds from
27 gasoline dispensing facilities; further providing for certain
28 procedures; providing for compliance; establishing the
29 Compliance Advisory Panel and providing for its powers and
30 duties; further providing for enforcement, for criminal and
1 civil penalties and for the abatement and restraint of
2 violations; and making editorial changes.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 Section 1. Section 2 of the act of January 8, 1960 (1959
6 P.L.2119, No.787), known as the Air Pollution Control Act,
7 amended June 12, 1968 (P.L.163, No.92), is amended to read:
8 Section 2. Declaration of Policy.--(a) It is hereby
9 declared to be the policy of the Commonwealth of Pennsylvania to
10 protect the air resources of the Commonwealth to the degree
11 necessary for the (i) protection of public health, safety and
12 well-being of its citizens; (ii) prevention of injury to plant
13 and animal life and to property; (iii) protection of the comfort
14 and convenience of the public and the protection of the
15 recreational resources of the Commonwealth; [and] (iv)
16 development, attraction and expansion of industry, commerce and
17 agriculture[.]; and (v) implementation of the provisions of the
18 Clean Air Act in the Commonwealth.
19 (b) It is further declared that:
20 (1) Interstate pollution transport commissions established
21 under the Clean Air Act should develop pollution control
22 strategies via a process which involves public review and
23 opportunity for comment.
24 (2) The public should be involved in developing and
25 committing the Commonwealth to the adoption of particular
26 pollution control strategies through review of State
27 implementation plans required to be submitted by the Clean Air
28 Act.
29 (3) The department should have adequate staff and technical
30 resources needed to comply with the Clean Air Act. The
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1 department shall be required to explore the role private
2 industry can play in developing and implementing the clean air
3 programs as a mechanism to insure the Commonwealth meets Clean
4 Air Act deadlines.
5 (4) States should not be penalized for missing Clean Air Act
6 deadlines when the delay is the result of the Federal government
7 not finalizing guidance to states on implementing the act. The
8 Commonwealth and other states must be given a reasonable
9 opportunity to meet Clean Air Act deadlines.
10 Section 2. Section 3 of the act, amended October 26, 1972
11 (P.L.989, No.245), is amended to read:
12 Section 3. Definitions.--The following words and phrases,
13 when used in this act, unless the context clearly indicates
14 otherwise, shall have the meaning ascribed to them in this
15 section:
16 [(1) "Department." Department of Environmental Resources of
17 the Commonwealth of Pennsylvania.
18 (2) "Board." The Environmental Quality Board established in
19 the department by the act of December 3, 1970 (P.L.834).
20 (2.1) "Hearing board." The Environmental Hearing Board
21 established in the department by the act of December 3, 1970
22 (P.L.834).
23 (3) "Person." Any individual, public or private corporation
24 for profit or not for profit, association, partnership, firm,
25 trust, estate, department, board, bureau or agency of the
26 Commonwealth, political subdivision, municipality, district,
27 authority or any other legal entity whatsoever which is
28 recognized by law as the subject of rights and duties.
29 (4) "Air contaminant." Smoke, dust, fume, gas, odor, mist,
30 vapor, pollen or any combination thereof.
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1 (5) "Air pollution." The presence in the outdoor atmosphere
2 of any form of contaminant including but not limited to the
3 discharging from stacks, chimneys, openings, buildings,
4 structures, open fires, vehicles, processes, or any other source
5 of any smoke, soot, fly ash, dust, cinders, dirt, noxious or
6 obnoxious acids, fumes, oxides, gases, vapors, odors, toxic or
7 radioactive substances, waste, or any other matter in such
8 place, manner, or concentration inimical or which may be
9 inimical to the public health, safety, or welfare or which is,
10 or may be injurious to human, plant or animal life, or to
11 property, or which unreasonably interferes with the comfortable
12 enjoyment of life or property.
13 (6) "Air contamination." The presence in the outdoor
14 atmosphere of an air contaminant which contributes to any
15 condition of air pollution.
16 (7) "Air contamination source." Any place, facility or
17 equipment, stationary or mobile, at, from or by reason of which
18 there is emitted into the outdoor atmosphere any air
19 contaminant.
20 (8) "Stationary air contamination source." Any air
21 contamination source other than that which, when operated, moves
22 in a given direction under its own power.
23 (9) "Region." Any geographical subdivision of the
24 Commonwealth whose boundaries shall be determined by the board.
25 (10) "Approved air pollution control agency." An air
26 pollution control agency of any political subdivision of the
27 Commonwealth which has been granted approval by the board.]
28 "Administrator." The Administrator of the United States
29 Environmental Protection Agency.
30 "Air contaminant." Smoke, dust, fume, gas, odor, mist,
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1 radioactive substance, vapor, pollen or any combination thereof.
2 "Air contamination." The presence in the outdoor atmosphere
3 of an air contaminant which contributes to any condition of air
4 pollution.
5 "Air contamination source." Any place, facility or
6 equipment, stationary or mobile, at, from or by reason of which
7 there is emitted into the outdoor atmosphere any air
8 contaminant.
9 "Air pollution." The presence in the outdoor atmosphere of
10 any form of contaminant including but not limited to the
11 discharging from stacks, chimneys, openings, buildings,
12 structures, open fires, vehicles, processes, or any other source
13 of any smoke, soot, fly ash, dust, cinders, dirt, noxious or
14 obnoxious acids, fumes, oxides, gases, vapors, odors, toxic,
15 hazardous or radioactive substances, waste, or any other matter
16 in such place, manner, or concentration inimical or which may be
17 inimical to the public health, safety, or welfare or which is,
18 or may be injurious to human, plant or animal life, or to
19 property, or which unreasonably interferes with the comfortable
20 enjoyment of life or property.
21 "Approved air pollution control agency." An air pollution
22 control agency of any political subdivision of the Commonwealth
23 which has been granted approval by the Environmental Quality
24 Board.
25 "Board" or "EQB." The Environmental Quality Board.
26 "Clean Air Act." Public Law 95-95 as amended, 42 U.S.C. §
27 7401 et seq.
28 "Department." The Department of Environmental Resources of
29 the Commonwealth.
30 "Environmental Protection Agency" or "EPA." The United
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1 States Environmental Protection Agency or the Administrator of
2 the United States Environmental Protection Agency.
3 "Gasoline dispensing facility." A facility from which
4 gasoline is transferred to motor vehicle fuel tanks.
5 "Hearing board." The Environmental Hearing Board.
6 "Person." Any individual, public or private corporation for
7 profit or not for profit, association, partnership, firm, trust,
8 estate, department, board, bureau or agency of the Commonwealth
9 or the Federal government, political subdivision, municipality,
10 district, authority or any other legal entity whatsoever which
11 is recognized by law as the subject of rights and duties.
12 "Plan approval." The written approval from the Department of
13 Environmental Resources which authorizes a person to construct,
14 assemble, install or modify any stationary air contamination
15 source or install thereon any air pollution control equipment or
16 device.
17 "Region." Any geographical subdivision of the Commonwealth
18 whose boundaries shall be determined by the Environmental
19 Quality Board.
20 "Small business stationary source." A stationary source
21 that:
22 (1) is owned or operated by a person that employs one
23 hundred (100) or fewer individuals;
24 (2) is a small business as defined in the Small Business Act
25 (Public Law 85-536, 15 U.S.C. § 78a et seq.);
26 (3) is not a major stationary source;
27 (4) does not emit fifty (50) tons per year of any regulated
28 pollutant; and
29 (5) emits less than seventy-five (75) tons per year of all
30 regulated pollutants.
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1 "State implementation plan." The plan or plan revision that
2 a state is authorized and required to submit under section 110
3 of the Clean Air Act (Public Law 95-95 as amended, 42 U.S.C. §
4 7410) to provide for attainment of the national ambient air
5 quality standards.
6 "Stationary air contamination source." Any air contamination
7 source other than that which, when operated, moves in a given
8 direction under its own power.
9 Section 3. Section 4 of the act, amended October 26, 1972
10 (P.L.989, No.245) and repealed in part April 28, 1978 (P.L.202,
11 No.53), is amended to read:
12 Section 4. Powers and Duties of the Department of
13 Environmental Resources.--The department shall have power and
14 its duty shall be to--
15 (1) Implement the provisions of the Clean Air Act in the
16 Commonwealth.
17 [(1)] (2) Enter any building, property, premises or place
18 and inspect any air contamination source for the purpose of
19 investigating an actual or a suspected source of air pollution
20 or for the purpose of ascertaining the compliance or non-
21 compliance with [any rule or regulation which may have been
22 adopted and promulgated by the board hereunder.] this act, any
23 rule or regulation promulgated under this act or any plan
24 approval, permit or order of the department. In connection with
25 such inspection or investigation, samples of air, air
26 contaminants, fuel, process material or other matter may be
27 taken for analysis, a duplicate of the analytical report shall
28 be furnished promptly to the person who is suspected of causing
29 such air pollution or air contamination.
30 [(2)] (3) Have access to, and require the production of,
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1 books [and], papers and records, including, but not limited to,
2 computerized information in a format as the department may
3 reasonably prescribe pertinent to any matter under
4 investigation.
5 [(2.1)] (4) Require the owner or operator of any air
6 contamination source to establish and maintain such records and
7 make such reports and furnish such information, including
8 computerized information in a format as the department may
9 reasonably prescribe.
10 [(2.2)] (5) Require the owner or operator of any air
11 contamination source to install, use and maintain such air
12 contaminant monitoring equipment or methods as the department
13 may reasonably prescribe.
14 [(2.3)] (6) Require the owner or operator of any air
15 contamination source to sample the emissions thereof in
16 accordance with such methods and procedures and at such
17 locations and intervals of time as the department may reasonably
18 prescribe and to provide the department with the results
19 thereof.
20 [(3)] (7) Enter upon any property on which an air
21 contamination source may be located and make such tests upon the
22 source as are necessary to determine whether the air
23 contaminants being emitted from such air contamination source
24 are being emitted at a rate in excess of a rate provided for by
25 [board rule or regulation] this act, any rule or regulations
26 promulgated under this act or any plan approval, permit or order
27 of the department or otherwise causing air pollution. Whenever
28 the department determines that a source test is necessary, it
29 shall give reasonable written or oral notice to the person
30 owning, operating, or otherwise in control of such source, that
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1 [it] the department will conduct a test on such source.
2 Thereafter, the person to whom such notice is given shall
3 provide such reasonably safe access to the testing area, and
4 such sampling [holes] ports, facilities, electrical power and
5 water as the department shall specify in its notice.
6 [(4)] (8) Receive, initiate and investigate complaints,
7 institute and conduct surveys and testing programs, conduct
8 general atmospheric sampling programs, make observations of
9 conditions which may or do cause air pollution, make tests or
10 other determinations at air contamination sources, and assess
11 the degree of abatement required.
12 [(4.1)] (9) (i) Issue orders to any person owning or
13 operating an air contamination source, or owning or possessing
14 land on which such source is located, if such source is
15 introducing or is likely to introduce air contaminants into the
16 outdoor atmosphere in excess of any [board rule or regulation,
17 or any permit requirement] rate provided for by this act, any
18 rule or regulation promulgated under this act or any plan
19 approval or permit applicable to such source, or at such a level
20 so as to cause air pollution. Any such order may require the
21 cessation of any operation or activity which is introducing air
22 contaminants into the outdoor atmosphere so as to cause air
23 pollution, the reduction of emissions from such air
24 contamination source, modification or repair of such source or
25 air pollution control device or equipment or certain operating
26 and maintenance procedures with respect to such source or air
27 pollution control device or equipment, institution of a
28 reasonable process change, installation of air pollution control
29 devices or equipment, or any or all of said requirements as the
30 department deems necessary. Such orders may specify a time for
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1 compliance, require submission of a proposed plan for
2 compliance, and require submission of periodic reports
3 concerning compliance. If a time for compliance is given, the
4 department may, in its discretion, require the posting of a bond
5 in the amount of twice the money to be expended in reaching
6 compliance.
7 (ii) All department orders shall be in writing, contain
8 therein a statement of the reasons for their issuance, and be
9 served either personally or by certified mail. Within thirty
10 (30) days after service of any such order the person to whom the
11 order is issued or any other person aggrieved by such order may
12 file with the hearing board an appeal setting forth with
13 particularity the grounds relied upon. An appeal to the hearing
14 board of the department's order shall not act as a supersedeas:
15 Provided, however, That upon application and for cause shown,
16 the hearing board may issue such a supersedeas.
17 [(5)] (10) Institute, in a court of competent jurisdiction
18 proceedings to compel compliance with [any] this act, any rule
19 or regulation promulgated under this act or any plan approval,
20 permit or order of the department [from which there has been no
21 appeal or which has been sustained on appeal].
22 [(6)] (11) Act as the agent for the board in holding public
23 hearings when so directed by the board.
24 [(7)] (12) Institute prosecutions under this act.
25 [(8)] (13) Recommend the minimum job qualifications of
26 personnel employed by county and municipal air pollution control
27 agencies hereafter created.
28 [(9)] (14) Require the submission of, and consider for
29 approval, plans and specifications of air pollution control
30 equipment, devices or process changes, and inspect such
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1 installations or modifications to insure compliance with the
2 plans which have been approved.
3 [(10)] (15) Conduct or cause to be conducted studies and
4 research with respect to air contaminants, their nature, causes
5 and effects, and with respect to the control, prevention,
6 abatement and reduction of air pollution and air contamination.
7 [(10.1)] (16) Evaluate motor vehicle emission control
8 programs, including vehicle emission standards, clean
9 alternative fuels, oxygenated fuels, reformulated fuels, vehicle
10 miles of travel, congestion levels, transportation control
11 measures and other transportation control strategies with
12 respect to their effect upon air pollution and determine the
13 need for modifications of such programs.
14 [(11)] (17) Determine by means of field studies and sampling
15 the degree of air pollution existing in any part of the
16 Commonwealth.
17 [(12)] (18) Prepare and develop a general comprehensive plan
18 for the control and abatement of existing air pollution and air
19 contamination and for the abatement, control and prevention of
20 any new air pollution and air contamination, recognizing varying
21 requirements for the different areas of the Commonwealth, and to
22 submit a comprehensive plan to the board for its consideration
23 and approval.
24 [(13)] (19) Encourage the formulation and execution of plans
25 in conjunction with air pollution control agencies or civil
26 associations of counties, cities, boroughs, towns and townships
27 of the Commonwealth wherein any sources of air pollution or air
28 contamination may be located, and enlist the cooperation of
29 those who may be in control of such sources for the control,
30 prevention and abatement of such air pollution and air
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1 contamination.
2 [(14)] (20) Encourage voluntary efforts and cooperation by
3 all persons concerned in controlling, preventing, abating and
4 reducing air pollution and air contamination.
5 [(15)] (21) Conduct and supervise educational programs with
6 respect to the control, prevention, abatement and reduction of
7 air pollution and air contamination, including the preparation
8 and distribution of information relating to the means of
9 controlling and preventing such air pollution and air
10 contamination.
11 [(16)] (22) Develop and conduct in cooperation with local
12 communities demonstration programs relating to air contaminants,
13 air pollution and air contamination and the control, prevention,
14 abatement and reduction of air pollution and air contamination.
15 [(17)] (23) Provide advisory technical consultative services
16 to local communities for the control, prevention, abatement and
17 reduction of air pollution and air contamination.
18 [(18)] (24) Cooperate with the appropriate agencies of the
19 United States or of other states or any interstate agencies with
20 respect to the control, prevention, abatement and reduction of
21 air pollution, and where appropriate formulate interstate air
22 pollution control compacts or agreements for the submission
23 thereof to the General Assembly.
24 [(19)] (25) Serve as the agency of the Commonwealth for the
25 receipt of moneys from the Federal government or other public or
26 private agencies, and expend such moneys for studies and
27 research with respect to air contaminants, air pollution and the
28 control, prevention, abatement and reduction of air pollution.
29 (26) Develop and submit to the Environmental Protection
30 Agency a procedure to implement and enforce the regulations
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1 which the Environmental Protection Agency adopts under of
2 section 183(e) of the Clean Air Act to reduce emissions from
3 consumer and commercial products, provided the department will
4 receive credits for the reductions attributed to the Federal
5 consumer and commercial products regulations under section 182
6 of the Clean Air Act regulations, and the department has the
7 resources to implement and enforce the program.
8 [(20)] (27) Do any and all other acts and things not
9 inconsistent with any provision of this act, which it may deem
10 necessary or proper for the effective enforcement of this act
11 and the rules or regulations [which have been] promulgated
12 [thereunder] under this act.
13 Section 4. Section 4.1 of the act, added December 2, 1976
14 (P.L.1263, No.279), is amended to read:
15 Section 4.1. Agricultural Regulations Prohibited.--[The]
16 Except as may be required by the Clean Air Act or the
17 regulations promulgated under the Clean Air Act, the
18 Environmental Quality Board shall not have the power nor the
19 authority to adopt rules and regulations relating to air
20 contaminants and air pollution arising from the production of
21 agricultural commodities in their unmanufactured state but this
22 prohibition shall not include the use of materials produced or
23 manufactured off the premises of the farm operation.
24 Section 5. The act is amended by adding sections to read:
25 Section 4.2. Permissible Actions.--(a) In implementing the
26 requirements of section 109 of the Clean Air Act, the board may
27 adopt, by regulation, only those control measures or other
28 requirements which are reasonably required, in accordance with
29 the Clean Air Act deadlines, to achieve and maintain the ambient
30 air quality standards or to satisfy related Clean Air Act
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1 requirements, unless otherwise specifically authorized or
2 required by this act or specifically required by the Clean Air
3 Act.
4 (b) Control measures or other requirements adopted under
5 subsection (a) of this section shall be no more stringent than
6 those required by the Clean Air Act unless authorized or
7 required by this act or specifically required by the Clean Air
8 Act. This requirement shall not apply if the board determines
9 that it is reasonably necessary for a control measure or other
10 requirement to exceed minimum Clean Air Act requirements in
11 order for the Commonwealth:
12 (1) To achieve or maintain ambient air quality standards;
13 (2) To satisfy related Clean Air Act requirements as they
14 specifically relate to the Commonwealth;
15 (3) To prevent an assessment or imposition of Clean Air Act
16 sanctions; or
17 (4) To comply with a final decree of a Federal court.
18 (c) The board may not by regulation adopt an ambient air
19 quality standard for a specific pollutant which is more
20 stringent than the air quality standard which the EPA has
21 adopted for the specific pollutant pursuant to section 109 of
22 the Clean Air Act.
23 (d) In any challenge to the enforcement of regulations
24 adopted to achieve and maintain the ambient air quality
25 standards or to satisfy related Clean Air Act requirements, the
26 person challenging the regulation shall have the burden to
27 demonstrate that the control measure or other requirement or the
28 stringency of the control measure or requirement is not
29 reasonably required to achieve or maintain the standard or to
30 satisfy related Clean Air Act requirements.
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1 (e) No person may file a preenforcement review challenge
2 under this section based in any manner upon the standards set
3 forth in subsection (b) of this section.
4 (f) This section shall not apply to rules and regulations
5 approved as a final rulemaking by the board prior to the
6 effective date of this section or to any ambient air quality
7 standards adopted by the board where no such standard has been
8 adopted by the EPA.
9 (g) This section shall not be construed to weaken or
10 otherwise affect site-specific standards or other requirements
11 for individual sources or facilities in place prior to the
12 effective date of this section.
13 Section 4.3. Evaluation.--Beginning five (5) years after the
14 effective date of this section and every five (5) years
15 thereafter, the department shall conduct and submit to the
16 General Assembly an evaluation of the effectiveness of the
17 programs adopted to implement the Clean Air Act. The evaluation
18 shall include:
19 (1) A determination of whether the limitation imposed in
20 section 4.2 has hindered in any way the Commonwealth's efforts
21 to comply with the Clean Air Act and a recommendation on whether
22 that provision should be changed.
23 (2) The specific steps taken to implement the Clean Air Act
24 and progress made toward meeting the emission reductions
25 required by the act and recommendations on any additional steps
26 which must be taken.
27 (3) An evaluation of the funding available to implement the
28 Clean Air Act programs and whether that funding is sufficient or
29 inadequate and recommendations on where adjustments should be
30 made.
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1 (4) An analysis of the costs imposed on mobile and
2 stationary air contamination sources to implement the
3 requirements of the Clean Air Act, including on individuals and
4 companies. The analysis of costs shall also consider the
5 benefits of compliance with the Clean Air Act requirements and
6 the public health, environmental and economic costs to the
7 Commonwealth for failing to meet the requirements, including the
8 impact of sanctions.
9 (5) An evaluation, in consultation with the Department of
10 Commerce and the Office of Small Business Ombudsman, of the
11 adequacy of measures taken by the Commonwealth to assist small
12 businesses in complying with the Clean Air Act.
13 (6) A summary of the activities undertaken by the Citizens
14 Advisory Council and the air technical advisory committee under
15 section 7.6.
16 (7) An evaluation of the effectiveness of the Northeast
17 Ozone Transport Commission in meeting the mandates of the Clean
18 Air Act and recommendations on any changes that could make the
19 commission more effective.
20 (8) An assessment of the impact of missing Federal deadlines
21 identified under section 7.12 has had or will have on the State
22 implementation of the Clean Air Act programs.
23 SECTION 4.4. PROHIBITED POWERS OF STATE ENTITIES.--NO STATE <--
24 AGENCY, BOARD OR COMMISSION SHALL RESTRICT OR DENY ANY PERMIT
25 APPLICATION OR OTHERWISE LAWFUL ACTIVITY BASED UPON ANY
26 TRANSPORTATION CONTROL MEASURE OR STRATEGY.
27 Section 6. Sections 5 and 6 of the act, amended October 26,
28 1972 (P.L.989, No.245), are amended to read:
29 Section 5. Environmental Quality Board.--(A) The board <--
30 shall have the power and its duty shall be to--
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1 (1) Adopt rules and regulations, for the prevention,
2 control, reduction and abatement of air pollution, applicable
3 throughout the Commonwealth or to such parts or regions or
4 subregions thereof specifically designated in such regulation
5 which shall be applicable to all air contamination sources
6 regardless of whether such source is required to be under permit
7 by this act. Such rules and regulations may establish maximum
8 allowable emission rates of air contaminants from such sources,
9 prohibit or regulate the combustion of certain fuels, prohibit
10 or regulate open burning, prohibit or regulate any process or
11 source or class of processes or sources, require the
12 installation of specified control devices or equipment, or
13 designate the control efficiency of air pollution control
14 devices or equipment required in specific processes or sources
15 or classes of processes or sources. Such rules and regulations
16 shall be adopted pursuant to the provisions of the act of July
17 31, 1968 (P.L.769), known as the "Commonwealth Documents Law,"
18 upon such notice and after such public hearings as the board
19 deems appropriate. In exercising its authority to adopt rules
20 and regulations, the board may, and to the extent deemed
21 desirable by it shall, consult with a council of technical
22 advisers, properly qualified by education or experience in air
23 pollution matters, appointed by the board and to serve at the
24 pleasure of the board, to consist of such number of advisers as
25 the board may appoint, but such technical advisers shall receive
26 no compensation, other than their actual and necessary expenses,
27 for their services to the board.
28 (2) Establish and publish maximum quantities of air
29 contaminants that may be permitted under various conditions at
30 the point of use from any air contaminant source in various
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1 areas of the Commonwealth so as to control air pollution.
2 (3) By [the] rule or regulation, classify air contaminant
3 sources, according to levels and types of emissions and other
4 characteristics which relate to air pollution. Classifications
5 made pursuant to this subsection shall apply to the entire
6 Commonwealth or any part thereof. Any person who owns or
7 operates an air contaminant source of any class to which the
8 rules and regulations of the board under this subsection apply,
9 shall make reports containing information as may be required by
10 the board concerning location, size and height of air
11 contaminant outlets, processes employed, fuels used and the
12 nature and time periods or duration of emissions, and such other
13 information as is relevant to air pollution and available or
14 reasonably capable of being assembled.
15 (4) Recommend to the Secretary of Transportation performance
16 or specification standards, or both, for emission control
17 systems and devices on motor vehicles.
18 (5) Adopt rules and regulations for the protection of public
19 health and safety for periods when the accumulation of air
20 contaminants in any area is attaining or has attained levels
21 which, if sustained or exceeded, could lead to an acute threat
22 to the health of the public. Such rules and regulations shall
23 contain appropriate procedures to protect public health and
24 safety during such periods.
25 (6) Adopt rules and regulations for the approval and the
26 recision and suspension of approval of local air pollution
27 control agencies.
28 (7) Adopt rules and regulations designed to reduce emissions
29 from motor vehicles, including centrally clean-fueled fleets,
30 clean alternative fuels, oxygenated fuels, reformulated fuels,
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1 vehicle miles of travel, transportation control measures and
2 other transportation control strategies. Such rules and
3 regulations shall be developed in consultation with the
4 Department of Transportation. The board shall not adopt
5 regulations mandating the sale or use of any set of
6 specifications for motor fuel prescribed by the State of
7 California under 42 U.S.C. § 7545(c)(4)(B) unless the set of
8 specifications is required under the Clean Air Act or the
9 regulations promulgated thereunder.
10 (8) Adopt rules and regulations to implement the provisions
11 of the Clean Air Act. The rules and regulations adopted to
12 implement the provisions of the Clean Air Act shall be
13 consistent with the requirements of the Clean Air Act and the
14 regulations adopted thereunder.
15 (9) Adopt rules and regulations to exempt sources or
16 categories of sources of minor significance from the provisions
17 of section 6.1.
18 (10) Adopt rules and regulations establishing provisions to
19 allow changes within a permitted facility or one operating
20 pursuant to clause (3) of subsection (b) of section 6.1 without
21 requiring a permit revision, if the changes are not
22 modifications under any provision of 42 U.S.C. Ch. 85 Subch. I
23 (relating to programs and activities), and the changes do not
24 exceed the emissions allowable under the permit whether
25 expressed therein as a rate of emissions or in terms of total
26 emissions: Provided, That the facility provides the department
27 and the administrator with written notification in advance of
28 the proposed changes which shall be a minimum of seven (7) days,
29 unless the board provides in its regulations a different time
30 frame for emergencies.
19920S1650B2355 - 19 -
1 (11) In its discretion, by regulation require revisions to
2 permits for major sources to incorporate applicable standards
3 and regulations promulgated pursuant to the Clean Air Act and
4 adopted by the board after the issuance of such permit as
5 required by section 502(b)(9) of the Clean Air Act.
6 (12) In its discretion, by regulation adopt rules containing
7 reasonable procedures consistent with the need for expeditious
8 action by the department on plan approvals and operating permit
9 applications to make available to the public any plan approval
10 or operating permit application, compliance plan, plan approval,
11 operating permit and monitoring or compliance report as required
12 by section 502(b)(8) of the Clean Air Act.
13 (13) Adopt by regulation procedures to consider variances
14 from the limits on the volatile organic compound content of
15 extreme performance coatings and paints which are required to be
16 used by the Federal Aviation Administration, the United States
17 Department of Defense or to meet military and aviation
18 specifications, if such variances are authorized by the Clean
19 Air Act.
20 (B) THE BOARD SHALL NOT HAVE THE POWER TO-- <--
21 (1) ADOPT ANY REGULATION RESTRICTING OR DENYING ANY PERMIT
22 APPLICATION OR OTHERWISE LAWFUL ACTIVITY BASED UPON ANY
23 TRANSPORTATION CONTROL MEASURES OR TRANSPORTATION CONTROL
24 STRATEGIES.
25 (2) ADOPT ANY REGULATION RESTRICTING ANY MUNICIPALITY'S
26 POWERS REGARDING LAND DEVELOPMENT, SUBDIVISION APPROVAL, ZONING
27 CHANGE, BUILDING PERMIT OR ANY OTHER DEVELOPMENT ACTIVITY
28 BECAUSE OF THE RULES OR REGULATIONS ADOPTED UNDER THIS ACT.
29 Section 6. Environmental Hearing Board.--The hearing board
30 shall have the power and its duty shall be to hear and determine
19920S1650B2355 - 20 -
1 all appeals from [orders issued by] appealable actions of the
2 department as defined in the act of July 13, 1988 (P.L.530,
3 No.94), known as the "Environmental Hearing Board Act," in
4 accordance with the provisions of this act. Any and all action
5 taken by the hearing board with reference to any such appeal
6 shall be in the form of an adjudication, and all such action
7 shall be subject to the provisions of [the act of June 4, 1945
8 (P.L.1388), known as the "Administrative Agency Law."] 2 Pa.C.S.
9 (relating to administrative law and procedure).
10 Section 7. Section 6.1 of the act, added October 26, 1972
11 (P.L.989, No.245) and repealed in part April 28, 1978 (P.L.202,
12 No.53), is amended to read:
13 Section 6.1. Plan Approvals and Permits.--(a) [On or after
14 July 1, 1972, no] No person shall construct, assemble, install
15 or modify any stationary air contamination source, or install
16 thereon any air pollution control equipment or device [or
17 reactivate any air contamination source after said source has
18 been out of operation or production for a period of one year or
19 more] unless such person has applied to and received [from the
20 department] written plan approval [so to do] from the department
21 to do so: Provided, however, That no such written approval shall
22 be necessary with respect to normal routine maintenance
23 operations, nor to any such source, equipment or device used
24 solely for the supplying of heat or hot water to one structure
25 intended as a one-family or two-family dwelling, [or with
26 respect to any other class of units as the board, by rule or
27 regulation, may exempt from the requirements of this section.]
28 nor where construction, assembly, installation or modification
29 is specifically authorized by the rules or regulations of the
30 department to be conducted without written approval. All
19920S1650B2355 - 21 -
1 applications for approval shall be made in writing and shall be
2 on such forms and contain such information as the department
3 shall prescribe and shall have appended thereto detailed plans
4 and specifications related to the proposed installation.
5 (b) (1) No person shall operate any stationary air
6 contamination source [which is subject to the provisions of
7 subsection (a) of this section] unless the department shall have
8 issued to such person a permit to operate such source under the
9 provisions of this section in response to a written application
10 for a permit submitted on forms and containing such information
11 as the department may prescribe[.] or where construction,
12 assembly, installation modification is specifically authorized
13 by the rules or regulations of the department to be conducted
14 without written approval. The department shall provide public
15 notice and the right to comment on all permits prior to issuance
16 or denial and may hold public hearings concerning any permit.
17 (2) [No permit shall] A permit may be issued after the
18 effective date of this amendment to any applicant [unless it
19 appears that, with respect to the source,] for a stationary air
20 contamination source requiring construction, assembly,
21 installation or modification, where the requirements of
22 subsection (a) of this section have been met and [that] there
23 has been performed upon such source a test operation or
24 evaluation which shall satisfy the department that the air
25 contamination source will not discharge into the outdoor
26 atmosphere any air contaminants at a rate in excess of that
27 permitted by applicable regulation of the board, or in violation
28 of any performance or emission standard or other requirement
29 established by the Environmental Protection Agency or the
30 department for such source, and which will not cause air
19920S1650B2355 - 22 -
1 pollution.
2 (3) A stationary air contamination source operating lawfully
3 without a permit for which fees required by section 6.3 of this
4 act or the regulations promulgated under this act have been paid
5 is authorized to continue to operate without a permit until one
6 hundred twenty (120) days after the department provides notice
7 to the source that a permit is required or until November 1,
8 1996, whichever occurs first. If the applicant submits a
9 complete permit application within the time frames in this
10 subsection, and the department fails to issue a permit through
11 no fault of the applicant, the source may continue to operate if
12 the fees required by section 6.3 or the regulations promulgated
13 under this act have been paid and the source is operated in
14 conformance with this act, the Clean Air Act and the regulations
15 promulgated under both this act and the Clean Air Act. For any
16 performance or emission standard or other requirement
17 established by the Environmental Protection Agency or the
18 department for the source subsequent to the effective date of
19 this act but prior to the permit issuance date, the permit may
20 contain a compliance schedule authorizing the source to operate
21 out of compliance and requiring the source to achieve compliance
22 as soon as possible but no later than the time required by this
23 act, the Clean Air Act or the regulations promulgated under
24 either this act or the Clean Air Act. For purposes of this
25 subsection, a source is operating lawfully without a permit
26 where it is a source for which no permit was previously required
27 and the source is operating in compliance with applicable
28 regulatory requirements.
29 (4) For repermitting of any stationary air contamination
30 source which is operating under a valid permit on the effective
19920S1650B2355 - 23 -
1 date of this act or which has received a permit under the
2 provisions of clauses (2) and (3) of this subsection and which
3 is required to meet performance or emission standards or other
4 requirements established subsequent to the issuance of the
5 existing permit, the new permit may contain a compliance
6 schedule authorizing the source to operate out of compliance and
7 requiring the source to achieve compliance as soon as possible
8 but no later than the time required by this act, the Clean Air
9 Act or the regulations promulgated under either this act or the
10 Clean Air Act.
11 (b.1) [Permits] A permit or plan approval issued hereunder
12 may contain such terms and conditions as the department deems
13 necessary to assure the proper operation of the source. [Each
14 permittee, on or before the anniversary date set forth in his
15 permit, shall submit to the department an annual report
16 containing such information as the department shall prescribe
17 relative to the operation and maintenance of the installation
18 under permit.
19 (c) Any permit issued hereunder may be revoked or suspended
20 if the permittee operates the source subject to the permit in
21 such a manner as to be in violation of the conditions of any
22 permit or rule or regulation of the board or in such a manner as
23 to cause air pollution, if the permittee fails to properly or
24 adequately maintain or repair any air pollution control device
25 or equipment attached to or otherwise made a part of the source,
26 or if the permittee has failed to submit any annual report as
27 required under this section.
28 (d) The department may refuse to grant approval for any
29 stationary air contamination source subject to the provisions of
30 subsection (a) of this section or to issue a permit to operate
19920S1650B2355 - 24 -
1 such source if it appears, from the data available to the
2 department, that the proposed source, or proposed changes in
3 such source, are likely either to cause air pollution or to
4 violate any board rule or regulation applicable to such source,
5 or if, in the design of such source, no provision is made for
6 adequate facilities to conduct source testing. The department
7 may also refuse to issue a permit to any person who has
8 constructed, installed or modified any air contamination source,
9 or installed any air pollution control equipment or device on
10 such source contrary to the plans and specifications approved by
11 the department.] The board shall by regulation establish a
12 permit shield for permits issued under the authority delegated
13 to the Commonwealth by the EPA under Title V of the Clean Air
14 Act. The program shall be consistent with the requirements of
15 section 504(f) of the Clean Air Act and the regulations
16 promulgated thereunder. Each permittee, on a schedule
17 established by the department, shall submit reports to the
18 department containing such information as the department may
19 prescribe relative to the operation and maintenance of the
20 source.
21 (b.2) A permit issued or reissued under subsection (b) of
22 this section shall be issued for a five (5) year term unless a
23 shorter term is required to comply with the Clean Air Act and
24 regulations promulgated thereunder or the permittee requests a
25 shorter term, except that a permit for acid deposition control
26 shall be issued for a five (5) year term. A permit may be
27 terminated, modified, suspended or revoked and reissued for
28 cause. The terms and conditions of an expired permit are
29 automatically continued pending the issuance of a new permit
30 where the permittee has submitted a timely and complete
19920S1650B2355 - 25 -
1 application for a new permit and paid the fees required by
2 section 6.3 or the regulations promulgated under this act and
3 the department is unable, through no fault of the permittee, to
4 issue or deny a new permit before the expiration date of the
5 previous permit. Failure of the department to issue or deny a
6 new permit prior to the expiration date of the previous permit
7 shall be an appealable action as described in section 10.2. The
8 hearing board may require that the department take action on an
9 application without additional delay.
10 (b.3) The board shall, by regulation, establish adequate,
11 streamlined and reasonable procedures for expeditiously
12 determining when applications are complete and for expeditious
13 review of applications. The department shall approve or
14 disapprove a complete application, consistent with the
15 procedures established by the board for consideration of such
16 applications, within eighteen (18) months after the date of
17 receipt of the complete application except that the department
18 shall establish a phased schedule for acting on permit
19 applications submitted within the first full year after the
20 effective date of the Title V permit program established to
21 implement the requirements of the Clean Air Act. The schedule
22 shall assure that at least one-third of such permits shall be
23 acted upon by the department annually over a period not to
24 exceed three (3) years after such effective date. Failure of the
25 department to issue or deny a permit by a deadline established
26 by this subsection shall be an appealable action as described in
27 section 10.2 of this act. The hearing board may require that the
28 department take action on an application without additional
29 delay.
30 (b.4) (1) During the term of a permit, a permittee may
19920S1650B2355 - 26 -
1 reactivate any source under the permit that has been out of
2 operation or production for a period of one year or more:
3 Provided, That the permittee has submitted a reactivation plan
4 to and received written approval from the department. The
5 reactivation plan shall describe the measures that will be taken
6 to ensure the source will be reactivated in compliance with all
7 applicable permit requirements. A reactivation plan may be
8 submitted to and approved by the department at any time during
9 the term of a permit. The department shall take action on the
10 reactivation plan within thirty (30) days unless the department
11 determines that additional time is needed based on the size or
12 complexity of the reactivated source.
13 (2) A reactivation plan may also be submitted to and
14 approved by the department as part of the plan approval or
15 permit application process. An owner or operator who has an
16 approved reactivation plan shall notify the department prior to
17 the reactivation of the source.
18 (b.5) The board shall adopt the regulations required by
19 subsections (b.1), (b.3) and (i) as part of the regulatory
20 package to implement the operating permit program required by
21 Title V of the Clean Air Act.
22 (c) A plan approval or permit issued hereunder may be
23 terminated, modified, suspended or revoked and reissued if the
24 permittee constructs or operates the source subject to the plan
25 approval or permit in such a manner as to be in violation of
26 this act, the Clean Air Act, the regulations promulgated under
27 either this act or the Clean Air Act, a plan approval or permit
28 or in such a manner as to cause air pollution, if the permittee
29 fails to properly or adequately maintain or repair any air
30 pollution control device or equipment attached to or otherwise
19920S1650B2355 - 27 -
1 made a part of the source, if the permittee has failed to submit
2 a report required by a plan approval or operating permit under
3 this section or if the Environmental Protection Agency
4 determines that the permit is not in compliance with the
5 requirements of the Clean Air Act or the regulations promulgated
6 under the Clean Air Act.
7 (d) The department may refuse to grant plan approval for any
8 stationary air contamination source subject to the provisions of
9 subsection (a) of this section or to issue a permit to any
10 source that the department determines is likely to cause air
11 pollution or to violate this act, the Clean Air Act or the
12 regulations promulgated under either this act or the Clean Air
13 Act applicable to such source, or if, in the design of such
14 source, no provision is made for adequate verification of
15 compliance, including source testing or alternative means to
16 verify compliance. The department may also refuse to issue a
17 permit or may for cause terminate or revoke and reissue any
18 permit to any person if the Environmental Protection Agency
19 determines that the permit is not in compliance with the
20 requirements of the Clean Air Act or the regulations promulgated
21 under the Clean Air Act or if the applicant has constructed,
22 installed, modified or operated any air contamination source or
23 installed any air pollution control equipment or device on such
24 source contrary to the plans and specifications approved by the
25 department.
26 (e) Whenever the department shall refuse to grant an
27 approval or to issue or reissue a permit hereunder or terminate,
28 modify, suspend or revoke a plan approval or permit already
29 issued, such action shall be in the form of a written notice to
30 the person affected thereby informing him of the action taken by
19920S1650B2355 - 28 -
1 the department and setting forth, in such notice, a full and
2 complete statement of the reasons for such action. Such notice
3 shall be served upon the person affected, either personally or
4 by certified mail, and the action set forth in the notice shall
5 be final and not subject to review unless, within thirty (30)
6 days of the service of such notice, any person affected thereby
7 shall appeal to the hearing board, setting forth with
8 particularity the grounds relied upon. The hearing board shall
9 hear the appeal pursuant to the provisions of the rules and
10 regulations relating to practice and procedure before the
11 hearing board, and thereafter, shall issue an adjudication
12 affirming, modifying or overruling the action of the department.
13 [(f) The board may, by rule, require the payment of a
14 reasonable fee, not to exceed two hundred dollars ($200.00), for
15 the processing of any application for plan approval or for an
16 operating permit under the provisions of this section.]
17 (f) The department may, by regulation, establish a general
18 plan approval and a general permit program. After the program is
19 established, the department may grant general plan approval or a
20 general permit for any category of stationary air contamination
21 source if the department determines that the sources in such
22 category are similar in nature, and can be adequately regulated
23 using standardized specifications and conditions. Any applicant
24 proposing to use a general plan approval or general permit shall
25 notify the department and receive written approval prior to the
26 proposed use. The department shall take action on a notification
27 within thirty (30) days.
28 (g) The department may, by regulation, establish a plan
29 approval and permit program for stationary sources operated at
30 multiple temporary locations. After the program is established,
19920S1650B2355 - 29 -
1 the department may grant a plan approval or issue a single
2 permit to any stationary air contamination source that may be
3 operated at multiple temporary locations. Such approval or
4 permit shall require the owner or operator to notify the
5 department and municipality where the operation shall take place
6 in advance of each change in location and may require a separate
7 application and permit or approval fee for operations at each
8 location. Any applicant proposing to use the plan approval or
9 permit authorized by this subsection shall notify the department
10 and receive written approval prior to the proposed use. The
11 department shall take action on a request within thirty (30)
12 days.
13 (h) The department shall establish comprehensive plan
14 approval and operating permit programs which meet the
15 requirements of this act and the Clean Air Act.
16 (i) The board shall by regulation establish provisions to
17 allow changes within a permitted facility or one operating
18 pursuant to clause (3) of subsection (b) of section 6.1 without
19 requiring a permit revision, if the changes are not
20 modifications under any provision of 42 U.S.C. Ch. 85 Subch. I
21 (relating to programs and activities) and the changes do not
22 exceed the emissions allowable under the permit whether
23 expressed therein as a rate of emissions or in terms of total
24 emissions: Provided, That the facility provides the
25 administrator and the department with written notification at
26 least seven (7) days in advance of the proposed changes, unless
27 the board provides in its regulations a different time frame for
28 emergencies.
29 (j) The department shall make available to the public any
30 permit application, compliance plan, permit and monitoring or
19920S1650B2355 - 30 -
1 compliance report required by this act.
2 (k) The department shall require revisions to any permit to
3 incorporate applicable standards and regulations promulgated
4 under the Clean Air Act after the issuance of such permit. Such
5 revisions shall occur as expeditiously as practicable, but not
6 later than eighteen (18) months after the promulgation of such
7 standards and regulations. No such revision shall be required if
8 the effective date of the standards or regulations is a date
9 after the expiration of the permit term or if less than three
10 (3) years remain on the permit. Such permit revision shall be
11 treated as a permit renewal if it complies with the requirements
12 of this act regarding renewals.
13 Section 8. Section 6.2(a) of the act, added October 26, 1972
14 (P.L.989, No.245), is amended to read:
15 Section 6.2. Emergency Procedure.--(a) Any other provision
16 of law to the contrary notwithstanding, if the department finds,
17 in accordance with the rules and regulations of the board
18 adopted under the provisions of clause (5) of section 5 of this
19 act, that a generalized condition of air pollution exists and
20 that it creates an emergency requiring immediate action to
21 protect human health or safety, the department, with the
22 concurrence of the Governor, shall order or direct persons
23 causing or contributing to the air pollution to immediately
24 reduce or discontinue the emission of air contaminants.
25 * * *
26 Section 9. The act is amended by adding sections to read:
27 Section 6.3. Fees.--(a) This section authorizes the
28 establishment of fees sufficient to cover the indirect and
29 direct costs of administering the air pollution control plan
30 approval process, operating permit program required by Title V
19920S1650B2355 - 31 -
1 of the Clean Air Act, other requirements of the Clean Air Act
2 and the indirect and direct costs of administering the Small
3 Business Stationary Source Technical and Environmental
4 Compliance Assistance Program, Compliance Advisory Committee and
5 Office of Small Business Ombudsman. This section also authorizes
6 the board by regulation to establish fees to support the air
7 pollution control program authorized by this act and not covered
8 by fees required by section 502(b) of the Clean Air Act.
9 (b) An annual interim air emission fee of fourteen dollars
10 ($14.00) per ton on emissions of sulfur dioxide, nitrogen
11 oxides, particulate matter of ten (10) microns or less and
12 volatile organic compounds is hereby established to cover the
13 reasonable direct and indirect costs of developing and
14 administering the air pollution control operating permit program
15 required by Title V of the Clean Air Act, other requirements of
16 the Clean Air Act and the reasonable indirect and direct costs
17 of administering the Small Business Stationary Source Technical
18 and Environmental Compliance Assistance Program, Compliance
19 Advisory Committee and the Office of Small Business Ombudsman to
20 be collected during fiscal year 1992-1993 covering actual
21 emissions occurring in calendar year 1991, fiscal year 1993-94
22 covering actual emissions occurring in calendar year 1992, and
23 fiscal year 1994-1995 covering actual emissions occurring during
24 calendar year 1993. The interim fee shall not apply to air
25 emissions of less than one hundred (100) tons for any of the
26 listed pollutants, provided that when emissions exceed one
27 hundred (100) tons the entire amount of all air emissions for
28 any of the listed pollutants up to five thousand five hundred
29 (5,500) tons shall be chargeable emissions for interim fee
30 purposes.
19920S1650B2355 - 32 -
1 (c) The board shall establish, by regulation, a permanent
2 annual air emission fee as required for regulated pollutants by
3 section 502(b) of the Clean Air Act to cover the reasonable
4 direct and indirect costs of administering the operating permit
5 program required by Title V of the Clean Air Act, other related
6 requirements of the Clean Air Act and the reasonable indirect
7 and direct costs of administering the Small Business Stationary
8 Source Technical and Environmental Compliance Assistance
9 Program, Compliance Advisory Committee and the Office of Small
10 Business Ombudsman to be collected starting in fiscal year 1995-
11 1996 covering air emissions occurring during calendar year 1994.
12 In no case shall the amount of the permanent fee be more than
13 that which is necessary to comply with section 502(b) of the
14 Clean Air Act. The permanent fee shall not apply to emissions of
15 more than four thousand (4,000) tons for any regulated
16 pollutant. In the event a final regulation containing the
17 permanent annual air emission fee is not effective by July 1,
18 1995, the permanent annual air emission fee for sources subject
19 to the Title V operating permit program shall be the adjusted
20 minimum dollar amount set under section 502(b) of the Clean Air
21 Act until such time as the final regulation is effective.
22 (d) Unless precluded by the Clean Air Act, the board shall
23 establish a permanent air emission fee which considers the size
24 of the air contamination source, the resources necessary to
25 process the application for plan approval or an operating
26 permit, the complexity of the plan approval or operating permit,
27 the quantity and type of emissions from the sources, the amount
28 of fees charged in neighboring states, the importance of not
29 placing existing or prospective sources in this Commonwealth at
30 a competitive disadvantage and other relevant factors.
19920S1650B2355 - 33 -
1 (e) Until alternative fees are established by the board
2 under subsection (c) of this section, stationary air
3 contamination sources shall pay the following interim fees:
4 (1) Two hundred dollars ($200.00) for the processing of an
5 application for an operating permit.
6 (2) Two hundred dollars ($200.00) for annual operating
7 permit administration fee.
8 (f) No emissions fee established under subsection (b), (c)
9 or (j) of this section shall be payable by any State entity, <--
10 INSTRUMENTALITY or political subdivision in relation to any
11 publicly owned or operated facility.
12 (g) Any fees imposed under this section in areas with
13 approved local air pollution control programs shall be deposited
14 in a restricted account established by the governing body
15 authorizing the local program for use by that program to
16 implement the provisions of this act for which they are
17 responsible. The governing body shall annually submit to the
18 department an audit of the account in order to insure the funds
19 were properly spent.
20 (h) (1) Unless the board establishes a different payment
21 schedule by regulation, each facility subject to the emission
22 fees established in subsections (b) and (c) of this section
23 shall report its emissions and pay the fee within one hundred
24 twenty (120) days after receipt of a reporting form from the
25 department or by September 1 of each year for the emission from
26 the preceding year, whichever occurs first.
27 (2) An air contamination source that fails to pay the fees
28 within the time frame established by this act or by regulation
29 shall pay a penalty of fifty per centum of the fee amount, plus
30 interest on the fee amount computed in accordance with section
19920S1650B2355 - 34 -
1 6621(a)(2) of the Internal Revenue Code of 1986 (Public Law 99-
2 514, 26 U.S.C. § 1 et seq.) from the date the fee was required
3 to be paid. In addition, such source may have its permit
4 terminated or suspended. The fee, penalty and interest may be
5 collected following the process for assessment and collection of
6 a civil penalty contained in section 9.1.
7 (i) The permanent air emission fee imposed under subsection
8 (c) shall be increased in each year after implementation of the
9 fee by regulation by the percentage, if any, by which the
10 Consumer Price Index for the most recent calendar year exceeds
11 the Consumer Price Index for the calendar year 1989. For
12 purposes of this subsection:
13 (1) The Consumer Price Index for any calendar year is the
14 average of the Consumer Price Index for All-Urban Consumers,
15 published by the United States Department of Labor, as of the
16 close of the twelve (12) month period ending on August 31 of
17 each calendar year.
18 (2) The revision of the Consumer Price Index which is most
19 consistent with the Consumer Price Index for calendar year 1989
20 shall be used.
21 (j) The board may, by regulation, establish the following
22 categories of fees not related to Title V of the Clean Air Act.
23 Until such regulations are adopted stationary air contamination
24 sources shall pay the following fees:
25 (1) Two hundred dollars ($200.00) for the processing of any
26 application for plan approval.
27 (2) Two hundred dollars ($200.00) for the processing of any
28 application for an operating permit.
29 (3) Two hundred dollars ($200.00) for annual operating
30 permit administration fee.
19920S1650B2355 - 35 -
1 In regard to fees established under this subsection, individual
2 sources required to be regulated by Title V of the Clean Air Act
3 shall only be subject to plan approval fees authorized in this
4 subsection.
5 (k) No administrative action shall prevent the deposit of
6 the fees established pursuant to this section in the Clean Air
7 Fund established in section 9.2 during the fiscal year in which
8 they are collected. The fees shall only be used for the purposes
9 authorized in this section and section 9.2 and shall not be
10 transferred or diverted to any other purpose by administrative
11 action.
12 (l) Any fees, penalties and interest owed the Commonwealth
13 for delinquent payment collected under this section shall be
14 deposited in the Clean Air Fund.
15 (m) As used in this section, the term "regulated pollutant"
16 shall mean a volatile organic compound, each pollutant regulated
17 under sections 111 and 112 of the Clean Air Act and each
18 pollutant for which a national primary ambient air quality
19 standard has been promulgated, except that carbon monoxide shall
20 be excluded from this reference.
21 Section 6.4. Fee for Certain Ozone Areas.--(a) If an area
22 identified in a State implementation plan or any revision as a
23 severe or extreme ozone nonattainment area has failed to meet
24 the national primary ambient air quality standard for ozone by
25 the applicable attainment date, each major source of volatile
26 organic compounds (VOCs), as defined in the Clean Air Act and
27 the regulations promulgated under the Clean Air Act, located in
28 the area shall, except with respect to emissions during any year
29 treated as an extension year under section 181(a)(5) of the
30 Clean Air Act, pay a fee to the department as a penalty for such
19920S1650B2355 - 36 -
1 failure for each calendar year beginning after the attainment
2 date, until the area is redesignated as an attainment area for
3 ozone. This fee shall be assessed and collected following the
4 process for collection and assessment of a civil penalty
5 contained in section 9.1.
6 (b) (1) The fee shall equal five thousand dollars
7 ($5,000.00), adjusted in accordance with clause (3) of this
8 subsection, per ton of VOC emitted by the source during the
9 calendar year in excess of eighty per centum of the baseline
10 amount, computed under clause (2) of this subsection. The fee
11 shall be in addition to all other fees required to be paid by
12 the source.
13 (2) (i) For purposes of this section, the baseline amount
14 shall be computed, in accordance with such guidance as the
15 administrator may provide, as the lower of the amount of actual
16 VOC emissions (referred to as actuals) or VOC emissions allowed
17 under the permit applicable to the source or, if no such permit
18 has been issued for the attainment year, the amount of VOC
19 emissions allowed under the applicable implementation plan
20 (referred to as allowables) during the attainment year.
21 (ii) Notwithstanding subclause (i) of this clause, the
22 administrator may issue guidance authorizing the baseline amount
23 to be determined in accordance with the lower of average actuals
24 or average allowables, determined over a period of more than one
25 calendar year. This guidance may provide that the average
26 calculation for a specific source may be used if that source's
27 emissions are irregular, cyclical or otherwise vary
28 significantly from year to year.
29 (3) The fee amount under clause (1) of this subsection shall
30 be adjusted annually, beginning 1991 in accordance with
19920S1650B2355 - 37 -
1 subsections (h) and (i) of section 6.3.
2 (c) For areas with a total population under two hundred
3 thousand (200,000) which fail to attain the standard by the
4 applicable attainment date, no sanction under this section or
5 under any other provisions of this act shall apply if the area
6 can demonstrate, consistent with guidance issued by the
7 Environmental Protection Agency, that attainment in the area is
8 prevented because of ozone or ozone precursors transported from
9 other areas. The prohibition applies only in cases in which the
10 area has met all requirements and implemented all measures
11 applicable to the area under the Clean Air Act.
12 Section 6.5. Acid Deposition Control.--(a) The department
13 is authorized to develop a permit program for acid deposition
14 control in accordance with Titles IV and V of the Clean Air Act
15 and to submit it to the administrator for approval.
16 (b) For purposes of the permit program authorized under
17 subsection (a) of this section, the definitions in sections 402
18 and 501 of the Clean Air Act are incorporated herein by
19 reference.
20 (c) The owner or operator or the designated representative
21 of each source affected under section 405 of the Clean Air Act
22 shall submit a permit application and compliance plan for the
23 affected source to the department no later than January 1, 1996.
24 In the case of affected sources for which application and plans
25 are timely received, the permit application and the compliance
26 plan, including amendments thereto, shall be binding on the
27 owner or operator or the designated representative of the owners
28 or operators and shall be enforceable as a permit for purposes
29 of this section until a permit is issued by the department. Any
30 permit issued by the department shall require the source to
19920S1650B2355 - 38 -
1 achieve compliance as soon as possible but no later than the
2 date required by this act, the Clean Air Act or the regulations
3 promulgated under either this act or the Clean Air Act for the
4 source.
5 (d) At any time after the submission of a permit application
6 and compliance plan, the applicant may submit a revised
7 application and compliance plan. In considering any permit
8 application and compliance plan under this section, the
9 department shall coordinate with the Pennsylvania Public Utility
10 Commission consistent with requirements that may be established
11 by the administrator.
12 (e) In addition to other provisions, permits issued by the
13 department shall prohibit all of the following:
14 (1) Annual emissions of sulfur dioxide in excess of the
15 number of allowances to emit sulfur dioxide that the owner or
16 operator or designated representative hold for the unit.
17 (2) Exceedances of applicable emissions rates or standards,
18 including ambient air quality standards.
19 (3) The use of any allowance prior to the year for which it
20 is allocated.
21 (4) Contravention of any other provision of the permit.
22 Section 6.6. Hazardous Air Pollutants.--(a) The regulations
23 establishing performance or emission standards promulgated under
24 section 112 of the Clean Air Act are incorporated by reference
25 into the department's permitting program. After the effective
26 date of the performance or emission standard, new,
27 reconstructed, modified and existing sources shall comply with
28 the performance or emission standards pursuant to the compliance
29 schedule established under section 112 of the Clean Air Act and
30 the regulations promulgated under the Clean Air Act. The
19920S1650B2355 - 39 -
1 Environmental Quality Board may not establish a more stringent
2 performance or emission standard for hazardous air pollutant
3 emissions from existing sources, except as provided in
4 subsection (d). This section shall not apply to rules and
5 regulations adopted as final prior to the effective date of this
6 act and shall not be construed to weaken standards for
7 individual sources or facilities in effect prior to the
8 effective date of this act. The board may establish performances
9 or emission standards for sources or categories of sources which
10 are not included on the list of source categories established
11 under section 112(c) of the Clean Air Act. For purposes of this
12 section, the term "performance standard" includes design,
13 equipment, work practice or operational standards or any
14 combination thereof.
15 (b) In the event the administrator has not promulgated a
16 standard to control the emissions of hazardous air pollutants
17 for a category or subcategory of major sources under section 112
18 of the Clean Air Act, pursuant to a schedule established
19 pursuant to section 112(c) of the Clean Air Act, the department
20 shall have the authority to establish a performance or emission
21 standard on a case-by-case basis for individual sources or a
22 category of sources. The department shall have the authority to
23 make the determinations required by section 112(g)(2) of the
24 Clean Air Act regarding the construction, reconstruction and
25 modification of sources. Any person challenging the performance
26 or emission standards established by the department shall have
27 the burden to demonstrate that the performance or emission
28 standard does not meet the requirements of section 112 of the
29 Clean Air Act. The department shall incorporate the standard to
30 control the emissions of hazardous air pollutants into the plan
19920S1650B2355 - 40 -
1 approval or operating permit of any source within the category
2 or subcategory. The performance or emission standard established
3 on a case-by-case basis by the department shall be equivalent to
4 the limitation that would apply to the source if a performance
5 or emission standard had been promulgated by the administrator
6 under section 112 of the Clean Air Act.
7 (c) The department is authorized to require that new sources
8 demonstrate in the plan approval application that the source
9 will reduce or control emissions of air pollutants, including
10 hazardous air pollutants, by using the best available
11 technology.
12 (d) When needed to protect public health, welfare and the
13 environment from emissions of hazardous air pollutants from new
14 and existing sources, the department may impose health risk-
15 based emission standards or operating practice requirements. In
16 developing such health risk-based emission standards or
17 operating practice requirements, the department shall provide an
18 explanation and rationale for such standards or requirements and
19 provide for public review and comments on plan approvals,
20 operating permits, guidelines and regulations which contain
21 health risk-based emission standards or operating practice
22 requirements. Standards or requirements adopted pursuant to this
23 subsection shall be developed using an analysis which, among
24 other factors, considers, where appropriate for a source or
25 source category, the criteria set forth in section 112(f)(1) of
26 the Clean Air Act in assessing the proposed risk to the public
27 health, welfare and the environment from the source. IN THE CASE <--
28 OF COKE BATTERIES WHICH COMPLY WITH THE OPERATING STANDARDS IN
29 THE CLEAN AIR ACT, THE DEPARTMENT MAY NOT CONSIDER IMPOSING
30 HEALTH BASED RISK STANDARDS FOR EIGHT (8) YEARS AFTER
19920S1650B2355 - 41 -
1 PROMULGATION OF MAXIMUM ACHIEVABLE CONTROL TECHNOLOGY (MACT)
2 STANDARDS, AND NOT UNTIL THE YEAR 2020 FOR COKE BATTERIES
3 MEETING SPECIFIED CONDITIONS OF THE CLEAN AIR ACT, IF THERE IS A
4 REMAINING RESIDUAL RISK WHICH MUST BE ADDRESSED.
5 (e) The department shall have the authority to require, in
6 the plan approval and operating permit, reasonable monitoring,
7 recordkeeping and reporting requirements for sources which emit
8 hazardous air pollutants.
9 (f) Nothing in this section shall preclude the department
10 from taking an emergency action where there is an immediate or
11 potential threat to public health, welfare and the environment
12 from an air pollutant, including a hazardous air pollutant.
13 (g) The early emissions reduction program authorized under
14 section 112(i)(5) of the Clean Air Act is incorporated by
15 reference in the department's permitting program.
16 Section 6.7. Control of Volatile Organic Compounds from
17 Gasoline Dispensing Facilities.--(a) After the date specified
18 in subsection (b) or (c) of this section no owner or operator of
19 a gasoline dispensing facility subject to this section may
20 transfer or allow the transfer of gasoline into a motor vehicle
21 fuel tank unless the dispensing facility is equipped with a
22 department approved and properly operating Stage II vapor
23 recovery or vapor collection system. Unless a higher percent
24 reduction is required by EPA under section 182 of the Clean Air
25 Act, approval by the department of a Stage II vapor collection
26 system will be based on a determination that the system will
27 collect at least ninety per centum by weight of the gasoline
28 vapors that are displaced or drawn from a vehicle fuel tank
29 during refueling and the captured vapors are returned to a vapor
30 tight holding system or vapor control system.
19920S1650B2355 - 42 -
1 (b) (1) This subsection applies to gasoline dispensing
2 facilities located in areas classified as moderate, serious or
3 severe ozone nonattainment areas under section 181 of the Clean
4 Air Act, including the counties of Allegheny, Armstrong, Beaver,
5 Berks, Bucks, Butler, Chester, Delaware, Fayette, Montgomery,
6 Philadelphia, Washington and Westmoreland with monthly
7 throughputs greater than 10,000 gallons (37,850 liters). In the
8 case of independent small business marketers of gasoline as
9 defined in section 325 of the Clean Air Act this section shall
10 not apply if the monthly throughput is less than 50,000 gallons
11 (189,250 liters).
12 (2) Facilities for which construction was commenced after
13 November 15, 1990, shall achieve compliance not later than six
14 months after the effective date of this section.
15 (3) Facilities which dispense greater than 100,000 gallons
16 (378,500 liters) of gasoline per month, based on average monthly
17 sales for the two-year period immediately preceding the
18 effective date of this section, shall achieve compliance not
19 later than one year from the effective date of this section.
20 (4) All other affected facilities shall achieve compliance
21 not later than two years from the effective date of this
22 section.
23 (c) Gasoline dispensing facilities with annual throughputs
24 greater than 10,000 gallons (37,850 liters) in the counties of
25 Bucks, Chester, Delaware, Montgomery and Philadelphia shall be
26 subject to the requirements of this section immediately upon the
27 addition or replacement of any underground gasoline storage
28 tanks for which construction was commenced after the effective
29 date of this section.
30 (d) For purposes of this section the term "construction"
19920S1650B2355 - 43 -
1 shall include, but is not limited to, the addition or
2 replacement of any underground storage tank.
3 (e) Owners or operators, or both, of gasoline dispensing
4 facilities subject to the requirements of this section shall:
5 (1) Install all necessary Stage II vapor collection and
6 control systems, provide necessary maintenance and make any
7 modifications necessary to comply with the requirements.
8 (2) Provide adequate training and written instructions to
9 the operator of the affected gasoline dispensing facility to
10 assure proper operation of the system.
11 (3) Immediately remove from service and tag any defective
12 nozzle or dispensing system until the defective component is
13 replaced or repaired. A component removed from service shall not
14 be returned to service until the defect is corrected. If the
15 department finds that a defective nozzle or dispensing system is
16 not properly tagged during an inspection, the component shall
17 not be returned to service until the defect is corrected, and
18 the department approves its return to service.
19 (4) Conspicuously post operating instructions for the system
20 in the gasoline dispensing area which, at a minimum, includes
21 the following:
22 (i) A clear description of how to correctly dispense
23 gasoline with the vapor recovery nozzles utilized at the site.
24 (ii) A warning that continued attempts to dispense gasoline
25 after the system indicates that the vehicle fuel tank is full
26 may result in spillage or recirculation of the gasoline into the
27 vapor collection system.
28 (iii) A telephone number established by the department for
29 the public to report problems experienced with the system.
30 (5) Maintain records of monthly throughput, type and
19920S1650B2355 - 44 -
1 duration of any failures of the system and maintenance and
2 repair records. The records shall be kept for at least two years
3 and shall be made available for inspection by the department.
4 (f) In the event an area is reclassified from attainment or
5 marginal nonattainment to serious, severe or moderate
6 nonattainment under section 181 of the Clean Air Act, gasoline
7 dispensing facilities located in the reclassified area shall be
8 subject to the requirements of subsection (b)(1). For purposes
9 of establishing an effective date for the reclassified area,
10 that date shall be the date of publication of final notice of
11 reclassification in the Federal Register.
12 (g) If at any time prior to November 15, 1996, the United
13 States Environmental Protection Agency promulgates a requirement
14 for alternative automobile refueling emissions control systems
15 identified in section 7521 of the Clean Air Act, the
16 requirements of this section shall not apply to gasoline
17 dispensing facilities located in areas classified as moderate
18 ozone nonattainment areas under section 181 of the Clean Air
19 Act, including the counties of Allegheny, Armstrong, Beaver,
20 Berks, Butler, Fayette, Washington and Westmoreland.
21 Section 7.1. Compliance Review.--(a) The department shall
22 not issue, reissue or modify any plan approval or permit
23 pursuant to this act or amend any plan approval or permit issued
24 under this act and may suspend, terminate or revoke any permit
25 or plan approval previously issued under this act if it finds
26 that the applicant or permittee or a general partner, parent or
27 subsidiary corporation of the applicant or permittee is in
28 violation of this act, or the rules and regulations promulgated
29 under this act, any plan approval, permit or order of the
30 department, as indicated by the department's compliance docket,
19920S1650B2355 - 45 -
1 unless the violation is being corrected to the satisfaction of
2 the department.
3 (b) The department may refuse to issue any plan approval or
4 permit pursuant to this act if it finds that the applicant or
5 permittee or a partner, parent or subsidiary corporation of the
6 applicant or permittee has shown a lack of intention or ability
7 to comply with this act or the regulations promulgated under
8 this act or any plan approval, permit or order of the
9 department, as indicated by past or present violations, unless
10 the lack of intention or ability to comply is being or has been
11 corrected to the satisfaction of the department.
12 (c) In performing the compliance review required under this
13 section, the department shall only consider violations arising
14 under this act that occurred or are occurring in Pennsylvania.
15 (d) A permittee or applicant may appeal any violation
16 arising under this act which the department places on the
17 compliance docket.
18 Section 7.2. Permit Compliance Schedules.--In addition to
19 the other enforcement provisions of this act, the department may
20 issue a permit under clauses (3) and (4) of subsection (b) of
21 section 6.1 to a source that is out of compliance with this act,
22 the Clean Air Act or the regulations promulgated under either
23 this act or the Clean Air Act. Any such permit must contain an
24 enforceable schedule requiring the source to attain compliance.
25 The compliance schedule may contain interim milestone dates for
26 completing any phase of the required work, as well as a final
27 compliance date, and may contain stipulated penalties for
28 failure to meet the compliance schedule. If the permittee fails
29 to achieve compliance by the final compliance date, the permit
30 shall terminate. The permit shall be part of an overall
19920S1650B2355 - 46 -
1 resolution of the outstanding noncompliance and may include the
2 payment of an appropriate civil penalty for past violations and
3 shall contain such other terms and conditions as the department
4 deems appropriate. A permit may incorporate by reference a
5 compliance schedule contained within a consent order and
6 agreement, including all provisions related to implementation or
7 enforcement of the compliance schedule or consent order and
8 agreement.
9 Section 7.3. Responsibilities of Owners and Operators.--(a)
10 Whenever the department finds that air pollution or danger of
11 air pollution is or may be resulting from an air contamination
12 source in the Commonwealth, the department may order the owner
13 or operator to take corrective action in a manner satisfactory
14 to the department, or it may order the owner or operator to
15 allow access to the land by the department or a third party to
16 take such action.
17 (b) For purposes of collecting or recovering the costs
18 involved in taking corrective action or pursuing a cost recovery
19 action pursuant to an order or recovering the cost of
20 litigation, oversight, monitoring, sampling, testing and
21 investigation related to a corrective action, the department may
22 collect the amount in the same manner as civil penalties are
23 assessed and collected following the process for assessment and
24 collection of a civil penalty contained in section 9.1.
25 Section 7.4. Interstate Transport Commission.--(a) The
26 Commonwealth through its representatives on an interstate
27 transport commission formed under the Clean Air Act shall
28 provide public review of recommendations for additional control
29 measures prior to final commission action consistent with the
30 commission's public review requirements under section 184(c)(1)
19920S1650B2355 - 47 -
1 of the Clean Air Act. The opportunity for public review
2 established under this section shall run concurrently with the
3 commission's public comment period established under section
4 184(c)(1) of the Clean Air Act.
5 (b) Control strategies approved by an interstate transport
6 commission and by the Commonwealth's representatives and set
7 forth in resolutions or memoranda of understanding shall be
8 considered commitments by the executive to pursue subsequent
9 legislative, regulatory or other administrative actions to
10 implement the control strategies.
11 (c) The Commonwealth strongly recommends that an interstate
12 transport commission adopt formal procedures which allow for an
13 open public review and comment period prior to the adoption of
14 resolutions or consideration of memoranda of understanding or
15 other actions which recommend that states adopt control
16 strategies. The Commonwealth's representatives shall take
17 actions consistent with this recommendation.
18 (D) THE GENERAL ASSEMBLY OF PENNSYLVANIA FINDS THAT THE <--
19 INTERSTATE TRANSPORT OF POLLUTANTS FROM THE STATE OF OHIO
20 CONTRIBUTES SIGNIFICANTLY TO THE VIOLATION OF NATIONAL AMBIENT
21 AIR QUALITY STANDARDS BY THE COMMONWEALTH. THEREFORE, AS SET
22 FORTH IN SECTION 176A OF THE CLEAN AIR ACT, THE GOVERNOR ON
23 BEHALF OF THE COMMONWEALTH SHALL PETITION THE FEDERAL EPA
24 ADMINISTRATOR TO INCLUDE THE STATE OF OHIO IN ANY INTERSTATE
25 TRANSPORT COMMISSION TO WHICH PENNSYLVANIA IS A MEMBER STATE.
26 Section 7.5. Public Review of State Implementation Plans.--
27 (a) A state implementation plan required by the Clean Air Act
28 which commits the Commonwealth to adopt air pollution control
29 measures or procedures shall be the subject of a public comment
30 period. The public comment period shall be no less than sixty
19920S1650B2355 - 48 -
1 (60) days and the department may, at its discretion, hold public
2 informational meetings or public hearings as part of the comment
3 period.
4 (b) Notice of a proposed state implementation plan shall be
5 published in the Pennsylvania Bulletin and in sufficient
6 newspapers having general circulation in the area covered by the
7 state implementation plan. If the state implementation plan
8 covers the entire State, notice shall be published in at least
9 six (6) newspapers of general circulation throughout the
10 Commonwealth.
11 (c) A state implementation plan subject to this section
12 shall include the following provisions:
13 (1) Statements clearly indicating the specific provisions of
14 the Clean Air Act with which the state implementation plan is
15 intended to comply.
16 (2) An analysis of the alternative control strategies
17 considered if applicable in arriving at the recommended control
18 strategies and the reasons the department or other agency
19 selected the final strategy.
20 (3) An analysis of the economic impact of the alternative
21 control strategies and the selected strategies on the regulated
22 community and local governments.
23 (4) An analysis of the staff and technical resources needed
24 by the department or other agency to implement the control
25 strategy.
26 (d) After the public comment period and prior to the
27 submission to EPA of any state implementation plan required by
28 the Clean Air Act which commits the Commonwealth to adopt air
29 pollution control measures or procedures, the department shall
30 submit a final state implementation plan to the board for its
19920S1650B2355 - 49 -
1 review together with a document which responds to all comments
2 made during the public comment period.
3 (e) These provisions shall also apply in the case of state
4 implementation plans required by the Clean Air Act which are
5 developed by State agencies other than the department which
6 commit the Commonwealth to the adoption of air pollution control
7 measures or procedures.
8 (f) Subsections (c) and (d) of this section shall not apply
9 to state implementation plans or portions thereof comprised of
10 permit, emission offset or reasonably available control
11 technology requirements for individual sources; consent orders
12 and agreements; or regulations.
13 (g) The requirements of this section shall not apply to
14 state implementation plans submitted by a local air pollution
15 control agency.
16 Section 7.6. Advice to Department.--(a) The department
17 shall consult with the Citizens Advisory Council established
18 under section 448 of the act of April 9, 1929 (P.L.177, No.175),
19 known as "The Administrative Code of 1929," as appropriate, in
20 the consideration of state implementation plans and regulations
21 developed by the department and needed for the implementation of
22 the Clean Air Act. Nothing in this section shall limit the
23 council's ability to consider, study and review department
24 policies and other activities related to the Clean Air Act,
25 implementation as provided under section 1922-A of "The
26 Administrative Code of 1929." This section shall not apply to
27 state implementation plans or portions thereof comprised of:
28 permit, emission offset or of reasonably available control
29 technology requirements for individual sources; consent orders
30 and agreements; or regulations. The requirements of this section
19920S1650B2355 - 50 -
1 shall not apply to state implementation plans submitted by a
2 local air pollution control agency.
3 (b) (1) The Secretary of Environmental Resources within
4 thirty (30) days after the effective date of this act shall
5 designate an air technical advisory committee. The committee
6 shall include at least eleven (11) members with technical
7 backgrounds in the control of air pollution from stationary or
8 mobile sources.
9 (2) The committee, at the request of the department, may be
10 utilized to provide technical advice on department policies,
11 guidance and regulations needed to implement the Clean Air Act.
12 The committee may also request to review a department policy,
13 guidance or regulation needed to implement the Clean Air Act.
14 Section 7.7. Small Business Compliance Assistance Program.--
15 (a) The department shall develop and implement a Small Business
16 Stationary Source Technical and Environmental Compliance
17 Assistance Program which shall include the following:
18 (1) Adequate mechanisms for developing, collecting and
19 coordinating information concerning compliance methods and
20 technologies for small business stationary sources and programs
21 to encourage lawful cooperation among such sources and other
22 persons to further comply with this act and the Clean Air Act.
23 (2) Adequate mechanisms for assisting small business
24 stationary sources with pollution prevention and accidental
25 release detection and prevention, including providing
26 information concerning alternative technologies, process changes
27 and products and methods of operation that help reduce air
28 pollution.
29 (3) A compliance assistance program for small business
30 stationary sources which assists small business stationary
19920S1650B2355 - 51 -
1 sources in determining applicable requirements and in receiving
2 permits under this act in a timely and efficient manner.
3 (4) Adequate mechanisms to assure that small business
4 stationary sources receive notice of their rights under this act
5 and the Clean Air Act in such manner and form as to assure
6 reasonably adequate time for such sources to evaluate compliance
7 methods and any relevant or applicable proposed or final
8 rulemaking plan, state implementation plan revision, or program
9 issued under this act and the Clean Air Act.
10 (5) Adequate mechanisms for informing small business
11 stationary sources of their obligations under this act and the
12 Clean Air Act, including mechanisms for referring these sources
13 to qualified auditors or, at the department's option, for
14 providing audits of the operations of such sources to determine
15 compliance with this act.
16 (6) Procedures for consideration of requests from a small
17 business stationary source for modification of:
18 (i) any work practice or technological method of compliance;
19 or
20 (ii) the schedule of milestones for implementing such work
21 practice or method of compliance preceding any applicable
22 compliance date, based on the technological and financial
23 capability of any small business stationary sources. No
24 modification may be granted unless it is in compliance with the
25 applicable requirements of this act and the Clean Air Act,
26 including the requirements of the applicable implementation
27 plan. Where applicable requirements are set forth in Federal
28 regulations, only modifications authorized in such regulations
29 may be allowed.
30 (7) Procedures for soliciting input from and exchanging
19920S1650B2355 - 52 -
1 information with the Office of Small Business Ombudsman
2 regarding compliance requirements for small business stationary
3 sources.
4 (8) Adequate mechanisms for the collection and dissemination
5 of information to small business stationary sources, including,
6 but not limited to:
7 (i) Developing of small business stationary sources guidance
8 manuals indicating the categories of small businesses subject to
9 the requirements of this act and the Clean Air Act, specific
10 compliance requirements and options, a schedule of compliance
11 deadlines and other pertinent information.
12 (ii) Establishment of a toll-free telephone number dedicated
13 to questions involving small business stationary source
14 compliance.
15 (9) Procedures for assuring the confidentiality of
16 information received from small business stationary sources.
17 (10) Procedures for conducting confidential, on-site
18 consultations with small business stationary sources regarding
19 applicability of compliance requirements.
20 (b) The department shall evaluate the feasibility of
21 contracting with consultants to administer all or part of the
22 Small Business Stationary Source Technical and Environmental
23 Compliance Assistance Program. The department shall submit a
24 report to the Governor, the General Assembly, the Compliance
25 Advisory Committee and the Office of Small Business Ombudsman
26 summarizing the results of this evaluation and the department's
27 recommendations.
28 (c) The department shall consult with the Compliance
29 Advisory Committee established in section 7.8 and the Office of
30 Small Business Ombudsman established in section 7.9, in
19920S1650B2355 - 53 -
1 developing the Small Business Stationary Source Technical and
2 Environmental Compliance Assistance Program.
3 (d) The department shall provide a reasonable opportunity
4 for public comment on the proposed Small Business Stationary
5 Source Technical and Environmental Compliance Assistance
6 Program.
7 (e) The department is authorized to expend funds from the
8 Clean Air Fund collected pursuant to subsection (a), (b) or (c)
9 of section 6.3 to support the development and implementation of
10 the Small Business Stationary Source Technical and Environmental
11 Compliance Assistance Program, the Office of Small Business
12 Ombudsman and the Compliance Advisory Committee.
13 (f) Upon petition by a source, the department may, after
14 notice and opportunity for public comment, include as a small
15 business stationary source for purposes of this act any
16 stationary source which does not meet the definition of "small
17 business stationary source" in section 3 but which does not emit
18 more than one hundred (100) tons per year of all regulated
19 pollutants.
20 (g) The department, in consultation with the administrator
21 and the Administrator of the Small Business Administration, and
22 after providing notice and opportunity for public hearing, may
23 exclude from the definition of "small business stationary
24 source" in section 3 any category or subcategory of sources that
25 the department determines to have sufficient technical and
26 financial capabilities to meet the requirements of this act and
27 the Clean Air Act without the application of this section.
28 (h) The department may reduce any fee required under this
29 act and the Clean Air Act to take into account the financial
30 resources of small business stationary sources as authorized by
19920S1650B2355 - 54 -
1 the Clean Air Act.
2 Section 7.8. Compliance Advisory Committee.--(a) There is
3 hereby established a Compliance Advisory Committee which shall
4 perform all of the following:
5 (1) Provide guidance and recommendations to the department
6 on the development of the Small Business Stationary Source
7 Technical and Environmental Compliance Assistance Program.
8 (2) Render advisory opinions concerning the effectiveness of
9 the Small Business Stationary Source Technical and Environmental
10 Compliance Assistance Program, difficulties encountered and
11 degree and severity of enforcement.
12 (3) Make periodic reports to the administrator concerning
13 the Small Business Stationary Source Technical and Environmental
14 Compliance Assistance Program.
15 (4) Review information for small business stationary sources
16 to assure such information is understandable by the layperson.
17 (5) Have the Small Business Stationary Source Technical and
18 Environmental Compliance Assistance Program serve as the
19 secretariat for the development and dissemination of such
20 reports and advisory opinions.
21 (6) Review and advise the department on rulemakings, state
22 implementation plans and programs under this act and the Clean
23 Air Act which affect small business stationary sources.
24 (7) Make recommendations for the development of programs to
25 assist compliance for small business stationary sources,
26 including technical and financial assistance programs.
27 (b) The committee shall consist of eleven members as
28 follows:
29 (1) Four members appointed by the Governor, three of whom
30 shall not be owners or representatives of owners of small
19920S1650B2355 - 55 -
1 business stationary sources.
2 (2) Four members, each of whom shall be an owner or the
3 representative of an owner of a small business stationary
4 source. Of these four members, one shall be appointed by each of
5 the following:
6 (i) The majority leader of the Senate.
7 (ii) The minority leader of the Senate.
8 (iii) The majority leader of the House of Representatives.
9 (iv) The minority leader of the House of Representatives.
10 (3) The Secretary of Commerce or his designee.
11 (4) The Secretary of Environmental Resources or his
12 designee.
13 (5) The Small Business Ombudsman or his designee.
14 (c) The terms of appointed members shall be for four (4)
15 years. Vacancies shall be filled by the original appointing
16 member for the remainder of the unexpired term. Initial terms of
17 appointed members shall be as follows:
18 (1) Of the members appointed by the Governor under clause
19 (1) of subsection (b) of this section:
20 (i) Two members shall be appointed for two (2) years.
21 (ii) Two members shall be appointed for four (4) years.
22 (2) Of the members appointed under clause (2) of subsection
23 (b) of this section:
24 (i) The majority leader of the Senate shall appoint one
25 member for four (4) years.
26 (ii) The minority leader of the Senate shall appoint one
27 member for two (2) years.
28 (iii) The majority leader of the House of Representatives
29 shall appoint one member for three (3) years.
30 (iv) The minority leader of the House of Representatives
19920S1650B2355 - 56 -
1 shall appoint one member for one (1) year.
2 Section 7.9. Small Business Ombudsman.--(a) There is hereby
3 established an Office of Small Business Ombudsman within the
4 Department of Commerce for the purpose of serving as the primary
5 point of contact for small business on issues relating to
6 compliance with this act and the Clean Air Act.
7 (b) The Office of Small Business Ombudsman shall perform all
8 functions necessary to implement the requirements of section
9 507(a)(3) of the Clean Air Act. The Office of Small Business
10 Ombudsman shall perform all of the following functions to the
11 extent they are consistent with the guidelines developed by the
12 Environmental Protection Agency:
13 (1) Solicit input from small businesses regarding compliance
14 with this act and the Clean Air Act and interact with
15 organizations representing small businesses, including Small
16 Business Development Centers, the Small Business Administration,
17 industry and trade associations and other entities.
18 (2) Provide guidance and recommendations to the department
19 on the development of the Small Business Stationary Source
20 Technical and Environmental Compliance Assistance Program.
21 (3) Make recommendations to the department regarding the
22 content and operation of the Small Business Stationary Source
23 Technical and Environmental Compliance Assistance Program.
24 (4) Collect and distribute information and materials on the
25 requirements of this act and the Clean Air Act.
26 (5) Report to the Small Business Stationary Source Technical
27 and Environmental Compliance Assistance Program on problems and
28 difficulties experienced by small businesses in complying with
29 this act and the Clean Air Act.
30 (6) Serve on the Compliance Advisory Committee established
19920S1650B2355 - 57 -
1 by section 7.8.
2 (7) Conduct independent evaluations of all aspects of the
3 Small Business Stationary Source Technical and Environmental
4 Compliance Assistance Program.
5 (8) Review and provide comments and recommendations to the
6 Environmental Protection Agency and department regarding the
7 development and implementation of regulations that impact small
8 businesses.
9 (9) Arrange for and assist in the preparation of guidance
10 documents by the Small Business Stationary Source Technical and
11 Environmental Compliance Assistance Program to ensure that the
12 language is readily understandable by the lay person.
13 (10) Assist small businesses in locating sources of funding
14 for compliance with the requirements of this act and the Clean
15 Air Act.
16 (c) The Office of Small Business Ombudsman shall report
17 annually to the Governor and General Assembly on the
18 effectiveness of the Small Business Stationary Source Technical
19 and Environmental Compliance Assistance Program and other issues
20 relating to the impact of the Clean Air Act implementation on
21 small businesses in the Commonwealth.
22 (d) For each proposed rulemaking significantly affecting
23 small businesses, the Office of Small Business Ombudsman shall
24 prepare a report which contains a detailed analysis of the
25 economic impact of such proposed rulemaking on small businesses.
26 The economic impact report shall be completed no later than
27 ninety (90) days from the date that the board approves the
28 proposed rulemaking and shall be submitted to the board for
29 consideration prior to approval of the final rulemaking package;
30 provided the report is available within the time period
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1 prescribed by this section. The department shall provide the
2 ombudsman with a reasonable opportunity to revise the report to
3 reflect any proposed substantial change in the rulemaking which
4 affects the initial report.
5 (e) The report shall include, but not be limited to:
6 (1) An analysis of the economic impact of the selected
7 control strategies on small business.
8 (2) Data on comparable regulatory programs or plans
9 administered by other states.
10 (3) An assessment of the economic impact of alternative
11 control strategies.
12 (4) All other information that the Office of Small Business
13 Ombudsman considers necessary for the board's review.
14 Section 7.10. Transportation Management Associations.--(a)
15 The department, in consultation with the Department of
16 Transportation, may, after public notice and comment, designate
17 one or more transportation management associations to serve
18 specific regions of this Commonwealth to provide services to
19 employers required by the Clean Air Act to reduce employe
20 vehicle trips and encourage the use of carpooling, vanpooling
21 and public transportation to reduce air pollution.
22 (b) For purposes of this section, transportation management
23 associations shall consist of nonprofit corporations designated
24 by the department to broker transportation services, including,
25 but not limited to, public transportation, vanpools, carpools,
26 bicycling and pedestrian modes, as well as strategies such as
27 flextime, staggered work hours and compressed work weeks for
28 corporations, employes, developers, individuals and other
29 groups.
30 Section 7.11. Notice of Sanctions.--(a) Whenever the
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1 Commonwealth is notified that the Environmental Protection
2 Agency has made a final or proposed finding on a State
3 implementation plan submitted by the Commonwealth or a local air
4 pollution control agency, the department shall notify within ten
5 (10) working days of receipt of the notice the Environmental
6 Resources and Energy Committee of the Senate and the
7 Conservation Committee of the House of Representatives of the
8 agency's findings.
9 (b) Whenever the Commonwealth is formally notified that it
10 is subject to discretionary or mandatory sanctions under section
11 179 of the Clean Air Act, the department shall within ten (10)
12 working days of the receipt of this notice notify the
13 Environmental Resources and Energy Committee of the Senate and
14 the Conservation Committee of the House of Representatives.
15 Section 7.12. Missed Federal Deadlines.--Whenever the
16 Environmental Protection Agency has missed a deadline for
17 developing regulations or guidance on which states must rely to
18 comply with deadlines in the Clean Air Act by more than ninety
19 (90) days and, in the opinion of the department, the
20 Environmental Protection Agency has failed to provide it with
21 timely guidance needed to comply with the act in a timely
22 manner, the department may bring a legal action against the
23 Environmental Protection Agency in a court of competent
24 jurisdiction seeking an injunction to restrain the Environmental
25 Protection Agency from enforcing the applicable Clean Air Act
26 deadline on the Commonwealth until and unless the Environmental
27 Protection Agency develops the appropriate regulation or
28 guidance which allows the Commonwealth a reasonable opportunity
29 to comply with the Clean Air Act.
30 Section 10. Sections 8, 9, 9.1 and 9.2 of the act, amended
19920S1650B2355 - 60 -
1 or added October 26, 1972 (P.L.989, No.245), are amended to
2 read:
3 Section 8. Unlawful Conduct.--It shall be unlawful to fail
4 to comply with [any rule or regulation of the board], or to
5 cause or assist in the violation of, any of the provisions of
6 this act or the rules and regulations adopted under this act or
7 to fail to comply with any order, plan approval, permit or other
8 requirement of the department[, to violate or to assist in the
9 violation of any of the provisions of this act or rules and
10 regulations adopted hereunder, to cause air pollution, or to in
11 any manner hinder, obstruct, delay, resist, prevent or in any
12 way interfere or attempt to interfere with the department or its
13 personnel in the performance of any duty hereunder.] or to cause
14 a public nuisance; or to cause air pollution, soil or water
15 pollution resulting from an air pollution incident; or to
16 hinder, obstruct, prevent or interfere with the department or
17 its personnel in their performance of any duty hereunder,
18 including denying the department access to the source or
19 facility; or to violate the provisions of 18 Pa.C.S. § 4903
20 (relating to false swearing) or 4904 (relating to unsworn
21 falsification to authorities) in regard to papers required to be
22 submitted under this act. The owner or operator of an air
23 contamination source shall not allow pollution of the air, water
24 or other natural resources of the Commonwealth resulting from
25 the source. For any air pollutant for which the board has set an
26 emissions standard or for any source for which a permit has been
27 issued by the department, a release of such pollutant in
28 accordance with that standard or permit shall not constitute a
29 violation of this act.
30 [Section 9. Penalties.--(a) Summary offense. Any person as
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1 herein defined, except a department, board, bureau or agency of
2 the Commonwealth, engaging in unlawful conduct as set forth in
3 section 8 of this act, shall, for each offense, upon conviction
4 thereof in a summary proceeding before a district justice,
5 magistrate, alderman or justice of the peace, be sentenced to
6 pay the costs of prosecution and a fine of not less than one
7 hundred dollars ($100.00) nor more than one thousand dollars
8 ($1,000.00), and, in default thereof, to undergo imprisonment of
9 not less than ten (10) days nor more than thirty (30) days.
10 (b) Misdemeanors. Any person as herein defined, except a
11 department, board, bureau or agency of the Commonwealth, who,
12 within two years after being convicted of a summary offense
13 pursuant to subsection (a) of this section, engages in similar
14 unlawful conduct, shall be guilty of a misdemeanor and, upon
15 conviction thereof, shall, for each separate offense, be subject
16 to a fine of not less than five hundred dollars ($500.00) nor
17 more than five thousand dollars ($5,000.00), or to imprisonment
18 for a period of not more than one year for each separate offense
19 hereunder, or both. For the purposes of this subsection, similar
20 unlawful conduct shall mean a violation of the same order of the
21 department, or a violation of the same provision of any rule or
22 regulation of the department by the same organizational unit of
23 the defendant.
24 (c) For the purpose of this section, violations on separate
25 days shall be considered separate offenses. Where a person
26 engages in continuing unlawful conduct, such person shall be
27 guilty of separate offenses for each day such conduct continues
28 up until the time of hearing or trial.
29 (d) Upon conviction of an association, partnership or
30 corporation of an offense under subsection (a) or (b) of this
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1 section, the responsible members, officers, employes or agents
2 may be imprisoned for the term provided therein which shall run
3 concurrently with any term of imprisonment imposed upon such
4 persons individually upon conviction for the same offense.
5 Section 9.1. Civil Penalties.--In addition to proceeding
6 under any other remedy available at law, or in equity, for a
7 violation of a provision of this act, or a rule or regulation of
8 the board, or an order of the department, the hearing board,
9 after hearing, may assess a civil penalty upon a person for such
10 violation. Such a penalty may be assessed whether or not the
11 violation was wilful. The civil penalty so assessed shall not
12 exceed ten thousand dollars ($10,000.00), plus up to two
13 thousand five hundred dollars ($2,500.00) for each day of
14 continued violation. In determining the amount of the civil
15 penalty, the hearing board shall consider the wilfulness of the
16 violation, damage or injury to the outdoor atmosphere of the
17 Commonwealth or its uses, and other relevant factors. It shall
18 be payable to the Commonwealth of Pennsylvania and shall be
19 collectible in any manner provided at law for the collection of
20 debt. If any person liable to pay any such penalty neglects or
21 refuses to pay the same after demand, the amount, together with
22 interest and any costs that may accrue, shall be a lien in favor
23 of the Commonwealth upon the property, both real and personal,
24 of such person, but only after same has been entered and
25 docketed of record by the prothonotary of the county where such
26 is situated. The hearing board may, at any time, transmit to the
27 prothonotaries of the respective counties certified copies of
28 all such liens, and it shall be the duty of each prothonotary to
29 enter and docket the same of record in his office, and to index
30 the same as judgments are indexed, without requiring the payment
19920S1650B2355 - 63 -
1 of costs as a condition precedent to the entry thereof.]
2 Section 9. Penalties.--(a) Any person who violates any
3 provision of this act, any rule or regulation adopted under this
4 act, any order of the department or any condition or term of any
5 plan approval or permit issued pursuant to this act commits a
6 summary offense and shall, upon conviction, be sentenced to pay
7 a fine of not less than one hundred dollars ($100.00) nor more
8 than two thousand five hundred dollars ($2,500.00) for each
9 separate offense, and, in default of the payment of such fine,
10 may be sentenced to imprisonment for ninety (90) days for each
11 separate offense. Employes of the department authorized to
12 conduct inspections or investigations are hereby declared to be
13 law enforcement officers authorized to issue or file citations
14 for summary violations under this act, and the General Counsel
15 is hereby authorized to prosecute these offenses. For purposes
16 of this subsection, a summary offense may be prosecuted before
17 any district justice in the county where the offense occurred.
18 There is no accelerated rehabilitative disposition authorized
19 for a summary offense.
20 (b) (1) Any person who wilfully or negligently violates any
21 provision of this act, any rule or regulation adopted under this
22 act or any order of the department or any condition or term of
23 any plan approval or permit issued pursuant to this act commits
24 a misdemeanor of the second degree and shall, upon conviction,
25 be sentenced to pay a fine of not less than one thousand dollars
26 ($1,000.00) nor more than fifty thousand dollars ($50,000.00)
27 for each separate offense or to imprisonment for a period of not
28 more than two (2) years for each separate offense, or both.
29 (2) Any person who knowingly makes any false statement or
30 representation in any application, record, report, certification
19920S1650B2355 - 64 -
1 or other document required to be either filed or maintained by
2 this act or the regulations promulgated under this act or
3 commits a misdemeanor of the second degree and shall, upon
4 conviction, be sentenced to pay a fine of not less than two
5 thousand five hundred dollars ($2,500.00) nor more than fifty
6 thousand dollars ($50,000.00) for each separate offense or to
7 imprisonment for a period of not more than two (2) years for
8 each separate offense, or both.
9 (3) Any person who negligently releases into the ambient air
10 any hazardous air pollutant listed under section 112 of the
11 Clean Air Act or any extremely hazardous substance listed under
12 section 302(a)(2) of the Superfund Amendments and
13 Reauthorization Act of 1986 (Public Law 99-499, 100 Stat. 1613)
14 that is not listed in section 112 of the Clean Air Act and who
15 at the time negligently places another person in imminent danger
16 of death or serious bodily injury commits a misdemeanor of the
17 third degree and shall, upon conviction, be sentenced to pay a
18 fine of not less than five thousand dollars ($5,000.00) nor more
19 than fifty thousand dollars ($50,000.00) for each separate
20 offense or to imprisonment for a period of not more than one (1)
21 year for each separate offense, or both.
22 (c) (1) Any person who knowingly releases into the ambient
23 air any hazardous air pollutant listed under section 112 of the
24 Clean Air Act or any extremely hazardous substance listed under
25 section 302(a)(2) of the Superfund Amendments and
26 Reauthorization Act of 1986 that is not listed in section 112 of
27 the Clean Air Act and who knows at the time that he thereby
28 places another person in imminent danger of death or serious
29 bodily injury commits a felony of the first degree and shall,
30 upon conviction, be sentenced to pay a fine of not less than
19920S1650B2355 - 65 -
1 twenty-five thousand dollars ($25,000.00) nor more than one
2 hundred thousand dollars ($100,000.00) per day for each
3 violation or to imprisonment for a period of not less than two
4 (2) years nor more than twenty (20) years, or both. Any person
5 which is an organization committing such violation shall, upon
6 conviction under this clause, be subject to a fine of not more
7 than one million dollars ($1,000,000.00) per day for each
8 violation. If a conviction of any person under this clause is
9 for a violation committed after a first conviction of such
10 person under this clause, the maximum punishment shall be
11 doubled with respect to both the fine and imprisonment. For any
12 air pollutant for which the board has set an emissions standard
13 or for any source for which a permit has been issued by the
14 department, a release of such pollutant in accordance with that
15 standard or permit shall not constitute a violation of this
16 section.
17 (2) In determining whether a defendant who is an individual
18 knew that the violation placed another person in imminent danger
19 of death or serious bodily injury:
20 (i) the defendant is responsible only for actual awareness
21 or actual belief possessed; and
22 (ii) knowledge possessed by a person other than the
23 defendant, but not by the defendant, may not be attributed to
24 the defendant; except that, in proving a defendant's possession
25 of actual knowledge, circumstantial evidence may be used,
26 including evidence that the defendant took affirmative steps to
27 be shielded from relevant information.
28 (3) It is an affirmative defense to a prosecution under this
29 subsection that the conduct charged was freely consented to by
30 the person endangered and that the danger and conduct charged
19920S1650B2355 - 66 -
1 were reasonably foreseeable hazards of either of the following:
2 (i) An occupation, a business or a profession, and the
3 person had been made aware of the risks involved prior to giving
4 consent.
5 (ii) Medical treatment or medical or scientific
6 experimentation conducted by professionally approved methods,
7 and such other person had been made aware of the risks involved
8 prior to giving consent. The defendant may establish an
9 affirmative defense under this subclause by a preponderance of
10 the evidence.
11 (4) All general defenses, affirmative defenses and bars to
12 prosecution that may apply with respect to other State criminal
13 offenses may apply under this clause and shall be determined by
14 the courts according to the principles of common law. Concepts
15 of justification and excuse applicable under this section may be
16 developed according to those principles.
17 (5) For purposes of this subsection, the term "organization"
18 means a legal entity, other than a government, established or
19 organized for any purpose, and the term includes a corporation,
20 a company, an association, a firm, a partnership, a joint stock
21 company, a foundation, an institution, a trust, a society, a
22 union or any other association of persons.
23 (d) For purposes of subsections (b) and (c) of this section,
24 the term "serious bodily injury" means bodily injury which
25 involves a substantial risk of death, unconsciousness, extreme
26 physical pain, protracted and obvious disfigurement or
27 protracted loss or impairment of the function of a bodily
28 member, organ or mental faculty.
29 (e) For purposes of this section, the term "person"
30 includes, in addition to the entities referred to in section 3,
19920S1650B2355 - 67 -
1 any responsible corporate officer.
2 (f) For purposes of the provisions of subsections (b) and
3 (c) of this section and section 9.1, the term "operator," as
4 used in such provisions, shall include any person who is senior
5 management personnel or a corporate officer. Except in the case
6 of knowing and wilful violations, such term shall not include
7 any person who is a stationary engineer or technician
8 responsible for the operation, maintenance, repair or monitoring
9 of equipment and facilities and who often has supervisory and
10 training duties, but who is not senior management personnel or a
11 corporate officer. Except in the case of knowing and wilful
12 violations, for purposes of clause (3) of subsection (b) of this
13 section, the term "a person" shall not include an employe who is
14 carrying out his normal activities and who is not a part of
15 senior management personnel or a corporate officer. Except in
16 the case of knowing and wilful violations, for the purposes of
17 clauses (1) and (2) of subsection (b) and subsection (c) of this
18 section, the term "a person" shall not include an employe who is
19 carrying out his normal activities and who is acting under
20 orders from the employer.
21 (g) For purposes of this section, a person acts negligently
22 with respect to a material element of an offense when he should
23 be aware of a substantial and unjustifiable risk that the
24 material element exists or will result from his conduct. The
25 risk must be of such a nature and degree that the actor's
26 failure to perceive it, considering the nature and intent of his
27 conduct and the circumstances known to him, involves a gross
28 deviation from the standard of care that a reasonable person
29 would observe in the actor's situation.
30 Section 9.1. Civil Penalties.--(a) In addition to
19920S1650B2355 - 68 -
1 proceeding under any other remedy available at law or in equity
2 for a violation of a provision of this act or any rule or
3 regulation promulgated under this act or any order, plan
4 approval or permit issued pursuant to this act, the department
5 may assess a civil penalty for the violation. The penalty may be
6 assessed whether or not the violation was wilful. The civil
7 penalty so assessed shall not exceed ten thousand dollars
8 ($10,000.00) per day for each violation which occurs in the
9 first three (3) years following enactment of this section;
10 fifteen thousand dollars ($15,000.00) per day for each violation
11 which occurs in the fourth year following enactment of this
12 section; and twenty-five thousand dollars ($25,000.00) per day
13 for each violation which occurs in the fifth year and all
14 subsequent years following enactment of this section. In
15 determining the amount of the penalty, the department shall
16 consider the wilfulness of the violation; damage to air, soil,
17 water or other natural resources of the Commonwealth or their
18 uses; financial benefit to the person in consequence of the
19 violation; deterrence of future violations; cost to the
20 department; the size of the source or facility; the compliance
21 history of the source; the severity and duration of the
22 violation; degree of cooperation in resolving the violation; the
23 speed with which compliance is ultimately achieved; whether the
24 violation was voluntarily reported; other factors unique to the
25 owners or operator of the source or facility; and other relevant
26 factors.
27 (b) When the department proposes to assess a civil penalty,
28 it shall inform the person of the proposed amount of the
29 penalty. The person charged with the penalty shall then have
30 thirty (30) days to pay the proposed penalty in full, or if the
19920S1650B2355 - 69 -
1 person wishes to contest the amount of the penalty or the fact
2 of the violation to the extent not already established, the
3 person shall forward the proposed amount of the penalty to the
4 hearing board within the thirty (30) day period for placement in
5 an escrow account with the State treasurer or any Commonwealth
6 bank or post an appeal bond to the hearing board within thirty
7 (30) days in the amount of the proposed penalty, provided that
8 such bond is executed by a surety licensed to do business in the
9 Commonwealth and is satisfactory to the department. If, through
10 administrative or final judicial review of the proposed penalty,
11 it is determined that no violation occurred or that the amount
12 of the penalty shall be reduced, the hearing board shall, within
13 thirty (30) days, remit the appropriate amount to the person
14 with any interest accumulated by the escrow deposit. Failure to
15 forward the money or the appeal bond at the time of the appeal
16 shall result in a waiver of all legal rights to contest the
17 violation or the amount of the civil penalty unless the
18 appellant alleges financial inability to prepay the penalty or
19 to post the appeal bond. The hearing board shall conduct a
20 hearing to consider the appellant's alleged inability to pay
21 within thirty (30) days of the date of the appeal. The hearing
22 board may waive the requirement to prepay the civil penalty or
23 to post an appeal bond if the appellant demonstrates and the
24 hearing board finds that the appellant is financially unable to
25 pay. The hearing board shall issue an order within thirty (30)
26 days of the date of the hearing to consider the appellant's
27 alleged inability to pay. The amount assessed after
28 administrative hearing or after waiver of administrative hearing
29 shall be payable to the Commonwealth and shall be collectible in
30 any manner provided by law for the collection of debts,
19920S1650B2355 - 70 -
1 including the collection of interest at the rate established in
2 subsection (c) of section 6.3, which shall run from the date of
3 assessment of the penalty. If any person liable to pay any such
4 penalty neglects or refuses to pay the same after demand, the
5 amount, together with interest and any costs that may accrue,
6 shall constitute a debt of such person, as may be appropriate,
7 to the Clean Air Fund. The debt shall constitute a lien on all
8 property owned by said person when a notice of lien
9 incorporating a description of the property of the person
10 subject to the action is duly filed with the prothonotary of the
11 court of common pleas where the property is located. The
12 prothonotary shall promptly enter upon the civil judgment or
13 order docket, at no cost to the department, the name and address
14 of the person, as may be appropriate, and the amount of the lien
15 as set forth in the notice of lien. Upon entry by the
16 prothonotary, the lien shall attach to the revenues and all real
17 and personal property of the person, whether or not the person
18 is solvent. The notice of lien, filed pursuant to this
19 subsection, which affects the property of the person shall
20 create a lien with priority over all subsequent claims or liens
21 which are filed against the person, but it shall not affect any
22 valid lien, right or interest in the property filed in
23 accordance with established procedure prior to the filing of a
24 notice of lien under this subsection.
25 Section 9.2. Disposition of Fees, Fines and Civil
26 Penalties.--(a) All fines, civil penalties and fees collected
27 under this act shall be paid into the Treasury of the
28 Commonwealth in a special fund known as the ["]Clean Air
29 Fund,["] hereby established, which, along with interest earned,
30 shall be administered by the department for use in the
19920S1650B2355 - 71 -
1 elimination of air pollution. The department may establish such
2 separate accounts as may be necessary or appropriate to
3 implement the requirements of this act and the Clean Air Act.
4 The board shall adopt rules and regulations for the management
5 and use of the money in the fund.
6 (b) The Clean Air Fund may be supplemented by appropriations
7 from the General Assembly, the Federal, State or local
8 government or any private source.
9 (c) The Clean Air Fund shall not be subject to 42 Pa.C.S.
10 Ch. 37 Subch. C (relating to judicial computer system).
11 Section 11. The act is amended by adding a section to read:
12 Section 9.3. Continuing Violations.--Each day of continued
13 violation and each violation of any provision of this act, any
14 rule or regulation adopted under this act or any order of the
15 department or any condition or term of any plan approval or
16 permit issued pursuant to this act shall constitute a separate
17 offense and violation.
18 Section 12. Section 10 of the act is repealed.
19 Section 13. The act is amended by adding sections to read:
20 Section 10.1. Enforcement Orders.--(a) The department may
21 issue such orders as are necessary to aid in the enforcement of
22 the provisions of this act. These orders shall include, but
23 shall not be limited to, orders modifying, suspending,
24 terminating or revoking any plan approvals or permits, orders
25 requiring persons to cease unlawful activities or cease
26 operation of a facility or air contamination source which, in
27 the course of its operation, is in violation of any provision of
28 this act, any rule or regulation promulgated under this act or
29 plan approval or permit, order to take corrective action or to
30 abate a public nuisance, or an order requiring the testing,
19920S1650B2355 - 72 -
1 sampling or monitoring of any air contamination source or orders
2 requiring production of information. Such an order may be issued
3 if the department finds that any condition existing in or on the
4 facility or source involved is causing or contributing to or is
5 creating a danger of air pollution or if it finds that the
6 permittee or any person is in violation of any provision of this
7 act or of any rule, regulation or order of the department.
8 (b) The department may, in its order, require compliance
9 with such conditions as are necessary to prevent or abate air
10 pollution or effect the purposes of this act.
11 (c) An order issued under this section shall take effect
12 upon notice, unless the order specifies otherwise. An appeal to
13 the hearing board of the department's order shall not act as a
14 supersedeas: Provided, however, That, upon application and for
15 cause shown, the hearing board may issue such a supersedeas
16 under rules established by the hearing board.
17 (d) The authority of the department to issue an order under
18 this section is in addition to any remedy or penalty which may
19 be imposed pursuant to this act. The failure to comply with any
20 such order is hereby declared to be a public nuisance.
21 Section 10.2. Appealable Actions.--Any person aggrieved by
22 an order or other administrative action of the department issued
23 pursuant to this act or any person who participated in the
24 public comment process for a plan approval or permit shall have
25 the right, within thirty (30) days from actual or constructive
26 notice of the action, to appeal the action to the hearing board
27 in accordance with the act of July 13, 1988 (P.L.530, No.94),
28 known as the Environmental Hearing Board Act, and 2 Pa.C.S. Ch.
29 5 Subch. A (relating to practice and procedure of Commonwealth
30 agencies).
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1 Section 10.3. Limitation on Action.--The provisions of any
2 other statute to the contrary notwithstanding, actions for civil
3 or criminal penalties under this act may be commenced at any
4 time within a period of seven (7) years from the date the
5 offense is discovered.
6 Section 14. Sections 11, 12, 12.1, 13, 13.1 and 13.2 of the
7 act, amended or added October 26, 1972 (P.L.989, No.245), are
8 amended to read:
9 Section 11. Powers Reserved to the Department Under Existing
10 Laws.--Nothing in this act shall limit in any way whatever the
11 powers conferred upon the department under laws other than this
12 act, it being expressly provided that all such powers are
13 preserved to the department and may be freely exercised by it.
14 [The department shall have the right upon approval of the
15 Attorney General, to petition a court of competent jurisdiction
16 to order the abatement of any nuisance or condition detrimental
17 to health. For that purpose no] No court exercising general
18 equitable jurisdiction shall be deprived of such jurisdiction
19 even though [such] a nuisance or condition detrimental to health
20 is subject to regulation or other action by the board under this
21 act. THE DEPARTMENT SHALL NOT HAVE THE POWER TO RESTRICT OR DENY <--
22 ANY PERMIT APPLICATION OR OTHERWISE LAWFUL ACTIVITY REGARDING
23 THE ACT OF JUNE 22, 1937 (P.L.1987, NO.394), KNOWN AS "THE CLEAN
24 STREAMS LAW," OR THE ACT OF JANUARY 24, 1966 (1965 P.L.1535,
25 NO.537), KNOWN AS THE "PENNSYLVANIA SEWAGE FACILITIES ACT,"
26 BASED UPON THE POWERS GRANTED TO THE DEPARTMENT UNDER THIS ACT.
27 Section 12. Powers Reserved to Political Subdivisions.--(a)
28 Nothing in this act shall prevent counties, cities, towns,
29 townships or boroughs from enacting ordinances with respect to
30 air pollution which will not be less stringent than the
19920S1650B2355 - 74 -
1 provisions of this act, the Clean Air Act or the rules and
2 regulations promulgated [pursuant to its provisions.] under
3 either this act or the Clean Air Act. This act shall not be
4 construed to repeal existing ordinances, resolutions or
5 regulations of the aforementioned political subdivisions
6 existing at the time of the effective date of this act, except
7 as they may be less stringent than the provisions of this
8 act[.], the Clean Air Act or the rules or regulations adopted
9 under either this act or the Clean Air Act.
10 (b) The administrative procedures for the abatement,
11 reduction, prevention and control of air pollution set forth in
12 this act shall not apply to any [political subdivision of the
13 Commonwealth which has an approved air pollution control
14 agency.] county of the first or second class of the Commonwealth
15 which has and implements an air pollution control program that,
16 at a minimum, meets the requirements of this act, the Clean Air
17 Act and the rules and regulations promulgated under both this
18 act and the Clean Air Act and has been approved by the
19 department.
20 (c) (1) Whenever, either upon complaint made to or
21 initiated by the department, the department finds that any
22 person is in violation of air pollution control standards, or
23 rules and regulations promulgated pursuant to the grant of
24 authority made in subsection (b), the department shall give
25 notification of that fact to that person and to the air
26 pollution control agency of the [political subdivision] county
27 involved.
28 (2) If such violation continues to exist after said
29 notification has been given, the department may take any
30 abatement action provided for under the terms of this act.
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1 (d) Whenever the department finds that violations of [the
2 air pollution control standards, or rules and regulations
3 promulgated pursuant to the grant of authority under subsection
4 (b)] this act or the rules and regulations promulgated under
5 this act are so widespread that such violations appear to result
6 from a failure of the local county control agency involved to
7 enforce those [standards, or rules and regulations,]
8 requirements, the department may assume the authority to enforce
9 [those standards, and rules and regulations.] this act in that
10 county.
11 (e) The department shall have the power to refuse approval,
12 or to suspend or rescind approval, once given, to any county air
13 pollution control agency if the department finds that such
14 county agency is unable or unwilling [so] to conduct an air
15 pollution control program [as] to abate or reduce air pollution
16 problems within its jurisdiction in [an effective manner.]
17 accordance with the requirements of this act, the Clean Air Act
18 or the rules and regulations promulgated under both this act and
19 the Clean Air Act.
20 (f) Whenever the department takes action under the
21 provisions of subsections (d) or (e) of this section, it shall
22 give written notification to the air pollution control agency of
23 the [political subdivision] county involved and such
24 notification shall be [subject to the appeal provisions of
25 clause (4.1) of section 4 of this act.] an appealable action.
26 (g) Irrespective of subsection (b) above, and in order that
27 the civil and criminal penalties and equitable remedies for air
28 pollution violations shall be uniform [except insofar as they
29 are inconsistent with the jurisdictional limitations of the
30 minor judiciary and the Philadelphia Municipal Court,]
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1 throughout the Commonwealth, the penalties and remedies set
2 forth in this act [in sections 9, 9.1, 10 and 11,] shall be the
3 penalties and remedies available for enforcement of any
4 municipal air pollution ordinances or regulations, and shall be
5 available to any municipality, public official, or other person
6 having standing to initiate proceedings for the enforcement of
7 such municipal ordinances or regulations, and the amounts of the
8 fines or civil penalties set forth herein shall be the amounts
9 of the fines or civil penalties assessable and to be levied for
10 violations of any municipal ordinances or regulations. It is
11 hereby declared to be the purpose of this section to enunciate
12 further that the purpose of this act is to provide additional
13 and cumulative remedies to abate the pollution of the air of
14 this Commonwealth. Any action for the assessment of civil
15 penalties brought for the enforcement of a municipal air
16 pollution ordinance or regulation shall be brought in accordance
17 with the procedures set forth in such ordinance. Where any
18 municipal ordinance or regulation does not provide a procedure
19 for the assessment of civil penalties, the provisions [of
20 subsection (h) of this section] related to assessment and
21 collection of civil penalties of section 9.1 shall apply.
22 [(h) Any person, as herein defined, except a department,
23 board, bureau, or agency of the Commonwealth, engaging in
24 conduct in violation of a municipal air pollution control
25 ordinance, shall, for each offense, upon conviction thereof in a
26 civil proceeding before a judge of the Municipal Court of
27 Philadelphia, district justice, magistrate, alderman or justice
28 of the peace be sentenced to pay the cost of prosecution and a
29 civil penalty of not less than twenty-five dollars ($25.00), nor
30 more than five hundred dollars ($500.00), for each day of
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1 continued violation. Such a penalty may be assessed whether or
2 not the violation was wilful. Failure to pay any such penalty
3 within the time prescribed by law shall be punishable as a civil
4 contempt. Notwithstanding anything contained in section 9.2 of
5 this act, all civil penalties and fees collected under this
6 subsection shall be paid to the appropriate political
7 subdivision, as provided by law, and shall be collectible in any
8 manner provided by law for the collection of debt. If any person
9 liable to pay any such penalty neglects or refuses to pay the
10 same after demand, the amount, together with interest and any
11 costs that may accrue, shall be a lien in favor of the
12 appropriate political subdivision upon the property, both real
13 and personal, of such person, but only after the same has been
14 entered and docketed of record by the prothonotary of the county
15 where such is situated: Provided, That nothing contained in this
16 subsection shall preclude any public official from seeking, at
17 law or at equity or before any appropriate administrative body,
18 the assessment of civil penalties in the amount provided by
19 section 9.1 of this act.]
20 Section 12.1. Construction.--Nothing in this act shall be
21 construed as estopping the Commonwealth, or any district
22 attorney or solicitor of a municipality, from proceeding in
23 courts of law or equity to abate pollutions forbidden under this
24 act, or abate nuisances under existing law. It is hereby
25 declared to be the purpose of this act to provide additional and
26 cumulative remedies to abate the pollution of the air of this
27 Commonwealth, and nothing contained in this act shall in any way
28 abridge or alter rights of action or remedies now or hereafter
29 existing in equity, or under the common law or statutory law,
30 criminal or civil, nor shall any provision of this act, or the
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1 granting of any plan approval or permit under this act, or any
2 act done by virtue of this act, be construed as estopping the
3 Commonwealth, persons or municipalities, in the exercise of
4 their rights under the common law or decisional law or in
5 equity, from proceeding in courts of law or equity to suppress
6 nuisances, or to abate any pollution now or hereafter existing,
7 or enforce common law or statutory rights. No courts of this
8 Commonwealth having jurisdiction to abate public or private
9 nuisance shall be deprived of such jurisdiction to abate any
10 private or public nuisance instituted by any person for the
11 reason that such nuisance constitutes air pollution.
12 [Section 13. Public Nuisances.--A violation of any order or
13 of any provision of any rule or regulation promulgated pursuant
14 to a local air pollution code or to a State air pollution act,
15 which limits or controls the emission of any air contaminant
16 shall constitute a public nuisance and shall be abatable in the
17 manner provided by law.]
18 Section 13. Public Nuisances.--A violation of this act or of
19 any rule or regulation promulgated under this act or any order,
20 plan approval or permit issued by the department under this act
21 shall constitute a public nuisance. The department shall have
22 the authority to order any person causing a public nuisance to
23 abate the public nuisance. In addition, the department or any
24 Commonwealth agency which undertakes to abate a public nuisance
25 may recover the expenses of abatement following the process for
26 assessment and collection of a civil penalty contained in
27 section 9.1. Whenever the nuisance is maintained or continued
28 contrary to this act or any rule or regulation promulgated under
29 this act or any order, plan approval or permit, the nuisance may
30 be abatable in the manner provided by this act. Any person who
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1 causes the public nuisance shall be liable for the cost of
2 abatement.
3 Section 13.1. Search Warrants.--Whenever an agent or employe
4 of the department, charged with the enforcement of the
5 provisions of this act, has been refused access to property, or
6 has been refused the right to examine any air contamination
7 source, or air pollution control equipment or device, or is
8 refused access to or examination of books, papers and records
9 pertinent to any matter under investigation, such agent or
10 employe may apply for a search warrant to any Commonwealth
11 official authorized by the laws of the Commonwealth to issue the
12 same to enable him to have access [and], examine and seize such
13 property, air contamination source, air pollution control
14 equipment or device, or books, papers and records, as the case
15 may be. It shall be sufficient probable cause to issue a search
16 warrant that the inspection is necessary to properly enforce the
17 provisions of this act.
18 Section 13.2. Confidential Information.--All records,
19 reports or information obtained by the department or referred to
20 at public hearings under the provisions of this act shall be
21 available to the public, except that upon cause shown by any
22 person that the records, reports or information, or a particular
23 portion thereof, but not emission data, to which the department
24 has access under the provisions of this act, if made public,
25 would divulge production or sales figures or methods, processes
26 or production unique to such person or would otherwise tend to
27 affect adversely the competitive position of such person by
28 revealing trade secrets, including intellectual property rights,
29 the department shall consider such record, report or
30 information, or particular portion thereof confidential in the
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1 administration of this act. The department shall implement this
2 section consistent with sections 112(d) and 114(c) of the Clean
3 Air Act. Nothing herein shall be construed to prevent disclosure
4 of such report, record or information to Federal, State or local
5 representatives as necessary for purposes of administration of
6 any Federal, State or local air pollution control laws, or when
7 relevant in any proceeding under this act.
8 Section 15. Sections 13.3, 13.4 and 13.5 of the act are
9 repealed.
10 Section 16. The act is amended by adding sections to read:
11 Section 13.6. Suits to Abate Nuisances and Restrain
12 Violations.--(a) Any activity or condition declared by this act
13 to be a nuisance or which is otherwise in violation of this act
14 shall be abatable in the manner provided by law or equity for
15 the abatement of public nuisance. In addition, in order to
16 restrain or prevent any violation of this act or the rules and
17 regulations promulgated under this act or any plan approval or
18 permit or orders issued by the department, or to restrain the
19 maintenance and threat of public nuisance, suits may be
20 instituted in equity or at law in the name of the Commonwealth
21 upon relation of the Attorney General, the General Counsel, the
22 district attorney of any county or the solicitor of any
23 municipality affected, after notice has first been served upon
24 the Attorney General of the intention of the General Counsel,
25 district attorney or solicitor to so proceed. Such proceedings
26 may be prosecuted in the Commonwealth Court or in the court of
27 common pleas of the county where the activity has taken place,
28 the condition exists or the public is affected, and, to that
29 end, jurisdiction is hereby conferred in law and equity upon
30 such courts. Except in cases of emergency where, in the opinion
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1 of the court, the exigencies of the case require immediate
2 abatement of the nuisance, the court may, in its decree, fix a
3 reasonable time during which the person responsible for the
4 nuisance may make provision for the abatement of the same.
5 (b) In cases where the circumstances require it or the
6 public health is endangered, a mandatory preliminary injunction,
7 special injunction or temporary restraining order may be issued
8 upon the terms prescribed by the court, notice of the
9 application therefor having been given to the defendant in
10 accordance with the rules of equity practice, and in any such
11 case the Attorney General, the General Counsel, the district
12 attorney or the solicitor of any municipality shall not be
13 required to give bond. In any such proceeding the court shall,
14 upon motion of the Commonwealth, issue a prohibitory or
15 mandatory preliminary injunction if it finds that the defendant
16 is engaging in unlawful conduct as defined by this act or is
17 engaged in conduct which is causing immediate and irreparable
18 harm to the public. In addition to an injunction, the court in
19 such equity proceedings may levy civil penalties in the same
20 manner as the department in accordance with section 9.1.
21 (c) Except as provided in subsection (d) of this section,
22 any person may commence a civil action to compel compliance with
23 this act or any rule, regulation, order or plan approval or
24 permit issued pursuant to this act by any owner or operator
25 alleged to be causing or contributing to a violation of any
26 provision of this act or any rule or regulation promulgated
27 under this act or any plan approval, permit or order issued by
28 the department. In addition to seeking to compel compliance, any
29 person may request the court to award civil penalties. The court
30 shall use the factors and amounts contained in section 9.1 in
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1 awarding civil penalties under this subsection. Such penalties
2 shall be paid into the Clean Air Fund established by section 9.2
3 or be used to prevent air pollution in the county where the
4 violation occurred. Except where 42 Pa.C.S. (relating to
5 judiciary and judicial procedure) requires otherwise, the courts
6 of common pleas shall have jurisdiction of such actions. Such an
7 action may not be commenced if the department has commenced and
8 is diligently prosecuting a civil action in a Federal or State
9 court or is in litigation before the hearing board to require
10 the alleged violator to comply with this act, any rule or
11 regulation promulgated under this act or any order, plan
12 approval or permit issued pursuant to this act, but, in any such
13 action in a Federal or State court or before the hearing board,
14 any person having or representing an interest which is or may be
15 adversely affected may intervene as a matter of right without
16 posting bond.
17 (d) An action pursuant to subsection (c) of this section may
18 not be commenced prior to sixty (60) days after the plaintiff
19 has given notice, in writing, of the violation to the department
20 and to any alleged violator.
21 (e) The sixty (60) day notice provisions of subsection (d)
22 of this section to the contrary notwithstanding, any action
23 pursuant to subsection (c) of this section may be initiated
24 immediately upon written notification to the department in the
25 case where the violation or condition complained of constitutes
26 an imminent threat to the health or safety of the plaintiff or
27 would immediately affect a legal interest of the plaintiff.
28 (f) The court, in issuing any final order in any action
29 brought pursuant to subsection (c) of this section, may award
30 costs of litigation, including attorney and expert witness fees,
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1 to any party whenever the court determines such an award is
2 appropriate. Except as provided in subsection (b) of this
3 section, the court may, if a temporary restraining order or
4 preliminary injunction is sought, require the filing of a bond
5 or equivalent security in accordance with the Pennsylvania Rules
6 of Civil Procedure.
7 Section 17. This act shall take effect as follows:
8 (1) Section 4.2 of the act shall take effect in 60 days.
9 (2) The remainder of this act shall take effect
10 immediately.
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