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Author's Note: Pennsylvania Air Practice Notes are critical analysis of Pennsylvania's air program and reflect the Author's opinion. The 2007 PA NSR rule changes continue the aggregation of de minimis emissions. HFK November, 2008.


CONSTRUCTION PERMITS: AGGREGATION OF DE MINIMIS EMISSIONS

©Harry F. Klodowski, Jr.

- Pennsylvania has an air construction permit rule requiring the addition of all small (federally exempt) emissions increases from process modifications since 1991, for nonattainment pollutants. (25 Pa. Code § 127.211(b) 1)

- Federal law, and the law in each state surrounding Pennsylvania, is that "de minimis" emissions increases are not regulated until a major modification, (a single project resulting in emissions increases above PSD significance levels) occurs. Pennsylvania also has this rule. Id., § (b)2. When a major modification occurs, the federal "look back" period is 5 years. Pennsylvania's "look back" is now more than 7 years, and covers all projects, not a single major project.

- The impact of the Pennsylvania aggregation rule is to force Pennsylvania industry to obtain major source construction permits under the PSD and NSR program for minor changes that are not regulated as major modifications by federal law, or the laws of Ohio, West Virginia, Maryland, New Jersey, Delaware or New York.

- Requiring a major source construction permit or PSD permit results in extra costs to Pennsylvania businesses who are trying to modernize their plants, in the form of: (a) additional engineering work and air modeling analysis for permit applications, (b) additional permit fees, (c) extra costs to purchase ERCs and (d) the risk of state or federal enforcement actions, that would not occur in neighboring states. In some circumstances, a plant cannot be permitted in a certain location under PSD rules. These costs make Pennsylvania less competitive.

- PSD construction permits also require significantly more work from DEP staff, and delays timely action on other construction permit applications.

- The 1996 Regulatory Basics Program Report by DEP agrees that Section 211(b) 1 is more strict than federal law. The report contends Pennsylvania law allows, not requires, this regulation. No compelling Pennsylvania interest in this regulation was identified.

- In the June 1996 DEP response to comments on the RBI reports, DEP stated "the Department will revise the 'de minimis increase' provision in a manner consistent with federal regulations."

- In the four years since, DEP has taken no action to change this rule, and is waiting for EPA to amend the federal NSR/PSD rules to do a comprehensive revision.

- While the Pennsylvania rules should be changed, existing Section 127.211(b) 1, should simply be deleted immediately. Pennsylvania businesses continue to bear unnecessary costs, and have been prosecuted by EPA for violation of this rule. New plants and plant expansions are located in states that do not punish business for becoming more efficient or expanding, by imposing restrictions EPA does not require.