PADEP Is Moving Ahead with Expansive RACT III Rule Expected to Impact Up to 500 Facilities – Update from Manko Gold Katcher Fox

June 2, 2021

Jessica D. Hunt

MGKF Newsflash

On May 19, 2021, the Environmental Quality Board (EQB) voted in favor of the Pennsylvania Department of Environmental Protection’s (PADEP) proposed Reasonably Available Control Technology (RACT) III rulemaking.  The proposed rulemaking would amend Chapter 129 of PADEP’s air quality regulations to establish additional presumptive RACT requirements and emission limitations for certain major stationary sources that emit or have the potential to emit 100 tons per year of nitrogen oxides (NOx) or 50 tons per year of volatile organic compounds (VOC).  Critically, RACT III would extend to certain source categories that were not required to demonstrate RACT under PADEP’s two prior RACT rules, known as RACT I and II, respectively.  The proposed rulemaking would only apply to facilities that were in existence on or before August 3, 2018.  Yet, PADEP still estimates that there are approximately 500 Title V facilities that may be impacted by this rulemaking.  Some affected sources include combustion units, municipal solid waste landfills, municipal waste combustors, process heaters, turbines, stationary internal combustion engines, cement kilns, glass melting furnaces, lime kilns, direct-fired heaters, furnaces or ovens, and other categories of sources that are not otherwise regulated elsewhere in Chapter 129.

For facilities subject to the RACT III rule, detailed notification requirements are being proposed such that affected facilities would need to demonstrate how they plan to comply with the requirements, even if the sources are subject to rule’s presumptive RACT requirements.  For facilities that cannot meet the presumptive RACT emission limits and requirements, PADEP is proposing to allow for facility-wide or system-wide NOx emissions averaging permits, or case-by-case determinations, except where the presumptive requirements of RACT III are more stringent. Exempt sources will be required to maintain records demonstrating that the sources are exempt.  Facilities with approved case-by-case determinations under RACT II may, at a minimum, need to submit a written notification that indicates how it will comply with RACT III requirements.  

As noted, there are some important differences in the proposed rulemaking from PADEP’s prior RACT rulemakings that potentially-affected facilities should be aware of.  Most notably, PADEP is proposing to include, for the first time, presumptive requirements and emission limits on natural gas compression and transmission facilities.  This includes natural gas compression and transmission facilities with sources that have a potential to emit less than 2.7 tons per year of VOCs, which are otherwise exempt from plan approval requirements.  Additionally, PADEP revised the RACT requirements for large coal-fired combustion units in response to the Third Circuit Court of Appeals’ decision in Sierra Club v. EPA, 972 F.3d 290 (3d. Cir. 2020), which the Court identified as being insufficient to satisfy RACT II requirements.  Instead of having to meet presumptive emission limits, the proposed rulemaking would require large coal-fired combustion units to go through a case-by-case RACT determination.   

PADEP expects to publish the proposed rule in the Pennsylvania Bulletin this summer, which will trigger an opportunity for public participation.  PADEP anticipates that a final rule will be published in the first quarter of 2022.  Under the current proposed rule, affected facilities will need to submit a written notification to PADEP detailing how the facility intends to comply with the RACT requirements, including any plan approval applications for case-by-case determinations and/or facility-wide or system-wide NOx emissions averaging, no later than 6 months after the effective date of the rulemaking.  Facilities will need to demonstrate compliance with the applicable presumptive RACT III requirements by January 1, 2023.