HOUSE AMENDED
PRIOR PRINTER'S NOS. 2047, 2060, 2352, PRINTER'S NO. 2435
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, HOUSE OF REPRESENTATIVES,
JUNE 29, 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
1 procedures; providing for compliance; establishing the
2 Compliance Advisory Panel and providing for its powers and
3 duties; further providing for enforcement, for criminal and
4 civil penalties and for the abatement and restraint of
5 violations; and making editorial changes.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Section 2 of the act of January 8, 1960 (1959
9 P.L.2119, No.787), known as the Air Pollution Control Act,
10 amended June 12, 1968 (P.L.163, No.92), is amended to read:
11 Section 2. Declaration of Policy.--(a) It is hereby
12 declared to be the policy of the Commonwealth of Pennsylvania to
13 protect the air resources of the Commonwealth to the degree
14 necessary for the (i) protection of public health, safety and
15 well-being of its citizens; (ii) prevention of injury to plant
16 and animal life and to property; (iii) protection of the comfort
17 and convenience of the public and the protection of the
18 recreational resources of the Commonwealth; [and] (iv)
19 development, attraction and expansion of industry, commerce and
20 agriculture[.]; and (v) implementation of the provisions of the
21 Clean Air Act in the Commonwealth.
22 (b) It is further declared that:
23 (1) Interstate pollution transport commissions established
24 under the Clean Air Act should develop pollution control
25 strategies via a process which involves public review and
26 opportunity for comment.
27 (2) The public should be involved in developing and
28 committing the Commonwealth to the adoption of particular
29 pollution control strategies through review of State
30 implementation plans required to be submitted by the Clean Air
31 Act.
32 (3) The department should have adequate staff and technical
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1 resources needed to comply with the Clean Air Act. The
2 department shall be required to explore the role private
3 industry can play in developing and implementing the clean air
4 programs as a mechanism to insure the Commonwealth meets Clean
5 Air Act deadlines.
6 (4) States should not be penalized for missing Clean Air Act
7 deadlines when the delay is the result of the Federal government
8 not finalizing guidance to states on implementing the act. The
9 Commonwealth and other states must be given a reasonable
10 opportunity to meet Clean Air Act deadlines.
11 Section 2. Section 3 of the act, amended October 26, 1972
12 (P.L.989, No.245), is amended to read:
13 Section 3. Definitions.--The following words and phrases,
14 when used in this act, unless the context clearly indicates
15 otherwise, shall have the meaning ascribed to them in this
16 section:
17 [(1) "Department." Department of Environmental Resources of
18 the Commonwealth of Pennsylvania.
19 (2) "Board." The Environmental Quality Board established in
20 the department by the act of December 3, 1970 (P.L.834).
21 (2.1) "Hearing board." The Environmental Hearing Board
22 established in the department by the act of December 3, 1970
23 (P.L.834).
24 (3) "Person." Any individual, public or private corporation
25 for profit or not for profit, association, partnership, firm,
26 trust, estate, department, board, bureau or agency of the
27 Commonwealth, political subdivision, municipality, district,
28 authority or any other legal entity whatsoever which is
29 recognized by law as the subject of rights and duties.
30 (4) "Air contaminant." Smoke, dust, fume, gas, odor, mist,
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1 vapor, pollen or any combination thereof.
2 (5) "Air pollution." The presence in the outdoor atmosphere
3 of any form of contaminant including but not limited to the
4 discharging from stacks, chimneys, openings, buildings,
5 structures, open fires, vehicles, processes, or any other source
6 of any smoke, soot, fly ash, dust, cinders, dirt, noxious or
7 obnoxious acids, fumes, oxides, gases, vapors, odors, toxic or
8 radioactive substances, waste, or any other matter in such
9 place, manner, or concentration inimical or which may be
10 inimical to the public health, safety, or welfare or which is,
11 or may be injurious to human, plant or animal life, or to
12 property, or which unreasonably interferes with the comfortable
13 enjoyment of life or property.
14 (6) "Air contamination." The presence in the outdoor
15 atmosphere of an air contaminant which contributes to any
16 condition of air pollution.
17 (7) "Air contamination source." Any place, facility or
18 equipment, stationary or mobile, at, from or by reason of which
19 there is emitted into the outdoor atmosphere any air
20 contaminant.
21 (8) "Stationary air contamination source." Any air
22 contamination source other than that which, when operated, moves
23 in a given direction under its own power.
24 (9) "Region." Any geographical subdivision of the
25 Commonwealth whose boundaries shall be determined by the board.
26 (10) "Approved air pollution control agency." An air
27 pollution control agency of any political subdivision of the
28 Commonwealth which has been granted approval by the board.]
29 "Administrator." The Administrator of the United States
30 Environmental Protection Agency.
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1 "Air contaminant." Smoke, dust, fume, gas, odor, mist,
2 radioactive substance, vapor, pollen or any combination thereof.
3 "Air contamination." The presence in the outdoor atmosphere
4 of an air contaminant which contributes to any condition of air
5 pollution.
6 "Air contamination source." Any place, facility or
7 equipment, stationary or mobile, at, from or by reason of which
8 there is emitted into the outdoor atmosphere any air
9 contaminant.
10 "Air pollution." The presence in the outdoor atmosphere of
11 any form of contaminant including but not limited to the
12 discharging from stacks, chimneys, openings, buildings,
13 structures, open fires, vehicles, processes, or any other source
14 of any smoke, soot, fly ash, dust, cinders, dirt, noxious or
15 obnoxious acids, fumes, oxides, gases, vapors, odors, toxic,
16 hazardous or radioactive substances, waste, or any other matter
17 in such place, manner, or concentration inimical or which may be
18 inimical to the public health, safety, or welfare or which is,
19 or may be injurious to human, plant or animal life, or to
20 property, or which unreasonably interferes with the comfortable
21 enjoyment of life or property.
22 "Approved air pollution control agency." An air pollution
23 control agency of any political subdivision of the Commonwealth
24 which has been granted approval by the Environmental Quality
25 Board.
26 "Board" or "EQB." The Environmental Quality Board.
27 "Clean Air Act." Public Law 95-95 as amended, 42 U.S.C. §
28 7401 et seq.
29 "Department." The Department of Environmental Resources of
30 the Commonwealth.
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1 "Environmental Protection Agency" or "EPA." The United
2 States Environmental Protection Agency or the Administrator of
3 the United States Environmental Protection Agency.
4 "Gasoline dispensing facility." A facility from which
5 gasoline is transferred to motor vehicle fuel tanks.
6 "Hearing board." The Environmental Hearing Board.
7 "Person." Any individual, public or private corporation for
8 profit or not for profit, association, partnership, firm, trust,
9 estate, department, board, bureau or agency of the Commonwealth
10 or the Federal government, political subdivision, municipality,
11 district, authority or any other legal entity whatsoever which
12 is recognized by law as the subject of rights and duties.
13 "Plan approval." The written approval from the Department of
14 Environmental Resources which authorizes a person to construct,
15 assemble, install or modify any stationary air contamination
16 source or install thereon any air pollution control equipment or
17 device.
18 "Region." Any geographical subdivision of the Commonwealth
19 whose boundaries shall be determined by the Environmental
20 Quality Board.
21 "Small business stationary source." A stationary source
22 that:
23 (1) is owned or operated by a person that employs one
24 hundred (100) or fewer individuals;
25 (2) is a small business as defined in the Small Business Act
26 (Public Law 85-536, 15 U.S.C. § 78a et seq.);
27 (3) is not a major stationary source;
28 (4) does not emit fifty (50) tons per year of any regulated
29 pollutant; and
30 (5) emits less than seventy-five (75) tons per year of all
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1 regulated pollutants.
2 "State implementation plan." The plan or plan revision that
3 a state is authorized and required to submit under section 110
4 of the Clean Air Act (Public Law 95-95 as amended, 42 U.S.C. §
5 7410) to provide for attainment of the national ambient air
6 quality standards.
7 "Stationary air contamination source." Any air contamination
8 source other than that which, when operated, moves in a given
9 direction under its own power.
10 Section 3. Section 4 of the act, amended 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 4. Powers and Duties of the Department of
14 Environmental Resources.--The department shall have power and
15 its duty shall be to--
16 (1) Implement the provisions of the Clean Air Act in the
17 Commonwealth.
18 [(1)] (2) Enter any building, property, premises or place
19 and inspect any air contamination source for the purpose of
20 investigating an actual or a suspected source of air pollution
21 or for the purpose of ascertaining the compliance or non-
22 compliance with [any rule or regulation which may have been
23 adopted and promulgated by the board hereunder.] this act, any
24 rule or regulation promulgated under this act or any plan
25 approval, permit or order of the department. In connection with
26 such inspection or investigation, samples of air, air
27 contaminants, fuel, process material or other matter may be
28 taken for analysis, a duplicate of the analytical report shall
29 be furnished promptly to the person who is suspected of causing
30 such air pollution or air contamination.
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1 [(2)] (3) Have access to, and require the production of,
2 books [and], papers and records, including, but not limited to,
3 computerized information in a format as the department may
4 reasonably prescribe pertinent to any matter under
5 investigation.
6 [(2.1)] (4) Require the owner or operator of any air
7 contamination source to establish and maintain such records and
8 make such reports and furnish such information, including
9 computerized information in a format as the department may
10 reasonably prescribe.
11 [(2.2)] (5) Require the owner or operator of any air
12 contamination source to install, use and maintain such air
13 contaminant monitoring equipment or methods as the department
14 may reasonably prescribe.
15 [(2.3)] (6) Require the owner or operator of any air
16 contamination source to sample the emissions thereof in
17 accordance with such methods and procedures and at such
18 locations and intervals of time as the department may reasonably
19 prescribe and to provide the department with the results
20 thereof.
21 [(3)] (7) Enter upon any property on which an air
22 contamination source may be located and make such tests upon the
23 source as are necessary to determine whether the air
24 contaminants being emitted from such air contamination source
25 are being emitted at a rate in excess of a rate provided for by
26 [board rule or regulation] this act, any rule or regulations
27 promulgated under this act or any plan approval, permit or order
28 of the department or otherwise causing air pollution. Whenever
29 the department determines that a source test is necessary, it
30 shall give reasonable written or oral notice to the person
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1 owning, operating, or otherwise in control of such source, that
2 [it] the department will conduct a test on such source.
3 Thereafter, the person to whom such notice is given shall
4 provide such reasonably safe access to the testing area, and
5 such sampling [holes] ports, facilities, electrical power and
6 water as the department shall specify in its notice.
7 [(4)] (8) Receive, initiate and investigate complaints,
8 institute and conduct surveys and testing programs, conduct
9 general atmospheric sampling programs, make observations of
10 conditions which may or do cause air pollution, make tests or
11 other determinations at air contamination sources, and assess
12 the degree of abatement required.
13 [(4.1)] (9) (i) Issue orders to any person owning or
14 operating an air contamination source, or owning or possessing
15 land on which such source is located, if such source is
16 introducing or is likely to introduce air contaminants into the
17 outdoor atmosphere in excess of any [board rule or regulation,
18 or any permit requirement] rate provided for by this act, any
19 rule or regulation promulgated under this act or any plan
20 approval or permit applicable to such source, or at such a level
21 so as to cause air pollution. Any such order may require the
22 cessation of any operation or activity which is introducing air
23 contaminants into the outdoor atmosphere so as to cause air
24 pollution, the reduction of emissions from such air
25 contamination source, modification or repair of such source or
26 air pollution control device or equipment or certain operating
27 and maintenance procedures with respect to such source or air
28 pollution control device or equipment, institution of a
29 reasonable process change, installation of air pollution control
30 devices or equipment, or any or all of said requirements as the
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1 department deems necessary. Such orders may specify a time for
2 compliance, require submission of a proposed plan for
3 compliance, and require submission of periodic reports
4 concerning compliance. If a time for compliance is given, the
5 department may, in its discretion, require the posting of a bond
6 in the amount of twice the money to be expended in reaching
7 compliance.
8 (ii) All department orders shall be in writing, contain
9 therein a statement of the reasons for their issuance, and be
10 served either personally or by certified mail. Within thirty
11 (30) days after service of any such order the person to whom the
12 order is issued or any other person aggrieved by such order may
13 file with the hearing board an appeal setting forth with
14 particularity the grounds relied upon. An appeal to the hearing
15 board of the department's order shall not act as a supersedeas:
16 Provided, however, That upon application and for cause shown,
17 the hearing board may issue such a supersedeas.
18 [(5)] (10) Institute, in a court of competent jurisdiction
19 proceedings to compel compliance with [any] this act, any rule
20 or regulation promulgated under this act or any plan approval,
21 permit or order of the department [from which there has been no
22 appeal or which has been sustained on appeal].
23 [(6)] (11) Act as the agent for the board in holding public
24 hearings when so directed by the board.
25 [(7)] (12) Institute prosecutions under this act.
26 [(8)] (13) Recommend the minimum job qualifications of
27 personnel employed by county and municipal air pollution control
28 agencies hereafter created.
29 [(9)] (14) Require the submission of, and consider for
30 approval, plans and specifications of air pollution control
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1 equipment, devices or process changes, and inspect such
2 installations or modifications to insure compliance with the
3 plans which have been approved.
4 [(10)] (15) Conduct or cause to be conducted studies and
5 research with respect to air contaminants, their nature, causes
6 and effects, and with respect to the control, prevention,
7 abatement and reduction of air pollution and air contamination.
8 [(10.1)] (16) Evaluate motor vehicle emission control
9 programs, including vehicle emission standards, clean
10 alternative fuels, oxygenated fuels, reformulated fuels, vehicle
11 miles of travel, congestion levels, transportation control
12 measures and other transportation control strategies with
13 respect to their effect upon air pollution and determine the
14 need for modifications of such programs.
15 [(11)] (17) Determine by means of field studies and sampling
16 the degree of air pollution existing in any part of the
17 Commonwealth.
18 [(12)] (18) Prepare and develop a general comprehensive plan
19 for the control and abatement of existing air pollution and air
20 contamination and for the abatement, control and prevention of
21 any new air pollution and air contamination, recognizing varying
22 requirements for the different areas of the Commonwealth, and to
23 submit a comprehensive plan to the board for its consideration
24 and approval.
25 [(13)] (19) Encourage the formulation and execution of plans
26 in conjunction with air pollution control agencies or civil
27 associations of counties, cities, boroughs, towns and townships
28 of the Commonwealth wherein any sources of air pollution or air
29 contamination may be located, and enlist the cooperation of
30 those who may be in control of such sources for the control,
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1 prevention and abatement of such air pollution and air
2 contamination.
3 [(14)] (20) Encourage voluntary efforts and cooperation by
4 all persons concerned in controlling, preventing, abating and
5 reducing air pollution and air contamination.
6 [(15)] (21) Conduct and supervise educational programs with
7 respect to the control, prevention, abatement and reduction of
8 air pollution and air contamination, including the preparation
9 and distribution of information relating to the means of
10 controlling and preventing such air pollution and air
11 contamination.
12 [(16)] (22) Develop and conduct in cooperation with local
13 communities demonstration programs relating to air contaminants,
14 air pollution and air contamination and the control, prevention,
15 abatement and reduction of air pollution and air contamination.
16 [(17)] (23) Provide advisory technical consultative services
17 to local communities for the control, prevention, abatement and
18 reduction of air pollution and air contamination.
19 [(18)] (24) Cooperate with the appropriate agencies of the
20 United States or of other states or any interstate agencies with
21 respect to the control, prevention, abatement and reduction of
22 air pollution, and where appropriate formulate interstate air
23 pollution control compacts or agreements for the submission
24 thereof to the General Assembly.
25 [(19)] (25) Serve as the agency of the Commonwealth for the
26 receipt of moneys from the Federal government or other public or
27 private agencies, and expend such moneys for studies and
28 research with respect to air contaminants, air pollution and the
29 control, prevention, abatement and reduction of air pollution.
30 (26) Develop and submit to the Environmental Protection
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1 Agency a procedure to implement and enforce the regulations
2 which the Environmental Protection Agency adopts under of
3 section 183(e) of the Clean Air Act to reduce emissions from
4 consumer and commercial products, provided the department will
5 receive credits for the reductions attributed to the Federal
6 consumer and commercial products regulations under section 182
7 of the Clean Air Act regulations, and the department has the
8 resources to implement and enforce the program.
9 [(20)] (27) Do any and all other acts and things not
10 inconsistent with any provision of this act, which it may deem
11 necessary or proper for the effective enforcement of this act
12 and the rules or regulations [which have been] promulgated
13 [thereunder] under this act.
14 Section 4. Section 4.1 of the act, added December 2, 1976
15 (P.L.1263, No.279), is amended to read:
16 Section 4.1. Agricultural Regulations Prohibited.--[The]
17 Except as may be required by the Clean Air Act or the
18 regulations promulgated under the Clean Air Act, the
19 Environmental Quality Board shall not have the power nor the
20 authority to adopt rules and regulations relating to air
21 contaminants and air pollution arising from the production of
22 agricultural commodities in their unmanufactured state but this
23 prohibition shall not include the use of materials produced or
24 manufactured off the premises of the farm operation.
25 Section 5. The act is amended by adding sections to read:
26 Section 4.2. Permissible Actions.--(a) In implementing the
27 requirements of section 109 of the Clean Air Act, the board may
28 adopt, by regulation, only those control measures or other
29 requirements which are reasonably required, in accordance with
30 the Clean Air Act deadlines, to achieve and maintain the ambient
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1 air quality standards or to satisfy related Clean Air Act
2 requirements, unless otherwise specifically authorized or
3 required by this act or specifically required by the Clean Air
4 Act.
5 (b) Control measures or other requirements adopted under
6 subsection (a) of this section shall be no more stringent than
7 those required by the Clean Air Act unless authorized or
8 required by this act or specifically required by the Clean Air
9 Act. This requirement shall not apply if the board determines
10 that it is reasonably necessary for a control measure or other
11 requirement to exceed minimum Clean Air Act requirements in
12 order for the Commonwealth:
13 (1) To achieve or maintain ambient air quality standards;
14 (2) To satisfy related Clean Air Act requirements as they
15 specifically relate to the Commonwealth;
16 (3) To prevent an assessment or imposition of Clean Air Act
17 sanctions; or
18 (4) To comply with a final decree of a Federal court.
19 (c) The board may not by regulation adopt an ambient air
20 quality standard for a specific pollutant which is more
21 stringent than the air quality standard which the EPA has
22 adopted for the specific pollutant pursuant to section 109 of
23 the Clean Air Act.
24 (d) In any challenge to the enforcement of regulations
25 adopted to achieve and maintain the ambient air quality
26 standards or to satisfy related Clean Air Act requirements, the
27 person challenging the regulation shall have the burden to
28 demonstrate that the control measure or other requirement or the
29 stringency of the control measure or requirement is not
30 reasonably required to achieve or maintain the standard or to
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1 satisfy related Clean Air Act requirements.
2 (e) No person may file a preenforcement review challenge
3 under this section based in any manner upon the standards set
4 forth in subsection (b) of this section.
5 (f) This section shall not apply to rules and regulations
6 approved as a final rulemaking by the board prior to the
7 effective date of this section or to any ambient air quality
8 standards adopted by the board where no such standard has been
9 adopted by the EPA.
10 (g) This section shall not be construed to weaken or
11 otherwise affect site-specific standards or other requirements
12 for individual sources or facilities in place prior to the
13 effective date of this section.
14 Section 4.3. Evaluation.--Beginning five (5) years after the
15 effective date of this section and every five (5) years
16 thereafter, the department shall conduct and submit to the
17 General Assembly an evaluation of the effectiveness of the
18 programs adopted to implement the Clean Air Act. The evaluation
19 shall include:
20 (1) A determination of whether the limitation imposed in
21 section 4.2 has hindered in any way the Commonwealth's efforts
22 to comply with the Clean Air Act and a recommendation on whether
23 that provision should be changed.
24 (2) The specific steps taken to implement the Clean Air Act
25 and progress made toward meeting the emission reductions
26 required by the act and recommendations on any additional steps
27 which must be taken.
28 (3) An evaluation of the funding available to implement the
29 Clean Air Act programs and whether that funding is sufficient or
30 inadequate and recommendations on where adjustments should be
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1 made.
2 (4) An analysis of the costs imposed on mobile and
3 stationary air contamination sources to implement the
4 requirements of the Clean Air Act, including on individuals and
5 companies. The analysis of costs shall also consider the
6 benefits of compliance with the Clean Air Act requirements and
7 the public health, environmental and economic costs to the
8 Commonwealth for failing to meet the requirements, including the
9 impact of sanctions.
10 (5) An evaluation, in consultation with the Department of
11 Commerce and the Office of Small Business Ombudsman, of the
12 adequacy of measures taken by the Commonwealth to assist small
13 businesses in complying with the Clean Air Act.
14 (6) A summary of the activities undertaken by the Citizens
15 Advisory Council and the air technical advisory committee under
16 section 7.6.
17 (7) An evaluation of the effectiveness of the Northeast
18 Ozone Transport Commission in meeting the mandates of the Clean
19 Air Act and recommendations on any changes that could make the
20 commission more effective.
21 (8) An assessment of the impact of missing Federal deadlines
22 identified under section 7.12 has had or will have on the State
23 implementation of the Clean Air Act programs.
24 Section 4.4. Prohibited Powers of State Entities.--No State <--
25 agency, board or commission shall restrict or deny any permit
26 application or otherwise lawful activity based upon any
27 transportation control measure or strategy.
28 Section 6. Sections 5 and 6 of the act, amended October 26,
29 1972 (P.L.989, No.245), are amended to read:
30 Section 5. Environmental Quality Board.--(a) The board
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1 shall have the power and its duty shall be to--
2 (1) Adopt rules and regulations, for the prevention,
3 control, reduction and abatement of air pollution, applicable
4 throughout the Commonwealth or to such parts or regions or
5 subregions thereof specifically designated in such regulation
6 which shall be applicable to all air contamination sources
7 regardless of whether such source is required to be under permit
8 by this act. Such rules and regulations may establish maximum
9 allowable emission rates of air contaminants from such sources,
10 prohibit or regulate the combustion of certain fuels, prohibit
11 or regulate open burning, prohibit or regulate any process or
12 source or class of processes or sources, require the
13 installation of specified control devices or equipment, or
14 designate the control efficiency of air pollution control
15 devices or equipment required in specific processes or sources
16 or classes of processes or sources. Such rules and regulations
17 shall be adopted pursuant to the provisions of the act of July
18 31, 1968 (P.L.769), known as the "Commonwealth Documents Law,"
19 upon such notice and after such public hearings as the board
20 deems appropriate. In exercising its authority to adopt rules
21 and regulations, the board may, and to the extent deemed
22 desirable by it shall, consult with a council of technical
23 advisers, properly qualified by education or experience in air
24 pollution matters, appointed by the board and to serve at the
25 pleasure of the board, to consist of such number of advisers as
26 the board may appoint, but such technical advisers shall receive
27 no compensation, other than their actual and necessary expenses,
28 for their services to the board.
29 (2) Establish and publish maximum quantities of air
30 contaminants that may be permitted under various conditions at
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1 the point of use from any air contaminant source in various
2 areas of the Commonwealth so as to control air pollution.
3 (3) By [the] rule or regulation, classify air contaminant
4 sources, according to levels and types of emissions and other
5 characteristics which relate to air pollution. Classifications
6 made pursuant to this subsection shall apply to the entire
7 Commonwealth or any part thereof. Any person who owns or
8 operates an air contaminant source of any class to which the
9 rules and regulations of the board under this subsection apply,
10 shall make reports containing information as may be required by
11 the board concerning location, size and height of air
12 contaminant outlets, processes employed, fuels used and the
13 nature and time periods or duration of emissions, and such other
14 information as is relevant to air pollution and available or
15 reasonably capable of being assembled.
16 (4) Recommend to the Secretary of Transportation performance
17 or specification standards, or both, for emission control
18 systems and devices on motor vehicles.
19 (5) Adopt rules and regulations for the protection of public
20 health and safety for periods when the accumulation of air
21 contaminants in any area is attaining or has attained levels
22 which, if sustained or exceeded, could lead to an acute threat
23 to the health of the public. Such rules and regulations shall
24 contain appropriate procedures to protect public health and
25 safety during such periods.
26 (6) Adopt rules and regulations for the approval and the
27 recision and suspension of approval of local air pollution
28 control agencies.
29 (7) Adopt rules and regulations designed to reduce emissions
30 from motor vehicles, including centrally clean-fueled fleets,
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1 clean alternative fuels, oxygenated fuels, reformulated fuels,
2 vehicle miles of travel, transportation control measures and
3 other transportation control strategies. Such rules and
4 regulations shall be developed in consultation with the
5 Department of Transportation. The board shall not adopt
6 regulations mandating the sale or use of any set of
7 specifications for motor fuel prescribed by the State of
8 California under 42 U.S.C. § 7545(c)(4)(B) unless the set of
9 specifications is required under the Clean Air Act or the
10 regulations promulgated thereunder.
11 (8) Adopt rules and regulations to implement the provisions
12 of the Clean Air Act. The rules and regulations adopted to
13 implement the provisions of the Clean Air Act shall be
14 consistent with the requirements of the Clean Air Act and the
15 regulations adopted thereunder.
16 (9) Adopt rules and regulations to exempt sources or
17 categories of sources of minor significance from the provisions
18 of section 6.1.
19 (10) Adopt rules and regulations establishing provisions to
20 allow changes within a permitted facility or one operating
21 pursuant to clause (3) of subsection (b) of section 6.1 without
22 requiring a permit revision, if the changes are not
23 modifications under any provision of 42 U.S.C. Ch. 85 Subch. I
24 (relating to programs and activities), and the changes do not
25 exceed the emissions allowable under the permit whether
26 expressed therein as a rate of emissions or in terms of total
27 emissions: Provided, That the facility provides the department
28 and the administrator with written notification in advance of
29 the proposed changes which shall be a minimum of seven (7) days,
30 unless the board provides in its regulations a different time
19920S1650B2435 - 19 -
1 frame for emergencies.
2 (11) In its discretion, by regulation require revisions to
3 permits for major sources to incorporate applicable standards
4 and regulations promulgated pursuant to the Clean Air Act and
5 adopted by the board after the issuance of such permit as
6 required by section 502(b)(9) of the Clean Air Act.
7 (12) In its discretion, by regulation adopt rules containing
8 reasonable procedures consistent with the need for expeditious
9 action by the department on plan approvals and operating permit
10 applications to make available to the public any plan approval
11 or operating permit application, compliance plan, plan approval,
12 operating permit and monitoring or compliance report as required
13 by section 502(b)(8) of the Clean Air Act.
14 (13) Adopt by regulation procedures to consider variances <--
15 from the limits on the volatile organic compound content of
16 extreme performance coatings and paints which are required to be
17 used by the Federal Aviation Administration, the United States
18 Department of Defense or to meet military and aviation
19 specifications, if such variances are authorized by the Clean
20 Air Act.
21 (b) The board shall not have the power to--
22 (1) Adopt any regulation restricting or denying any permit
23 application or otherwise lawful activity based upon any
24 transportation control measures or transportation control
25 strategies.
26 (2) Adopt any regulation restricting any municipality's
27 powers regarding land development, subdivision approval, zoning
28 change, building permit or any other development activity
29 because of the rules or regulations adopted under this act.
30 (13) ADOPT BY REGULATION ALTERNATIVE VOLATILE ORGANIC <--
19920S1650B2435 - 20 -
1 COMPOUND EMISSION LIMITATIONS FOR AEROSPACE COATINGS AND
2 SOLVENTS, INCLUDING EXTREME PERFORMANCE COATINGS, WHICH ARE
3 REQUIRED TO BE USED BY THE UNITED STATES DEPARTMENT OF DEFENSE,
4 THE UNITED STATES DEPARTMENT OF TRANSPORTATION, AND THE NATIONAL
5 AERONAUTIC AND SPACE ADMINISTRATION OR TO MEET MILITARY AND
6 AEROSPACE SPECIFICATIONS, PROVIDED SUCH ALTERNATIVE LIMITATIONS
7 ARE AUTHORIZED BY THE CLEAN AIR ACT.
8 (B) IN ADOPTING REGULATIONS CONTAINING TRANSPORTATION
9 CONTROL MEASURES, THE BOARD SHALL NOT HAVE THE AUTHORITY TO
10 ADOPT ANY REGULATION LIMITING OR EXPANDING ANY MUNICIPALITIES'
11 AUTHORITY UNDER THE MUNICIPAL PLANNING CODE TO REGULATE LAND
12 DEVELOPMENT, SUBDIVISION APPROVAL, ZONING REVISION, BUILDING
13 PERMIT OR ANY OTHER DEVELOPMENT ACTIVITY UNLESS SPECIFICALLY
14 REQUIRED BY THE CLEAN AIR ACT.
15 Section 6. Environmental Hearing Board.--The hearing board
16 shall have the power and its duty shall be to hear and determine
17 all appeals from [orders issued by] appealable actions of the
18 department as defined in the act of July 13, 1988 (P.L.530,
19 No.94), known as the "Environmental Hearing Board Act," in
20 accordance with the provisions of this act. Any and all action
21 taken by the hearing board with reference to any such appeal
22 shall be in the form of an adjudication, and all such action
23 shall be subject to the provisions of [the act of June 4, 1945
24 (P.L.1388), known as the "Administrative Agency Law."] 2 Pa.C.S.
25 (relating to administrative law and procedure).
26 Section 7. Section 6.1 of the act, added October 26, 1972
27 (P.L.989, No.245) and repealed in part April 28, 1978 (P.L.202,
28 No.53), is amended to read:
29 Section 6.1. Plan Approvals and Permits.--(a) [On or after
30 July 1, 1972, no] No person shall construct, assemble, install
19920S1650B2435 - 21 -
1 or modify any stationary air contamination source, or install
2 thereon any air pollution control equipment or device [or
3 reactivate any air contamination source after said source has
4 been out of operation or production for a period of one year or
5 more] unless such person has applied to and received [from the
6 department] written plan approval [so to do] from the department
7 to do so: Provided, however, That no such written approval shall
8 be necessary with respect to normal routine maintenance
9 operations, nor to any such source, equipment or device used
10 solely for the supplying of heat or hot water to one structure
11 intended as a one-family or two-family dwelling, [or with
12 respect to any other class of units as the board, by rule or
13 regulation, may exempt from the requirements of this section.]
14 nor where construction, assembly, installation or modification
15 is specifically authorized by the rules or regulations of the
16 department to be conducted without written approval. All
17 applications for approval shall be made in writing and shall be
18 on such forms and contain such information as the department
19 shall prescribe and shall have appended thereto detailed plans
20 and specifications related to the proposed installation.
21 (b) (1) No person shall operate any stationary air
22 contamination source [which is subject to the provisions of
23 subsection (a) of this section] unless the department shall have
24 issued to such person a permit to operate such source under the
25 provisions of this section in response to a written application
26 for a permit submitted on forms and containing such information
27 as the department may prescribe[.] or where construction,
28 assembly, installation modification is specifically authorized
29 by the rules or regulations of the department to be conducted
30 without written approval. The department shall provide public
19920S1650B2435 - 22 -
1 notice and the right to comment on all permits prior to issuance
2 or denial and may hold public hearings concerning any permit.
3 (2) [No permit shall] A permit may be issued after the
4 effective date of this amendment to any applicant [unless it
5 appears that, with respect to the source,] for a stationary air
6 contamination source requiring construction, assembly,
7 installation or modification, where the requirements of
8 subsection (a) of this section have been met and [that] there
9 has been performed upon such source a test operation or
10 evaluation which shall satisfy the department that the air
11 contamination source will not discharge into the outdoor
12 atmosphere any air contaminants at a rate in excess of that
13 permitted by applicable regulation of the board, or in violation
14 of any performance or emission standard or other requirement
15 established by the Environmental Protection Agency or the
16 department for such source, and which will not cause air
17 pollution.
18 (3) A stationary air contamination source operating lawfully
19 without a permit for which fees required by section 6.3 of this
20 act or the regulations promulgated under this act have been paid
21 is authorized to continue to operate without a permit until one
22 hundred twenty (120) days after the department provides notice
23 to the source that a permit is required or until November 1,
24 1996, whichever occurs first. If the applicant submits a
25 complete permit application within the time frames in this
26 subsection, and the department fails to issue a permit through
27 no fault of the applicant, the source may continue to operate if
28 the fees required by section 6.3 or the regulations promulgated
29 under this act have been paid and the source is operated in
30 conformance with this act, the Clean Air Act and the regulations
19920S1650B2435 - 23 -
1 promulgated under both this act and the Clean Air Act. For any
2 performance or emission standard or other requirement
3 established by the Environmental Protection Agency or the
4 department for the source subsequent to the effective date of
5 this act but prior to the permit issuance date, the permit may
6 contain a compliance schedule authorizing the source to operate
7 out of compliance and requiring the source to achieve compliance
8 as soon as possible but no later than the time required by this
9 act, the Clean Air Act or the regulations promulgated under
10 either this act or the Clean Air Act. For purposes of this
11 subsection, a source is operating lawfully without a permit
12 where it is a source for which no permit was previously required
13 and the source is operating in compliance with applicable
14 regulatory requirements.
15 (4) For repermitting of any stationary air contamination
16 source which is operating under a valid permit on the effective
17 date of this act or which has received a permit under the
18 provisions of clauses (2) and (3) of this subsection and which
19 is required to meet performance or emission standards or other
20 requirements established subsequent to the issuance of the
21 existing permit, the new permit may contain a compliance
22 schedule authorizing the source to operate out of compliance and
23 requiring the source to achieve compliance as soon as possible
24 but no later than the time required by this act, the Clean Air
25 Act or the regulations promulgated under either this act or the
26 Clean Air Act.
27 (b.1) [Permits] A permit or plan approval issued hereunder
28 may contain such terms and conditions as the department deems
29 necessary to assure the proper operation of the source. [Each
30 permittee, on or before the anniversary date set forth in his
19920S1650B2435 - 24 -
1 permit, shall submit to the department an annual report
2 containing such information as the department shall prescribe
3 relative to the operation and maintenance of the installation
4 under permit.
5 (c) Any permit issued hereunder may be revoked or suspended
6 if the permittee operates the source subject to the permit in
7 such a manner as to be in violation of the conditions of any
8 permit or rule or regulation of the board or in such a manner as
9 to cause air pollution, if the permittee fails to properly or
10 adequately maintain or repair any air pollution control device
11 or equipment attached to or otherwise made a part of the source,
12 or if the permittee has failed to submit any annual report as
13 required under this section.
14 (d) The department may refuse to grant approval for any
15 stationary air contamination source subject to the provisions of
16 subsection (a) of this section or to issue a permit to operate
17 such source if it appears, from the data available to the
18 department, that the proposed source, or proposed changes in
19 such source, are likely either to cause air pollution or to
20 violate any board rule or regulation applicable to such source,
21 or if, in the design of such source, no provision is made for
22 adequate facilities to conduct source testing. The department
23 may also refuse to issue a permit to any person who has
24 constructed, installed or modified any air contamination source,
25 or installed any air pollution control equipment or device on
26 such source contrary to the plans and specifications approved by
27 the department.] The board shall by regulation establish a
28 permit shield for permits issued under the authority delegated
29 to the Commonwealth by the EPA under Title V of the Clean Air
30 Act. The program shall be consistent with the requirements of
19920S1650B2435 - 25 -
1 section 504(f) of the Clean Air Act and the regulations
2 promulgated thereunder. Each permittee, on a schedule
3 established by the department, shall submit reports to the
4 department containing such information as the department may
5 prescribe relative to the operation and maintenance of the
6 source.
7 (b.2) A permit issued or reissued under subsection (b) of
8 this section shall be issued for a five (5) year term unless a
9 shorter term is required to comply with the Clean Air Act and
10 regulations promulgated thereunder or the permittee requests a
11 shorter term, except that a permit for acid deposition control
12 shall be issued for a five (5) year term. A permit may be
13 terminated, modified, suspended or revoked and reissued for
14 cause. The terms and conditions of an expired permit are
15 automatically continued pending the issuance of a new permit
16 where the permittee has submitted a timely and complete
17 application for a new permit and paid the fees required by
18 section 6.3 or the regulations promulgated under this act and
19 the department is unable, through no fault of the permittee, to
20 issue or deny a new permit before the expiration date of the
21 previous permit. Failure of the department to issue or deny a
22 new permit prior to the expiration date of the previous permit
23 shall be an appealable action as described in section 10.2. The
24 hearing board may require that the department take action on an
25 application without additional delay.
26 (b.3) The board shall, by regulation, establish adequate,
27 streamlined and reasonable procedures for expeditiously
28 determining when applications are complete and for expeditious
29 review of applications. The department shall approve or
30 disapprove a complete application, consistent with the
19920S1650B2435 - 26 -
1 procedures established by the board for consideration of such
2 applications, within eighteen (18) months after the date of
3 receipt of the complete application except that the department
4 shall establish a phased schedule for acting on permit
5 applications submitted within the first full year after the
6 effective date of the Title V permit program established to
7 implement the requirements of the Clean Air Act. The schedule
8 shall assure that at least one-third of such permits shall be
9 acted upon by the department annually over a period not to
10 exceed three (3) years after such effective date. Failure of the
11 department to issue or deny a permit by a deadline established
12 by this subsection shall be an appealable action as described in
13 section 10.2 of this act. The hearing board may require that the
14 department take action on an application without additional
15 delay.
16 (b.4) (1) During the term of a permit, a permittee may
17 reactivate any source under the permit that has been out of
18 operation or production for a period of one year or more:
19 Provided, That the permittee has submitted a reactivation plan
20 to and received written approval from the department. The
21 reactivation plan shall describe the measures that will be taken
22 to ensure the source will be reactivated in compliance with all
23 applicable permit requirements. A reactivation plan may be
24 submitted to and approved by the department at any time during
25 the term of a permit. The department shall take action on the
26 reactivation plan within thirty (30) days unless the department
27 determines that additional time is needed based on the size or
28 complexity of the reactivated source.
29 (2) A reactivation plan may also be submitted to and
30 approved by the department as part of the plan approval or
19920S1650B2435 - 27 -
1 permit application process. An owner or operator who has an
2 approved reactivation plan shall notify the department prior to
3 the reactivation of the source.
4 (b.5) The board shall adopt the regulations required by
5 subsections (b.1), (b.3) and (i) as part of the regulatory
6 package to implement the operating permit program required by
7 Title V of the Clean Air Act.
8 (c) A plan approval or permit issued hereunder may be
9 terminated, modified, suspended or revoked and reissued if the
10 permittee constructs or operates the source subject to the plan
11 approval or permit in such a manner as to be in violation of
12 this act, the Clean Air Act, the regulations promulgated under
13 either this act or the Clean Air Act, a plan approval or permit
14 or in such a manner as to cause air pollution, if the permittee
15 fails to properly or adequately maintain or repair any air
16 pollution control device or equipment attached to or otherwise
17 made a part of the source, if the permittee has failed to submit
18 a report required by a plan approval or operating permit under
19 this section or if the Environmental Protection Agency
20 determines that the permit is not in compliance with the
21 requirements of the Clean Air Act or the regulations promulgated
22 under the Clean Air Act.
23 (d) The department may refuse to grant plan approval for any
24 stationary air contamination source subject to the provisions of
25 subsection (a) of this section or to issue a permit to any
26 source that the department determines is likely to cause air
27 pollution or to violate this act, the Clean Air Act or the
28 regulations promulgated under either this act or the Clean Air
29 Act applicable to such source, or if, in the design of such
30 source, no provision is made for adequate verification of
19920S1650B2435 - 28 -
1 compliance, including source testing or alternative means to
2 verify compliance. The department may also refuse to issue a
3 permit or may for cause terminate or revoke and reissue any
4 permit to any person if the Environmental Protection Agency
5 determines that the permit is not in compliance with the
6 requirements of the Clean Air Act or the regulations promulgated
7 under the Clean Air Act or if the applicant has constructed,
8 installed, modified or operated any air contamination source or
9 installed any air pollution control equipment or device on such
10 source contrary to the plans and specifications approved by the
11 department.
12 (e) Whenever the department shall refuse to grant an
13 approval or to issue or reissue a permit hereunder or terminate,
14 modify, suspend or revoke a plan approval or permit already
15 issued, such action shall be in the form of a written notice to
16 the person affected thereby informing him of the action taken by
17 the department and setting forth, in such notice, a full and
18 complete statement of the reasons for such action. Such notice
19 shall be served upon the person affected, either personally or
20 by certified mail, and the action set forth in the notice shall
21 be final and not subject to review unless, within thirty (30)
22 days of the service of such notice, any person affected thereby
23 shall appeal to the hearing board, setting forth with
24 particularity the grounds relied upon. The hearing board shall
25 hear the appeal pursuant to the provisions of the rules and
26 regulations relating to practice and procedure before the
27 hearing board, and thereafter, shall issue an adjudication
28 affirming, modifying or overruling the action of the department.
29 [(f) The board may, by rule, require the payment of a
30 reasonable fee, not to exceed two hundred dollars ($200.00), for
19920S1650B2435 - 29 -
1 the processing of any application for plan approval or for an
2 operating permit under the provisions of this section.]
3 (f) The department may, by regulation, establish a general
4 plan approval and a general permit program. After the program is
5 established, the department may grant general plan approval or a
6 general permit for any category of stationary air contamination
7 source if the department determines that the sources in such
8 category are similar in nature, and can be adequately regulated
9 using standardized specifications and conditions. Any applicant
10 proposing to use a general plan approval or general permit shall
11 notify the department and receive written approval prior to the
12 proposed use. The department shall take action on a notification
13 within thirty (30) days.
14 (g) The department may, by regulation, establish a plan
15 approval and permit program for stationary sources operated at
16 multiple temporary locations. After the program is established,
17 the department may grant a plan approval or issue a single
18 permit to any stationary air contamination source that may be
19 operated at multiple temporary locations. Such approval or
20 permit shall require the owner or operator to notify the
21 department and municipality where the operation shall take place
22 in advance of each change in location and may require a separate
23 application and permit or approval fee for operations at each
24 location. Any applicant proposing to use the plan approval or
25 permit authorized by this subsection shall notify the department
26 and receive written approval prior to the proposed use. The
27 department shall take action on a request within thirty (30)
28 days.
29 (h) The department shall establish comprehensive plan
30 approval and operating permit programs which meet the
19920S1650B2435 - 30 -
1 requirements of this act and the Clean Air Act.
2 (i) The board shall by regulation establish provisions to
3 allow changes within a permitted facility or one operating
4 pursuant to clause (3) of subsection (b) of section 6.1 without
5 requiring a permit revision, if the changes are not
6 modifications under any provision of 42 U.S.C. Ch. 85 Subch. I
7 (relating to programs and activities) and the changes do not
8 exceed the emissions allowable under the permit whether
9 expressed therein as a rate of emissions or in terms of total
10 emissions: Provided, That the facility provides the
11 administrator and the department with written notification at
12 least seven (7) days in advance of the proposed changes, unless
13 the board provides in its regulations a different time frame for
14 emergencies.
15 (j) The department shall make available to the public any
16 permit application, compliance plan, permit and monitoring or
17 compliance report required by this act.
18 (k) The department shall require revisions to any permit to
19 incorporate applicable standards and regulations promulgated
20 under the Clean Air Act after the issuance of such permit. Such
21 revisions shall occur as expeditiously as practicable, but not
22 later than eighteen (18) months after the promulgation of such
23 standards and regulations. No such revision shall be required if
24 the effective date of the standards or regulations is a date
25 after the expiration of the permit term or if less than three
26 (3) years remain on the permit. Such permit revision shall be
27 treated as a permit renewal if it complies with the requirements
28 of this act regarding renewals.
29 Section 8. Section 6.2(a) of the act, added October 26, 1972
30 (P.L.989, No.245), is amended to read:
19920S1650B2435 - 31 -
1 Section 6.2. Emergency Procedure.--(a) Any other provision
2 of law to the contrary notwithstanding, if the department finds,
3 in accordance with the rules and regulations of the board
4 adopted under the provisions of clause (5) of section 5 of this
5 act, that a generalized condition of air pollution exists and
6 that it creates an emergency requiring immediate action to
7 protect human health or safety, the department, with the
8 concurrence of the Governor, shall order or direct persons
9 causing or contributing to the air pollution to immediately
10 reduce or discontinue the emission of air contaminants.
11 * * *
12 Section 9. The act is amended by adding sections to read:
13 Section 6.3. Fees.--(a) This section authorizes the
14 establishment of fees sufficient to cover the indirect and
15 direct costs of administering the air pollution control plan
16 approval process, operating permit program required by Title V
17 of the Clean Air Act, other requirements of the Clean Air Act
18 and the indirect and direct costs of administering the Small
19 Business Stationary Source Technical and Environmental
20 Compliance Assistance Program, Compliance Advisory Committee and
21 Office of Small Business Ombudsman. This section also authorizes
22 the board by regulation to establish fees to support the air
23 pollution control program authorized by this act and not covered
24 by fees required by section 502(b) of the Clean Air Act.
25 (b) An annual interim air emission fee of fourteen dollars
26 ($14.00) per ton on emissions of sulfur dioxide, nitrogen
27 oxides, particulate matter of ten (10) microns or less and
28 volatile organic compounds is hereby established to cover the
29 reasonable direct and indirect costs of developing and
30 administering the air pollution control operating permit program
19920S1650B2435 - 32 -
1 required by Title V of the Clean Air Act, other requirements of
2 the Clean Air Act and the reasonable indirect and direct costs
3 of administering the Small Business Stationary Source Technical
4 and Environmental Compliance Assistance Program, Compliance
5 Advisory Committee and the Office of Small Business Ombudsman to
6 be collected during fiscal year 1992-1993 covering actual
7 emissions occurring in calendar year 1991, fiscal year 1993-94
8 covering actual emissions occurring in calendar year 1992, and
9 fiscal year 1994-1995 covering actual emissions occurring during
10 calendar year 1993. The interim fee shall not apply to air
11 emissions of less than one hundred (100) tons for any of the
12 listed pollutants, provided that when emissions exceed one
13 hundred (100) tons the entire amount of all air emissions for
14 any of the listed pollutants up to five thousand five hundred
15 (5,500) tons shall be chargeable emissions for interim fee
16 purposes.
17 (c) The board shall establish, by regulation, a permanent
18 annual air emission fee as required for regulated pollutants by
19 section 502(b) of the Clean Air Act to cover the reasonable
20 direct and indirect costs of administering the operating permit
21 program required by Title V of the Clean Air Act, other related
22 requirements of the Clean Air Act and the reasonable indirect
23 and direct costs of administering the Small Business Stationary
24 Source Technical and Environmental Compliance Assistance
25 Program, Compliance Advisory Committee and the Office of Small
26 Business Ombudsman to be collected starting in fiscal year 1995-
27 1996 covering air emissions occurring during calendar year 1994.
28 In no case shall the amount of the permanent fee be more than
29 that which is necessary to comply with section 502(b) of the
30 Clean Air Act. The permanent fee shall not apply to emissions of
19920S1650B2435 - 33 -
1 more than four thousand (4,000) tons for any regulated
2 pollutant. In the event a final regulation containing the
3 permanent annual air emission fee is not effective by July 1,
4 1995, the permanent annual air emission fee for sources subject
5 to the Title V operating permit program shall be the adjusted
6 minimum dollar amount set under section 502(b) of the Clean Air
7 Act until such time as the final regulation is effective.
8 (d) Unless precluded by the Clean Air Act, the board shall
9 establish a permanent air emission fee which considers the size
10 of the air contamination source, the resources necessary to
11 process the application for plan approval or an operating
12 permit, the complexity of the plan approval or operating permit,
13 the quantity and type of emissions from the sources, the amount
14 of fees charged in neighboring states, the importance of not
15 placing existing or prospective sources in this Commonwealth at
16 a competitive disadvantage and other relevant factors.
17 (e) Until alternative fees are established by the board
18 under subsection (c) of this section, stationary air
19 contamination sources shall pay the following interim fees:
20 (1) Two hundred dollars ($200.00) for the processing of an
21 application for an operating permit.
22 (2) Two hundred dollars ($200.00) for annual operating
23 permit administration fee.
24 (f) No emissions fee established under subsection (b), (c)
25 or (j) of this section shall be payable by any State entity,
26 instrumentality or political subdivision in relation to any
27 publicly owned or operated facility.
28 (g) Any fees imposed under this section in areas with
29 approved local air pollution control programs shall be deposited
30 in a restricted account established by the governing body
19920S1650B2435 - 34 -
1 authorizing the local program for use by that program to
2 implement the provisions of this act for which they are
3 responsible. The governing body shall annually submit to the
4 department an audit of the account in order to insure the funds
5 were properly spent.
6 (h) (1) Unless the board establishes a different payment
7 schedule by regulation, each facility subject to the emission
8 fees established in subsections (b) and (c) of this section
9 shall report its emissions and pay the fee within one hundred
10 twenty (120) days after receipt of a reporting form from the
11 department or by September 1 of each year for the emission from
12 the preceding year, whichever occurs first.
13 (2) An air contamination source that fails to pay the fees
14 within the time frame established by this act or by regulation
15 shall pay a penalty of fifty per centum of the fee amount, plus
16 interest on the fee amount computed in accordance with section
17 6621(a)(2) of the Internal Revenue Code of 1986 (Public Law 99-
18 514, 26 U.S.C. § 1 et seq.) from the date the fee was required
19 to be paid. In addition, such source may have its permit
20 terminated or suspended. The fee, penalty and interest may be
21 collected following the process for assessment and collection of
22 a civil penalty contained in section 9.1.
23 (i) The permanent air emission fee imposed under subsection
24 (c) shall be increased in each year after implementation of the
25 fee by regulation by the percentage, if any, by which the
26 Consumer Price Index for the most recent calendar year exceeds
27 the Consumer Price Index for the calendar year 1989. For
28 purposes of this subsection:
29 (1) The Consumer Price Index for any calendar year is the
30 average of the Consumer Price Index for All-Urban Consumers,
19920S1650B2435 - 35 -
1 published by the United States Department of Labor, as of the
2 close of the twelve (12) month period ending on August 31 of
3 each calendar year.
4 (2) The revision of the Consumer Price Index which is most
5 consistent with the Consumer Price Index for calendar year 1989
6 shall be used.
7 (j) The board may, by regulation, establish the following
8 categories of fees not related to Title V of the Clean Air Act.
9 Until such regulations are adopted stationary air contamination
10 sources shall pay the following fees:
11 (1) Two hundred dollars ($200.00) for the processing of any
12 application for plan approval.
13 (2) Two hundred dollars ($200.00) for the processing of any
14 application for an operating permit.
15 (3) Two hundred dollars ($200.00) for annual operating
16 permit administration fee.
17 In regard to fees established under this subsection, individual
18 sources required to be regulated by Title V of the Clean Air Act
19 shall only be subject to plan approval fees authorized in this
20 subsection.
21 (k) No administrative action shall prevent the deposit of
22 the fees established pursuant to this section in the Clean Air
23 Fund established in section 9.2 during the fiscal year in which
24 they are collected. The fees shall only be used for the purposes
25 authorized in this section and section 9.2 and shall not be
26 transferred or diverted to any other purpose by administrative
27 action.
28 (l) Any fees, penalties and interest owed the Commonwealth
29 for delinquent payment collected under this section shall be
30 deposited in the Clean Air Fund.
19920S1650B2435 - 36 -
1 (m) As used in this section, the term "regulated pollutant"
2 shall mean a volatile organic compound, each pollutant regulated
3 under sections 111 and 112 of the Clean Air Act and each
4 pollutant for which a national primary ambient air quality
5 standard has been promulgated, except that carbon monoxide shall
6 be excluded from this reference.
7 Section 6.4. Fee for Certain Ozone Areas.--(a) If an area
8 identified in a State implementation plan or any revision as a
9 severe or extreme ozone nonattainment area has failed to meet
10 the national primary ambient air quality standard for ozone by
11 the applicable attainment date, each major source of volatile
12 organic compounds (VOCs), as defined in the Clean Air Act and
13 the regulations promulgated under the Clean Air Act, located in
14 the area shall, except with respect to emissions during any year
15 treated as an extension year under section 181(a)(5) of the
16 Clean Air Act, pay a fee to the department as a penalty for such
17 failure for each calendar year beginning after the attainment
18 date, until the area is redesignated as an attainment area for
19 ozone. This fee shall be assessed and collected following the
20 process for collection and assessment of a civil penalty
21 contained in section 9.1.
22 (b) (1) The fee shall equal five thousand dollars
23 ($5,000.00), adjusted in accordance with clause (3) of this
24 subsection, per ton of VOC emitted by the source during the
25 calendar year in excess of eighty per centum of the baseline
26 amount, computed under clause (2) of this subsection. The fee
27 shall be in addition to all other fees required to be paid by
28 the source.
29 (2) (i) For purposes of this section, the baseline amount
30 shall be computed, in accordance with such guidance as the
19920S1650B2435 - 37 -
1 administrator may provide, as the lower of the amount of actual
2 VOC emissions (referred to as actuals) or VOC emissions allowed
3 under the permit applicable to the source or, if no such permit
4 has been issued for the attainment year, the amount of VOC
5 emissions allowed under the applicable implementation plan
6 (referred to as allowables) during the attainment year.
7 (ii) Notwithstanding subclause (i) of this clause, the
8 administrator may issue guidance authorizing the baseline amount
9 to be determined in accordance with the lower of average actuals
10 or average allowables, determined over a period of more than one
11 calendar year. This guidance may provide that the average
12 calculation for a specific source may be used if that source's
13 emissions are irregular, cyclical or otherwise vary
14 significantly from year to year.
15 (3) The fee amount under clause (1) of this subsection shall
16 be adjusted annually, beginning 1991 in accordance with
17 subsections (h) and (i) of section 6.3.
18 (c) For areas with a total population under two hundred
19 thousand (200,000) which fail to attain the standard by the
20 applicable attainment date, no sanction under this section or
21 under any other provisions of this act shall apply if the area
22 can demonstrate, consistent with guidance issued by the
23 Environmental Protection Agency, that attainment in the area is
24 prevented because of ozone or ozone precursors transported from
25 other areas. The prohibition applies only in cases in which the
26 area has met all requirements and implemented all measures
27 applicable to the area under the Clean Air Act.
28 Section 6.5. Acid Deposition Control.--(a) The department
29 is authorized to develop a permit program for acid deposition
30 control in accordance with Titles IV and V of the Clean Air Act
19920S1650B2435 - 38 -
1 and to submit it to the administrator for approval.
2 (b) For purposes of the permit program authorized under
3 subsection (a) of this section, the definitions in sections 402
4 and 501 of the Clean Air Act are incorporated herein by
5 reference.
6 (c) The owner or operator or the designated representative
7 of each source affected under section 405 of the Clean Air Act
8 shall submit a permit application and compliance plan for the
9 affected source to the department no later than January 1, 1996.
10 In the case of affected sources for which application and plans
11 are timely received, the permit application and the compliance
12 plan, including amendments thereto, shall be binding on the
13 owner or operator or the designated representative of the owners
14 or operators and shall be enforceable as a permit for purposes
15 of this section until a permit is issued by the department. Any
16 permit issued by the department shall require the source to
17 achieve compliance as soon as possible but no later than the
18 date required by this act, the Clean Air Act or the regulations
19 promulgated under either this act or the Clean Air Act for the
20 source.
21 (d) At any time after the submission of a permit application
22 and compliance plan, the applicant may submit a revised
23 application and compliance plan. In considering any permit
24 application and compliance plan under this section, the
25 department shall coordinate with the Pennsylvania Public Utility
26 Commission consistent with requirements that may be established
27 by the administrator.
28 (e) In addition to other provisions, permits issued by the
29 department shall prohibit all of the following:
30 (1) Annual emissions of sulfur dioxide in excess of the
19920S1650B2435 - 39 -
1 number of allowances to emit sulfur dioxide that the owner or
2 operator or designated representative hold for the unit.
3 (2) Exceedances of applicable emissions rates or standards,
4 including ambient air quality standards.
5 (3) The use of any allowance prior to the year for which it
6 is allocated.
7 (4) Contravention of any other provision of the permit.
8 Section 6.6. Hazardous Air Pollutants.--(a) The regulations
9 establishing performance or emission standards promulgated under
10 section 112 of the Clean Air Act are incorporated by reference
11 into the department's permitting program. After the effective
12 date of the performance or emission standard, new,
13 reconstructed, modified and existing sources shall comply with
14 the performance or emission standards pursuant to the compliance
15 schedule established under section 112 of the Clean Air Act and
16 the regulations promulgated under the Clean Air Act. The
17 Environmental Quality Board may not establish a more stringent
18 performance or emission standard for hazardous air pollutant
19 emissions from existing sources, except as provided in
20 subsection (d). This section shall not apply to rules and
21 regulations adopted as final prior to the effective date of this
22 act and shall not be construed to weaken standards for
23 individual sources or facilities in effect prior to the
24 effective date of this act. The board may establish performances
25 or emission standards for sources or categories of sources which
26 are not included on the list of source categories established
27 under section 112(c) of the Clean Air Act. For purposes of this
28 section, the term "performance standard" includes design,
29 equipment, work practice or operational standards or any
30 combination thereof.
19920S1650B2435 - 40 -
1 (b) In the event the administrator has not promulgated a
2 standard to control the emissions of hazardous air pollutants
3 for a category or subcategory of major sources under section 112
4 of the Clean Air Act, pursuant to a schedule established
5 pursuant to section 112(c) of the Clean Air Act, the department
6 shall have the authority to establish a performance or emission
7 standard on a case-by-case basis for individual sources or a
8 category of sources. The department shall have the authority to
9 make the determinations required by section 112(g)(2) of the
10 Clean Air Act regarding the construction, reconstruction and
11 modification of sources. Any person challenging the performance
12 or emission standards established by the department shall have
13 the burden to demonstrate that the performance or emission
14 standard does not meet the requirements of section 112 of the
15 Clean Air Act. The department shall incorporate the standard to
16 control the emissions of hazardous air pollutants into the plan
17 approval or operating permit of any source within the category
18 or subcategory. The performance or emission standard established
19 on a case-by-case basis by the department shall be equivalent to
20 the limitation that would apply to the source if a performance
21 or emission standard had been promulgated by the administrator
22 under section 112 of the Clean Air Act.
23 (c) The department is authorized to require that new sources
24 demonstrate in the plan approval application that the source
25 will reduce or control emissions of air pollutants, including
26 hazardous air pollutants, by using the best available
27 technology.
28 (d) (1) When needed to protect public health, welfare and <--
29 the environment from emissions of hazardous air pollutants from
30 new and existing sources, the department may impose health risk-
19920S1650B2435 - 41 -
1 based emission standards or operating practice requirements. In
2 developing such health risk-based emission standards or
3 operating practice requirements, the department shall provide an
4 explanation and rationale for such standards or requirements and
5 provide for public review and comments on plan approvals,
6 operating permits, guidelines and regulations which contain
7 health risk-based emission standards or operating practice
8 requirements. Standards or requirements adopted pursuant to this
9 subsection shall be developed using an analysis which, among
10 other factors, considers, where appropriate for a source or
11 source category, the criteria set forth in section 112(f)(1) of
12 the Clean Air Act in assessing the proposed risk to the public
13 health, welfare and the environment from the source. In the case <--
14 of coke batteries which comply with the operating standards in
15 the Clean Air Act, the department may not consider imposing
16 health based risk standards for eight (8) years after
17 promulgation of maximum achievable control technology (MACT)
18 standards, and not until the year 2020 for coke batteries
19 meeting specified conditions of the Clean Air Act, if there is a
20 remaining residual risk which must be addressed.
21 (2) IN THE CASE OF COKE OVEN BATTERIES, THE DEPARTMENT MAY <--
22 NOT IMPOSE HEALTH RISK-BASED EMISSION STANDARDS MORE STRINGENT
23 THAN FEDERAL REQUIREMENTS UNTIL EIGHT (8) YEARS AFTER
24 PROMULGATION OF MAXIMUM ACHIEVABLE CONTROL TECHNOLOGY (MACT)
25 STANDARDS, AND NOT UNTIL THE YEAR 2020 FOR COKE OVEN BATTERIES
26 WHICH SATISFY THE REQUIREMENTS OF SECTION 112(I)(8)(A) OF THE
27 CLEAN AIR ACT.
28 (3) NOTWITHSTANDING THE LIMITATION IN CLAUSE (2), WHERE THE
29 OPERATION OF A COKE OVEN BATTERY WOULD RESULT IN SERIOUS,
30 SUBSTANTIAL AND DEMONSTRABLE HARM TO PUBLIC HEALTH, WELFARE AND
19920S1650B2435 - 42 -
1 THE ENVIRONMENT, THE DEPARTMENT MAY IMPOSE HEALTH RISK-BASED
2 EMISSION STANDARDS BY REGULATION WHICH UTILIZED PROVEN,
3 COMMERCIALLY AVAILABLE AND ECONOMICALLY AVAILABLE METHODS OF
4 TECHNOLOGY.
5 (I) THE DEPARTMENT SHALL NOT IMPOSE HEALTH RISK-BASED
6 EMISSION STANDARDS UNTIL AFTER JANUARY 1, 1998, FOR THOSE COKE
7 OVEN BATTERIES WHICH SATISFY THE APPLICABLE MACT OR LOWEST
8 ACHIEVABLE EMISSION RATE (LAER) STANDARDS.
9 (II) AFTER JANUARY 1, 1998, THE DEPARTMENT SHALL ONLY IMPOSE
10 HEALTH RISK-BASED EMISSION STANDARDS ADOPTED PURSUANT TO SECTION
11 112(F) OF THE CLEAN AIR ACT, AND IF NO SUCH EMISSION STANDARDS
12 ARE ADOPTED PURSUANT TO SECTION 112(F) OF THE CLEAN AIR ACT, THE
13 DEPARTMENT MAY ADOPT SUCH EMISSION STANDARDS, PROVIDED THAT SUCH
14 STANDARDS ARE CONSISTENT WITH THE CRITERIA AND THE FACTORS SET
15 FORTH IN CLAUSE (1) AND SECTION 112(F) OF THE CLEAN AIR ACT, AND
16 UNTIL SUCH TIME AS HEALTH RISK-BASED STANDARDS ARE ENACTED BY
17 THE FEDERAL GOVERNMENT PURSUANT TO SECTION 112(F) OF THE CLEAN
18 AIR ACT.
19 (e) The department shall have the authority to require, in
20 the plan approval and operating permit, reasonable monitoring,
21 recordkeeping and reporting requirements for sources which emit
22 hazardous air pollutants.
23 (f) Nothing in this section shall preclude the department
24 from taking an emergency action where there is an immediate or
25 potential threat to public health, welfare and the environment
26 from an air pollutant, including a hazardous air pollutant.
27 (g) The early emissions reduction program authorized under
28 section 112(i)(5) of the Clean Air Act is incorporated by
29 reference in the department's permitting program.
30 Section 6.7. Control of Volatile Organic Compounds from
19920S1650B2435 - 43 -
1 Gasoline Dispensing Facilities.--(a) After the date specified
2 in subsection (b) or (c) of this section no owner or operator of
3 a gasoline dispensing facility subject to this section may
4 transfer or allow the transfer of gasoline into a motor vehicle
5 fuel tank unless the dispensing facility is equipped with a
6 department approved and properly operating Stage II vapor
7 recovery or vapor collection system. Unless a higher percent
8 reduction is required by EPA under section 182 of the Clean Air
9 Act, approval by the department of a Stage II vapor collection
10 system will be based on a determination that the system will
11 collect at least ninety per centum by weight of the gasoline
12 vapors that are displaced or drawn from a vehicle fuel tank
13 during refueling and the captured vapors are returned to a vapor
14 tight holding system or vapor control system.
15 (b) (1) This subsection applies to gasoline dispensing
16 facilities located in areas classified as moderate, serious or
17 severe ozone nonattainment areas under section 181 of the Clean
18 Air Act, including the counties of Allegheny, Armstrong, Beaver,
19 Berks, Bucks, Butler, Chester, Delaware, Fayette, Montgomery,
20 Philadelphia, Washington and Westmoreland with monthly
21 throughputs greater than 10,000 gallons (37,850 liters). In the
22 case of independent small business marketers of gasoline as
23 defined in section 325 of the Clean Air Act this section shall
24 not apply if the monthly throughput is less than 50,000 gallons
25 (189,250 liters).
26 (2) Facilities for which construction was commenced after
27 November 15, 1990, shall achieve compliance not later than six
28 months after the effective date of this section.
29 (3) Facilities which dispense greater than 100,000 gallons
30 (378,500 liters) of gasoline per month, based on average monthly
19920S1650B2435 - 44 -
1 sales for the two-year period immediately preceding the
2 effective date of this section, shall achieve compliance not
3 later than one year from the effective date of this section.
4 (4) All other affected facilities shall achieve compliance
5 not later than two years from the effective date of this
6 section.
7 (c) Gasoline dispensing facilities with annual throughputs
8 greater than 10,000 gallons (37,850 liters) in the counties of
9 Bucks, Chester, Delaware, Montgomery and Philadelphia shall be
10 subject to the requirements of this section immediately upon the
11 addition or replacement of any underground gasoline storage
12 tanks for which construction was commenced after the effective
13 date of this section.
14 (d) For purposes of this section the term "construction"
15 shall include, but is not limited to, the addition or
16 replacement of any underground storage tank.
17 (e) Owners or operators, or both, of gasoline dispensing
18 facilities subject to the requirements of this section shall:
19 (1) Install all necessary Stage II vapor collection and
20 control systems, provide necessary maintenance and make any
21 modifications necessary to comply with the requirements.
22 (2) Provide adequate training and written instructions to
23 the operator of the affected gasoline dispensing facility to
24 assure proper operation of the system.
25 (3) Immediately remove from service and tag any defective
26 nozzle or dispensing system until the defective component is
27 replaced or repaired. A component removed from service shall not
28 be returned to service until the defect is corrected. If the
29 department finds that a defective nozzle or dispensing system is
30 not properly tagged during an inspection, the component shall
19920S1650B2435 - 45 -
1 not be returned to service until the defect is corrected, and
2 the department approves its return to service.
3 (4) Conspicuously post operating instructions for the system
4 in the gasoline dispensing area which, at a minimum, includes
5 the following:
6 (i) A clear description of how to correctly dispense
7 gasoline with the vapor recovery nozzles utilized at the site.
8 (ii) A warning that continued attempts to dispense gasoline
9 after the system indicates that the vehicle fuel tank is full
10 may result in spillage or recirculation of the gasoline into the
11 vapor collection system.
12 (iii) A telephone number established by the department for
13 the public to report problems experienced with the system.
14 (5) Maintain records of monthly throughput, type and
15 duration of any failures of the system and maintenance and
16 repair records. The records shall be kept for at least two years
17 and shall be made available for inspection by the department.
18 (f) In the event an area is reclassified from attainment or
19 marginal nonattainment to serious, severe or moderate
20 nonattainment under section 181 of the Clean Air Act, gasoline
21 dispensing facilities located in the reclassified area shall be
22 subject to the requirements of subsection (b)(1). For purposes
23 of establishing an effective date for the reclassified area,
24 that date shall be the date of publication of final notice of
25 reclassification in the Federal Register.
26 (g) If at any time prior to November 15, 1996 1993, the <--
27 United States Environmental Protection Agency promulgates a
28 requirement for alternative automobile refueling emissions
29 control systems identified in section 7521 of the Clean Air Act,
30 the requirements of this section shall not apply to gasoline
19920S1650B2435 - 46 -
1 dispensing facilities located in areas classified as moderate
2 ozone nonattainment areas under section 181 of the Clean Air
3 Act, including the counties of Allegheny, Armstrong, Beaver,
4 Berks, Butler, Fayette, Washington and Westmoreland.
5 (H) THE DEPARTMENT SHALL IMPLEMENT THE FUNCTIONAL TESTING <--
6 AND CERTIFICATION REQUIREMENTS SPECIFIED IN EPA'S STAGE II
7 ENFORCEMENT AND TECHNICAL GUIDANCE DOCUMENTS DEVELOPED UNDER
8 SECTION 182 OF THE CLEAN AIR ACT TO MEET THE CLEAN AIR ACT
9 REQUIREMENTS FOR AREAS CLASSIFIED AS MODERATE, SERIOUS, SEVERE
10 OR EXTREME OZONE NONATTAINMENT.
11 Section 7.1. Compliance Review.--(a) The department shall
12 not issue, reissue or modify any plan approval or permit
13 pursuant to this act or amend any plan approval or permit issued
14 under this act and may suspend, terminate or revoke any permit
15 or plan approval previously issued under this act if it finds
16 that the applicant or permittee or a general partner, parent or
17 subsidiary corporation of the applicant or permittee is in
18 violation of this act, or the rules and regulations promulgated
19 under this act, any plan approval, permit or order of the
20 department, as indicated by the department's compliance docket,
21 unless the violation is being corrected to the satisfaction of
22 the department.
23 (b) The department may refuse to issue any plan approval or
24 permit pursuant to this act if it finds that the applicant or
25 permittee or a partner, parent or subsidiary corporation of the
26 applicant or permittee has shown a lack of intention or ability
27 to comply with this act or the regulations promulgated under
28 this act or any plan approval, permit or order of the
29 department, as indicated by past or present violations, unless
30 the lack of intention or ability to comply is being or has been
19920S1650B2435 - 47 -
1 corrected to the satisfaction of the department.
2 (c) In performing the compliance review required under this
3 section, the department shall only consider violations arising
4 under this act that occurred or are occurring in Pennsylvania.
5 (d) A permittee or applicant may appeal any violation
6 arising under this act which the department places on the
7 compliance docket.
8 Section 7.2. Permit Compliance Schedules.--In addition to
9 the other enforcement provisions of this act, the department may
10 issue a permit under clauses (3) and (4) of subsection (b) of
11 section 6.1 to a source that is out of compliance with this act,
12 the Clean Air Act or the regulations promulgated under either
13 this act or the Clean Air Act. Any such permit must contain an
14 enforceable schedule requiring the source to attain compliance.
15 The compliance schedule may contain interim milestone dates for
16 completing any phase of the required work, as well as a final
17 compliance date, and may contain stipulated penalties for
18 failure to meet the compliance schedule. If the permittee fails
19 to achieve compliance by the final compliance date, the permit
20 shall terminate. The permit shall be part of an overall
21 resolution of the outstanding noncompliance and may include the
22 payment of an appropriate civil penalty for past violations and
23 shall contain such other terms and conditions as the department
24 deems appropriate. A permit may incorporate by reference a
25 compliance schedule contained within a consent order and
26 agreement, including all provisions related to implementation or
27 enforcement of the compliance schedule or consent order and
28 agreement.
29 Section 7.3. Responsibilities of Owners and Operators.--(a)
30 Whenever the department finds that air pollution or danger of
19920S1650B2435 - 48 -
1 air pollution is or may be resulting from an air contamination
2 source in the Commonwealth, the department may order the owner
3 or operator to take corrective action in a manner satisfactory
4 to the department, or it may order the owner or operator to
5 allow access to the land by the department or a third party to
6 take such action.
7 (b) For purposes of collecting or recovering the costs
8 involved in taking corrective action or pursuing a cost recovery
9 action pursuant to an order or recovering the cost of
10 litigation, oversight, monitoring, sampling, testing and
11 investigation related to a corrective action, the department may
12 collect the amount in the same manner as civil penalties are
13 assessed and collected following the process for assessment and
14 collection of a civil penalty contained in section 9.1.
15 Section 7.4. Interstate Transport Commission.--(a) The
16 Commonwealth through its representatives on an interstate
17 transport commission formed under the Clean Air Act shall
18 provide public review of recommendations for additional control
19 measures prior to final commission action consistent with the
20 commission's public review requirements under section 184(c)(1)
21 of the Clean Air Act. The opportunity for public review
22 established under this section shall run concurrently with the
23 commission's public comment period established under section
24 184(c)(1) of the Clean Air Act.
25 (b) Control strategies approved by an interstate transport
26 commission and by the Commonwealth's representatives and set
27 forth in resolutions or memoranda of understanding shall be
28 considered commitments by the executive to pursue subsequent
29 legislative, regulatory or other administrative actions to
30 implement the control strategies.
19920S1650B2435 - 49 -
1 (c) The Commonwealth strongly recommends that an interstate
2 transport commission adopt formal procedures which allow for an
3 open public review and comment period prior to the adoption of
4 resolutions or consideration of memoranda of understanding or
5 other actions which recommend that states adopt control
6 strategies. The Commonwealth's representatives shall take
7 actions consistent with this recommendation.
8 (d) The General Assembly of Pennsylvania finds that the
9 interstate transport of pollutants from the State of Ohio
10 contributes significantly to the violation of national ambient
11 air quality standards by the Commonwealth. Therefore, as set
12 forth in section 176A of the Clean Air Act, the Governor on
13 behalf of the Commonwealth shall MAY petition the Federal EPA <--
14 Administrator to include the State of Ohio in any interstate
15 transport commission to which Pennsylvania is a member state.
16 Section 7.5. Public Review of State Implementation Plans.--
17 (a) A state implementation plan required by the Clean Air Act
18 which commits the Commonwealth to adopt air pollution control
19 measures or procedures shall be the subject of a public comment
20 period. The public comment period shall be no less than sixty
21 (60) days and the department may, at its discretion, hold public
22 informational meetings or public hearings as part of the comment
23 period.
24 (b) Notice of a proposed state implementation plan shall be
25 published in the Pennsylvania Bulletin and in sufficient
26 newspapers having general circulation in the area covered by the
27 state implementation plan. If the state implementation plan
28 covers the entire State, notice shall be published in at least
29 six (6) newspapers of general circulation throughout the
30 Commonwealth.
19920S1650B2435 - 50 -
1 (c) A state implementation plan subject to this section
2 shall include the following provisions:
3 (1) Statements clearly indicating the specific provisions of
4 the Clean Air Act with which the state implementation plan is
5 intended to comply.
6 (2) An analysis of the alternative control strategies
7 considered if applicable in arriving at the recommended control
8 strategies and the reasons the department or other agency
9 selected the final strategy.
10 (3) An analysis of the economic impact of the alternative
11 control strategies and the selected strategies on the regulated
12 community and local governments.
13 (4) An analysis of the staff and technical resources needed
14 by the department or other agency to implement the control
15 strategy.
16 (d) After the public comment period and prior to the
17 submission to EPA of any state implementation plan required by
18 the Clean Air Act which commits the Commonwealth to adopt air
19 pollution control measures or procedures, the department shall
20 submit a final state implementation plan to the board for its
21 review together with a document which responds to all comments
22 made during the public comment period.
23 (e) These provisions shall also apply in the case of state
24 implementation plans required by the Clean Air Act which are
25 developed by State agencies other than the department which
26 commit the Commonwealth to the adoption of air pollution control
27 measures or procedures.
28 (f) Subsections (c) and (d) of this section shall not apply
29 to state implementation plans or portions thereof comprised of
30 permit, emission offset or reasonably available control
19920S1650B2435 - 51 -
1 technology requirements for individual sources; consent orders
2 and agreements; or regulations.
3 (g) The requirements of this section shall not apply to
4 state implementation plans submitted by a local air pollution
5 control agency.
6 Section 7.6. Advice to Department.--(a) The department
7 shall consult with the Citizens Advisory Council established
8 under section 448 of the act of April 9, 1929 (P.L.177, No.175),
9 known as "The Administrative Code of 1929," as appropriate, in
10 the consideration of state implementation plans and regulations
11 developed by the department and needed for the implementation of
12 the Clean Air Act. Nothing in this section shall limit the
13 council's ability to consider, study and review department
14 policies and other activities related to the Clean Air Act,
15 implementation as provided under section 1922-A of "The
16 Administrative Code of 1929." This section shall not apply to
17 state implementation plans or portions thereof comprised of:
18 permit, emission offset or of reasonably available control
19 technology requirements for individual sources; consent orders
20 and agreements; or regulations. The requirements of this section
21 shall not apply to state implementation plans submitted by a
22 local air pollution control agency.
23 (b) (1) The Secretary of Environmental Resources within
24 thirty (30) days after the effective date of this act shall
25 designate an air technical advisory committee. The committee
26 shall include at least eleven (11) members with technical
27 backgrounds in the control of air pollution from stationary or
28 mobile sources.
29 (2) The committee, at the request of the department, may be
30 utilized to provide technical advice on department policies,
19920S1650B2435 - 52 -
1 guidance and regulations needed to implement the Clean Air Act.
2 The committee may also request to review a department policy,
3 guidance or regulation needed to implement the Clean Air Act.
4 Section 7.7. Small Business Compliance Assistance Program.--
5 (a) The department shall develop and implement a Small Business
6 Stationary Source Technical and Environmental Compliance
7 Assistance Program which shall include the following:
8 (1) Adequate mechanisms for developing, collecting and
9 coordinating information concerning compliance methods and
10 technologies for small business stationary sources and programs
11 to encourage lawful cooperation among such sources and other
12 persons to further comply with this act and the Clean Air Act.
13 (2) Adequate mechanisms for assisting small business
14 stationary sources with pollution prevention and accidental
15 release detection and prevention, including providing
16 information concerning alternative technologies, process changes
17 and products and methods of operation that help reduce air
18 pollution.
19 (3) A compliance assistance program for small business
20 stationary sources which assists small business stationary
21 sources in determining applicable requirements and in receiving
22 permits under this act in a timely and efficient manner.
23 (4) Adequate mechanisms to assure that small business
24 stationary sources receive notice of their rights under this act
25 and the Clean Air Act in such manner and form as to assure
26 reasonably adequate time for such sources to evaluate compliance
27 methods and any relevant or applicable proposed or final
28 rulemaking plan, state implementation plan revision, or program
29 issued under this act and the Clean Air Act.
30 (5) Adequate mechanisms for informing small business
19920S1650B2435 - 53 -
1 stationary sources of their obligations under this act and the
2 Clean Air Act, including mechanisms for referring these sources
3 to qualified auditors or, at the department's option, for
4 providing audits of the operations of such sources to determine
5 compliance with this act.
6 (6) Procedures for consideration of requests from a small
7 business stationary source for modification of:
8 (i) any work practice or technological method of compliance;
9 or
10 (ii) the schedule of milestones for implementing such work
11 practice or method of compliance preceding any applicable
12 compliance date, based on the technological and financial
13 capability of any small business stationary sources. No
14 modification may be granted unless it is in compliance with the
15 applicable requirements of this act and the Clean Air Act,
16 including the requirements of the applicable implementation
17 plan. Where applicable requirements are set forth in Federal
18 regulations, only modifications authorized in such regulations
19 may be allowed.
20 (7) Procedures for soliciting input from and exchanging
21 information with the Office of Small Business Ombudsman
22 regarding compliance requirements for small business stationary
23 sources.
24 (8) Adequate mechanisms for the collection and dissemination
25 of information to small business stationary sources, including,
26 but not limited to:
27 (i) Developing of small business stationary sources guidance
28 manuals indicating the categories of small businesses subject to
29 the requirements of this act and the Clean Air Act, specific
30 compliance requirements and options, a schedule of compliance
19920S1650B2435 - 54 -
1 deadlines and other pertinent information.
2 (ii) Establishment of a toll-free telephone number dedicated
3 to questions involving small business stationary source
4 compliance.
5 (9) Procedures for assuring the confidentiality of
6 information received from small business stationary sources.
7 (10) Procedures for conducting confidential, on-site
8 consultations with small business stationary sources regarding
9 applicability of compliance requirements.
10 (b) The department shall evaluate the feasibility of
11 contracting with consultants to administer all or part of the
12 Small Business Stationary Source Technical and Environmental
13 Compliance Assistance Program. The department shall submit a
14 report to the Governor, the General Assembly, the Compliance
15 Advisory Committee and the Office of Small Business Ombudsman
16 summarizing the results of this evaluation and the department's
17 recommendations.
18 (c) The department shall consult with the Compliance
19 Advisory Committee established in section 7.8 and the Office of
20 Small Business Ombudsman established in section 7.9, in
21 developing the Small Business Stationary Source Technical and
22 Environmental Compliance Assistance Program.
23 (d) The department shall provide a reasonable opportunity
24 for public comment on the proposed Small Business Stationary
25 Source Technical and Environmental Compliance Assistance
26 Program.
27 (e) The department is authorized to expend funds from the
28 Clean Air Fund collected pursuant to subsection (a), (b) or (c)
29 of section 6.3 to support the development and implementation of
30 the Small Business Stationary Source Technical and Environmental
19920S1650B2435 - 55 -
1 Compliance Assistance Program, the Office of Small Business
2 Ombudsman and the Compliance Advisory Committee.
3 (f) Upon petition by a source, the department may, after
4 notice and opportunity for public comment, include as a small
5 business stationary source for purposes of this act any
6 stationary source which does not meet the definition of "small
7 business stationary source" in section 3 but which does not emit
8 more than one hundred (100) tons per year of all regulated
9 pollutants.
10 (g) The department, in consultation with the administrator
11 and the Administrator of the Small Business Administration, and
12 after providing notice and opportunity for public hearing, may
13 exclude from the definition of "small business stationary
14 source" in section 3 any category or subcategory of sources that
15 the department determines to have sufficient technical and
16 financial capabilities to meet the requirements of this act and
17 the Clean Air Act without the application of this section.
18 (h) The department may reduce any fee required under this
19 act and the Clean Air Act to take into account the financial
20 resources of small business stationary sources as authorized by
21 the Clean Air Act.
22 Section 7.8. Compliance Advisory Committee.--(a) There is
23 hereby established a Compliance Advisory Committee which shall
24 perform all of the following:
25 (1) Provide guidance and recommendations to the department
26 on the development of the Small Business Stationary Source
27 Technical and Environmental Compliance Assistance Program.
28 (2) Render advisory opinions concerning the effectiveness of
29 the Small Business Stationary Source Technical and Environmental
30 Compliance Assistance Program, difficulties encountered and
19920S1650B2435 - 56 -
1 degree and severity of enforcement.
2 (3) Make periodic reports to the administrator concerning
3 the Small Business Stationary Source Technical and Environmental
4 Compliance Assistance Program.
5 (4) Review information for small business stationary sources
6 to assure such information is understandable by the layperson.
7 (5) Have the Small Business Stationary Source Technical and
8 Environmental Compliance Assistance Program serve as the
9 secretariat for the development and dissemination of such
10 reports and advisory opinions.
11 (6) Review and advise the department on rulemakings, state
12 implementation plans and programs under this act and the Clean
13 Air Act which affect small business stationary sources.
14 (7) Make recommendations for the development of programs to
15 assist compliance for small business stationary sources,
16 including technical and financial assistance programs.
17 (b) The committee shall consist of eleven members as
18 follows:
19 (1) Four members appointed by the Governor, three of whom
20 shall not be owners or representatives of owners of small
21 business stationary sources.
22 (2) Four members, each of whom shall be an owner or the
23 representative of an owner of a small business stationary
24 source. Of these four members, one shall be appointed by each of
25 the following:
26 (i) The majority leader of the Senate.
27 (ii) The minority leader of the Senate.
28 (iii) The majority leader of the House of Representatives.
29 (iv) The minority leader of the House of Representatives.
30 (3) The Secretary of Commerce or his designee.
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1 (4) The Secretary of Environmental Resources or his
2 designee.
3 (5) The Small Business Ombudsman or his designee.
4 (c) The terms of appointed members shall be for four (4)
5 years. Vacancies shall be filled by the original appointing
6 member for the remainder of the unexpired term. Initial terms of
7 appointed members shall be as follows:
8 (1) Of the members appointed by the Governor under clause
9 (1) of subsection (b) of this section:
10 (i) Two members shall be appointed for two (2) years.
11 (ii) Two members shall be appointed for four (4) years.
12 (2) Of the members appointed under clause (2) of subsection
13 (b) of this section:
14 (i) The majority leader of the Senate shall appoint one
15 member for four (4) years.
16 (ii) The minority leader of the Senate shall appoint one
17 member for two (2) years.
18 (iii) The majority leader of the House of Representatives
19 shall appoint one member for three (3) years.
20 (iv) The minority leader of the House of Representatives
21 shall appoint one member for one (1) year.
22 Section 7.9. Small Business Ombudsman.--(a) There is hereby
23 established an Office of Small Business Ombudsman within the
24 Department of Commerce for the purpose of serving as the primary
25 point of contact for small business on issues relating to
26 compliance with this act and the Clean Air Act.
27 (b) The Office of Small Business Ombudsman shall perform all
28 functions necessary to implement the requirements of section
29 507(a)(3) of the Clean Air Act. The Office of Small Business
30 Ombudsman shall perform all of the following functions to the
19920S1650B2435 - 58 -
1 extent they are consistent with the guidelines developed by the
2 Environmental Protection Agency:
3 (1) Solicit input from small businesses regarding compliance
4 with this act and the Clean Air Act and interact with
5 organizations representing small businesses, including Small
6 Business Development Centers, the Small Business Administration,
7 industry and trade associations and other entities.
8 (2) Provide guidance and recommendations to the department
9 on the development of the Small Business Stationary Source
10 Technical and Environmental Compliance Assistance Program.
11 (3) Make recommendations to the department regarding the
12 content and operation of the Small Business Stationary Source
13 Technical and Environmental Compliance Assistance Program.
14 (4) Collect and distribute information and materials on the
15 requirements of this act and the Clean Air Act.
16 (5) Report to the Small Business Stationary Source Technical
17 and Environmental Compliance Assistance Program on problems and
18 difficulties experienced by small businesses in complying with
19 this act and the Clean Air Act.
20 (6) Serve on the Compliance Advisory Committee established
21 by section 7.8.
22 (7) Conduct independent evaluations of all aspects of the
23 Small Business Stationary Source Technical and Environmental
24 Compliance Assistance Program.
25 (8) Review and provide comments and recommendations to the
26 Environmental Protection Agency and department regarding the
27 development and implementation of regulations that impact small
28 businesses.
29 (9) Arrange for and assist in the preparation of guidance
30 documents by the Small Business Stationary Source Technical and
19920S1650B2435 - 59 -
1 Environmental Compliance Assistance Program to ensure that the
2 language is readily understandable by the lay person.
3 (10) Assist small businesses in locating sources of funding
4 for compliance with the requirements of this act and the Clean
5 Air Act.
6 (c) The Office of Small Business Ombudsman shall report
7 annually to the Governor and General Assembly on the
8 effectiveness of the Small Business Stationary Source Technical
9 and Environmental Compliance Assistance Program and other issues
10 relating to the impact of the Clean Air Act implementation on
11 small businesses in the Commonwealth.
12 (d) For each proposed rulemaking significantly affecting
13 small businesses, the Office of Small Business Ombudsman shall
14 prepare a report which contains a detailed analysis of the
15 economic impact of such proposed rulemaking on small businesses.
16 The economic impact report shall be completed no later than
17 ninety (90) days from the date that the board approves the
18 proposed rulemaking and shall be submitted to the board for
19 consideration prior to approval of the final rulemaking package;
20 provided the report is available within the time period
21 prescribed by this section. The department shall provide the
22 ombudsman with a reasonable opportunity to revise the report to
23 reflect any proposed substantial change in the rulemaking which
24 affects the initial report.
25 (e) The report shall include, but not be limited to:
26 (1) An analysis of the economic impact of the selected
27 control strategies on small business.
28 (2) Data on comparable regulatory programs or plans
29 administered by other states.
30 (3) An assessment of the economic impact of alternative
19920S1650B2435 - 60 -
1 control strategies.
2 (4) All other information that the Office of Small Business
3 Ombudsman considers necessary for the board's review.
4 Section 7.10. Transportation Management Associations.--(a)
5 The department, in consultation with the Department of
6 Transportation, may, after public notice and comment, designate
7 one or more transportation management associations to serve
8 specific regions of this Commonwealth to provide services to
9 employers required by the Clean Air Act to reduce employe
10 vehicle trips and encourage the use of carpooling, vanpooling
11 and public transportation to reduce air pollution.
12 (b) For purposes of this section, transportation management
13 associations shall consist of nonprofit corporations designated
14 by the department to broker transportation services, including,
15 but not limited to, public transportation, vanpools, carpools,
16 bicycling and pedestrian modes, as well as strategies such as
17 flextime, staggered work hours and compressed work weeks for
18 corporations, employes, developers, individuals and other
19 groups.
20 Section 7.11. Notice of Sanctions.--(a) Whenever the
21 Commonwealth is notified that the Environmental Protection
22 Agency has made a final or proposed finding on a State
23 implementation plan submitted by the Commonwealth or a local air
24 pollution control agency, the department shall notify within ten
25 (10) working days of receipt of the notice the Environmental
26 Resources and Energy Committee of the Senate and the
27 Conservation Committee of the House of Representatives of the
28 agency's findings.
29 (b) Whenever the Commonwealth is formally notified that it
30 is subject to discretionary or mandatory sanctions under section
19920S1650B2435 - 61 -
1 179 of the Clean Air Act, the department shall within ten (10)
2 working days of the receipt of this notice notify the
3 Environmental Resources and Energy Committee of the Senate and
4 the Conservation Committee of the House of Representatives.
5 Section 7.12. Missed Federal Deadlines.--Whenever the
6 Environmental Protection Agency has missed a deadline for
7 developing regulations or guidance on which states must rely to
8 comply with deadlines in the Clean Air Act by more than ninety
9 (90) days and, in the opinion of the department, the
10 Environmental Protection Agency has failed to provide it with
11 timely guidance needed to comply with the act in a timely
12 manner, the department may bring a legal action against the
13 Environmental Protection Agency in a court of competent
14 jurisdiction seeking an injunction to restrain the Environmental
15 Protection Agency from enforcing the applicable Clean Air Act
16 deadline on the Commonwealth until and unless the Environmental
17 Protection Agency develops the appropriate regulation or
18 guidance which allows the Commonwealth a reasonable opportunity
19 to comply with the Clean Air Act.
20 SECTION 7.13. AIR QUALITY IMPROVEMENT FUND.--(A) THE <--
21 GOVERNOR IS HEREBY AUTHORIZED TO TRANSFER THREE MILLION DOLLARS
22 ($3,000,000), OR AS MUCH THEREOF AS MAY BE NECESSARY FROM THE
23 HAZARDOUS SITES CLEANUP FUND, AS ESTABLISHED IN SECTION 602.3 OF
24 THE ACT OF MARCH 4, 1971 (P.L.6, NO.2), KNOWN AS THE "TAX REFORM
25 CODE OF 1971," TO A SEPARATE ACCOUNT IN THE STATE TREASURY TO BE
26 KNOWN AS THE AIR QUALITY IMPROVEMENT FUND, WHICH SHALL BE A
27 SPECIAL FUND ADMINISTERED BY THE DEPARTMENT OF COMMERCE. ALL
28 TRANSFERRED FUNDS FROM THE HAZARDOUS SITES CLEANUP FUND SHALL BE
29 REPAID TO THAT FUND FROM REPAYMENTS OF ASSISTANCE AND OTHER
30 FUNDS IN THE AIR QUALITY IMPROVEMENT FUND WITHIN TEN (10) YEARS
19920S1650B2435 - 62 -
1 IN THE FOLLOWING MANNER: IN THE FIFTH (5) YEAR AFTER THE DATE OF
2 ENACTMENT ALL REPAYMENTS IN THE AIR QUALITY IMPROVEMENT FUND
3 SHALL BE TRANSFERRED TO THE HAZARDOUS SITES CLEANUP FUND; IN THE
4 SUCCEEDING YEARS ALL REPAYMENTS SHALL BE TRANSFERRED ANNUALLY TO
5 THE HAZARDOUS SITES CLEANUP FUND UNTIL THE ENTIRE THREE MILLION
6 DOLLARS ($3,000,000) HAS BEEN REPAID; AND IF AT THE END OF THE
7 TEN (10) YEAR PERIOD FROM THE DATE OF ENACTMENT THE ENTIRE THREE
8 MILLION DOLLARS ($3,000,000) HAS NOT BE REPAID, ADDITIONAL FUNDS
9 FROM THE AIR QUALITY IMPROVEMENT FUND SHALL BE TRANSFERRED TO
10 THE HAZARDOUS SITES CLEANUP FUND TO PROVIDE THE BALANCE OF THE
11 THREE MILLION DOLLARS ($3,000,000). THE TRANSFER OF FUNDS TO THE
12 AIR QUALITY IMPROVEMENT FUND SHALL BE MADE HEREUNDER BY WARRANT
13 OF THE STATE TREASURER UPON REQUISITION OF THE GOVERNOR.
14 (B) IN ADDITION TO THE FUNDS TRANSFERRED IN ACCORDANCE WITH
15 SUBSECTION (A), ANY FUNDS AS MAY BE APPROPRIATED BY THE GENERAL
16 ASSEMBLY, PROVIDED BY PRIVATE SOURCES, OR SECURED FROM THE
17 FEDERAL GOVERNMENT TO AID SMALL BUSINESSES, IN ACCORDANCE WITH
18 THE PROVISIONS OF SUBSECTION (C) SHALL BE DEPOSITED INTO THE
19 FUND.
20 (C) ALL MONEYS IN THE AIR QUALITY IMPROVEMENT FUND ARE
21 HEREBY APPROPRIATED, WITH THE APPROVAL OF THE GOVERNOR, TO THE
22 DEPARTMENT OF COMMERCE AND SHALL BE USED TO PROVIDE ASSISTANCE
23 TO PENNSYLVANIA BUSINESSES TO MEET THE REQUIREMENTS OF THIS ACT.
24 THE FUNDS SHALL BE USED BY AN ELIGIBLE BUSINESS TO REDUCE OR
25 PREVENT AIR POLLUTION THROUGH THE PURCHASE AND INSTALLATION OF
26 AIR POLLUTION CONTROL EQUIPMENT AND FACILITIES, THE PURCHASE AND
27 INSTALLATION OF EQUIPMENT TO MAKE OPERATIONAL CHANGES AND TO
28 MODIFY PRODUCTION PRACTICES. IN NO CASE SHALL THE ASSISTANCE
29 EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000) PER APPLICANT.
30 THE DEPARTMENT OF COMMERCE SHALL REQUIRE COMPANIES TO REPAY THE
19920S1650B2435 - 63 -
1 FUNDS PROVIDED IN ACCORDANCE WITH TERMS THE DEPARTMENT OF
2 COMMERCE SHALL DETERMINE, BUT, IN NO CASE SHALL THE REPAYMENT
3 PERIOD BE LONGER THAN TEN (10) YEARS FROM THE DATE THE FUNDS
4 WERE PROVIDED. ALL FUNDS FROM THE HAZARDOUS SITES CLEANUP FUNDS
5 DEPOSITED INTO THE AIR QUALITY IMPROVEMENT FUND SHALL BE USED TO
6 PROVIDE ASSISTANCE TO SMALL BUSINESSES WHICH OWN OR OPERATE
7 STATIONARY SOURCES.
8 (D) ALL TRANSFERS, REPAYMENTS, APPROPRIATIONS, CONTRIBUTIONS
9 AND DEPOSITS MADE TO THE FUND SHALL BE IMMEDIATELY CREDITED IN
10 FULL TO THE FUND AND EARNINGS ON THE MONEY HELD IN THE FUND
11 SHALL ALSO BE CREDITED TO THE FUND.
12 Section 10. Sections 8, 9, 9.1 and 9.2 of the act, amended
13 or added October 26, 1972 (P.L.989, No.245), are amended to
14 read:
15 Section 8. Unlawful Conduct.--It shall be unlawful to fail
16 to comply with [any rule or regulation of the board], or to
17 cause or assist in the violation of, any of the provisions of
18 this act or the rules and regulations adopted under this act or
19 to fail to comply with any order, plan approval, permit or other
20 requirement of the department[, to violate or to assist in the
21 violation of any of the provisions of this act or rules and
22 regulations adopted hereunder, to cause air pollution, or to in
23 any manner hinder, obstruct, delay, resist, prevent or in any
24 way interfere or attempt to interfere with the department or its
25 personnel in the performance of any duty hereunder.] or to cause
26 a public nuisance; or to cause air pollution, soil or water
27 pollution resulting from an air pollution incident; or to
28 hinder, obstruct, prevent or interfere with the department or
29 its personnel in their performance of any duty hereunder,
30 including denying the department access to the source or
19920S1650B2435 - 64 -
1 facility; or to violate the provisions of 18 Pa.C.S. § 4903
2 (relating to false swearing) or 4904 (relating to unsworn
3 falsification to authorities) in regard to papers required to be
4 submitted under this act. The owner or operator of an air
5 contamination source shall not allow pollution of the air, water
6 or other natural resources of the Commonwealth resulting from
7 the source. For any air pollutant for which the board has set an
8 emissions standard or for any source for which a permit has been
9 issued by the department, a release of such pollutant in
10 accordance with that standard or permit shall not constitute a
11 violation of this act.
12 [Section 9. Penalties.--(a) Summary offense. Any person as
13 herein defined, except a department, board, bureau or agency of
14 the Commonwealth, engaging in unlawful conduct as set forth in
15 section 8 of this act, shall, for each offense, upon conviction
16 thereof in a summary proceeding before a district justice,
17 magistrate, alderman or justice of the peace, be sentenced to
18 pay the costs of prosecution and a fine of not less than one
19 hundred dollars ($100.00) nor more than one thousand dollars
20 ($1,000.00), and, in default thereof, to undergo imprisonment of
21 not less than ten (10) days nor more than thirty (30) days.
22 (b) Misdemeanors. Any person as herein defined, except a
23 department, board, bureau or agency of the Commonwealth, who,
24 within two years after being convicted of a summary offense
25 pursuant to subsection (a) of this section, engages in similar
26 unlawful conduct, shall be guilty of a misdemeanor and, upon
27 conviction thereof, shall, for each separate offense, be subject
28 to a fine of not less than five hundred dollars ($500.00) nor
29 more than five thousand dollars ($5,000.00), or to imprisonment
30 for a period of not more than one year for each separate offense
19920S1650B2435 - 65 -
1 hereunder, or both. For the purposes of this subsection, similar
2 unlawful conduct shall mean a violation of the same order of the
3 department, or a violation of the same provision of any rule or
4 regulation of the department by the same organizational unit of
5 the defendant.
6 (c) For the purpose of this section, violations on separate
7 days shall be considered separate offenses. Where a person
8 engages in continuing unlawful conduct, such person shall be
9 guilty of separate offenses for each day such conduct continues
10 up until the time of hearing or trial.
11 (d) Upon conviction of an association, partnership or
12 corporation of an offense under subsection (a) or (b) of this
13 section, the responsible members, officers, employes or agents
14 may be imprisoned for the term provided therein which shall run
15 concurrently with any term of imprisonment imposed upon such
16 persons individually upon conviction for the same offense.
17 Section 9.1. Civil Penalties.--In addition to proceeding
18 under any other remedy available at law, or in equity, for a
19 violation of a provision of this act, or a rule or regulation of
20 the board, or an order of the department, the hearing board,
21 after hearing, may assess a civil penalty upon a person for such
22 violation. Such a penalty may be assessed whether or not the
23 violation was wilful. The civil penalty so assessed shall not
24 exceed ten thousand dollars ($10,000.00), plus up to two
25 thousand five hundred dollars ($2,500.00) for each day of
26 continued violation. In determining the amount of the civil
27 penalty, the hearing board shall consider the wilfulness of the
28 violation, damage or injury to the outdoor atmosphere of the
29 Commonwealth or its uses, and other relevant factors. It shall
30 be payable to the Commonwealth of Pennsylvania and shall be
19920S1650B2435 - 66 -
1 collectible in any manner provided at law for the collection of
2 debt. If any person liable to pay any such penalty neglects or
3 refuses to pay the same after demand, the amount, together with
4 interest and any costs that may accrue, shall be a lien in favor
5 of the Commonwealth upon the property, both real and personal,
6 of such person, but only after same has been entered and
7 docketed of record by the prothonotary of the county where such
8 is situated. The hearing board may, at any time, transmit to the
9 prothonotaries of the respective counties certified copies of
10 all such liens, and it shall be the duty of each prothonotary to
11 enter and docket the same of record in his office, and to index
12 the same as judgments are indexed, without requiring the payment
13 of costs as a condition precedent to the entry thereof.]
14 Section 9. Penalties.--(a) Any person who violates any
15 provision of this act, any rule or regulation adopted under this
16 act, any order of the department or any condition or term of any
17 plan approval or permit issued pursuant to this act commits a
18 summary offense and shall, upon conviction, be sentenced to pay
19 a fine of not less than one hundred dollars ($100.00) nor more
20 than two thousand five hundred dollars ($2,500.00) for each
21 separate offense, and, in default of the payment of such fine,
22 may be sentenced to imprisonment for ninety (90) days for each
23 separate offense. Employes of the department authorized to
24 conduct inspections or investigations are hereby declared to be
25 law enforcement officers authorized to issue or file citations
26 for summary violations under this act, and the General Counsel
27 is hereby authorized to prosecute these offenses. For purposes
28 of this subsection, a summary offense may be prosecuted before
29 any district justice in the county where the offense occurred.
30 There is no accelerated rehabilitative disposition authorized
19920S1650B2435 - 67 -
1 for a summary offense.
2 (b) (1) Any person who wilfully or negligently violates any
3 provision of this act, any rule or regulation adopted under this
4 act or any order of the department or any condition or term of
5 any plan approval or permit issued pursuant to this act commits
6 a misdemeanor of the second degree and shall, upon conviction,
7 be sentenced to pay a fine of not less than one thousand dollars
8 ($1,000.00) nor more than fifty thousand dollars ($50,000.00)
9 for each separate offense or to imprisonment for a period of not
10 more than two (2) years for each separate offense, or both.
11 (2) Any person who knowingly makes any false statement or
12 representation in any application, record, report, certification
13 or other document required to be either filed or maintained by
14 this act or the regulations promulgated under this act or
15 commits a misdemeanor of the second degree and shall, upon
16 conviction, be sentenced to pay a fine of not less than two
17 thousand five hundred dollars ($2,500.00) nor more than fifty
18 thousand dollars ($50,000.00) for each separate offense or to
19 imprisonment for a period of not more than two (2) years for
20 each separate offense, or both.
21 (3) Any person who negligently releases into the ambient air
22 any hazardous air pollutant listed under section 112 of the
23 Clean Air Act or any extremely hazardous substance listed under
24 section 302(a)(2) of the Superfund Amendments and
25 Reauthorization Act of 1986 (Public Law 99-499, 100 Stat. 1613)
26 that is not listed in section 112 of the Clean Air Act and who
27 at the time negligently places another person in imminent danger
28 of death or serious bodily injury commits a misdemeanor of the
29 third degree and shall, upon conviction, be sentenced to pay a
30 fine of not less than five thousand dollars ($5,000.00) nor more
19920S1650B2435 - 68 -
1 than fifty thousand dollars ($50,000.00) for each separate
2 offense or to imprisonment for a period of not more than one (1)
3 year for each separate offense, or both.
4 (c) (1) Any person who knowingly releases into the ambient
5 air any hazardous air pollutant listed under section 112 of the
6 Clean Air Act or any extremely hazardous substance listed under
7 section 302(a)(2) of the Superfund Amendments and
8 Reauthorization Act of 1986 that is not listed in section 112 of
9 the Clean Air Act and who knows at the time that he thereby
10 places another person in imminent danger of death or serious
11 bodily injury commits a felony of the first degree and shall,
12 upon conviction, be sentenced to pay a fine of not less than
13 twenty-five thousand dollars ($25,000.00) nor more than one
14 hundred thousand dollars ($100,000.00) per day for each
15 violation or to imprisonment for a period of not less than two
16 (2) years nor more than twenty (20) years, or both. Any person
17 which is an organization committing such violation shall, upon
18 conviction under this clause, be subject to a fine of not more
19 than one million dollars ($1,000,000.00) per day for each
20 violation. If a conviction of any person under this clause is
21 for a violation committed after a first conviction of such
22 person under this clause, the maximum punishment shall be
23 doubled with respect to both the fine and imprisonment. For any
24 air pollutant for which the board has set an emissions standard
25 or for any source for which a permit has been issued by the
26 department, a release of such pollutant in accordance with that
27 standard or permit shall not constitute a violation of this
28 section.
29 (2) In determining whether a defendant who is an individual
30 knew that the violation placed another person in imminent danger
19920S1650B2435 - 69 -
1 of death or serious bodily injury:
2 (i) the defendant is responsible only for actual awareness
3 or actual belief possessed; and
4 (ii) knowledge possessed by a person other than the
5 defendant, but not by the defendant, may not be attributed to
6 the defendant; except that, in proving a defendant's possession
7 of actual knowledge, circumstantial evidence may be used,
8 including evidence that the defendant took affirmative steps to
9 be shielded from relevant information.
10 (3) It is an affirmative defense to a prosecution under this
11 subsection that the conduct charged was freely consented to by
12 the person endangered and that the danger and conduct charged
13 were reasonably foreseeable hazards of either of the following:
14 (i) An occupation, a business or a profession, and the
15 person had been made aware of the risks involved prior to giving
16 consent.
17 (ii) Medical treatment or medical or scientific
18 experimentation conducted by professionally approved methods,
19 and such other person had been made aware of the risks involved
20 prior to giving consent. The defendant may establish an
21 affirmative defense under this subclause by a preponderance of
22 the evidence.
23 (4) All general defenses, affirmative defenses and bars to
24 prosecution that may apply with respect to other State criminal
25 offenses may apply under this clause and shall be determined by
26 the courts according to the principles of common law. Concepts
27 of justification and excuse applicable under this section may be
28 developed according to those principles.
29 (5) For purposes of this subsection, the term "organization"
30 means a legal entity, other than a government, established or
19920S1650B2435 - 70 -
1 organized for any purpose, and the term includes a corporation,
2 a company, an association, a firm, a partnership, a joint stock
3 company, a foundation, an institution, a trust, a society, a
4 union or any other association of persons.
5 (d) For purposes of subsections (b) and (c) of this section,
6 the term "serious bodily injury" means bodily injury which
7 involves a substantial risk of death, unconsciousness, extreme
8 physical pain, protracted and obvious disfigurement or
9 protracted loss or impairment of the function of a bodily
10 member, organ or mental faculty.
11 (e) For purposes of this section, the term "person"
12 includes, in addition to the entities referred to in section 3,
13 any responsible corporate officer.
14 (f) For purposes of the provisions of subsections (b) and
15 (c) of this section and section 9.1, the term "operator," as
16 used in such provisions, shall include any person who is senior
17 management personnel or a corporate officer. Except in the case
18 of knowing and wilful violations, such term shall not include
19 any person who is a stationary engineer or technician
20 responsible for the operation, maintenance, repair or monitoring
21 of equipment and facilities and who often has supervisory and
22 training duties, but who is not senior management personnel or a
23 corporate officer. Except in the case of knowing and wilful
24 violations, for purposes of clause (3) of subsection (b) of this
25 section, the term "a person" shall not include an employe who is
26 carrying out his normal activities and who is not a part of
27 senior management personnel or a corporate officer. Except in
28 the case of knowing and wilful violations, for the purposes of
29 clauses (1) and (2) of subsection (b) and subsection (c) of this
30 section, the term "a person" shall not include an employe who is
19920S1650B2435 - 71 -
1 carrying out his normal activities and who is acting under
2 orders from the employer.
3 (g) For purposes of this section, a person acts negligently
4 with respect to a material element of an offense when he should
5 be aware of a substantial and unjustifiable risk that the
6 material element exists or will result from his conduct. The
7 risk must be of such a nature and degree that the actor's
8 failure to perceive it, considering the nature and intent of his
9 conduct and the circumstances known to him, involves a gross
10 deviation from the standard of care that a reasonable person
11 would observe in the actor's situation.
12 Section 9.1. Civil Penalties.--(a) In addition to
13 proceeding under any other remedy available at law or in equity
14 for a violation of a provision of this act or any rule or
15 regulation promulgated under this act or any order, plan
16 approval or permit issued pursuant to this act, the department
17 may assess a civil penalty for the violation. The penalty may be
18 assessed whether or not the violation was wilful. The civil
19 penalty so assessed shall not exceed ten thousand dollars
20 ($10,000.00) per day for each violation which occurs in the
21 first three (3) years following enactment of this section;
22 fifteen thousand dollars ($15,000.00) per day for each violation
23 which occurs in the fourth year following enactment of this
24 section; and twenty-five thousand dollars ($25,000.00) per day
25 for each violation which occurs in the fifth year and all
26 subsequent years following enactment of this section. In
27 determining the amount of the penalty, the department shall
28 consider the wilfulness of the violation; damage to air, soil,
29 water or other natural resources of the Commonwealth or their
30 uses; financial benefit to the person in consequence of the
19920S1650B2435 - 72 -
1 violation; deterrence of future violations; cost to the
2 department; the size of the source or facility; the compliance
3 history of the source; the severity and duration of the
4 violation; degree of cooperation in resolving the violation; the
5 speed with which compliance is ultimately achieved; whether the
6 violation was voluntarily reported; other factors unique to the
7 owners or operator of the source or facility; and other relevant
8 factors.
9 (b) When the department proposes to assess a civil penalty,
10 it shall inform the person of the proposed amount of the
11 penalty. The person charged with the penalty shall then have
12 thirty (30) days to pay the proposed penalty in full, or if the
13 person wishes to contest the amount of the penalty or the fact
14 of the violation to the extent not already established, the
15 person shall forward the proposed amount of the penalty to the
16 hearing board within the thirty (30) day period for placement in
17 an escrow account with the State treasurer or any Commonwealth
18 bank or post an appeal bond to the hearing board within thirty
19 (30) days in the amount of the proposed penalty, provided that
20 such bond is executed by a surety licensed to do business in the
21 Commonwealth and is satisfactory to the department. If, through
22 administrative or final judicial review of the proposed penalty,
23 it is determined that no violation occurred or that the amount
24 of the penalty shall be reduced, the hearing board shall, within
25 thirty (30) days, remit the appropriate amount to the person
26 with any interest accumulated by the escrow deposit. Failure to
27 forward the money or the appeal bond at the time of the appeal
28 shall result in a waiver of all legal rights to contest the
29 violation or the amount of the civil penalty unless the
30 appellant alleges financial inability to prepay the penalty or
19920S1650B2435 - 73 -
1 to post the appeal bond. The hearing board shall conduct a
2 hearing to consider the appellant's alleged inability to pay
3 within thirty (30) days of the date of the appeal. The hearing
4 board may waive the requirement to prepay the civil penalty or
5 to post an appeal bond if the appellant demonstrates and the
6 hearing board finds that the appellant is financially unable to
7 pay. The hearing board shall issue an order within thirty (30)
8 days of the date of the hearing to consider the appellant's
9 alleged inability to pay. The amount assessed after
10 administrative hearing or after waiver of administrative hearing
11 shall be payable to the Commonwealth and shall be collectible in
12 any manner provided by law for the collection of debts,
13 including the collection of interest at the rate established in
14 subsection (c) of section 6.3, which shall run from the date of
15 assessment of the penalty. If any person liable to pay any such
16 penalty neglects or refuses to pay the same after demand, the
17 amount, together with interest and any costs that may accrue,
18 shall constitute a debt of such person, as may be appropriate,
19 to the Clean Air Fund. The debt shall constitute a lien on all
20 property owned by said person when a notice of lien
21 incorporating a description of the property of the person
22 subject to the action is duly filed with the prothonotary of the
23 court of common pleas where the property is located. The
24 prothonotary shall promptly enter upon the civil judgment or
25 order docket, at no cost to the department, the name and address
26 of the person, as may be appropriate, and the amount of the lien
27 as set forth in the notice of lien. Upon entry by the
28 prothonotary, the lien shall attach to the revenues and all real
29 and personal property of the person, whether or not the person
30 is solvent. The notice of lien, filed pursuant to this
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1 subsection, which affects the property of the person shall
2 create a lien with priority over all subsequent claims or liens
3 which are filed against the person, but it shall not affect any
4 valid lien, right or interest in the property filed in
5 accordance with established procedure prior to the filing of a
6 notice of lien under this subsection.
7 Section 9.2. Disposition of Fees, Fines and Civil
8 Penalties.--(a) All fines, civil penalties and fees collected
9 under this act shall be paid into the Treasury of the
10 Commonwealth in a special fund known as the ["]Clean Air
11 Fund,["] hereby established, which, along with interest earned,
12 shall be administered by the department for use in the
13 elimination of air pollution. The department may establish such
14 separate accounts as may be necessary or appropriate to
15 implement the requirements of this act and the Clean Air Act.
16 The board shall adopt rules and regulations for the management
17 and use of the money in the fund.
18 (b) The Clean Air Fund may be supplemented by appropriations
19 from the General Assembly, the Federal, State or local
20 government or any private source.
21 (c) The Clean Air Fund shall not be subject to 42 Pa.C.S.
22 Ch. 37 Subch. C (relating to judicial computer system).
23 Section 11. The act is amended by adding a section to read:
24 Section 9.3. Continuing Violations.--Each day of continued
25 violation and each violation of any provision of this act, any
26 rule or regulation adopted under this act or any order of the
27 department or any condition or term of any plan approval or
28 permit issued pursuant to this act shall constitute a separate
29 offense and violation.
30 Section 12. Section 10 of the act is repealed.
19920S1650B2435 - 75 -
1 Section 13. The act is amended by adding sections to read:
2 Section 10.1. Enforcement Orders.--(a) The department may
3 issue such orders as are necessary to aid in the enforcement of
4 the provisions of this act. These orders shall include, but
5 shall not be limited to, orders modifying, suspending,
6 terminating or revoking any plan approvals or permits, orders
7 requiring persons to cease unlawful activities or cease
8 operation of a facility or air contamination source which, in
9 the course of its operation, is in violation of any provision of
10 this act, any rule or regulation promulgated under this act or
11 plan approval or permit, order to take corrective action or to
12 abate a public nuisance, or an order requiring the testing,
13 sampling or monitoring of any air contamination source or orders
14 requiring production of information. Such an order may be issued
15 if the department finds that any condition existing in or on the
16 facility or source involved is causing or contributing to or is
17 creating a danger of air pollution or if it finds that the
18 permittee or any person is in violation of any provision of this
19 act or of any rule, regulation or order of the department.
20 (b) The department may, in its order, require compliance
21 with such conditions as are necessary to prevent or abate air
22 pollution or effect the purposes of this act.
23 (c) An order issued under this section shall take effect
24 upon notice, unless the order specifies otherwise. An appeal to
25 the hearing board of the department's order shall not act as a
26 supersedeas: Provided, however, That, upon application and for
27 cause shown, the hearing board may issue such a supersedeas
28 under rules established by the hearing board.
29 (d) The authority of the department to issue an order under
30 this section is in addition to any remedy or penalty which may
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1 be imposed pursuant to this act. The failure to comply with any
2 such order is hereby declared to be a public nuisance.
3 Section 10.2. Appealable Actions.--Any person aggrieved by
4 an order or other administrative action of the department issued
5 pursuant to this act or any person who participated in the
6 public comment process for a plan approval or permit shall have
7 the right, within thirty (30) days from actual or constructive
8 notice of the action, to appeal the action to the hearing board
9 in accordance with the act of July 13, 1988 (P.L.530, No.94),
10 known as the Environmental Hearing Board Act, and 2 Pa.C.S. Ch.
11 5 Subch. A (relating to practice and procedure of Commonwealth
12 agencies).
13 Section 10.3. Limitation on Action.--The provisions of any
14 other statute to the contrary notwithstanding, actions for civil
15 or criminal penalties under this act may be commenced at any
16 time within a period of seven (7) years from the date the
17 offense is discovered.
18 Section 14. Sections 11, 12, 12.1, 13, 13.1 and 13.2 of the
19 act, amended or added October 26, 1972 (P.L.989, No.245), are
20 amended to read:
21 Section 11. Powers Reserved to the Department Under Existing
22 Laws.--Nothing in this act shall limit in any way whatever the
23 powers conferred upon the department under laws other than this
24 act, it being expressly provided that all such powers are
25 preserved to the department and may be freely exercised by it.
26 [The department shall have the right upon approval of the
27 Attorney General, to petition a court of competent jurisdiction
28 to order the abatement of any nuisance or condition detrimental
29 to health. For that purpose no] No court exercising general
30 equitable jurisdiction shall be deprived of such jurisdiction
19920S1650B2435 - 77 -
1 even though [such] a nuisance or condition detrimental to health
2 is subject to regulation or other action by the board under this
3 act. The department shall not have the power to restrict or deny <--
4 any permit application or otherwise lawful activity regarding
5 the act of June 22, 1937 (P.L.1987, No.394), known as "The Clean
6 Streams Law," or the act of January 24, 1966 (1965 P.L.1535,
7 No.537), known as the "Pennsylvania Sewage Facilities Act,"
8 based upon the powers granted to the department under this act.
9 Section 12. Powers Reserved to Political Subdivisions.--(a)
10 Nothing in this act shall prevent counties, cities, towns,
11 townships or boroughs from enacting ordinances with respect to
12 air pollution which will not be less stringent than the
13 provisions of this act, the Clean Air Act or the rules and
14 regulations promulgated [pursuant to its provisions.] under
15 either this act or the Clean Air Act. This act shall not be
16 construed to repeal existing ordinances, resolutions or
17 regulations of the aforementioned political subdivisions
18 existing at the time of the effective date of this act, except
19 as they may be less stringent than the provisions of this
20 act[.], the Clean Air Act or the rules or regulations adopted
21 under either this act or the Clean Air Act.
22 (b) The administrative procedures for the abatement,
23 reduction, prevention and control of air pollution set forth in
24 this act shall not apply to any [political subdivision of the
25 Commonwealth which has an approved air pollution control
26 agency.] county of the first or second class of the Commonwealth
27 which has and implements an air pollution control program that,
28 at a minimum, meets the requirements of this act, the Clean Air
29 Act and the rules and regulations promulgated under both this
30 act and the Clean Air Act and has been approved by the
19920S1650B2435 - 78 -
1 department.
2 (c) (1) Whenever, either upon complaint made to or
3 initiated by the department, the department finds that any
4 person is in violation of air pollution control standards, or
5 rules and regulations promulgated pursuant to the grant of
6 authority made in subsection (b), the department shall give
7 notification of that fact to that person and to the air
8 pollution control agency of the [political subdivision] county
9 involved.
10 (2) If such violation continues to exist after said
11 notification has been given, the department may take any
12 abatement action provided for under the terms of this act.
13 (d) Whenever the department finds that violations of [the
14 air pollution control standards, or rules and regulations
15 promulgated pursuant to the grant of authority under subsection
16 (b)] this act or the rules and regulations promulgated under
17 this act are so widespread that such violations appear to result
18 from a failure of the local county control agency involved to
19 enforce those [standards, or rules and regulations,]
20 requirements, the department may assume the authority to enforce
21 [those standards, and rules and regulations.] this act in that
22 county.
23 (e) The department shall have the power to refuse approval,
24 or to suspend or rescind approval, once given, to any county air
25 pollution control agency if the department finds that such
26 county agency is unable or unwilling [so] to conduct an air
27 pollution control program [as] to abate or reduce air pollution
28 problems within its jurisdiction in [an effective manner.]
29 accordance with the requirements of this act, the Clean Air Act
30 or the rules and regulations promulgated under both this act and
19920S1650B2435 - 79 -
1 the Clean Air Act.
2 (f) Whenever the department takes action under the
3 provisions of subsections (d) or (e) of this section, it shall
4 give written notification to the air pollution control agency of
5 the [political subdivision] county involved and such
6 notification shall be [subject to the appeal provisions of
7 clause (4.1) of section 4 of this act.] an appealable action.
8 (g) Irrespective of subsection (b) above, and in order that
9 the civil and criminal penalties and equitable remedies for air
10 pollution violations shall be uniform [except insofar as they
11 are inconsistent with the jurisdictional limitations of the
12 minor judiciary and the Philadelphia Municipal Court,]
13 throughout the Commonwealth, the penalties and remedies set
14 forth in this act [in sections 9, 9.1, 10 and 11,] shall be the
15 penalties and remedies available for enforcement of any
16 municipal air pollution ordinances or regulations, and shall be
17 available to any municipality, public official, or other person
18 having standing to initiate proceedings for the enforcement of
19 such municipal ordinances or regulations, and the amounts of the
20 fines or civil penalties set forth herein shall be the amounts
21 of the fines or civil penalties assessable and to be levied for
22 violations of any municipal ordinances or regulations. It is
23 hereby declared to be the purpose of this section to enunciate
24 further that the purpose of this act is to provide additional
25 and cumulative remedies to abate the pollution of the air of
26 this Commonwealth. Any action for the assessment of civil
27 penalties brought for the enforcement of a municipal air
28 pollution ordinance or regulation shall be brought in accordance
29 with the procedures set forth in such ordinance. Where any
30 municipal ordinance or regulation does not provide a procedure
19920S1650B2435 - 80 -
1 for the assessment of civil penalties, the provisions [of
2 subsection (h) of this section] related to assessment and
3 collection of civil penalties of section 9.1 shall apply.
4 [(h) Any person, as herein defined, except a department,
5 board, bureau, or agency of the Commonwealth, engaging in
6 conduct in violation of a municipal air pollution control
7 ordinance, shall, for each offense, upon conviction thereof in a
8 civil proceeding before a judge of the Municipal Court of
9 Philadelphia, district justice, magistrate, alderman or justice
10 of the peace be sentenced to pay the cost of prosecution and a
11 civil penalty of not less than twenty-five dollars ($25.00), nor
12 more than five hundred dollars ($500.00), for each day of
13 continued violation. Such a penalty may be assessed whether or
14 not the violation was wilful. Failure to pay any such penalty
15 within the time prescribed by law shall be punishable as a civil
16 contempt. Notwithstanding anything contained in section 9.2 of
17 this act, all civil penalties and fees collected under this
18 subsection shall be paid to the appropriate political
19 subdivision, as provided by law, and shall be collectible in any
20 manner provided by law for the collection of debt. If any person
21 liable to pay any such penalty neglects or refuses to pay the
22 same after demand, the amount, together with interest and any
23 costs that may accrue, shall be a lien in favor of the
24 appropriate political subdivision upon the property, both real
25 and personal, of such person, but only after the same has been
26 entered and docketed of record by the prothonotary of the county
27 where such is situated: Provided, That nothing contained in this
28 subsection shall preclude any public official from seeking, at
29 law or at equity or before any appropriate administrative body,
30 the assessment of civil penalties in the amount provided by
19920S1650B2435 - 81 -
1 section 9.1 of this act.]
2 (H) NOTHING IN THIS ACT SHALL AFFECT THE MUNICIPAL PLANNING <--
3 CODE UNLESS REQUIRED BY THE CLEAN AIR ACT.
4 Section 12.1. Construction.--Nothing in this act shall be
5 construed as estopping the Commonwealth, or any district
6 attorney or solicitor of a municipality, from proceeding in
7 courts of law or equity to abate pollutions forbidden under this
8 act, or abate nuisances under existing law. It is hereby
9 declared to be the purpose of this act to provide additional and
10 cumulative remedies to abate the pollution of the air of this
11 Commonwealth, and nothing contained in this act shall in any way
12 abridge or alter rights of action or remedies now or hereafter
13 existing in equity, or under the common law or statutory law,
14 criminal or civil, nor shall any provision of this act, or the
15 granting of any plan approval or permit under this act, or any
16 act done by virtue of this act, be construed as estopping the
17 Commonwealth, persons or municipalities, in the exercise of
18 their rights under the common law or decisional law or in
19 equity, from proceeding in courts of law or equity to suppress
20 nuisances, or to abate any pollution now or hereafter existing,
21 or enforce common law or statutory rights. No courts of this
22 Commonwealth having jurisdiction to abate public or private
23 nuisance shall be deprived of such jurisdiction to abate any
24 private or public nuisance instituted by any person for the
25 reason that such nuisance constitutes air pollution.
26 [Section 13. Public Nuisances.--A violation of any order or
27 of any provision of any rule or regulation promulgated pursuant
28 to a local air pollution code or to a State air pollution act,
29 which limits or controls the emission of any air contaminant
30 shall constitute a public nuisance and shall be abatable in the
19920S1650B2435 - 82 -
1 manner provided by law.]
2 Section 13. Public Nuisances.--A violation of this act or of
3 any rule or regulation promulgated under this act or any order,
4 plan approval or permit issued by the department under this act
5 shall constitute a public nuisance. The department shall have
6 the authority to order any person causing a public nuisance to
7 abate the public nuisance. In addition, the department or any
8 Commonwealth agency which undertakes to abate a public nuisance
9 may recover the expenses of abatement following the process for
10 assessment and collection of a civil penalty contained in
11 section 9.1. Whenever the nuisance is maintained or continued
12 contrary to this act or any rule or regulation promulgated under
13 this act or any order, plan approval or permit, the nuisance may
14 be abatable in the manner provided by this act. Any person who
15 causes the public nuisance shall be liable for the cost of
16 abatement.
17 Section 13.1. Search Warrants.--Whenever an agent or employe
18 of the department, charged with the enforcement of the
19 provisions of this act, has been refused access to property, or
20 has been refused the right to examine any air contamination
21 source, or air pollution control equipment or device, or is
22 refused access to or examination of books, papers and records
23 pertinent to any matter under investigation, such agent or
24 employe may apply for a search warrant to any Commonwealth
25 official authorized by the laws of the Commonwealth to issue the
26 same to enable him to have access [and], examine and seize such
27 property, air contamination source, air pollution control
28 equipment or device, or books, papers and records, as the case
29 may be. It shall be sufficient probable cause to issue a search
30 warrant that the inspection is necessary to properly enforce the
19920S1650B2435 - 83 -
1 provisions of this act.
2 Section 13.2. Confidential Information.--All records,
3 reports or information obtained by the department or referred to
4 at public hearings under the provisions of this act shall be
5 available to the public, except that upon cause shown by any
6 person that the records, reports or information, or a particular
7 portion thereof, but not emission data, to which the department
8 has access under the provisions of this act, if made public,
9 would divulge production or sales figures or methods, processes
10 or production unique to such person or would otherwise tend to
11 affect adversely the competitive position of such person by
12 revealing trade secrets, including intellectual property rights,
13 the department shall consider such record, report or
14 information, or particular portion thereof confidential in the
15 administration of this act. The department shall implement this
16 section consistent with sections 112(d) and 114(c) of the Clean
17 Air Act. Nothing herein shall be construed to prevent disclosure
18 of such report, record or information to Federal, State or local
19 representatives as necessary for purposes of administration of
20 any Federal, State or local air pollution control laws, or when
21 relevant in any proceeding under this act.
22 Section 15. Sections 13.3, 13.4 and 13.5 of the act are
23 repealed.
24 Section 16. The act is amended by adding sections to read:
25 Section 13.6. Suits to Abate Nuisances and Restrain
26 Violations.--(a) Any activity or condition declared by this act
27 to be a nuisance or which is otherwise in violation of this act
28 shall be abatable in the manner provided by law or equity for
29 the abatement of public nuisance. In addition, in order to
30 restrain or prevent any violation of this act or the rules and
19920S1650B2435 - 84 -
1 regulations promulgated under this act or any plan approval or
2 permit or orders issued by the department, or to restrain the
3 maintenance and threat of public nuisance, suits may be
4 instituted in equity or at law in the name of the Commonwealth
5 upon relation of the Attorney General, the General Counsel, the
6 district attorney of any county or the solicitor of any
7 municipality affected, after notice has first been served upon
8 the Attorney General of the intention of the General Counsel,
9 district attorney or solicitor to so proceed. Such proceedings
10 may be prosecuted in the Commonwealth Court or in the court of
11 common pleas of the county where the activity has taken place,
12 the condition exists or the public is affected, and, to that
13 end, jurisdiction is hereby conferred in law and equity upon
14 such courts. Except in cases of emergency where, in the opinion
15 of the court, the exigencies of the case require immediate
16 abatement of the nuisance, the court may, in its decree, fix a
17 reasonable time during which the person responsible for the
18 nuisance may make provision for the abatement of the same.
19 (b) In cases where the circumstances require it or the
20 public health is endangered, a mandatory preliminary injunction,
21 special injunction or temporary restraining order may be issued
22 upon the terms prescribed by the court, notice of the
23 application therefor having been given to the defendant in
24 accordance with the rules of equity practice, and in any such
25 case the Attorney General, the General Counsel, the district
26 attorney or the solicitor of any municipality shall not be
27 required to give bond. In any such proceeding the court shall,
28 upon motion of the Commonwealth, issue a prohibitory or
29 mandatory preliminary injunction if it finds that the defendant
30 is engaging in unlawful conduct as defined by this act or is
19920S1650B2435 - 85 -
1 engaged in conduct which is causing immediate and irreparable
2 harm to the public. In addition to an injunction, the court in
3 such equity proceedings may levy civil penalties in the same
4 manner as the department in accordance with section 9.1.
5 (c) Except as provided in subsection (d) of this section,
6 any person may commence a civil action to compel compliance with
7 this act or any rule, regulation, order or plan approval or
8 permit issued pursuant to this act by any owner or operator
9 alleged to be causing or contributing to a violation of any
10 provision of this act or any rule or regulation promulgated
11 under this act or any plan approval, permit or order issued by
12 the department. In addition to seeking to compel compliance, any
13 person may request the court to award civil penalties. The court
14 shall use the factors and amounts contained in section 9.1 in
15 awarding civil penalties under this subsection. Such penalties
16 shall be paid into the Clean Air Fund established by section 9.2
17 or be used to prevent air pollution in the county where the
18 violation occurred. Except where 42 Pa.C.S. (relating to
19 judiciary and judicial procedure) requires otherwise, the courts
20 of common pleas shall have jurisdiction of such actions. Such an
21 action may not be commenced if the department has commenced and
22 is diligently prosecuting a civil action in a Federal or State
23 court or is in litigation before the hearing board to require
24 the alleged violator to comply with this act, any rule or
25 regulation promulgated under this act or any order, plan
26 approval or permit issued pursuant to this act, but, in any such
27 action in a Federal or State court or before the hearing board,
28 any person having or representing an interest which is or may be
29 adversely affected may intervene as a matter of right without
30 posting bond.
19920S1650B2435 - 86 -
1 (d) An action pursuant to subsection (c) of this section may
2 not be commenced prior to sixty (60) days after the plaintiff
3 has given notice, in writing, of the violation to the department
4 and to any alleged violator.
5 (e) The sixty (60) day notice provisions of subsection (d)
6 of this section to the contrary notwithstanding, any action
7 pursuant to subsection (c) of this section may be initiated
8 immediately upon written notification to the department in the
9 case where the violation or condition complained of constitutes
10 an imminent threat to the health or safety of the plaintiff or
11 would immediately affect a legal interest of the plaintiff.
12 (f) The court, in issuing any final order in any action
13 brought pursuant to subsection (c) of this section, may award
14 costs of litigation, including attorney and expert witness fees,
15 to any party whenever the court determines such an award is
16 appropriate. Except as provided in subsection (b) of this
17 section, the court may, if a temporary restraining order or
18 preliminary injunction is sought, require the filing of a bond
19 or equivalent security in accordance with the Pennsylvania Rules
20 of Civil Procedure.
21 Section 17. This act shall take effect as follows:
22 (1) Section 4.2 of the act shall take effect in 60 days.
23 (2) SECTION 6.7 OF THE ACT SHALL TAKE EFFECT NOVEMBER <--
24 15, 1992.
25 (2) (3) The remainder of this act shall take effect <--
26 immediately.
C19L35SFG/19920S1650B2435 - 87 -