David Stone’s three comment submissions to state and federal regulators:
- 7.31.13 Stone Comments PA-DEP re: TVOP 14-00003 (general 5-year operating permit)
- 8.30.13 Stone Comments to PA-DEP re: TVOP 14-00003f (specific West Campus Steam Plant project)
- 9.27.13 Stone EPA Petition re: TVOP 14-00003 and TVOP 14-00003f
Below is my attempt to summarize and contextualize the key issues.
CORRECTIONS, CLARIFICATIONS AND RELEVANT DOCUMENTS WELCOME.
1. BASELINE DATA
Two separate public notices were made in the PA Bulletin on the Title V Operating Permit 14-00003 renewal (June 15, 2013 and June 22, 2013). The second notice contained substantially different emission rates for several pollutants, with no explanation for the differences. PSU EMISSIONS TABLE
2. COMMUNITY BILL OF RIGHTS & LEGAL STANDING TO PROTECT AIR QUALITY
In the TVOP documents (including the “Intent to Issue Plan Approvals and Intent to Issue or Amend Operating Permits under the Air Pollution Control Act and 25 Pa. Code Chapter 127, Subchapter B” published August 3, 2013), Penn State and the DEP erroneously list the location of Penn State’s West Campus Steam Plant activities as in College Township rather than State College Borough.
This mistake is significant for two related reasons.
State College has a Home Rule Charter Amendment (State College Community Bill of Rights) protecting air quality at the local level. This local law gives Borough residents direct legal standing to protect our air quality, in addition to our indirect legal standing as state citizens under the protection of the Pennsylvania DEP and federal citizens under the protection of the US-EPA.
College Township has no such local law.
The proposed plan approval for the West Campus Steam Plant (7.25.13 Proposed WCSP Approval – Zaman to Salada) also includes a standard provision on page 15 (#19) explicitly noting that, under 25 Pa. Code Section 127.12b:
“Nothing in the Plan Approval relieves the facility owner or operator from the obligation to comply with all applicable federal, state and local laws and regulations.”
3. GENERAL OPERATING PERMIT v. SPECIFIC MODIFICATION PERMIT – One-Step or Two-Step?
Title V operating permit renewals are generally done on a 5-year basis to bring any new regulatory requirements into the Title V permit and to update monitoring, recordkeeping, and reporting. Operating permit renewals can also include prior modifications (such as the East Campus Steam Plant changes).
In a two-step system, a planned future modification project (such as the WCSP conversion) must undergo a separate review and permitting procedure. The state construction/operating permit (“plan approval”) is issued, and then the Title V operating permit is re-opened for public participation, after startup of the new facilities, to incorporate the changes. In a “one-step” Title V process, construction and operating permits are “integrated” – reviewed and sent to notice once.
The WCSP construction permit (14-00003F) is being written and noticed by the DEP to the public and US-EPA so that the future Title V operating permit (14-00003) can be re-opened after the WCSP modifications solely on an administrative basis.
The DEP appears to be using the “administrative amendment provisions” of 25 Pa. Code Section 127.450 to eliminate future public participation. (See, again: “Intent to Issue Plan Approvals and Intent to Issue or Amend Operating Permits,” published August 3, 2013)
“The project will lower the level of potential to emit for hazardous air pollutant (HAP) emissions below the major source thresholds. If the Department determines that the sources are constructed and operating in compliance with the plan approval conditions and the specification of the application for Plan Approval 14-00003F, the requirements established in the plan approval will be incorporated into Title V Operating Permit 14-00003 by the administrative amendment provisions pursuant to 25 Pa. Code § 127.450”
Combining the two permits may have been part of Penn State’s plan since March 2011 (3.25.11 WCSP – DEP Note to File), but it may be precluded by the Clean Air Act exceptions.
In any case, here’s the relevant text:
§ 127.450. Administrative operating permit amendments.
(a) An ‘‘administrative permit amendment’’ is a permit revision that does one or more of the following:…
(5) Except when precluded by the Clean Air Act or the regulations, incorporates into an operating permit the requirements from plan approvals including plan approvals issued under Subchapter B (relating to plan approval requirements), Subchapter D (relating to prevention of significant deterioration of air quality) and Subchapter E (relating to new source review) or § 127.35 (relating to maximum achievable control technology standards for hazardous air pollutants) authorized under an EPA-approved program, if the program meets procedural requirements of this chapter…
(c) An administrative permit amendment may be made by the Department consistent with the following:
(1) The Department will take no more than 60 days from receipt of a request from the owner or operator of a source for an administrative permit amendment to the Department with a copy to the EPA to take final action on the request, and may incorporate the changes without providing notice to the public or affected states except for permit revisions made under subsection (a)(5).
(2) The Department will submit a copy of the revised permit to the Administrator of the EPA.
(d) Unless precluded by the Clean Air Act or the regulations thereunder, the Department will, upon taking final action granting a request for an administrative permit amendment, allow coverage by the permit shield in § 127.516 (relating to permit shield) for administrative permit amendments which meet the relevant requirements of this article.
(e) The Department will take final action on the administrative amendment and publish notice of the final action in the Pennsylvania Bulletin.
(f) Administrative amendments are not authorized for any amendment precluded by the Clean Air Act or the regulations thereunder from being processed as an administrative amendment.
4. COMPLIANCE or AVOIDANCE – “Major Source” v. “Area Source”
Penn State officials have repeatedly claimed publicly that the purpose of the WCSP conversion is to “comply” with the new Maximum Achievable Control Technology (MACT) standards that took effect this past April, with a compliance deadline of January 2016 for existing emissions sources.
Their actions, however, indicate that the WCSP conversion is designed to avoid the new MACT standards.
MACT standards for coal boilers were included in the 1990 Clean Air Act Amendments. Initial rules were proposed in 2003 and promulgated in 2004. Appeals and court orders have delayed and amended the rules, but since 2003, operators have known that coal-fired units would need to upgrade their emissions controls, conserve to enable shutdown of coal-fired boilers, or convert to a cleaner fuel source. The most recent revisions to the final MACT rule were promulgated on Jan. 31, 2013, went into effect April 1, 2013 and set the compliance deadline of January 31, 2016 for existing sources.
As of today, PSU is considered a Major Source of HAPs and must comply with the MACT (including any notifications, recordkeeping, etc.) until they become an Area Source. When they become an Area Source between now and the compliance date of January 2016 (or January 2017 if a one-year extension is granted), they will avoid the Major Source MACT rule.
They will also avoid the Area Source NESHAP rules if they only burn natural gas in their boilers, and limit the combustion of fuel oil to only during periods of gas curtailment, gas supply interruption, startups, or periodic testing, with periodic testing of liquid fuel not to exceed a combined total of 48 hours during any calendar year.
Title V operating permit renewals usually only address infrastructure that is operational at the time of renewal and not any future or planned permit modifications. Under those standards, the 2013 Penn State TVOP general operating permit should have been written identifying PSU as a “Major Source” for Hazardous Air Pollutants (HAPs), subject to the new “Major Source” Boiler MACT requirements.
The permit should not have been written taking into account Penn State’s future plans to modify the facility to burn only natural gas, allowing Penn State to preemptively-retroactively be considered an “Area Source” for HAPs before it actually is one.
5. COMPLIANCE ASSURANCE MONITORING
Compliance Assurance Monitoring (CAM) does not seem to have been addressed for the coal boilers and associated fabric filters currently in use. If needed, a CAM Plan must be proposed as part of a Title V renewal or Title V significant modification. A Title V renewal application without a proposed CAM Plan shouldn’t be deemed complete and shouldn’t qualify for an EPA permit shield. The need for a CAM Plan should be clarified by PSU and/or PA-DEP.
6. NEW SOURCE REVIEW & ALTERNATIVES ANALYSIS
There may not be any explicit regulatory requirements for operators to conduct and submit “Alternatives Analysis” with TVOP applications.
However, an “alternatives analysis” can be required if New Source Review for Prevention of Significant Deterioration or for Non-attainment of the National Ambient Air Quality Standards is triggered by a new major source or major modification at an existing source. PSU apparently did not trigger the New Source Review regulations with the WCSP application because they “netted out” their emissions from review, using “Emission Reduction Credits” and contemporaneous emission decreases.
Which takes us back to the first highlighted issue: baseline data discrepancies.
If Penn State is misrepresenting baseline emissions in order to improperly use ERCs to avoid New Source Review, then the university has prioritized finding regulatory loopholes over finding effective ways to dramatically reduce energy consumption.