CHAPTER 123. STANDARDS FOR CONTAMINANTS

§ 123.1. Prohibition of certain fugitive emissions.

 (a)  No person may permit the emission into the outdoor atmosphere of a fugitive air contaminant from a source other than the following:

   (1)  Construction or demolition of buildings or structures.

   (2)  Grading, paving and maintenance of roads and streets.

   (3)  Use of roads and streets. Emissions from material in or on trucks, railroad cars and other vehicular equipment are not considered as emissions from use of roads and streets.

   (4)  Clearing of land.

   (5)  Stockpiling of materials.

   (6)  Open burning operations.

   (7)  Blasting in open pit mines. Emissions from drilling are not considered as emissions from blasting.

   (8)  Coke oven batteries, provided the fugitive air contaminants emitted from any coke oven battery comply with the standards for visible fugitive emissions in § §  123.44 and 129.15 (relating to limitations of visible fugitive air contaminants from operation of any coke oven battery; and coke pushing operations).

   (9)  Sources and classes of sources other than those identified in paragraphs (1)—(8), for which the operator has obtained a determination from the Department that fugitive emissions from the source, after appropriate control, meet the following requirements:

     (i)   The emissions are of minor significance with respect to causing air pollution.

     (ii)   The emissions are not preventing or interfering with the attainment or maintenance of an ambient air quality standard.

 (b)  An application form for requesting a determination under either subsection (a)(9) or §  129.15(c) is available from the Department. In reviewing these applications, the Department may require the applicant to supply information including, but not limited to, a description of proposed control measures, charac-teristics of emissions, quantity of emissions and ambient air quality data and analysis showing the impact of the source on ambient air quality. The applicant is required to demonstrate that the requirements of subsections (a)(9) and (c) and §  123.2 (relating to fugitive particulate matter) or of the requirements of §  129.15(c) have been satisfied. Upon such demonstration, the Department will issue a determination, in writing, either as an operating permit condition, for those sources subject to permit requirements under the act, or as an order containing appropriate conditions and limitations.

 (c)  A person responsible for any source specified in subsections (a)(1)—(7) or (9) shall take all reasonable actions to prevent particulate matter from becoming airborne. These actions include, but not be limited to, the following:

   (1)  Use, where possible, of water or chemicals for control of dust in the demolition of buildings or structures, construction operations, the grading of roads or the clearing of land.

   (2)  Application of asphalt, oil, water or suitable chemicals on dirt roads, material stockpiles and other surfaces which may give rise to airborne dusts.

   (3)  Paving and maintenance of roadways.

   (4)  Prompt removal of earth or other material from paved streets onto which earth or other material has been transported by trucking or earth moving equipment, erosion by water, or other means.

 (d)  The requirements contained in subsection (a) and §  123.2 do not apply to fugitive emissions arising from the production of agricultural commodities in their unmanufactured state on the premises of the farm operation.

   The provisions of this §  123.1 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383; amended August 12, 1977, effective August 29, 1977, 7 Pa.B. 2251. Immediately preceding text appears at serial pages (4620) and (24610).

   Agency Authority

   Although the Department of Environmental Resources under the Air Pollution Control Act (35 P. S. §  4001 et seq.) had been granted specific authority by the Legislature to regulate ‘‘air contamination sources’’ producing ‘‘air pollution’’ that includes obnoxious odors, nowhere was there any grant of authority to the Public Utility Commission, either directly or indirectly, to regulate air pollution emanating from a public utility. Country Place Waste Treatment Co. v. Pennsylvania Public Utility Commission, 654 A.2d 72 (Pa. Cmwlth. 1995).

   Application

   The Department may utilize this section in an effort to specifically control an alleged fugitive air contaminant despite the fact certain sources of this contaminant, as well as the dust itself, might have been concurrently involved in an application of §  123.13 (relating to processes) as it relates to nonfugitive air contaminants or particulate matter emissions. Commonwealth v. Locust Point Quarries Inc., 72 Pa. D. & C.2d 700 (1975).

   Application Properly Denied

   The Department was required to deny an application for reactivation of beehive coke ovens, regardless of economic consequences, when the application did not provide information which would show that the ovens would meet the limitations applicable to fugitive emissions, and constitutional rights are not violated even though there is no known method to operate beehive coke ovens in compliance with this title. Rochez Brothers Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975).

   Burden of Proof

   Testimony by the environmental group’s president that the air was polluted (that is, ‘‘fuming’’ resulted from the reaction process used to treat waste at the industrial processors facility) was not credible on the issues relating to the existence or cause of air quality problems as would shift the burden of proof to the Department of Environmental Resources to justify the issuance of the solid waste disposal permit. Concerned Citizens of Yough, Inc. v. Department of Environmental Resources, 639 A.2d 1265 (Pa. Cmwlth. 1994).

   The Commonwealth need not prove that the fugitive dust emissions in question caused or contributed to a condition of air pollution because the determination that such emissions cause or contribute to a condition of air pollution had already been made at the time the section was promulgated, and the section is reasonably understandable and specific. Department of Environmental Resources v. Locust Point Quarries, Inc., 396 A.2d 1205 (Pa. 1979).

   Construction

   Since §  123.2 (relating to fugitive particulate matter) applies only to the nine exemptions listed in (a)(1)—(9), the two sections do not overlap and either one can stand alone as a basis for a violation. Medusa Corp. v. Department of Environmental Resources, 415 A.2d 105 (Pa. Cmwlth. 1980).

   Criminal Prosecution

   To prove a criminal violation of this section, as modified by §  123.13 (relating to processes), scientific evidence must be introduced proving beyond a reasonable doubt that the offensive fugitive emissions exceeded the permissible maximum set forth in §  123.12 (relating to incinerators). Department of Environmental Resources v. Locust Point Quarries Inc., 367 A.2d 392 (Pa. Cmwlth. 1976).

   Evidence

   To properly challenge the reasonableness of this section, evidence must be presented to establish that the section will not aid in reaching national ambient air quality standards and that the proscribed activity is insignificant as a cause of air pollution. Department of Environmental Resources v. Locust Point Quarries, Inc., 396 A.2d 1205 (Pa. 1979).

   A conviction for violation of this section cannot be sustained absent sufficient visual and/or scientific evidence to establish that the quarry dust observed by Department agents was such as to constitute air pollution as defined by the Air Pollution Control Act. Commonwealth v. Locust Point Quarries Inc., 72 Pa. D. & C.2d 700 (1975).

   Fugitive Emissions

   A fugitive emission is an emission of an air contaminant in a specific manner and it includes particulate matter, sulfur compounds, odor and visible emissions if emitted other than through a flue. Department of Environmental Resources v. Locust Point Quarries, Inc., 396 A.2d 1205 (Pa. 1979).

   General Comment

   This section was intended to stand alone and be construed independently of §  123.13 (relating to processes). Department of Environmental Resources v. Locust Point Quarries, Inc., 396 A.2d 1205 (Pa. 1979).

   Minor Significance

   The comment by the Environmental Hearing Board that the operator failed to invoke the ‘‘minor significance’’ exception of (a)(9) was proper because the exception existed throughout the relevant time period of 1973 to 1976, and the procedural provisions added by a 1977 amendment were immaterial. Medusa Corp. v. Department of Environmental Resources, 415 A.2d 105 (Pa. Cmwlth. 1980).

   A rock quarry was not a source of minor significance within the meaning of §  127.14 (relating to exemptions) if nothing in the record supported such a determination and the DER had not so determined. Mignatti Construction Co., Inc. v. Environmental Hearing Board, 411 A.2d 860 (Pa. Cmwlth. 1980).

   Review

   A request for a grace period for compliance with a temporary variance did not have a res judicata effect on a subsequent request for an exemption from emission control requirements under this provision, since there was no identity of the thing sued for. Bethlehem Steel Corporation v. Department of Environmental Resources, 390 A.2d 1383 (Pa. Cmwlth. 1978).

   On appeal from the Department’s refusal to grant applicant permission to reactivate certain coke ovens, if the appellant did not show that the oven would meet the limitations in this title, but showed only the ‘‘dire need’’ for the coke to be produced, the scope of review is limited to whether constitutional rights were violated, an error of law committed, or any necessary finding of fact was not supported by the evidence. Rochez Brothers, Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975).

 A person may not permit fugitive particulate matter to be emitted into the outdoor atmosphere from a source specified in §  123.1(a)(1)—(9) (relating to prohibition of certain fugitive emissions) if the emissions are visible at the point the emissions pass outside the person’s property.

   The provisions of this §  123.2 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383; amended August 12, 1983, effective August 13, 1983, 13 Pa.B. 2478. Immediately preceding text appears at serial page (60646).

   Evidence

   Visual evidence that dust emission left quarry property without witness as to the precise moment when fugitive dust escaped from the property was not proper grounds for dismissal of a violation as de minimis. Scurfield Coal, Inc. v. Commonwealth, 582 A.2d 694 (Pa. Cmwlth. 1990).

   Facility Operations

   This section which requires quarry owner to prevent emission into the atmosphere of particulate matter encompasses material stockpiled in both active and inactive operations, since the detriment to the public is the same. Eureka Stone Quarry, Inc. v. Commonwealth, 544 A.2d 1129 (Pa. Cmwlth. 1988).

   Prevention

   Quarry owner has an active duty to prevent particulate matter from visibly escaping into the atmosphere onto another’s property, which includes a responsibility to provide an adequate suppression system. Eureka Stone Quarry, Inc. v. Commonwealth, 544 A.2d 1129 (Pa. Cmwlth. 1988).

   Testimony of an air quality specialist who visited the defendant’s quarry and viewed dust blowing into the air from actual stone crushing areas, conveying areas, stockpiles and haulage ways was sufficient to prove defendant caused the prohibited emissions to be emitted into the atmosphere outside of its own property. Eureka Stone Quarry, Inc. v. Commonwealth, 544 A.2d 1129 (Pa. Cmwlth. 1988).

   This section which requires a quarry owner to prevent emission into the atmosphere of particulate matter encompasses material stockpiled in both active and inactive operations, since the detriment to the public is the same. Eureka Stone Quarry, Inc. v. Commonwealth, 544 A.2d 1129 (Pa. Cmwlth. 1988).

   Quarry owner has an active duty to prevent particulate matter from visibly escaping into the atmosphere onto another’s property, which includes a responsibility to provide an adequate suppression system. Eureka Stone Quarry, Inc. v. Commonwealth, 544 A.2d 1129 (Pa. Cmwlth. 1988).

   Since this section applies only to the nine exemptions listed in §  123.1(a)(1)—(9) (relating to fugitive emissions), the two sections do not overlap and either one can stand alone as a basis for a violation. Medusa Corp. v. Department of Environmental Resources, 415 A.2d 105 (Pa. Cmwlth. 1980).

   This section cited in 25 Pa. Code §  77.108 (relating to permit for small noncoal operations); 25 Pa. Code §  123.1 (relating to prohibition of certain fugitive emissions); and 25 Pa. Code §  264.521 (relating to design and operating standards).

PARTICULATE MATTER EMISSIONS

§ 123.11. Combustion units.

 (a)  A person may not permit the emission into the outdoor atmosphere of particulate matter from a combustion unit in excess of the following:

   (1)  The rate of 0.4 pound per million Btu of heat input, when the heat input to the combustion unit in millions of Btus per hour is greater than 2.5 but less than 50.

   (2)  The rate determined by the following formula:

   A = 3.6E^-0.56

   where:

   A = Allowable emissions in pounds per million Btus of heat input,
 and

   E = Heat input to the combustion unit in millions of Btus per hour,

   when E is equal to or greater than 50 but less than 600.

   (3)  The rate of 0.1 pound per million Btu of heat input when the heat input to the combustion unit in millions of Btus per hour is equal to or greater than 600.

 (b)  Allowable emissions under subsection (a) are graphically indicated in Appendix A.

   The provisions of this §  123.111 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383.

   Impossibility

   There is no constitutional prohibition against imposition of civil penalties for failure to comply with technologically impossible standards, since the use of fines to spark technological development is reasonably related to the goal of reducing pollution. Department of Environmental Resources v. Pennsylvania Power Co. 416 A.2d 995 (Pa. 1980).

   Impossibility of performance is a defense in a contempt proceeding where an order of court ordering a power company to comply with the SO₂ regulations was impossible of performance and where, under the present state of technology, the power company’s proposed use of higher smokestacks to control SO₂ emissions was as close as the company could come to compliance with the regulations. Department of Environmental Resources v. Pennsylvania Power Company, 316 A.2d 96 (Pa. Cmwlth. 1974).

   Substantial Evidence

   Substantial evidence of a violation can be supplied by the violator itself and need not be independently produced by the Department. Department of Environmental Resources v. Pennsylvania Power Company, 384 A.2d 273 (Pa. Cmwlth. 1978).

   No person may permit the emission to the outdoor atmosphere of particulate matter from any incinerator, at any time, in such a manner that the particulate matter concentration in the effluent gas exceeds 0.1 grain per dry standard cubic foot, corrected to 12% carbon dioxide.

   The provisions of this §  123.12 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383.

 (a)  Subsections (b) and (c) apply to all processes except combustion units, incinerators and pulp mill smelt dissolving tanks.

 (b)  No person may permit the emission into the outdoor atmosphere of particulate matter from a process listed in the following table, at any time, either in excess of the rate calculated by the formula in paragraph (2) or in a manner that the concentration of particulate matter in the effluent gas exceeds .02 grains per dry standard cubic foot, whichever is greater:

   (1)  Table.

   (2)  Formula.
A = .76E^0.42

 where:
A = Allowable emissions in pounds per hour.
E = Emission index = F X W pounds per hour.
F = Process factor in pounds per unit, and
W = Production or charging rate in units per hour.

   The factor F shall be obtained from the table in paragraph (1). The units for F and W shall be compatible.

   (3)  Allowable emissions. Allowable emissions under this subsection are graphically indicated in Appendix B.

 (c)  For processes not listed in subsection (b)(1), including, but not limited to, coke oven battery waste heat stacks and autogeneous zinc coker waste heat stacks, the following apply:

   (1)  Prohibited emissions. No person may permit the emission into the outdoor atmosphere of particulate matter from a process not listed in subsection (b)(1) in a manner that the concentration of particulate matter in the effluent gas exceeds any of the following:

     (i)   .04 grain per dry standard cubic foot, when the effluent gas volume is less than 150,000 dry standard cubic feet per minute.

     (ii)   The rate determined by the following formula:
A = 6000 E^-1

   where:
A = Allowable emissions in grains per dry standard cubic foot, and
E = Effluent gas volume in dry standard cubic feet per minute,

   when E is equal to or greater than 150,000 but less than 300,000.

     (iii)   .02 grain per dry standard cubic foot, when the effluent gas volume is greater than 300,000 dry standard cubic feet per minute.

   (2)  Allowable emissions. Allowable emissions under this subsection are graphically indicated in Appendix C.

 (d)  No person may permit the emission into the outdoor atmosphere of particulate matter from kraft and soda pulp mill smelt dissolving tanks in excess of .2 lb/ton black liquor solids—dry basis.

   The provisions of this §  123.13 issued under section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20); and section 5 of the Air Pollution Control Act (35 P. S. §  4005); amended under section 5 of the Air Pollution Control Act (35 P. S. §  4005).

   The provisions of this §  123.13 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383; amended April 26, 1974, effective May 13, 1974, 4 Pa.B. 824; amended July 25, 1975, effective August 11, 1975, 5 Pa.B. 1916; amended July 23, 1976, effective August 9, 1976, 6 Pa.B. 1730; amended August 12, 1978, effective August 29, 1978, 8 Pa.B. 2251; amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3788; amended August 12, 1983, effective August 13, 1983, 13 Pa.B. 2478; amended May 6, 1988, effective May 7, 1988, 18 Pa.B. 2102. Immediately preceding text appears at serial pages (84509) to (84511).

   Construction

   This section was intended to stand alone and be construed independently of §  123.1. Department of Environmental Resources v. Locust Point Quarries, Inc., 483 Pa. 350, 355, 396 A.2d 1205 (1979).

   Criminal Violation

   To prove a criminal violation of §  123.1, as modified by this section, scientific evidence must be introduced proving beyond a reasonable doubt that the offensive fugitive emissions exceeded the permissible maximum set forth in this section. Department of Environmental Resources v. Locust Point Quarries, Inc., 367 A.2d 392 (Pa. Cmwlth. 1976).

   Denial of Application

   The Department is required to deny an application for reactivation of beehive coke ovens, regardless of economic consequences, when the application does not provide any information which would show that the ovens would meet the limitations applicable to fugitive emissions and constitutional rights are not violated even though there is no known method to operate beehive coke ovens in compliance with the regulations. Rochez Brothers Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975).

   Failure to Appeal

   Where the party is aggrieved by Department order requiring compliance with this section by a certain date, failure to appeal the order bars an attack on the order and the validity of the regulation on which it was predicated in a subsequent enforcement proceeding brought by the Department. Department of Environmental Resources v. Wheeling-Pittsburgh Steel Corp., 348 A.2d 765 (Pa. Cmwlth. 1975).

   Process

   A quarry operation would appear to be included among those manufacturing processes outlined in this section but this interpretation does not preclude prosecution under another regulation restricting a distinct form of air contamination even though the same sources of contamination and the same contaminant are involved. Commonwealth v. Locust Point Quarries Inc., 72 Pa. D. & C.2d 700 (1975).

   A steel corporation which is granted an extension of time for compliance with the standards relating to particulate matter emissions may not attack the validity of the order or the regulations on which it was predicated in a subsequent enforcement proceeding, and the corporation does not have the right to trial by jury even though it seeks declaratory relief in its answer to the enforcement petition. Department of Environmental Resources v. Wheeling-Pittsburgh Steel Corp., 375 A.2d 320 (Pa. Cmwlth. 1977); 348 A.2d 765 (Pa. Cmwlth. 1975).

   Scope of Review

   On appeal from the Department’s refusal to grant applicant permission to reactivate certain coke ovens, where the appellant does not show that the oven would meet the limitations in this title but shows only the ‘‘dire need’’ for the coke to be produced, the scope of review is limited to whether constitutional rights were violated, an error of law committed or any necessary finding of fact not supported by the evidence. Rochez Brothers, Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975).

   This section cited in 25 Pa. Code §  121.8 (relating to compliance responsibilities); 25 Pa. Code §  129.15 (relating to coke pushing operations); and 25 Pa. Code §  139.12 (relating to emissions of particulate matter).

SULFUR COMPOUND EMISSIONS

§ 123.21. General.

 (a)  This section applies to sources except those subject to other provisions of this article, with respect to the control of sulfur compound emissions.

 (b)  No person may permit the emission into the outdoor atmosphere of sulfur oxides from a source in a manner that the concentration of the sulfur oxides, expressed as SO₂, in the effluent gas exceeds 500 parts per million, by volume, dry basis.

 (a)  Nonair basin areas. Combustion units in nonair basin areas shall conform with the following:

   (1)  General provision. No person may permit the emission into the outdoor atmosphere of sulfur oxides, expressed as SO₂, from a combustion unit in excess of the rate of 4 pounds per million Btu of heat input over any 1-hour period except as provided for in paragraph (4).

   (2)  Commercial fuel oil. No person may offer for sale, deliver for use, exchange in trade or permit the use of commercial fuel oil in nonair basin areas which contains sulfur in excess of the applicable percentage by weight set forth in the following table:

   (3)  Equivalency provision. Paragraph (2) may not apply to those persons or installations where equipment or processes are used to reduce the emissions from the burning of fuels with a higher sulfur content than that specified in paragraph (2). The emissions may not exceed those which would result from the use of the fuels specified in paragraph (2).

   (4)  Solid fossil fuel fired combustion units. Solid fossil fuel fired combustion units shall conform with the following:

     (i)   This paragraph applies to solid fossil fuel fired combustion units with a rated capacity greater than or equal to 250 million Btus of heat input per hour.

     (ii)   The owner of a solid fossil fuel fired combustion unit with a rated capacity of less than 250 million Btu heat input per hour may petition the Department for application of the limitations in this paragraph in lieu of the limitations in paragraph (1). Upon demonstration of installation of continuous monitoring equipment which complies with Chapter 139 (relating to sampling and testing) the Department will grant the petition.

     (iii)   No person subject to this paragraph may permit the emission into the outdoor atmosphere of sulfur oxides, expressed as SO₂ from a combustion unit in excess of the rates set forth in the following table:

     (iv)   A combustion unit which does not meet the requirements of §  123.25 (relating to monitoring requirements) for installation and operation of continuous SO₂ emission monitoring equipment shall be subject to the provisions of paragraph (1).

 (b)  Erie; Harrisburg; York; Lancaster; and Scranton, Wilkes-Barre air basins. Combustion units in these subject air basins shall conform with the following:

   (1)  General provision. No person may permit the emission into the outdoor atmosphere of sulfur oxides, expressed as SO₂, from a combustion unit in excess of the rate of 4 pounds per million Btu of heat input over a 1-hour period except as provided for in paragraph (4).

   (2)  Commercial fuel oil. No person may offer for sale, deliver for use, exchange in trade or permit the use of commercial fuel oil in the subject air basins which contain sulfur in excess of the applicable percentage by weight set forth in the following table:

   (3)  Equivalency provision. Paragraph (2) does not apply to those persons or installations where equipment or processes are used to reduce the emissions from the burning of fuels with a higher sulfur content than that specified in paragraph (2). The emissions may not exceed those which would result from the use of the fuels specified in paragraph (2).

   (4)  Solid fossil fuel fired combustion units. Solid fossil fuel fired combustion units shall conform with the following:

     (i)   This paragraph applies to solid fossil fuel fired combustion units with a rated capacity greater than or equal to 250 million Btus of heat input per hour and to a solid fossil fuel fired combustion unit upon petition to and acceptance by the Department.

     (ii)   The owner of any solid fossil fuel fired combustion unit with a rated capacity of less than 250 million Btu heat input per hour may petition the Department for application of the limitations in this paragraph in lieu of the limitations in paragraph (1). Upon demonstration of installation of continuous monitoring equipment which complies with Chapter 139, the Department will grant such petition.

     (iii)   No person may permit the emission into the outdoor atmosphere of sulfur oxides, expressed as SO₂, from a combustion unit, at any time, in excess of the rates set forth in the following table:

     (iv)   A combustion unit which does not meet the requirements of §  123.25 for installation and operation of continuous SO₂ emission monitoring equipment is subject to the provisions of paragraph (1).

 (c)  Allentown, Bethlehem, Easton, Reading, Upper Beaver Valley and Johnstown air basins. Combustion units in these subject air basins shall conform with the following:

   (1)  General provision. No person may permit the emission into the outdoor atmosphere of sulfur oxides, expressed as SO₂, from any combustion unit, at any time, in excess of the rate of 3 pounds per million Btu of heat input over any 1-hour period except as provided for in paragraph (4).

   (2)  Commercial fuel oil. No person may, at any time, offer for sale, deliver for use, exchange in trade or permit the use of commercial fuel oil in the subject air basins on or after the effective dates listed in this paragraph which contains sulfur in excess of the applicable percentage by weight set forth in the following table:

   (3)  Equivalency provision. Paragraph (2) does not apply to those persons or installations where equipment or processes are used to reduce the emissions from the burning of fuels with a higher sulfur content than that specified in paragraph (2); however, the emissions may not exceed those which would result from the use of the fuels specified in paragraph (2).

   (4)  Solid fossil fuel fired combustion units. Solid fuel fired combustion units shall conform with the following:

     (i)   This paragraph applies to all solid fossil fuel fired combustion units with a rated capacity greater than or equal to 250 million Btus of heat input per hour and to any solid fossil fuel fired combustion unit upon petition to and acceptance by the Department.

     (ii)   The owner of a solid fossil fuel fired combustion unit with a rated capacity of less than 250 million Btu heat input per hour may petition the Department for application of the limitations in this paragraph in lieu of the limitations in paragraph (1). Upon demonstration of installation of continuous monitoring equipment which complies with Chapter 139 the Department will grant such petition.

     (iii)   No person may permit the emission into the outdoor atmosphere of sulfur oxides, expressed as SO₂, from any combustion unit in excess of the rates set forth in the following table:

     (iv)   A combustion unit not meeting the requirements of §  123.25 (relating to monitoring requirements) for installation and operation of continuous SO₂₁ emission monitoring equipment is subject to the provisions of paragraph (1).

 (d)  Allegheny County, Lower Beaver Valley, and Monongahela Valley air basins. No person may permit the emission into the outdoor atmosphere of sulfur oxides, expressed as SO₂, from any combustion unit in excess of any of the following:

   (1)  The rate of one pound per million Btu of heat input, when the heat input to the combustion unit in millions of Btus per hour is greater than 2.5 but less than 50.

   (2)  The rate determined by the following formula: A = 1.7E^-0.14, where: A = Allowable emissions in pounds per million Btu of heat input, and E = Heat input to the combustion unit in millions of Btus per hours when E is equal to or greater than 50 but less than 2,000.

   (3)  The rate of 0.6 pounds per million Btu of heat input when the heat input to the combustion unit in millions of Btus per hour is equal to or greater than 2,000.

 (e)  Southeast Pennsylvania air basin. Combustion units in the Southeast Pennsylvania air basin shall conform with the following:

   (1)  General provision. No person may permit the emission into the outdoor atmosphere of sulfur oxides, expressed as SO₂, from any combustion unit except as provided for in paragraph (3) or (5), in excess of the applicable rate in pounds per million Btu of heat input specified in the following table:

   (2)  Commercial fuel oil. No person may, at any time, offer for sale, deliver or use, exchange in trade or permit the use of commercial fuel oil for use in combustion units in the Southeast Pennsylvania air basin which contains sulfur in excess of the applicable percentages by weight set forth in the following table:

   (3)  Noncommercial fuels. No person may permit the emission into the outdoor atmosphere of sulfur oxides, expressed as SO₂, from any combustion unit using noncommercial fuel at any time in excess of the rate of 0.6 pounds per million Btu of heat input in the inner zone or 1.2 pounds per million Btu of heat input in the outer zone.

   (4)  Equivalency provision. Paragraph (2) does apply to those persons or installations where equipment or processes are used to reduce the emissions from the burning of fuels with a higher sulfur content than that specified in paragraph (2); however, the emissions may not exceed those which would result from the use of the fuels specified in paragraph (2).

   (5)  Solid fossil fuel fired combustion units. Solid fossil fuel fired combustion units shall conform with the following:

     (i)   This paragraph applies to all solid fossil fuel fired combustion units with a rated capacity greater than or equal to 250 million Btus of heat input per hour and to any solid fossil fuel fired combustion unit upon petition to and acceptance by the Department.

     (ii)   The owner of any solid fossil fuel fired combustion unit with a rated capacity of less than 250 million Btu heat input per hour may petition the Department for application of the limitations in this paragraph in lieu of the limitations in paragraph (1). Upon demonstration of installation of continuous monitoring equipment which complies with Chapter 139, the Department will grant the petition.

     (iii)   No person may permit the emission into the outdoor atmosphere of sulfur oxides, expressed as SO₂, from any combustion unit in excess of the applicable rate in pounds per million Btu of heat input specified in the following table:

     (iv)   A combustion unit not meeting the requirements of §  123.25 (relating to monitoring requirements) for installation and operation of continuous SO₂ emission monitoring equipment are subject to the provisions of paragraph (1).

   The provisions of this §  123.22 issued under section 5 of the Air Pollution Control Act (35 P. S. §  4005).

   The provisions of this §  123.22 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383; amended August 4, 1978, effective October 1, 1978, 8 Pa.B. 2163; amended April 27, 1979, effective August 1, 1979, 9 Pa.B. 1447; corrected May 11, 1979, effective August 1, 1979, 9 Pa.B. 1534; amended November 7, 1980, effective January 1, 1981, 10 Pa.B. 4296; amended August 20, 1982, effective August 21, 1982, 12 Pa.B. 2787. Immediately preceding text appears at serial page (59076).

   Impossibility

   There is no constitutional prohibition against imposition of civil penalties for failure to comply with technologically impossible standards, since the use of fines to spark technological development is reasonably related to the goal of reducing pollution. Department of Environmental Resources v. Pennsylvania Power Co., 416 A.2d 995 (Pa. 1980).

   Impossibility of performance is a defense in a contempt proceeding where an order of court ordering a power company to comply with the SO₂ regulations was impossible of performance and where, under the present state of technology, the power company’s proposed use of higher smokestacks to control SO₂ emissions was as close as the company could come to compliance with the regulations. Department of Environmental Resources v. Pennsylvania Power Co., 316 A.2d 96 (Pa. Cmwlth. 1974).

 (a)  No person may permit the emission of byproduct coke oven gas into the outdoor atmosphere unless the gas is first burned.

 (b)  No person may permit the flaring or combustion of a coke oven byproduct gas which contains sulfur compounds, expressed as equivalent hydrogen sulfide, in concentrations greater than 50 grains per 100 dry standard cubic feet. The sulfur compounds, expressed as equivalent hydrogen sulfide, emitted into the outdoor atmosphere from any tail gas sulfur recovery equipment utilized in a coke oven gas desulfurization system approved by the Department shall be included in the determination of these concentrations.

 (c)  Subsections (a) and (b) do not apply to emissions of coke oven gas from:

   (1)  An oven which is dampered off:

     (i)   Prior to and during the pushing operation of the oven.

     (ii)   Because of some malfunction associated with the oven.

   (2)  Unavoidable oven leakage occurring during the coking cycle.

 (d)  Sections 129.12 and 129.13 (relating to sulfuric acid plants; and sulfur recovery plants) may not be applicable to processes operated in conjunction with the desulfurization of byproduct coke oven gas, provided that the standards in this section have been complied with.

   The provisions of this §  123.23 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383; amended October 25, 1974, effective November 11, 1974, 4 Pa.B. 2283; amended April 27, 1979, effective August 1, 1979, 9 Pa.B. 1534. Immediately preceding text appears at serial page (38907).

 (a)  No person may permit the emission into the outdoor atmosphere of sulfur oxides from any zinc roasting operation in such a manner that the concentration of sulfur oxides, expressed as SO₂, in the effluent gas exceeds 500 parts per million by volume, dry basis, calculated as a 2-hour moving average.

 (b)  No person may permit the emission into the outdoor atmosphere of sulfur oxides from any zinc sintering operation in excess of the rate calculated by the following formula:

 Y = 0.054X,

 Where:

 X = Calcine feed rate to the sinter plant (lbs/hr); and

 Y = Allowable sulfur oxide emissions (lbs/hr).

 (a)  This section applies to the following:

   (1)  Combustion units specified in §  123.22(a)(4), (b)(4), (c)(4) or (e)(5) (relating to combustion units).

   (2)  Fossil fuel—fired steam generators of greater than 250 million Btus per hour of heat input which has installed sulfur dioxide pollutant control equipment.

   (3)  Sulfuric acid plants of greater than 300 tons per day production capacity, the production being expressed as 100% acid.

 (b)  A source subject to this section shall install, operate and maintain continuous SO₂ monitoring systems in compliance with Chapter 139 Subchapter C (relating to requirements for continuous in-stack monitoring for stationary sources). Results of emission monitoring shall be submitted to the Department on a regular basis in compliance with Chapter 139 Subchapter C.

 (c)  Continuous SO₂ monitoring systems installed under this section shall meet the minimum data availability requirements in Chapter 139 Subchapter C.

 (d)  The following are alternative monitoring systems:

   (1)  The Department will allow sources specified in subsection (a)(1) to utilize sulfur-in-fuel sampling programs in lieu of the requirements of subsection (b). These programs shall meet the requirements of Chapter 139 Subchapter C.

   (2)  The Department may exempt a source from the requirements of subsection (b) if the Department determines that the installation of a continuous emission monitoring system would not provide accurate determination of emissions or that installation of a continuous emission monitoring system cannot be implemented by a source due to physical plant limitations or to extreme economic reasons. The Department will require an exempted source to fulfill alternative emission monitoring and reporting requirements.

 (e)  The Department may use the data from the SO₂ monitoring devices or from the alternative monitoring systems required by this section to enforce the emission limitations for SO₂ defined in this article.

 (f)  Compliance with this section shall be obtained no later than 18 months after the effective date of the listing of any source identified in subsection (a). The Department may grant orders providing reasonable extension of time for sources that have made good faith efforts to install, operate and maintain continuous monitoring devices, but that have been unable to complete the operations within the time period provided.

 (g)  The Department may use the data from the SO₂ monitoring systems or from the alternative monitoring systems required by this section to determine compliance with the applicable emission limitations for SO₂ established in this article.

   The provisions of this §  123.25 issued under the Air Pollution Control Act (35 P. S. § §  4001—4015).

   The provisions of this §  123.25 adopted April 27, 1979, effective August 1, 1979, 9 Pa.B. 1447; amended April 27, 1979, effective August 1, 1979, 9 Pa.B. 1534; amended June 19, 1981, effective June 20, 1981, 11 Pa.B. 2132; amended October 26, 1990, effective October 27, 1990, 20 Pa.B. 5416. Immediately preceding text appears at serial pages (136379) to (136380).

   This section cited in 25 Pa. Code §  123.22 (relating to combustion units); and 25 Pa. Code §  139.104 (relating to sulfur dioxide and nitrogen oxides monitoring requirements for combustion sources).

ODOR EMISSIONS

§ 123.31. Limitations.

 (a)  Limitations are as follows:

   (1)  If control of malodorous air contaminants is required under subsection (b), emissions shall be incinerated at a minimum of 1200°F for at least 0.3 second prior to their emission into the outdoor atmosphere.

   (2)  Techniques other than incineration may be used to control malodorous air contaminants if such techniques are equivalent to or better than the required incineration in terms of control of the odor emissions and are approved in writing by the Department.

 (b)  A person may not permit the emission into the outdoor atmosphere of any malodorous air contaminants from any source, in such a manner that the malodors are detectable outside the property of the person on whose land the source is being operated.

 (c)  The prohibition in subsection (b) does not apply to odor emissions arising from the production of agricultural commodities in their unmanufactured state on the premises of the farm operation.

   The provisions of this §  123.31 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383; amended August 12, 1977, effective August 29, 1977, 7 Pa.B. 2251; amended August 12, 1983, effective August 13, 1983, 13 Pa.B. 2478. Immediately preceding text appears at serial page (75541).

   Compliance

   The Department of Environmental Resources was required to deny an application for reactivation of beehive coke ovens, regardless of economic consequences, when the application did not provide any information which would show that the ovens would meet the limitations applicable to fugitive emissions and constitutional rights were not violated even though there was no known method to operate beehive coke ovens in compliance with this title. Rochez Brothers, Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975).

   Review

   On appeal from the Department of Environmental Resources’ refusal to grant an applicant permission to reactivate certain coke ovens, where the appellant did not show that the oven would meet the limitations in this title, but showed only the ‘‘dire need’’ for the coke to be produced, the scope of review was limited to whether constitutional rights were violated, an error of law committed or any necessary finding of fact not supported by the evidence. Rochez Brothers, Inc. v. Department of Environmental Resources, 334 A.2d. 790 (Pa. Cmwlth. 1975).

   This section cited in 25 Pa. Code §  271.902 (relating to permits and direct enforceability).

VISIBLE EMISSIONS

§ 123.41. Limitations.

 A person may not permit the emission into the outdoor atmosphere of visible air contaminants in such a manner that the opacity of the emission is either of the following:

   (1)  Equal to or greater than 20% for a period or periods aggregating more than 3 minutes in any 1 hour.

   (2)  Equal to or greater than 60% at any time.

   The provisions of this §  123.41 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383.

   Denial of Application

   On appeal from the Department’s refusal to grant applicant permission to reactivate certain coke ovens, where the appellant does not show that the oven would meet the limitations in this title, but shows only the ‘‘dire need’’ for the coke to be produced, the scope of review is limited to whether constitutional rights were violated, an error of law committed or any necessary finding of fact not supported by the evidence. Rochez Brothers, Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975).

   The Department is required to deny an application for reactivation of beehive coke ovens, regardless of economic consequences, when the application does not provide any information which would show that the ovens would meet the limitations applicable to fugitive emissions, and constitutional rights are not violated even though there is no known method to operate beehive coke ovens in compliance with the regulations. Rochez Brothers, Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975).

   Due Process

   There is no violation of procedural due process where an order to make certain changes in coke oven operations does not place new or increased legal duties on the operator but only redefines and mitigates what had been an immediate, current legal duty under the regulations and a compliance schedule is specified and no variance request is made. Commonwealth v. Crucible, Inc., 65 Pa. D. & C.2d 151 (1973).

   Failure to Appeal

   Where the party is aggrieved by the Department order requiring compliance with 25 Pa. Code §  123.41 (relating to limitations), by a certain date, failure to appeal such order bars an attack on the order and the validity of the regulation on which it was predicated, in a subsequent enforcement proceeding brought by the Department. Department of Environmental Resources v. Wheeling-Pittsburgh Steel Corporation, 348 A.2d 765 (Pa. Cmwlth. 1975).

   Validity of Order

   A steel corporation which is granted an extension of time for compliance with the standards relating to particulate matter emissions may not attack the validity of the order or the regulations on which it was predicated in a subsequent enforcement proceeding, and the corporation does not have the right to trial by jury even though it seeks declaratory relief in its answer to the enforcement petition. Department of Environmental Resources v. Wheeling-Pittsburgh Steel Corporation, 348 A.2d 765 (Pa. Cmwlth. 1975).

 The limitations of §  123.41 (relating to limitations) shall not apply to a visible emission in any of the following instances:

   (1)  When the presence of uncombined water is the only reason for failure of the emission to meet the limitations.

   (2)  When the emission results from the operation of equipment used solely to train and test persons in observing the opacity of visible emissions.

   (3)  When the emission results from sources specified in §  123.1 (a)(1)—(9) (relating to prohibition of certain fugitive emissions).

   (4)  When arising from the production of agricultural commodities in their unmanufactured state on the premises of the farm operation.

 Visible emissions may be measured using either of the following:

   (1)  A device approved by the Department and maintained to provide accurate opacity measurements.

   (2)  Observers, trained and qualified to measure plume opacity with the naked eye or with the aid of devices approved by the Department.

 (a)  A person may not permit the operation of a coke oven battery in a manner that visible fugitive air contaminants are emitted in excess of the emissions allowed by the following limitations:

   (1)  The following open charging limitation applies to existing batteries listed in §  121.1 (relating to definitions). The following closed charging limitation applies to any existing battery on which a closed charging system is installed:

     (i)   Open charging. At no time may the aggregated times of visible open charging emissions during any four consecutive charges equal more than 75 seconds.

     (ii)   Closed charging. At no time may there be closed charging emissions during more than one charge out of any ten consecutive charges.

   (2)  At no time may door area emissions from any coke oven exceed 40% opacity 15 minutes or longer after the last charge to that oven.

   (3)  At no time may there be any visible door area emissions from more than 10% of the door area of operating coke ovens, excluding the two-door area representing the last oven charged on any battery and any door areas obstructed from view.

   (4)  At no time may there be visible topside emissions from more than 2.0% of the charging port seals on operating coke ovens in any battery, excluding visible emissions from no more than three ovens which may be dampered off.

   (5)  At no time may there be topside emissions from more than 5.0% of the offtake piping on operating coke ovens in any battery, excluding visible emissions from open standpipe caps on no more than three ovens which may be dampered off.

   (6)  At no time may there be topside emissions from any point on the topside other than allowed emissions from charging port seals and offtake piping under paragraphs (4) and (5).

   (7)  At no time may there be visible emissions from the coke oven gas collector main.

 (b)  The following techniques shall be used for measuring and recording visible fugitive air contaminants from a coke oven battery:

   (1)  Observations of open and closed charging emissions shall be made from any point or points on the topside of a coke oven battery from which an observer can obtain an unobstructed view of the charging operation. The observer shall determine and record the total number of seconds that charging emissions are visible during the charging of coal to the coke oven. The observer shall time the visible charging emissions with a stopwatch while observing the charging operation. Simultaneous emissions from more than one emission point shall be timed and recorded as one emission and may not be added individually to the total time. Open charging emissions may not include any emissions observed after all the charging port covers have been firmly seated following the removal of the larry car, such as emissions occurring when a cover is temporarily removed to permit the sweep-in of spilled coal. The total number of seconds of visible emissions observed, clock time for the initiation and completion of the charging operation, battery identification, and oven number for each charge shall be recorded by the observer. In the event that observations of emissions from a charge are interrupted due to events beyond the control of observer, the data from that charge shall be invalidated and the observer shall note on his observation sheet the reason for invalidating the data. The observer shall then resume observation of the next consecutive charge or charges, and continue until he has obtained a set of four charges for comparison with the emission standard. Compliance with subsection (a)(1) shall be determined by summing the seconds of charging emissions observed during each of the four charges.

   (2)  Observations of door area emissions for the purpose of determining compliance with subsection (a)(2) shall be made at a point above the top of the door but below the battery top, or at the top of any local door area emission control hood. The observer shall place himself no less than 25 feet from the face of the door in a location where his view of the door area is unobstructed.

   (3)  Observations of door area emissions for determining compliance with subsection (a)(3) shall be made from a minimum distance of 25 feet from each door. Each door area shall be observed in sequence for only that period necessary to determine whether or not, at the time, there are visible emissions from any point on the door area while the observer walks along the side of the battery. If the observer’s view of a door area is more than momentarily obstructed, for example, by door machinery, pushing machinery, coke guide, luter truck or opaque steam plumes, he shall record the door area obstructed and the nature of the obstruction and continue the observations with the next door area in sequence which is not obstructed. The observer shall continue this procedure along the entire length of the battery for both sides and shall record the battery identification, battery side and oven door identification number of each door area exhibiting visible emissions. Before completing the observation of door area emissions, the observer shall attempt to reobserve the obstructed doors. Compliance with subsection (a)(3) shall be calculated by application of the following formula, which excludes two door areas representing the last oven charged from the numerator and obstructed door areas from the denominator:

   (4)  Observations of visible emissions from a coke oven topside, other than emissions from the topside defined as open or closed charging emissions or pushing emissions, shall be made and recorded during the time an observer walks the topside of a battery from one end to the other, positioning himself near the center line. During the traverse, the observer may stray from near the center line of the battery and walk as close to the offtake piping as is necessary to determine whether an observed emission is emanating from the offtake piping. Each oven shall be observed in sequence. The observer shall record the battery identification, the points of topside emission from each oven, the oven number and whether an oven was dampered off. Compliance with subsection (a)(4) shall be determined by application of the following formula:

   The provisions of this §  123.44 issued under section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20); and section 5 of the Air Pollution Control Act (35 P. S. §  4005).

   The provisions of this §  123.44 adopted August 12, 1977, effective December 31, 1977, 7 Pa.B. 2251; corrected November 4, 1977, effective December 31, 1977, 7 Pa.B. 3260; amended August 12, 1983, effective August 13, 1983, 13 Pa.B. 2478; amended December 26, 1997, effective December 27, 1997, 27 Pa.B. 6804. Immediately preceding text appears at serial pages (215785) to (215788).

 (a)  Coverage. Coverage shall comply with the following:

   (1)  This section applies to a source:

     (i)   That is covered under §  123.41 (relating to limitations) and is also covered by an emission limitation in the form of a mass rate or a stack gas concentration or a fuel requirement.

     (ii)   That is not a fugitive air contaminant.

     (iii)   For which the mass rate or concentration can be determined:

       (A)   Using techniques specified in § §  139.11—139.16.

       (B)   By any other method approved by the Department that is consistent with accepted air pollution testing practices and with obtaining accurate results that are representative of the conditions evaluated.

   (2)  Appendix D presents the applicability of this section for various emission limitation formats.

 (b)  Procedure for application. The procedure for application shall comply with the following:

   (1)  The owner or operator of a source may request the Department to determine the opacity of emissions from the source during a demonstration of compliance with the applicable mass rate standard or stack gas concentration standard or fuel requirement. The request must be made in the form of a plan approval application under Chapter 127 Subchapter A (relating to general).

   (2)  The owner or operator shall provide for any test the Department deems necessary for determining compliance with the applicable emission limitation.

   (3)  The owner or operator shall provide sufficient notification to the Department so that the proposed test methods may be reviewed and approved by the Department. No test will be considered by the Department for the purpose of establishing an alternative opacity limitation unless the test methods have been first approved by the Department and a trained and qualified observer is present during the test.

 (c)  Eligibility. A source shall be eligible for an alternative opacity limitation (AOL) if the following conditions are met:

   (1)  The Department finds that the source is in compliance with this article except §  123.41. The Department will specify the method of demonstrating compliance.

   (2)  During the time the determination of compliance and AOL is conducted, the source fails to meet any applicable opacity limitation.

   (3)  The Department finds:

     (i)   That the source has not discontinued measures to minimize opacity of emissions, within the bounds of good engineering and good economic practice.

     (ii)   That the source and associated air pollution control equipment are operated and maintained in a manner to minimize the opacity of emissions, within the bounds of good engineering and good economic practice.

   (4)  The demonstration of compliance and the alternative opacity tests are performed under the conditions established by the Department.

   (5)  The Department determines that the AOL would not create or contribute to a public nuisance nor cause air pollution as defined under the act.

 (d)  Level of the alternative standard. The Department will set the AOL at the opacity levels measured during the performance test, even if the emissions were substantially less than those allowed under the regulations or permit conditions of the Department. The Department will enter the AOL as a condition of the operating permit of the source.

 (e)  Operating conditions. The Department will specify the operating conditions under which the determination of compliance and AOL will be made. The conditions must be based on technical knowledge of the process concerning normal operation and the effects of deviations from normal operations.

 (f)  Timing of test. The Department will specify the day, time of day and time of year for conducting the determination of compliance and AOL where these factors may substantially affect the determination of source opacity. Where the source exhibits high opacity only under certain specified conditions or during certain times, the Department may limit the applicability of the AOL to operation during those conditions or times. These conditions or times must be specified in the permit.

 (g)  Continuous monitoring. Continuous monitoring shall consist of the following:

   (1)  A source that requests an AOL must install, operate and maintain a continuous opacity monitor before the determination of compliance and AOL is made.

   (2)  The Department will use the data from the monitor during the determination of compliance and AOL to set the AOL. After the AOL is entered on the operating permit of the source, the Department will use the data from the monitor to enforce the AOL.

   (3)  The Department may exempt a source from the requirement of paragraph (1) if the Department determines that the monitor would not give representative opacity readings for that source. The Department may require an exempted source to:

     (i)   Use trained and qualified observers to measure the opacity.

     (ii)   Monitor and report operating parameters of the process and of air pollution control equipment.

     (iii)   Perform such activities on a specified schedule maintaining relevant records for inspection by the Department.

 (h)  Granting and quantifying the AOL. Granting and quantifying the AOL include the following:

   (1)  The Department will issue a permit establishing the AOL for the source or will deny the application for plan approval if the Department determines that the source is not eligible for, or entitled to, an AOL.

   (2)  The Department will use the procedure of § §  139.17 and 139.18 (relating to general requirements; and calculation of alternative opacity limitations) to quantify the AOL.

 (i)  Special situations. Special situations include the following:

   (1)  For sources that make several products of varying opacity-producing capabilities, the Department may establish an overall AOL independent of the product. The Department may, however, establish a separate AOL for each product where the Department determines that the opacities from the products differ to such an extent that enforcement of the mass rate standard or stack gas concentration standard or fuel requirement may be hampered with only one AOL.

   (2)  For cases in which several processes vent to a single stack, the Department will set an AOL at the opacity level produced after each process is determined to be in compliance with the appropriate mass rate standard or stack gas concentration standard or fuel requirement.

 (j)  Revocation of AOL. Revocation of AOL shall be as follows:

   (1)  The Department may revoke a source’s AOL if the Department determines that:

     (i)   The source is not in compliance with this article.

     (ii)   The source has discontinued measures to minimize opacity of emissions, within the bounds of good engineering and good economic practice.

     (iii)   The plume opacity of the source creates or contributes to a public nuisance or causes air pollution as defined under the act.

   (2)  If the Department revokes a source’s AOL, the opacity of the source will be regulated by §  123.41. The Department may reinstate a revoked AOL if it determines that the conditions which caused the revocation no longer exist.

 (k)  Maintenance of continuous monitor; reestablishment of AOL. Reestablishment of an AOL shall be as follows:

   (1)  The Department may require the owner or operator of a source with an approved AOL and a continuous opacity monitor to do any or all of the following if a trained observer of the Department determines that the source is violating an AOL:

     (i)   Adjust or replace the continuous opacity monitor.

     (ii)   Retest opacity with monitor and trained and qualified observer.

     (iii)   Perform a test to determine compliance with the appropriate mass rate standard or stack gas concentration standard or fuel requirement.

   (2)  For a source with an AOL established by use of a continuous opacity monitor, the Department may establish a new AOL based on opacity readings by a trained and qualified observer if:

     (i)   The Department determines that the source complies with the applicable mass rate standard or stack gas concentration standard or fuel requirement.

     (ii)   The trained and qualified observer of the Department notifies the source that it does not comply with the existing AOL.

     (iii)   The data from the continuous opacity monitor indicate that the source complies with the existing AOL.

   The provisions of this §  123.45 issued under the Air Pollution Control Act (35 P. S. § §  4001—4015).

   The provisions of this §  123.45 adopted June 19, 1981, effective June 20, 1981, 11 Pa.B. 2132.

 (a)  The following sources are subject to this section:

   (1)  Fossil fuel-fired steam generators with an annual average capacity factor of greater than 30%, as demonstrated to the Department by the owner or operator, and of greater than 250 million Btu per hour heat input except where:

     (i)   Natural gas is the only fuel burned.

     (ii)   Oil or a mixture of gas and oil are the fuels burned and the source is able to comply with the applicable particulate matter and opacity regulations without utilization of particulate matter collection equipment and the source has not been found, within the 5 years previous to the applicability of this section, through any administrative or judicial proceedings to be in violation of any visible emissions standard.

   (2)  Catalyst regenerators for fluid bed catalytic cracking units at petroleum refineries, if the unit is of greater than 20,000 barrels per day fresh feed capacity.

 (b)  All sources subject to the provisions of this section shall install, operate and maintain continuous opacity monitoring devices in compliance with Chapter 139, Subchapter C (relating to requirements for continuous in-stack monitoring for stationary sources). Results of opacity monitoring shall be submitted to the Department on a regular basis in compliance with the requirements of Chapter 139, Subchapter C.

 (c)  The Department may exempt a source from the requirements of subsection (b) if the Department determines that the installation of a continuous emission monitoring system would not provide accurate determination of emissions or that installation of a continuous emission monitoring system may not be implemented by a source due to physical plant limitations or to extreme economic reasons. The Department will require such an exempted source to fulfill alternative emission monitoring and reporting requirements.

 (d)  The Department may use the data from the monitoring devices or from the alternative monitoring systems required by this section to enforce the visible emission limitations defined in this article.

 (e)  Compliance with this section shall be obtained no later than 18 months after the effective date of the listing of any source identified in subsection (a). The Department may grant orders providing reasonable extension of time for sources that have made good faith efforts to install, operate and maintain continuous monitoring devices but have been unable to complete such operations within the time period provided.

   The provisions of this §  123.46 issued under the Air Pollution Control Act (35 P. S. § §  4001—4015).

   The provisions of this §  123.46 adopted June 19, 1981, effective June 20, 1981, 11 Pa.B. 2132; corrected June 26, 1981, effective June 20, 1981, 11 Pa.B. 2225.

NITROGEN COMPOUND EMISSIONS

§ 123.51. Monitoring requirements.

 (a)  This section applies to combustion units with a rated heat input of 250 million Btus per hour or greater and with an annual average capacity factor of greater than 30%.

 (b)  Sources subject to this section shall install, operate and maintain continuous nitrogen oxides monitoring systems and other monitoring systems to convert data to required reporting units in compliance with Chapter 139, Subchapter C (relating to requirements for continuous in-stack monitoring for stationary sources).

 (c)  Sources subject to this section shall submit results on a regular schedule and in a format acceptable to the Department and in compliance with Chapter 139, Subchapter C.

 (d)  Continuous nitrogen oxides monitoring systems installed under the requirements of this section shall meet the minimum data availability requirements in Chapter 139, Subchapter C.

 (e)  The Department may exempt a source from the requirements of subsection (b) if the Department determines that the installation of a continuous emission monitoring system would not provide accurate determination of emissions or that installation of a continuous emission monitoring system cannot be implemented by a source due to physical plant limitations or to extreme economic reasons. A source exempted from the requirements of subsection (b) shall satisfy alternative emission monitoring and reporting requirements proposed by the source and approved by the Department which provide oxides emission data that is representative of actual emissions of the source.

 (f)  Sources subject to this section shall comply by October 20, 1993, unless the source becomes subject to the requirements later than October 20, 1990. For sources which become subject to the requirements after October 20, 1990, the source has 36 months from the date the source becomes subject to this section. The Department may issue orders providing a reasonable extension of time for sources that have made good faith efforts to install, operate and maintain continuous monitoring devices, but that have been unable to complete the operations within the time period provided.

   The provisions of this §  123.51 issued under the Air Pollution Control Act (35 P. S. § §  4001—4015).

   The provisions of this §  123.51 adopted October 19, 1990, effective October 20, 1990, 20 Pa.B. 5291.

   This section cited in 25 Pa. Code §  129.91 (relating to control of major sources of NO_x and VOCs).

NO_x ALLOWANCE REQUIREMENTS

§ 123.101. Purpose.

 Sections 123.102—123.120 and this section establish a NO_x budget and a NO_x allowance trading program for NO_x affected sources for the purpose of achieving the health based ozone ambient air quality standard.

   The provisions of this §  123.101 adopted October 31, 1997, effective November 1, 1997, 27 Pa.B. 5683.

 (a)  The owner or operator or each NO_x affected source shall, by December 31 of each calendar year, hold a quantity of NO_x allowances meeting the requirements of §  123.110(a) (relating to source compliance requirements) in the source’s current year NATS account that is equal to or greater than the total NO_x emitted from the source during that year’s NO_x allowance control period.

 (b)  The initial NO_x allowance control period begins on May 1, 1999.

   The provisions of this §  123.102 adopted October 31, 1997, effective November 1, 1997, 27 Pa.B. 5683.

 (a)  NO_x allowances shall be allocated, transferred or used as whole NO_x allowances. To determine the number of whole NO_x allowances, the number of NO_x allowances shall be rounded down for decimals less than 0.50 and rounded up for decimals of 0.50 or greater.

 (b)  A NO_x allowance does not constitute a security or other form of property.

 (c)  Allowances may not be used to meet the requirements of this subchapter prior to the year for which they are allocated.

 (d)  For the purposes of account reconciliation, NO_x allowances allocated for the NO_x allowance control period shall be deducted first, and remaining allowances if not otherwise designated by the source shall be deducted on a first-in, first-out basis.

 (e)  NO_x allowances may only be used to comply with § §  123.101, 123.102, 123.104—123.120 and this section.

   The provisions of this §  123.103 adopted October 31, 1997, effective November 1, 1997, 27 Pa.B. 5683; 25 Pa. Code §  123.121 (relating to NO_x Allowance Program transition); and 25 Pa. Code §  145.43 (relating to compliance supplement pool).

 (a)  The owner or operator of a NO_x affected source shall designate for each source account, one authorized account representative and one alternate. Initial designations shall be submitted to the Department by December 1, 1997. An authorized account representative may be replaced or, for a new NO_x affected source, designated with the submittal of a new ‘‘Account Certificate of Representation.’’

 (b)  The ‘‘Account Certificate of Representation’’ shall be signed by the authorized account representative for the NO_x affected source and contain, at a minimum, the following:

   (1)  Identification of the NO_x affected source by plant name, state and fossil fired indirect heat transfer combustion unit number for which the certification of representation is submitted.

   (2)  The name, address, telephone and facsimile number of the authorized account representative and the alternate.

   (3)  A list of owners and operators of the NO_x affected source.

   (4)  The verbatim statement, ‘‘I certify that I,

 (c)  The alternate authorized account representative shall have the same authority as the authorized account representative. Correspondence from the NO_x budget administrator shall be directed to the authorized account representative.

 (d)  Only an authorized account representative or the designated alternate may request transfers of NO_x allowances in a NATS account. The authorized account representative shall be responsible for all transactions and reports submitted to the NATS.

 (e)  Authorized account representative designation or changes become effective upon the logged date of receipt of a complete application by the NO_x budget administrator from the Department. The NO_x budget administrator will acknowledge receipt and the effective date of the changes by written correspondence to the authorized account representative.

   The provisions of this §  123.104 adopted October 31, 1997, effective November 1, 1997, 27 Pa.B. 5683.

 (a)  The NATS account records shall constitute a NO_x affected source’s NO_x allowance holdings.

 (b)  The transfer, use and deduction of NO_x allowances become effective only after entry in the tracking system account records.

 (c)  Any person may hold an account in the NATS.

   The provisions of this §  123.105 adopted October 31, 1997, effective November 1, 1997, 27 Pa.B. 5683.

 (a)  NO_x allowances may be transferred at any time between January 31 and December 31 in accordance with §  123.107 (relating to NO_x allowance transfer procedures).

 (b)  NO_x allowances shall be held by the originating account at the time of the transfer request.

 (c)  A transfer request shall be filed jointly with the NO_x budget administrator and the Department by the person named as the authorized account representative for the originating account.

 (d)  The transfer is effective as of the date the NO_x budget administrator posts the transfer of the allowances on the NATS.

   The provisions of this §  123.106 adopted October 31, 1997, effective November 1, 1997, 27 Pa.B. 5683.

 NO_x allowances may be transferred under the following conditions:

   (1)  The transfer request shall be documented on a form, or electronic media, approved by the Department. The following information, at a minimum, shall be provided:

     (i)   The account number identifying both the originating account and the acquiring account.

     (ii)   The name and address associated with the owners of the originating account and the acquiring account.

     (iii)   The identification of the serial numbers for each NO_x allowance being transferred.

   (2)  The transfer request shall be authorized and certified by the authorized account representative for the originating account. To be considered correctly submitted, the request for transfer shall include the following statement of certification:

  ‘‘I am authorized to make this submission on behalf of the owners and operators of the NO_x affected source and I hereby certify under the penalty provisions contained in the Air Pollution Control Act, that I have personally examined the foregoing and am familiar with the information contained in this document, and all attachments, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe the information is true, accurate and complete. I am aware that there are significant penalties for submitting false information, including possible fines and imprisonment.’’

 The authorized account representative for the originating account shall provide a copy of the transfer request to each owner or operator of the NO_x affected source.

   The provisions of this §  123.107 adopted October 31, 1997, effective November 1, 1997, 27 Pa.B. 5683.

 The owner and operator of each NO_x affected source shall comply with the following requirements:

   (1)  NO_x emissions from each NO_x affected source shall be monitored as specified by this section and in accordance with the procedures contained in the document titled, ‘‘Guidance for Implementation of Emission Monitoring Requirements for the NO_x Budget Program.’’

   (2)  The owner or operator of each NO_x affected source shall submit to the Department and the NO_x budget administrator a monitoring plan in accordance with the procedures outlined in the document titled, ‘‘Guidance for Implementation of Emission Monitoring Requirements for the NO_x Budget Program.’’

   (3)  New and existing unit emission monitoring systems, as required and specified by this section, shall be installed and be operational and shall have met all of the certification testing requirements in accordance with the procedures and deadlines specified in the document titled, ‘‘Guidance for Implementation of Emission Monitoring Requirements for the NO_x Budget Program’’ in a manner consistent with Chapter 139 (relating to sampling and testing).

   (4)  Monitoring systems are subject to initial performance testing and periodic calibration, accuracy testing and quality assurance/quality control testing as specified in the document titled ‘‘Guidance for Implementation of Emission Monitoring Requirements for the NO_x Budget Program.’’ Notwithstanding this provision, Non-Part 75 Sources which have Department approved NO_x CEMS reporting in accordance with §  139.101 (relating to gen-eral requirements) in units of pounds of NO_x per hour shall complete the periodic self-audits listed in the quality assurance section of §  139.102(3) (relating to references) at least annually and no sooner than 6 months following the previous periodic self-audit. If practicable, the audit shall be conducted between April 1 and May 31.

   (5)  During a period when valid data is not being recorded by devices approved for use to demonstrate compliance with this subchapter, missing or invalid data shall be replaced with representative default data in accordance with 40 CFR Part 75 (relating to continuous emission monitoring) and the document titled, ‘‘Guidance for Implementation of Emission Monitoring Requirements for the NO_x Budget Program.’’ Notwithstanding this provision, Non-Part 75 Sources which have Department approved NO_x CEMS reporting in accordance with §  139.101 in units of pounds of NO_x per hour shall report this data to the NETS and shall continue report submissions as required under Chapter 139 to the Department.

   (6)  Sources subject to 40 CFR Part 75 shall demonstrate compliance with this section with a certified Part 75 monitoring system.

     (i)   If the source has a flow monitor certified under Part 75, NO_x in pounds per hour shall be determined using the Part 75 NO_x CEMS and the flow monitor. The NO_x emission rate in pounds per million Btu shall be determined using the procedure in 40 CFR Part 75 Appendix F, Section 3 (relating to procedures for NO_x emission rate). The hourly heat input shall be determined by using the procedures in 40 CFR Part 75 Appendix F, Section 5 (relating to procedures for heat input). NO_x in pounds per hour shall be determined by multiplying the NO_x per million Btu by the Btus per hour.

     (ii)   If a Part 75 source does not have a certified flow monitor, but does have a certified NO_x CEMS, NO_x emissions in pounds per hour emissions shall be determined by using the NO_x CEMS to determine the NO_x emission rate in pounds per million Btu and the heat input shall be determined by using the procedures in 40 CFR Part 75 Appendix D (relating to optional SO₂ emissions data protocol for gas-fired and oil-fired units). NO_x in pounds per hour shall be determined by multiplying the NO_x per million Btu and Btus per hour.

     (iii)   If the owner or operator of a source uses the procedures in 40 CFR Part 75, Appendix E (relating to optional NO_x emissions estimation protocol for gas-fired peaking units and oil-fired peaking units) to determine the NO_x emission rate, NO_x emissions in pounds per hour shall be determined by multiplying the NO_x emission rate determined by using the Appendix E procedures times the heat input determined using the procedures in 40 CFR Part 75, Appendix D.

     (iv)   If the owner or operator of a source uses the procedures in 40 CFR Part 75, Subpart E (relating to alternative monitoring systems) to determine NO_x emission rate, NO_x emissions in pounds per hour shall be determined using the alternative monitoring method approved under 40 CFR Part 75 Subpart E and the procedures contained in the document titled, ‘‘Guidance for Implementation of Emission Monitoring Requirements for the NO_x Budget Program.’’

     (v)   If the source emits to common or multiple stacks, or both, the source shall monitor emissions according to the procedures contained in the document titled, ‘‘Guidance for Implementation of Emission Monitoring Requirements for the NO_x Budget Program.’’

   (7)  Sources not subject to 40 CFR Part 75 and not meeting the requirements of paragraph (11) shall meet the monitoring requirements of this section by:

     (i)   Preparing and obtaining approval of a monitoring plan as specified in the document titled, ‘‘Guidance for Implementation of Emission Monitoring Requirements for the NO_x Budget Program.’’

     (ii)   Determining NO_x emission rate and heat input using a methodology specified in paragraphs (8) and (9) respectively or determining NO_x concentration and flow using a methodology specified in paragraphs (8) and (9) respectively.

     (iii)   Calculating NO_x emissions in pounds per hour using the procedure described in paragraph (10).

   (8)  The owner or operator of a NO_x affected source which is not subject to 40 CFR Part 75, may implement an alternative emission rate monitoring method. The NO