THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY VITALI, HANNA, FRANKEL, GEORGE, STURLA, B. BOYLE, K. BOYLE, BRADFORD, BRIGGS, V. BROWN, CALTAGIRONE, COHEN, D. COSTA, CURRY, DAVIS, DAVIDSON, DELISSIO, FREEMAN, GERBER, GOODMAN, HARPER, HICKERNELL, HORNAMAN, JOSEPHS, MAHONEY, MUNDY, M. O'BRIEN, PARKER, PAYTON, QUINN, SAMUELSON, SANTARSIERO, K. SMITH AND YOUNGBLOOD, JANUARY 10, 2012

REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY, JANUARY 10, 2012  

AN ACT

Amending Title 35 (Health and Safety) of the Pennsylvania

Consolidated Statutes, consolidating the Air Pollution

Control Act; providing for air contaminant emissions, for

exemptions from air pollution requirements for unconventional

gas production processes prohibited and for permit fees; and

making a related repeal.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 35 of the Pennsylvania Consolidated

Statutes is amended by adding a chapter to read:

CHAPTER 21

AIR POLLUTION CONTROL

Subchapter

A.  Preliminary Provisions

B.  Regulatory Program

SUBCHAPTER A

PRELIMINARY PROVISIONS

Sec.

2101.  Scope of chapter.

2102.  Declaration of policy.

2103.  Definitions.

§ 2101.  Scope of chapter.

This chapter relates to air pollution control.

§ 2102.  Declaration of policy.

The General Assembly finds and declares as follows:

(1)  It is the policy of the Commonwealth to protect the

air resources of this Commonwealth to the degree necessary

for the:

(i)  protection of public health, safety and well-

being of its citizens;

(ii)  prevention of injury to plant and animal life

and to property;

(iii)  protection of the comfort and convenience of

the public and the protection of the recreational

resources of this Commonwealth;

(iv)  development, attraction and expansion of

industry, commerce and agriculture; and

(v)  implementation of the provisions of the Clean

Air Act in this Commonwealth.

(2)  Interstate pollution transport commissions

established under the Clean Air Act should develop pollution

control strategies via a process which involves public review

and opportunity for comment.

(3)  The public should be involved in developing and

committing the Commonwealth to the adoption of particular

pollution control strategies through review of State

implementation plans required to be submitted by the Clean

Air Act.

(4)  The department should have adequate staff and

technical resources needed to comply with the Clean Air Act.

The department shall be required to explore the role private

industry can play in developing and implementing the clean

air programs as a mechanism to ensure that the Commonwealth

meets Clean Air Act deadlines.

(5)  States should not be penalized for missing Clean Air

Act deadlines when the delay is the result of the Federal

Government not finalizing guidance to states on implementing

the act. The Commonwealth and other states must be given a

reasonable opportunity to meet Clean Air Act deadlines.

(6)  The purpose of this subchapter is to provide

additional and cumulative remedies to abate the pollution of

the air of this Commonwealth.

§ 2103.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Administrator."  The Administrator of the United States

Environmental Protection Agency.

"Air contaminant."  Smoke, dust, fume, gas, odor, mist,

radioactive substance, vapor, pollen or any combination of them.

"Air contamination."  The presence in the outdoor atmosphere

of an air contaminant which contributes to any condition of air

pollution.

"Air contamination source."  Any place, facility or

equipment, stationary or mobile, at, from or by reason of which

there is emitted into the outdoor atmosphere any air

contaminant.

"Air pollution."  The presence in the outdoor atmosphere of

any form of contaminant, including the discharging from stacks,

chimneys, openings, buildings, structures, open fires, vehicles,

processes or any other source of any smoke, soot, fly ash, dust,

cinders, dirt, noxious or obnoxious acids, fumes, oxides, gases,

vapors, odors, toxic, hazardous or radioactive substances, waste

or any other matter in a place, manner or concentration inimical

or which may be inimical to the public health, safety or welfare

or which is or may be injurious to human, plant or animal life

or to property or which unreasonably interferes with the

comfortable enjoyment of life or property.

"Approved air pollution control agency."  An air pollution

control agency of any political subdivision of the Commonwealth

which has been granted approval by the Environmental Quality

Board.

"Board" or "EQB."  The Environmental Quality Board.

"Clean Air Act."  (Public Law 95-95, 42 U.S.C. § 7401 et

seq.).

"Department."  The Department of Environmental Resources of

the Commonwealth.

"Environmental Protection Agency" or "EPA."  The United

States Environmental Protection Agency or the Administrator of

the United States Environmental Protection Agency.

"Gasoline-dispensing facility."  A facility from which

gasoline is transferred to motor vehicle fuel tanks.

"Hearing board."  The Environmental Hearing Board.

"Person."  Any individual, public or private corporation for

profit or not for profit, association, partnership, firm, trust,

estate, department, board, bureau or agency of the Federal

Government or the Commonwealth, political subdivision,

municipality, district, authority or any other legal entity

which is recognized by law as the subject of rights and duties.

"Plan approval."  The written approval from the Department of

Environmental Resources which authorizes a person to construct,

assemble, install or modify any stationary air contamination

source or install on the source any air pollution control

equipment or device.

"Region."  Any geographical subdivision of this Commonwealth

whose boundaries shall be determined by the Environmental

Quality Board.

"Small business stationary source."  A stationary source

that:

(1)  is owned or operated by a person that employs 100 or

fewer individuals;

(2)  is a small business as defined in the Small Business

Act (Public Law 85-536, 15 U.S.C. § 78a et seq.);

(3)  is not a major stationary source;

(4)  does not emit 50 tons per year of any regulated

pollutant; and

(5)  emits less than 75 tons per year of all regulated

pollutants.

"State implementation plan."  The plan or plan revision that

a state is authorized and required to submit under section 110

of the Clean Air Act (Public Law 95-95, 42 U.S.C. § 7410) to

provide for attainment of the national ambient air quality

standards.

"Stationary air contamination source."  Any air contamination

source other than that which, when operated, moves in a given

direction under its own power.

SUBCHAPTER B

REGULATORY PROGRAM

Sec.

2111.  (Reserved).

2112.  (Reserved).

2113.  (Reserved).

2114.  Administration.

2114.1.  Agricultural regulations prohibited.

2114.2.  Permissible actions.

2114.3.  Evaluation.

2115.  Environmental Quality Board.

2116.  Environmental Hearing Board.

2116.1. Plan approvals and permits.

2116.2.  Emergency procedure.

2116.3.  Fees.

2116.4.  Fee for certain ozone areas.

2116.5.  Acid deposition control.

2116.6.  Hazardous air pollutants.

2116.7.  Control of volatile organic compounds from gasoline-

dispensing facilities.

2117.  Public hearings.

2117.1.  Compliance review.

2117.2.  Permit compliance schedules.

2117.3.  Responsibilities of owners and operators.

2117.4. Interstate transport commission.

2117.5.  Public review of State implementation plans.

2117.6.  Advice to department.

2117.7.  Small Business Compliance Assistance Program.

2117.8.  Compliance Advisory Committee.

2117.9.  Small Business Ombudsman.

2117.10.  Transportation management associations.

2117.11.  Notice of sanctions.

2117.12.  Missed Federal deadlines.

2118.  Unlawful conduct.

2119.  Penalties.

2119.1.  Civil penalties.

2119.2.  Disposition of fees, fines and civil penalties.

2119.3.  Continuing violations.

2120.  (Reserved).

2120.1.  Enforcement orders.

2120.2.  Appealable actions.

2120.3.  Limitation on action.

2131.  Powers reserved to the department under existing laws.

2132.  Powers reserved to political subdivisions.

2132.1.  Construction.

2133.  Public nuisance.

2133.1.  Search warrant.

2133.2.  Confidential information.

2133.3.  Air contaminant emissions.

2133.4.  Exemptions from air pollution requirements for

unconventional gas production processes prohibited.

2133.5.  (Reserved).

2133.6.  Action to abate nuisance and restrain violation.

§ 2111.  (Reserved).

§ 2112.  (Reserved).

§ 2113.  (Reserved).

§ 2114.  Administration.

The department shall have the power and its duty shall be to:

(1)  Implement the provisions of the Clean Air Act in

this Commonwealth.

(2)  Enter any building, property, premises or place and

inspect any air contamination source for the purpose of

investigating an actual or a suspected source of air

pollution or for the purpose of ascertaining the compliance

or noncompliance with this subchapter, a regulation

promulgated under this subchapter or any plan approval,

permit or order of the department. In connection with the

inspection or investigation, samples of air, air

contaminants, fuel, process material or other matter may be

taken for analysis, a duplicate of the analytical report

shall be furnished promptly to the person who is suspected of

causing air pollution or air contamination.

(3)  Have access to, and require the production of,

books, papers and records, including, but not limited to,

computerized information in a format as the department may

reasonably prescribe pertinent to any matter under

investigation.

(4)  Require the owner or operator of any air

contamination source to establish and maintain records and

make reports and furnish the information, including

computerized information, in a format as the department may

reasonably prescribe.

(5)  Require the owner or operator of any air

contamination source to install, use and maintain air

contaminant monitoring equipment or methods as the department

may reasonably prescribe.

(6)  Require the owner or operator of any air

contamination source to sample the emissions of the source in

accordance with methods and procedures and at locations and

intervals of time as the department may reasonably prescribe,

and to provide the department with the results of the

samples.

(7)  Enter upon any property on which an air

contamination source may be located and make tests upon the

source as are necessary to determine whether the air

contaminants being emitted from the air contamination source

are being emitted at a rate in excess of a rate provided for

by this subchapter, any regulation promulgated under this

subchapter or any plan approval, permit or order of the

department or otherwise causing air pollution. If the

department determines that a source test is necessary, it

shall give reasonable written or oral notice to the person

owning, operating or otherwise in control of the source, that

the department will conduct a test on the source. After the

test, the person to whom the notice is given shall provide

reasonably safe access to the testing area and sampling

ports, facilities, electrical power and water, as the

department shall specify in its notice.

(8)  Receive, initiate and investigate complaints,

institute and conduct surveys and testing programs, conduct

general atmospheric sampling programs, make observations of

conditions which may or do cause air pollution, make tests or

other determinations at air contamination sources and assess

the degree of abatement required.

(9)  Do the following in regard to orders:

(i)  Issue orders to any person owning or operating

an air contamination source or owning or possessing land

on which the source is located, if the source is

introducing or is likely to introduce air contaminants

into the outdoor atmosphere in excess of any rate

provided for by this subchapter, any regulation

promulgated under this subchapter or any plan approval or

permit applicable to the source, or at a level as to

cause air pollution. Any order may require the cessation

of any operation or activity which is introducing air

contaminants into the outdoor atmosphere so as to cause

air pollution, the reduction of emissions from the air

contamination source, modification or repair of the

source or air pollution control device or equipment or

certain operating and maintenance procedures with respect

to the source or air pollution control device or

equipment, institution of a reasonable process change,

installation of air pollution control devices or

equipment, or any or all of the requirements as the

department deems necessary. Orders may specify a time for

compliance, require submission of a proposed plan for

compliance and require submission of periodic reports

concerning compliance. If a time for compliance is given,

the department may, in its discretion, require the

posting of a bond in the amount of twice the money to be

expended in reaching compliance.

(ii)  All department orders shall be in writing,

contain a statement of the reasons for their issuance and

be served either personally or by certified mail. Within

30 days after service of any order the person to whom the

order is issued or any other person aggrieved by the

order may file with the hearing board an appeal setting

forth with particularity the grounds relied upon. An

appeal to the hearing board of the department's order

shall not act as a supersedeas except that upon

application and for cause shown, the hearing board may

issue a supersedeas.

(10)  Institute, in a court of competent jurisdiction,

proceedings to compel compliance with this subchapter, any

regulation promulgated under this subchapter or any plan

approval, permit or order of the department.

(11)  Act as the agent for the board in holding public

hearings when so directed by the board.

(12)  Institute prosecutions under this subchapter.

(13)  Recommend the minimum job qualifications of

personnel employed by county and municipal air pollution

control agencies hereafter created.

(14)  Require the submission of, and consider for

approval, plans and specifications of air pollution control

equipment, devices or process changes and inspect the

installations or modifications to ensure compliance with the

plans which have been approved.

(15)  Conduct or cause to be conducted studies and

research with respect to air contaminants, their nature,

causes and effects, and with respect to the control,

prevention, abatement and reduction of air pollution and air

contamination.

(16)  Evaluate motor vehicle emission control programs,

including vehicle emission standards, clean alternative

fuels, oxygenated fuels, reformulated fuels, vehicle miles of

travel, congestion levels, transportation control measures

and other transportation control strategies with respect to

their effect upon air pollution and determine the need for

modifications of the programs.

(17)  Determine by means of field studies and sampling

the degree of air pollution existing in any part of the

Commonwealth.

(18)  Prepare and develop a general comprehensive plan

for the control and abatement of existing air pollution and

air contamination and for the abatement, control and

prevention of any new air pollution and air contamination,

recognizing varying requirements for the different areas of

this Commonwealth, and to submit a comprehensive plan to the

board for its consideration and approval.

(19)  Encourage the formulation and execution of plans in

conjunction with air pollution control agencies or civil

associations of counties, cities, boroughs, towns and

townships of this Commonwealth where any sources of air

pollution or air contamination may be located, and enlist the

cooperation of those who may be in control of the sources for

the control, prevention and abatement of air pollution and

air contamination.

(20)  Encourage voluntary efforts and cooperation by all

persons concerned in controlling, preventing, abating and

reducing air pollution and air contamination.

(21)  Conduct and supervise educational programs with

respect to the control, prevention, abatement and reduction

of air pollution and air contamination, including the

preparation and distribution of information relating to the

means of controlling and preventing air pollution and air

contamination.

(22)  Develop and conduct, in cooperation with local

communities, demonstration programs relating to air

contaminants, air pollution and air contamination and the

control, prevention, abatement and reduction of air pollution

and air contamination.

(23)  Provide advisory technical consultative services to

local communities for the control, prevention, abatement and

reduction of air pollution and air contamination.

(24)  Cooperate with the appropriate agencies of the

United States or of other states or any interstate agencies

with respect to the control, prevention, abatement and

reduction of air pollution and, as appropriate, formulate

interstate air pollution control compacts or agreements for

the submission to the General Assembly.

(25)  Serve as the agency of the Commonwealth for the

receipt of money from the Federal Government or other public

or private agencies, and expend money for studies and

research with respect to air contaminants, air pollution and

the control, prevention, abatement and reduction of air

pollution.

(26)  Develop and submit to the Environmental Protection

Agency a procedure to implement and enforce the regulations

which the Environmental Protection Agency promulgates under

section 183(e) of the Clean Air Act to reduce emissions from

consumer and commercial products, provided the department

will receive credits for the reductions attributed to the

Federal consumer and commercial products regulations under

section 182 of the Clean Air Act regulations, and the

department has the resources to implement and enforce the

program.

(27)  Do any and all other acts and things not

inconsistent with any provision of this subchapter, which it

may deem necessary or proper for the effective enforcement of

this subchapter and the regulations promulgated under this

subchapter.

§ 2114.1.  Agricultural regulations prohibited.

(a)  Applicability.--Except as may be required by the Clean

Air Act or the regulations promulgated under the Clean Air Act,

this subchapter shall not apply to the production of

agricultural commodities and the Environmental Quality Board

shall not have the power nor the authority to promulgate

regulations relating to air contaminants and air pollution

arising from the production of agricultural commodities.

(b)  Definitions.--As used in this section, the term

"production of agricultural commodities" shall include:

(1)  The commercial propagation, production, harvesting

or drying on the premises of the farm operation or the

disposal of residual materials resulting from the commercial

propagation, production, harvesting or drying on the premises

of the farm operation of the following:

(i)  Field crops, including corn, wheat, oats, rye,

barley, hay, potatoes and dry beans.

(ii)  Fruits, including apples, peaches, grapes,

cherries and berries.

(iii)  Vegetables, including tomatoes, snap beans,

cabbage, carrots, beets, onions, mushrooms, sweet corn

and green peas.

(iv)  Horticultural specialties, including nursery

stock, ornamental shrubs, ornamental trees and flowers.

(v)  Livestock and livestock products, including

cattle, sheep, hogs, goats, horses, poultry, furbearing

animals, milk, eggs and furs.

(vi)  Timber, wood and other wood products derived

from trees.

(vii)  Aquatic plants and animals and their by-

products.

(2)  The processing of agricultural commodities

propagated, produced, harvested or dried under paragraph (1)

or the disposal of residual materials resulting from the

processing. This paragraph shall apply to agricultural

commodities propagated, produced, harvested or dried on the

premises of the farm operation.

(3)  The commercial production, processing or storage of

compost, except for compost including, all or in part,

biosolids originating at a municipal sewage treatment

facility, to be predominantly used in the commercial

propagation or production of any agricultural commodity

identified under paragraph (1), regardless of whether the

compost is being produced, processed or stored on a different

premises than the premises in which the compost is being

used.

(4)  The use of any material whose production, processing

or storage is exempt from this subchapter under paragraph (3)

in the commercial propagation or production of any

agricultural commodity identified under paragraph (1), or any

odor or malodor or fugitive air emission resulting from the

production, processing or storage of any material so

exempted.

§ 2114.2.  Permissible actions.

(a)  Regulations.--In implementing the requirements of

section 109 of the Clean Air Act, the board may promulgate, by

regulation, only those control measures or other requirements

which are reasonably required, in accordance with the Clean Air

Act deadlines, to achieve and maintain the ambient air quality

standards or to satisfy related Clean Air Act requirements,

unless otherwise specifically authorized or required by this

subchapter or specifically required by the Clean Air Act.

(b)  Limitation.--Control measures or other requirements

promulgated under subsection (a) shall be no more stringent than

those required by the Clean Air Act unless authorized or

required by this subchapter or specifically required by the

Clean Air Act. This requirement shall not apply if the board

determines that it is reasonably necessary for a control measure

or other requirement to exceed minimum Clean Air Act

requirements in order for the Commonwealth:

(1)  to achieve or maintain ambient air quality

standards;

(2)  to satisfy related Clean Air Act requirements as

they specifically relate to the Commonwealth;

(3)  to prevent an assessment or imposition of Clean Air

Act sanctions; or

(4)  to comply with a final decree of a Federal court.

(c)  Prohibition.--The board may not by regulation promulgate

an ambient air quality standard for a specific pollutant which

is more stringent than the air quality standard which the EPA

has adopted for the specific pollutant under section 109 of the

Clean Air Act.

(d)  Challenges.--In any challenge to the enforcement of

regulations promulgated to achieve and maintain the ambient air

quality standards or to satisfy related Clean Air Act

requirements, the person challenging the regulation shall have

the burden to demonstrate that the control measure or other

requirement or the stringency of the control measure or

requirement is not reasonably required to achieve or maintain

the standard or to satisfy related Clean Air Act requirements.

(e)  Preenforcement review.--No person may file a

preenforcement review challenge under this section based in any

manner upon the standards set forth in subsection (b).

(f)  Applicability.--This section shall not apply to

regulations approved as a final rulemaking by the board prior to

September 8, 1992, or to any ambient air quality standards

promulgated by the board if no standard has been promulgated by

the EPA.

(g)  Construction.--This section shall not be construed to

weaken or otherwise affect site-specific standards or other

requirements for individual sources or facilities in place prior

to September 8, 1992.

§ 2114.3.  Evaluation.

Beginning five years after July 9, 1992, and every five years

thereafter, the department shall conduct and submit to the

General Assembly an evaluation of the effectiveness of the

programs adopted to implement the Clean Air Act. The evaluation

shall include:

(1)  A determination of whether the limitation imposed in

section 2114.2 (relating to permissible actions) has hindered

in any way the Commonwealth's efforts to comply with the

Clean Air Act and a recommendation on whether that provision

should be changed.

(2)  The specific steps taken to implement the Clean Air

Act and progress made toward meeting the emission reductions

required by the act and recommendations on any additional

steps which must be taken.

(3)  An evaluation of the funding available to implement

the Clean Air Act programs and whether that funding is

sufficient or inadequate and recommendations on if

adjustments should be made.

(4)  An analysis of the costs imposed on mobile and

stationary air contamination sources to implement the

requirements of the Clean Air Act, including on individuals

and companies. The analysis of costs shall also consider the

benefits of compliance with the Clean Air Act requirements

and the public health, environmental and economic costs to

the Commonwealth for failing to meet the requirements,

including the impact of sanctions.

(5)  An evaluation, in consultation with the Department

of Community and Economic Development and the Office of Small

Business Ombudsman, of the adequacy of measures taken by the

Commonwealth to assist small businesses in complying with the

Clean Air Act.

(6)  A summary of the activities undertaken by the

Citizens Advisory Council and the air technical advisory

committee under section 2117.6 (relating to advice to

department).

(7)  An evaluation of the effectiveness of the Northeast

Ozone Transport Commission in meeting the mandates of the

Clean Air Act and recommendations on any changes that could

make the commission more effective.

(8)  An assessment of the impact of missing Federal

deadlines identified under section 2117.12 (relating to

missed Federal deadlines) has had or will have on the State

implementation of the Clean Air Act programs.

§ 2115.  Environmental Quality Board.

(a)  Powers and duties.--The board shall have the power and

its duty shall be to:

(1)  Promulgate regulations, for the prevention, control,

reduction and abatement of air pollution, applicable

throughout this Commonwealth or to parts or regions or

subregions specifically designated in the regulation which

shall be applicable to all air contamination sources

regardless of whether the source is required to be under

permit by this subchapter. Regulations may establish maximum

allowable emission rates of air contaminants from the

sources, prohibit or regulate the combustion of certain

fuels, prohibit or regulate open burning, prohibit or

regulate any process or source or class of processes or

sources, require the installation of specified control

devices or equipment or designate the control efficiency of

air pollution control devices or equipment required in

specific processes or sources or classes of processes or

sources. Regulations shall be promulgated under the

provisions of the act of July 31, 1968 (P.L.769, No.240),

referred to as the Commonwealth Documents Law, upon notice

and after public hearings as the board deems appropriate. In

exercising its authority to promulgate regulations, the board

may, and to the extent deemed desirable by it shall, consult

with a council of technical advisers properly qualified by

education or experience in air pollution matters, appointed

by the board and to serve at the pleasure of the board, to

consist of the number of advisers as the board may appoint,

but the technical advisers shall receive no compensation

other than their actual and necessary expenses for their

services to the board.

(2)  Establish and publish maximum quantities of air

contaminants that may be permitted under various conditions

at the point of use from any air contaminant source in

various areas of this Commonwealth so as to control air

pollution.

(3)  By regulation, classify air contaminant sources,

according to levels and types of emissions and other

characteristics which relate to air pollution.

Classifications made under this subsection shall apply to the

entire Commonwealth or any part. Any person who owns or

operates an air contaminant source of any class to which the

regulations of the board under this subsection apply, shall

make reports containing information as may be required by the

board concerning location, size and height of air contaminant

outlets, processes employed, fuels used and the nature and

time periods or duration of emissions, and other information

as is relevant to air pollution and available or reasonably

capable of being assembled.

(4)  Recommend to the Secretary of Transportation

performance or specification standards, or both, for emission

control systems and devices on motor vehicles.

(5)  Promulgate regulations for the protection of public

health and safety for periods when the accumulation of air

contaminants in any area is attaining or has attained levels

which, if sustained or exceeded, could lead to an acute

threat to the health of the public. Regulations shall contain

appropriate procedures to protect public health and safety

during the periods.

(6)  Promulgate regulations for the approval and the

rescission and suspension of approval of local air pollution

control agencies.

(7)  Promulgate regulations designed to reduce emissions

from motor vehicles, including centrally clean-fueled fleets,

clean alternative fuels, oxygenated fuels, reformulated

fuels, vehicle miles of travel, transportation control

measures and other transportation control strategies.

Regulations shall be developed in consultation with the

Department of Transportation. The board shall not promulgate

regulations mandating the sale or use of any set of

specifications for motor fuel prescribed by the State of

California under 42 U.S.C. § 7545(c)(4)(B) (relating to

regulation of fuels) unless the set of specifications is

required under the Clean Air Act or the regulations

promulgated under the Clean Air Act.

(8)  Promulgate regulations to implement the provisions

of the Clean Air Act. The regulations promulgated to

implement the provisions of the Clean Air Act shall be

consistent with the requirements of the Clean Air Act and the

regulations promulgated under the Clean Air Act.

(9)  Promulgate regulations to exempt sources or

categories of sources of minor significance from the

provisions of section 2116.1 (relating to plan approvals and

permits).

(10)  Promulgate regulations establishing provisions to

allow changes within a permitted facility or one operating

under section 2116.1(b)(3) without requiring a permit

revision if the changes are not modifications under any

provision of 42 U.S.C. Ch. 85 Subch. I (relating to programs

and activities) and the changes do not exceed the emissions

allowable under the permit, whether expressed in the permit

as a rate of emissions or in terms of total emissions,

provided that the facility provides the department and the

administrator with written notification in advance of the

proposed changes which shall be a minimum of seven days,

unless the board provides in its regulations a different time

frame for emergencies.

(11)  In its discretion, by regulation, require revisions

to permits for major sources to incorporate applicable

standards and regulations promulgated under the Clean Air Act

and promulgated by the board after the issuance of the permit

as required by section 502(b)(9) of the Clean Air Act.

(12)  In its discretion, by regulation promulgate rules

containing reasonable procedures consistent with the need for

expeditious action by the department on plan approvals and

operating permit applications to make available to the public

any plan approval or operating permit application, compliance

plan, plan approval, operating permit and monitoring or

compliance report as required by section 502(b)(8) of the

Clean Air Act.

(13)  Promulgate, by regulation, alternative volatile

organic compound emission limitations for aerospace coatings

and solvents, including extreme performance coatings, which

are required to be used by the United States Department of

Defense, the United States Department of Transportation and

the National Aeronautic and Space Administration or to meet

military and aerospace specifications, provided the

alternative limitations are authorized by the Clean Air Act.

(b)  Limitation.--In promulgating regulations containing

transportation control measures, the board shall not have the

authority to promulgate any regulation limiting or expanding any

municipalities' authority under the Municipal Planning Code to

regulate land development, subdivision approval, zoning

revision, building permit or any other development activity

unless specifically required by the Clean Air Act.

§ 2116.  Environmental Hearing Board.

The hearing board shall have the power and its duty shall be

to hear and determine all appeals from appealable actions of the

department as defined in the act of July 13, 1988 (P.L.530,

No.94), known as the Environmental Hearing Board Act, in

accordance with the provisions of this subchapter. Any and all

action taken by the hearing board with reference to any appeal

shall be in the form of an adjudication, and all action shall be

subject to the provisions of 2 Pa.C.S. (relating to

administrative law and procedure).

§ 2116.1.  Plan approvals and permits.

(a)  Plan approval.--No person shall construct, assemble,

install or modify any stationary air contamination source, or

install on the source any air pollution control equipment or

device unless the person has applied to and received written

plan approval from the department to do so: Provided, however,

That no written approval shall be necessary with respect to

normal routine maintenance operations, nor to any source,

equipment or device used solely for the supplying of heat or hot

water to one structure intended as a one-family or two-family

dwelling, nor where construction, assembly, installation or

modification is specifically authorized by the regulations of

the department to be conducted without written approval. All

applications for approval shall be made in writing and shall be

on forms and contain information as the department shall

prescribe and shall have appended to the applications detailed

plans and specifications related to the proposed installation.

(b)  Permit required.--

(1)  No person shall operate any stationary air

contamination source unless the department shall have issued

to the person a permit to operate the source under the

provisions of this section in response to a written

application for a permit submitted on forms and containing

information as the department may prescribe or where

construction, assembly, installation modification is

specifically authorized by the regulations of the department

to be conducted without written approval. The department

shall provide public notice and the right to comment on all

permits prior to issuance or denial and may hold public

hearings concerning any permit.

(2)  A permit may be issued after July 9, 1992, to any

applicant for a stationary air contamination source requiring

construction, assembly, installation or modification if the

requirements of subsection (a) have been met and there has

been performed upon the source a test operation or evaluation

which shall satisfy the department that the air contamination

source will not discharge into the outdoor atmosphere any air

contaminants at a rate in excess of that permitted by

applicable regulation of the board, or in violation of any

performance or emission standard or other requirement

established by the EPA or the department for the source and

which will not cause air pollution.

(3)  A stationary air contamination source operating

lawfully without a permit for which fees are required by

section 2116.3 (relating to fees) or the regulations

promulgated under this subchapter have been paid is

authorized to continue to operate without a permit until 120

days after the department provides notice to the source that

a permit is required or until November 1, 1996, whichever

occurs first. If the applicant submits a complete permit

application within the time frames in this subsection and the

department fails to issue a permit through no fault of the

applicant, the source may continue to operate if the fees

required by section 2116.3 or the regulations promulgated

under this subchapter have been paid and the source is

operated in conformance with this subchapter, the Clean Air

Act and the regulations promulgated under both this

subchapter and the Clean Air Act. For any performance or

emission standard or other requirement established by the EPA

or the department for the source subsequent to January 8,

1960, but prior to the permit issuance date, the permit may

contain a compliance schedule authorizing the source to

operate out of compliance and requiring the source to achieve

compliance as soon as possible but not later than the time

required by this subchapter, the Clean Air Act or the

regulations promulgated under either this subchapter or the

Clean Air Act. For purposes of this subsection, a source is

operating lawfully without a permit if it is a source for

which no permit was previously required and the source is

operating in compliance with applicable regulatory

requirements.

(4)  For repermitting of any stationary air contamination

source which is operating under a valid permit on January 8,

1960, or which has received a permit under the provisions of

paragraphs (2) and (3) and which is required to meet

performance or emission standards or other requirements

established subsequent to the issuance of the existing

permit, the new permit may contain a compliance schedule

authorizing the source to operate out of compliance and

requiring the source to achieve compliance as soon as

possible but not later than the time required by this

subchapter, the Clean Air Act or the regulations promulgated

under either this subchapter or the Clean Air Act.

(b.1)  Terms and conditions.--A permit or plan approval

issued under subsection (a) or (b) may contain terms and

conditions as the department deems necessary to assure the

proper operation of the source. The board shall by regulation

establish a permit shield for permits issued under the authority

delegated to the Commonwealth by the EPA under Title V of the

Clean Air Act. The program shall be consistent with the

requirements of section 504(f) of the Clean Air Act and the

regulations promulgated under the Clean Air Act. Each permittee,

on a schedule established by the department, shall submit

reports to the department containing information as the

department may prescribe relative to the operation and

maintenance of the source.

(b.2)  Permit term.--A permit issued or reissued under

subsection (b) shall be issued for a five-year term unless a

shorter term is required to comply with the Clean Air Act and

regulations promulgated under the Clean Air Act or the permittee

requests a shorter term, except that a permit for acid

deposition control shall be issued for a five-year term. A

permit may be terminated, modified, suspended or revoked and

reissued for cause. The terms and conditions of an expired

permit are automatically continued pending the issuance of a new

permit if the permittee has submitted a timely and complete

application for a new permit and paid the fees required by

section 2116.3 or the regulations promulgated under this

subchapter and the department is unable, through no fault of the

permittee, to issue or deny a new permit before the expiration

date of the previous permit. Failure of the department to issue

or deny a new permit prior to the expiration date of the

previous permit shall be an appealable action as described in

section 2120.2 (relating to appealable actions). The hearing

board may require that the department take action on an

application without additional delay.

(b.3)  Procedures.--The board shall by regulation establish

adequate, streamlined and reasonable procedures for

expeditiously determining when applications are complete and for

expeditious review of applications. The department shall approve

or disapprove a complete application, consistent with the

procedures established by the board for consideration of

applications, within 18 months after the date of receipt of the

complete application except that the department shall establish

a phased schedule for acting on permit applications submitted

within the first full year after the effective date of the Title

V permit program established to implement the requirements of

the Clean Air Act. The schedule shall assure that at least one-

third of the permits shall be acted upon by the department

annually over a period not to exceed three years after that

effective date. Failure of the department to issue or deny a

permit by a deadline established by this subsection shall be an

appealable action as described in section 2120.2. The hearing

board may require that the department take action on an

application without additional delay.

(b.4)  Reactivation.--

(1)  During the term of a permit, a permittee may

reactivate any source under the permit that has been out of

operation or production for a period of one year or more,

provided that the permittee has submitted a reactivation plan

to and received written approval from the department. The

reactivation plan shall describe the measures that will be

taken to ensure the source will be reactivated in compliance

with all applicable permit requirements. A reactivation plan

may be submitted to and approved by the department at any

time during the term of a permit. The department shall take

action on the reactivation plan within 30 days unless the

department determines that additional time is needed based on

the size or complexity of the reactivated source.

(2)  A reactivation plan may also be submitted to and

approved by the department as part of the plan approval or

permit application process. An owner or operator who has an

approved reactivation plan shall notify the department prior

to the reactivation of the source.

(b.5)  Regulations to implement Clean Air Act.--The board

shall promulgate the regulations required by subsections (b.1),

(b.3) and (i) as part of the regulatory package to implement the

operating permit program required by Title V of the Clean Air

Act.

(c)  Termination, modification, suspension or revocation of

plan approval or permit.--A plan approval or permit issued under

this section may be terminated, modified, suspended or revoked

and reissued if:

(1)  the permittee constructs or operates the source

subject to the plan approval or permit in such a manner as to

be in violation of this subchapter, the Clean Air Act, the

regulations promulgated under either this subchapter or the

Clean Air Act, a plan approval or permit or in such a manner

as to cause air pollution;

(2)  the permittee fails to properly or adequately

maintain or repair any air pollution control device or

equipment attached to or otherwise made a part of the source;

(3)  the permittee has failed to submit a report required

by a plan approval or operating permit under this section; or

(4)  the Environmental Protection Agency determines that

the permit is not in compliance with the requirements of the

Clean Air Act or the regulations promulgated under the Clean

Air Act.

(d)  Refusal to grant plan approval or issuance of permit.--

(1)  The department may refuse to grant plan approval for

any stationary air contamination source subject to the

provisions of subsection (a) or to issue a permit to any

source if:

(i)  the department determines the source is likely

to cause air pollution or to violate this subchapter, the

Clean Air Act or the regulations promulgated under either

this subchapter or the Clean Air Act applicable to the

source; or

(ii)  in the design of the source, no provision is

made for adequate verification of compliance, including

source testing or alternative means to verify compliance.

(2)  The department may also refuse to issue a permit or

may for cause terminate or revoke and reissue a permit to a

person if:

(i)  the EPA determines that the permit is not in

compliance with the requirements of the Clean Air Act or

the regulations promulgated under the Clean Air Act; or

(ii)  the applicant has constructed, installed,

modified or operated any air contamination source or

installed any air pollution control equipment or device

on the source contrary to the plans and specifications

approved by the department.

(e)  Written notice to affected person.--

(1)  If the department refuses to grant an approval or to

issue or reissue a permit under this section or terminates,

modifies, suspends or revokes a plan approval or permit

already issued, the action shall be in the form of a written

notice to the person affected. The notice shall inform the

person of the action taken by the department and provide a

full and complete statement of the reasons for the action.

(2)  The notice shall be served upon the person affected,

either personally or by certified mail, and the action stated

in the notice shall be final and not subject to review

unless, within 30 days of the service of the notice, any

person affected by the action appeals to the hearing board,

stating with particularity the grounds relied upon.

(3)  The hearing board shall hear the appeal under the

provisions of the regulations relating to practice and

procedure before the hearing board and shall issue an

adjudication affirming, modifying or overruling the action of

the department.

(f)  Establishment of general plan approval and permit

program.--

(1)  The department may by regulation establish a general

plan approval and a general permit program. After the program

is established, the department may grant general plan

approval or a general permit for any category of stationary

air contamination source if the department determines that

the sources in the category are similar in nature and can be

adequately regulated using standardized specifications and

conditions.

(2)  An applicant proposing to use a general plan

approval or general permit shall notify the department and

must receive written approval prior to the proposed use.

(3)  The department shall take action on a notification

within 30 days.

(g)  Stationary sources at multiple temporary locations.--

(1)  The department may by regulation establish a plan

approval and permit program for stationary sources operated

at multiple temporary locations. After the program is

established, the department may grant a plan approval or

issue a single permit to any stationary air contamination

source that may be operated at multiple temporary locations.

(2)  The approval or permit shall require the owner or

operator to notify the department and municipality where the

operation shall take place in advance of each change in

location and may require a separate application and permit or

approval fee for operations at each location.

(3)  An applicant proposing to use the plan approval or

permit authorized by this subsection shall notify the

department and must receive written approval prior to the

proposed use.

(4)  The department shall take action on a request within

30 days.

(h)  Comprehensive plan approval and operating permit

programs.--The department shall establish comprehensive plan

approval and operating permit programs which meet the

requirements of this subchapter and the Clean Air Act.

(i)  Changes without permit revision.--The board shall by

regulation establish provisions to allow changes within a

permitted facility or one operating under subsection (b)(3)

without requiring a permit revision, if:

(1)  the changes are not modifications under any

provision of 42 U.S.C. Ch. 85 Subch. I (relating to programs

and activities);

(2)  the changes do not exceed the emissions allowable

under the permit whether expressed in the permit as a rate of

emissions or in terms of total emissions; and

(3)  the facility provides the administrator and the

department with written notification at least seven days in

advance of the proposed changes, unless the board provides in

its regulations a different time frame for emergencies.

(j)  Availability or documents to public.--The department

shall make available to the public any permit application,

compliance plan, permit and monitoring or compliance report

required by this subchapter.

(k)  Permit revisions.--

(1)  The department shall require revision to any permit

to incorporate applicable standards and regulations

promulgated under the Clean Air Act after the issuance of the

permit. Revisions shall occur as expeditiously as

practicable, but not later than 18 months after the

promulgation of the standards and regulations.

(2)  No revision shall be required if the effective date

of the standards or regulations is a date after the

expiration of the permit term or if less than three years

remain on the permit.

(3)  The permit revision shall be treated as a permit

renewal if it complies with the requirements of this

subchapter regarding renewals.

§ 2116.2.  Emergency procedure.

(a)  Generalized condition of air pollution.--Any other

provision of law to the contrary notwithstanding, if the

department finds, in accordance with the regulations of the

board promulgated under the provisions of section 2115(a)(5)

(relating to Environmental Quality Board), that:

(1)  a generalized condition of air pollution exists; and

(2)  it creates an emergency requiring immediate action

to protect human health or safety,

the department, with the concurrence of the Governor, shall

order or direct persons causing or contributing to the air

pollution to immediately reduce or discontinue the emission of

air contaminants.

(b)  Absence of generalized condition of air pollution.--In

the absence of a generalized condition of air pollution, if the

department finds that emissions from the operation of one or

more air contamination sources are creating an imminent danger

to human health or safety, the department may, without regard to

the provisions of section 2114 (relating to administration),

order the persons responsible for the operation of the air

contamination sources in question to immediately reduce or

discontinue the emission of air contaminants.

(c)  Hearing.--

(1)  An order issued under subsection (a) or (b) shall

fix a place and time, not later than 24 hours after issuance

of the order, for a hearing to be held before the hearing

board.

(2)  Within 24 hours after the commencement of the

hearing, and without adjournment, the hearing board shall

affirm, modify or set aside the order of the department.

(d)  Construction.--This section shall not be construed to

limit any power which the Governor or any other officer may have

to declare an emergency and act on the basis of the declaration.

§ 2116.3.  Fees.

(a)  Authorization.--This section authorizes:

(1)  The establishment of fees sufficient to cover the

indirect and direct costs of administering the air pollution

control plan approval process, operating permit program

required by Title V of the Clean Air Act, other requirements

of the Clean Air Act and the indirect and direct costs of

administering the Small Business Stationary Source Technical

and Environmental Compliance Assistance Program, Compliance

Advisory Committee and Office of Small Business Ombudsman.

(2)  The board by regulation to establish fees to support

the air pollution control program authorized by this

subchapter and not covered by fees required by section 502(b)

of the Clean Air Act.

(b)  Annual interim air emission fee.--

(1)  The board shall establish an annual interim air

emission fee of $14 per ton on emissions of sulfur dioxide,

nitrogen oxides, particulate matter of ten microns or less

and volatile organic compounds to cover the reasonable direct

and indirect costs of developing and administering the air

pollution control operating permit program required by Title

V of the Clean Air Act, other requirements of the Clean Air

Act and the reasonable indirect and direct costs of

administering the Small Business Stationary Source Technical

and Environmental Compliance Assistance Program, Compliance

Advisory Committee and the Office of Small Business Ombudsman

to be collected during fiscal year 1992-1993 for actual

emissions occurring in calendar year 1991, for fiscal year

1993-1994 covering actual emissions occurring in calendar

year 1992 and for fiscal year 1994-1995 covering actual

emissions occurring during calendar year 1993.

(2)  The interim fee shall not apply to air emissions of

less than 100 tons for any of the listed pollutants, provided

that when emissions exceed 100 tons, the entire amount of all

air emissions for any of the listed pollutants up to 5,500

tons shall be chargeable emissions for interim fee purposes.

(c)  Permanent annual air emission fee.--

(1)  The board shall establish by regulation a permanent

annual air emission fee as required for regulated pollutants

by section 502(b) of the Clean Air Act to cover the

reasonable direct and indirect costs of administering the

operating permit program required by Title V of the Clean Air

Act, other related requirements of the Clean Air Act and the

reasonable indirect and direct costs of administering the

Small Business Stationary Source Technical and Environmental

Compliance Assistance Program, Compliance Advisory Committee

and the Office of Small Business Ombudsman to be collected

starting in fiscal year 1995-1996 for air emissions occurring

during calendar year 1994.

(2)  In no case shall the amount of the permanent fee be

more than that which is necessary to comply with section

502(b) of the Clean Air Act.

(3)  The permanent fee shall not apply to emissions of

more than 4,000 tons for any regulated pollutant. In the

event a final regulation containing the permanent annual air

emission fee is not effective by July 1, 1995, the permanent

annual air emission fee for sources subject to the Title V

operating permit program shall be the adjusted minimum dollar

amount set under section 502(b) of the Clean Air Act until

the final regulation is effective.

(d)  Factors to consider in establishing permanent air

emission fee.--Unless precluded by the Clean Air Act, the board

shall establish a permanent air emission fee which considers:

(1)  The size of the air contamination source.

(2)  The resources necessary to process the application

for plan approval or an operating permit.

(3)  The complexity of the plan approval or operating

permit.

(4)  The quantity and type of emissions from the sources.

(5)  The amount of fees charged in neighboring states.

(6)  The importance of not placing existing or

prospective sources in this Commonwealth at a competitive

disadvantage.