Klodowski Law LLC

Serving PA for more than 35 years


  Office Location

News & Articles


©Harry F. Klodowski, Jr.

– Pennsylvania Air Regs have a rule that prohibits any emissions of “fugitive” smoke or dust from most sources at 25 Pa. Code § 123.1.

– There is no federal requirement to prohibit fugitive emissions, and no state bordering Pennsylvania has such a rule. Even Allegheny County, PA regulations do not have this rule.

– Other rules regulate fugitive emissions that might cause air pollution or some kind of harm. The fugitive emissions rule absolutely prohibits any emissions at any time for any reason.

– EPA, Pennsylvania and most states have a rule prohibiting smoke or dust emissions above 20% opacity from a stack. Because of Pennsylvania’s fugitive emissions rule, the Pennsylvania standard is 0% opacity 100% of the time.

– The Regulatory Basics Initiative Executive Order of February 6, 1996 provides “regulations of the Commonwealth may not exceed Federal standards unless justified by a compelling and articulable Pennsylvania interest . . . .”

– In the Regulatory Basics Report of February 28, 1996 DEP admits the fugitive emission rule is more strict than federal law, imposes disproportionate costs on Pennsylvania businesses, has significant non-compliance and lacks clarity. DEP contends this rule is necessary because 30% of citizen air pollution complaints are on dust, and most of these are for road dust. DEP suggests eliminating road dust from the rule for administrative convenience.

– DEP has taken no action to limit the overbroad fugitive dust rule to emissions that cause some kind of injury. Because of the current fugitive rule, Pennsylvania businesses must bear control costs and are subject to enforcement actions by state and federal agencies that businesses in surrounding states do not experience.

– Having a rule that says no emissions are ever allowed, whether it is enforced or not, places Pennsylvania at a disadvantage when industry considers locations for new plants or plant expansions.

– The self-monitoring provisions of the new Title V operating permits will only heighten the problems for responsible industrial facilities trying to interpret the “no visible emissions” rule and maintain compliance.

Pennsylvania should eliminate the no fugitive emissions rule to level the playing field with surrounding states.