The purpose of this article is to regulate air contamination sources for the public welfare. Air quality shall be maintained at existing levels in areas where the existing ambient air quality is better than the applicable ambient air quality standards, and air quality shall be improved to achieve the applicable ambient air quality standards in areas where the existing air quality is worse than the applicable ambient air quality standards. In accordance with this purpose, this chapter is designed to insure that new sources conform to the applicable standards of this article and that they do not result in producing ambient air contaminant concentrations in excess of those specified in Chapter 131 (relating to ambient air quality standards). New sources shall control the emission of air pollutants to the maximum extent, consistent with the best available technology as determined by the Department as of the date of issuance of the plan approval for the new source.

 (a)  The following regulations implement section 502(b)(10) of the Clean Air Act (42 U.S.C.A. §  7661a(b)(10)) and section 6.1(i) of the act (35 P. S. §  4006.1(1)) related to operational flexibility:

   (1)  Section 127.448 (relating to emissions trading at facilities with Federally enforceable emissions caps) authorizes emissions trading within a facility when there is a Federally enforceable emissions cap on emissions of air contaminants.

   (2)  Section 127.449 (relating to de minimis emission increases) authorizes de minimis emissions increases without a permit amendment and continues the Department’s existing program for exempting sources of minor significance contained in §  127.14 (relating to exemptions).

 (b)  The following regulations contain additional provisions that provide operational flexibility:

   (1)  Section 127.14 authorizes minor changes involving construction, modification, reactivation and installation to be made without requiring plan approval.

   (2)  Section 127.447 (relating to alternate operating scenarios) authorizes permittees to describe alternate operating scenarios in their permit application and allows the Department to issue operating permits incorporating several alternate operating scenarios.

   (3)  Section 127.462 (relating to minor operating permit modifications) provides for an expedited process for making minor operating permit modifications.

   (4)  Section 127.450 (relating to administrative operating permit amendments) allows the administrative amendment procedures to be used for Title V operating permit amendments which have received State plan approval.

   (5)  Subchapter H (relating to general plan approvals and operating permits) allows the use of general plan approvals and general operating permits for stationary and portable sources.

   The provisions of this §  127.3 adopted November 25, 1994, effective November 26, 1994, 24 Pa.B. 5899.

Subchapter B. PLAN APPROVAL REQUIREMENTS

Sec.

 Except as provided in § §  127.11a and 127.215 (relating to reactivation of sources; and reactivation), a person may not cause or permit the construction or modification of an air contamination source, the reactivation of an air contamination source after the source has been out of operation or production for 1 year or more, or the installation of an air cleaning device on an air contamination source, unless the construction, modification, reactivation or installation has been approved by the Department.

   The provisions of this §  127.11 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 March 17, 1989, effective March 18, 1989, 19 Pa.B. 1169; amended November 25, 1994, effective November 26, 1994, 24 Pa.B. 5899. Immediately preceding text appears at serial page (185997).

   General Comments

   Department of Environmental Resources’ appeal to Commonwealth Court after the granting of a demurrer in County Court was barred by the concept of double jeopardy. Department of Environmental Resources v. Monarch Pallet Corp., 532 A.2d 1246 (Pa. Cmwlth. 1987).

 (a)  Except as provided by §  127.215 (relating to reactivation), a source which has been out of operation or production for at least 1 year but less than or equal to 5 years may be reactivated and will not be considered a new source if the following conditions are satisfied:

   (1)  The owner or operator shall, within 1 year of the deactivation submit to the Department and implement a maintenance plan which includes the measures to be taken, including maintenance, upkeep, repair or rehabilitation procedures, which will enable the source to be reactivated in accordance with the terms of the permit issued to the source.

   (2)  The owner or operator shall submit a reactivation plan to the Department for approval at least 60 days prior to the proposed date of reactivation. The reactivation plan shall include sufficient measures to ensure that the source will be reactivated in compliance with the permit requirements. The permittee may submit a reactivation plan to the Department at any time during the term of its operating permit. The reactivation plan may also be submitted to and reviewed by the Department as part of the plan approval or permit application or renewal process.

   (3)  The owner or operator of the source shall submit a notice to the Department within 1 year of deactivation requesting preservation of emissions in the inventory and indicating the intent to reactivate the source.

   (4)  The owner or operator of the source shall comply with the terms and conditions of the maintenance plan while the source is deactivated, and shall comply with the terms of the reactivation plan and operating permit upon reactivation.

   (5)  The owner or operator of the source with an approved reactivation plan and operating permit shall notify the Department in writing at least 30 days prior to reactivation of the source.

 (b)  A source which has been out of operation or production for more than 5 years but less than 10 years may be reactivated and will not be considered a new source if the following conditions are satisfied:

   (1)  The owner or operator of the source complies with the requirements of subsection (a).

   (2)  The owner or operator of the source obtains a plan approval and operating permit which requires that the emission of air contaminants from the source will be controlled to the maximum extent, consistent with the best available technology as determined by the Department as of the date of reactivation.

 (c)  A source which has been out of operation for 10 or more years shall meet the requirements of this chapter applicable to a new source.

 (d)  Other provisions of this section to the contrary notwithstanding, a source that is out of production or operation on November 26, 1994, shall have 1 year to demonstrate compliance with the requirements of subsection (a)(1), (3) and (4).

 (e)  A source located in a nonattainment area that would emit an air contaminant related to the nonattainment designation or a source that would emit NO_x or VOC emissions may not be reactivated unless the proposed emissions are included in the SIP emission inventory or until the proposed emissions of these contaminants from the source are submitted to and approved by the EPA as an amendment of the SIP. The Department may refuse to allow reactivation of such a source for cause.

 (f)  The source shall have an operating permit prior to reactivation.

   The provisions of this §  127.11a adopted November 25, 1994, effective November 26, 1994, 24 Pa.B. 5899.

 (a)  An application for approval shall:

   (1)  Identify the location of the source and the name, title, address and telephone number of the individual responsible for the operation of the source.

   (2)  Contain information that is requested by the Department and is necessary to perform a thorough evaluation of the air contamination aspects of the source.

   (3)  Show that the source will be equipped with reasonable and adequate facilities to monitor and record the emissions of air contaminants and operating conditions which may affect the emissions of air contaminants and that the records are being and will continue to be maintained and that the records will be submitted to the Department at specified intervals or upon request.

   (4)  Show that the source will comply with applicable requirements of this article and requirements promulgated by the Administrator of the EPA under the Clean Air Act (42 U.S.C.A. § §  7401—7706).

   (5)  Show that the emissions from a new source will be the minimum attainable through the use of the best available technology.

   (6)  Show that the source will not prevent or adversely affect the attainment or maintenance of ambient air quality standards when requested by the Department.

   (7)  Contain a plan of action for the reduction of emissions during each level specified in Chapter 137 (relating to air pollution episodes), when required by the Department.

   (8)  Show that the provisions of §  127.43a (relating to municipal notification) have been met. The applicant shall submit a copy of the notification letter and proof that the notice was received.

   (9)  Contain a plan for dealing with air pollution emergencies, when requested by the Department, or when required by the Clean Air Act.

   (10)  Show that the source and the air cleaning devices are capable of being and will be operated and maintained in accordance with good air pollution control practices.

   (11)  Contain a completed compliance review form or reference the most recently submitted compliance review form for facilities submitting a compliance review form on a periodic basis.

 (b)  The Department will not approve an application which fails to meet the requirements of subsection (a). An approval may be granted with appropriate conditions.

 (c)  The records, reports or information obtained by the Department or referred to at public hearings shall be available to the public, except as provided in subsection (d).

 (d)  Upon cause shown by any person that the records, reports or information, or a particular portion thereof, but not emission data, to which the Department has access under the act, if made public, would divulge production or sales figures or methods, processes or production unique to that person or would otherwise tend to affect adversely the competitive position of that person by revealing trade secrets, including intellectual property rights, the Department will consider the record, report or information, or particular portion thereof confidential in the administration of the act. The Department will implement this section consistent with sections 112(d) and 114(c) of the Clean Air Act (42 U.S.C.A. § §  7412(d) and 7414(c)). Nothing in this section prevents disclosure of the report, record or information to Federal, State or local representatives as necessary for purposes of administration of Federal, State or local air pollution control laws, or when relevant in a proceeding under the act.

   The provisions of this §  127.12 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383; amended March 17, 1989, effective March 18, 1989, 19 Pa.B. 1169; amended November 25, 1994, effective November 26, 1994, 24 Pa.B. 5899. Immediately preceding text appears at serial pages (185997) to (185998).

   Double Jeopardy

   Department of Environmental Resources’ appeal to Commonwealth Court after the granting of a demurrer in county court was barred by the concept of double jeopardy. Department of Environmental Resources v. Monarch Pallet Corp., 532 A.2d 1246 (Pa. Cmwlth. 1987).

 (a)  This section describes the compliance review procedures applicable during the review of an application for a plan approval including a general plan approval.

 (b)  Each applicant for a plan approval shall, as part of the application or on a periodic basis as authorized under subsection (j), submit the compliance review on a form provided by the Department, signed by a corporate officer or other responsible official of the facility submitting the application and containing a verification that the information contained in the application is true and correct to the best of the signatory’s belief formed after reasonable inquiry.

 (c)  The compliance review form shall provide information related to the compliance status of the applicant and related parties, including:

   (1)  The name, address, telephone number, taxpayer identification number and plan approval or application number.

   (2)  The form of management under which the applicant conducts its business and a brief description of the types of business activities performed.

   (3)  The name and location, including both the address and the municipality and county, telephone number and relationship to the applicant—parent, subsidiary or general partner—of the related parties in this Commonwealth.

   (4)  The name and business address of the plant manager and general partners of the applicant.

   (5)  A list of plan approvals and operating permits issued by the Department or the Allegheny County or Philadelphia County air pollution control agencies to the applicant or related parties that are in effect at the time of application or were in effect during the previous 5 years. The list shall include each plan approval and operating permit number, locations and expiration dates.

   (6)  A list of documented conduct and deviations by the applicant or related parties. The list shall include the date, location, plan approval or operating permit number, the nature of the documented conduct or deviation and the incident status—litigation, existing/continuing, corrected and date of correction. Unless otherwise specifically directed by the Department, the applicant is not required to report deviations which have been previously reported to the Department in writing under the requirements of this article related to monitoring and reporting requirements.

 (d)  The applicant shall update the compliance review form if the documented conduct or deviations occur from the date of the submission of the application through the date of operating permit issuance.

 (e)  The Department may establish a supplemental compliance review form that may be used to update information submitted on the compliance review form.

 (f)  If the Department finds that the applicant or a related party has an existing or continuing violation or lacks the intention or ability to comply with the act, or the regulations under the act, or a plan approval operating permit or order of the Department, as indicated by past or present violations, the Department will attempt to resolve the violations or lack of intention or ability to comply informally.

 (g)  If the Department is unable to resolve the violation or lack of intention or ability to comply on an informal basis, the Department will place the violation and may place the lack of intention or ability to comply on the compliance docket. The violation or lack of intention or ability to comply shall remain on the compliance docket until it is resolved to the satisfaction of the Department.

 (h)  Plan approval will not be issued to an applicant or related party if a violation or lack of intention or ability to comply at a source owned or operated by the applicant or a related party appears on the compliance docket.

 (i)  A permittee or applicant may appeal to the EHB a violation or lack of intention or ability to comply which the Department places on the compliance docket.

 (j)  Other provisions of this section notwithstanding, a facility may submit the compliance review form required by this section on a periodic basis of not less than once every 6 months. The owners and operators of the facility shall make an election to submit the compliance review information on a periodic basis or as part of the plan approval application with the submission of the first operating permit application filed after November 26, 1994, or by making an election in writing by May 26, 1995. The facility may only change the election with the approval of the Department in writing or upon renewal of the first filed permit or a Title V permit.

 (k)  The owners and operators of the facility shall have reasonable procedures in place to insure that documented conduct and deviations are identified and made part of the compliance review information submitted to the Department.

   The provisions of this §  127.12a adopted November 25, 1994, effective November 26, 1994, 24 Pa.B. 5899.

 (a)  A plan approval may contain terms and conditions the Department deems necessary to assure the proper operation of the source including the requirement for a compliance demonstration prior to issuance of an operating permit.

 (b)  At a minimum, each plan approval shall incorporate by reference the emission and performance standards and other requirements of the act, the Clean Air Act or the regulations adopted under the act or the Clean Air Act.

 (c)  The plan approval shall incorporate the monitoring, recordkeeping and reporting provisions required by Chapter 139 (relating to sampling and testing) and other monitoring, recordkeeping or reporting requirements of this article and additional requirements related to monitoring, recordkeeping and reporting required by the Clean Air Act and the regulations thereunder, including, if applicable, the enhanced monitoring requirements of 40 CFR Part 64 (relating to enhanced monitoring).

 (d)  The plan approval shall authorize temporary operation to facilitate shakedown of sources and air cleaning devices, to permit operations pending issuance of a permit under Subchapter F (relating to operating permit requirements) or Subchapter G (relating to Title V operating permits) or to permit the evaluation of the air contamination aspects of the source. This temporary operation period will be valid for a limited time, not to exceed 180 days, but may be extended for additional limited periods, each not to exceed 120 days.

 (e)  Temporary operation will not be authorized or extended under this section which may circumvent the requirements of this chapter.

 Each source shall submit reports to the Department containing the information the Department may prescribe relative to the operation and maintenance of the source.

 (a)  Approval granted by the Department will be valid for a limited time, as specified by the Department in the approval. Except as provided in § §  127.11a and 127.215 (relating to reactivation of sources; and reactivation), at the end of the time, if the construction, modification, reactivation or installation has not been completed, a new plan approval application or an extension of the previous approval will be required.

 (b)  If the construction, modification or installation is not commenced within 18 months of the issuance of the plan approval or if there is more than an 18-month lapse in construction, modification, or installation, a new plan approval application that meets the requirements of this subchapter and Subchapters D and E (relating to prevention of significant deterioration of air quality; and new source review) shall be submitted. The Department may extend the 18-month period upon a satisfactory showing that an extension is justified.

 A plan approval may be terminated, modified, suspended or revoked and reissued if one or more of the following applies:

   (1)  The permittee constructs or operates the source subject to the plan approval in violation of the act, the Clean Air Act, the regulations promulgated under the act or the Clean Air Act, a plan approval or permit or in a manner that causes air pollution.

   (2)  The permittee fails to properly or adequately maintain or repair an air pollution control device or equipment attached to or otherwise made a part of the source.

   (3)  The permittee fails to submit a report required by the plan approval.

   (4)  The EPA determines that the plan approval is not in compliance with the Clean Air Act or the regulations thereunder.

 (a)  The Department will deny a plan approval for a source if one or more of the following applies:

   (1)  The Department has determined that the source is likely to cause air pollution or to violate the act, the Clean Air Act or the regulations promulgated under the act or the Clean Air Act applicable to the source.

   (2)  In the design of the source, provision has not been made for adequate demonstration and verification of compliance, including source testing or alternative means to demonstrate and verify compliance.

   (3)  The EPA has notified the Department in writing that the plan approval is not in compliance with the Clean Air Act or the regulations thereunder.

   (4)  The applicant or a related party has a violation or lack of intention or ability to comply that appears on the compliance docket.

 (b)  The applicant may not construct, install, modify or operate an air contamination source or install air pollution control equipment or devices on the source contrary to the plans and specifications approved by the Department.

 (a)  When the Department denies a plan approval application or terminates, modifies, suspends or revokes a plan approval already issued, the action shall be in the form of a written notice to the person affected informing the person of the action taken by the Department and setting forth in the notice a full and complete statement of the reasons for the action.

 (b)  The notice required by subsection (a) will be served upon the person affected either by hand delivery or by certified mail return receipt requested.

 (c)  The Department will publish a notice and brief description of the action in the Pennsylvania Bulletin.

 (d)  The action in the notice shall be final and not subject to review unless, within 30 days of the service of the notice, a person affected thereby appeals to the EHB setting forth the grounds relied upon.

 (a)  Plan approval is not required for the construction, modification, reactivation or installation of the following:

   (1)  Air conditioning or ventilation systems not designed to remove pollutants generated by or released from other sources.

   (2)  Combustion units rated at 2.5 million or less Btus per hour of heat input.

   (3)  Combustion units with a rated capacity of less than 10 million Btu per hour of heat input fueled by natural gas supplied by a public utility, liquified petroleum gas or by commercial fuel oils which are No. 2 or lighter—viscosity less than or equal to 5.82 C St—and which meet the sulfur content requirements of §  123.22 (relating to combustion units). Combustion units converting to fuel oils which are No. 3 or heavier—viscosity greater than 5.82 C St—or contain sulfur in excess of the requirements of §  123.22 require approval. For the purpose of this section, commercial fuel oil shall be virgin oil which has no reprocessed, recycled or waste material added.

   (4)  Sources used in residential premises designed to house four or less families.

   (5)  Space heaters which heat by direct heat transfer.

   (6)  Mobile sources.

   (7)  Laboratory equipment used exclusively for chemical or physical analyses.

   (8)  Other sources and classes of sources determined to be of minor significance by the Department.

   (9)  Physical changes to sources when the Department has determined the physical changes to be of minor significance.

 (b)  When the Department allows de minimis emission increases under §  127.449 (relating to de minimis emission increases), approval is not required for the construction, modification, reactivation or installation of the source creating the de minimis emission increases.

 (c)  For physical changes requested under subsection (a)(9), the Department will process requests for determinations as follows:

   (1)  For physical changes of minor significance that would not violate the terms of an operating permit, the act, the Clean Air Act or the regulations adopted under the act or the Clean Air Act and which would not result in emission increases above the emissions allowable in the operating permit or result in an increased ambient air quality impact for an air contaminant and which does not add new equipment, the applicant shall request approval, in writing, from the Department and the change may be made within 7 days of receipt by the Department of a written request unless the Department requests additional information or objects to the change within the 7- day period.

   (2)  For physical changes of minor significance that would not violate the terms of an operating permit, the act, the Clean Air Act or the regulations thereunder, and which would not result in emission increases above the emissions allowable in the operating permit or result in an increased ambient air quality impact for an air contaminant and which adds new equipment, the applicant shall request approval, in writing, from the Department and the change may be made within 15 days of receipt of the written request unless the Department requests additional information or objects to the change within the 15-day period.

   (3)  For physical changes of minor significance that would violate the terms of an operating permit, the plan approval exemption may be processed contemporaneously with the minor operating permit modification under §  127.462 (relating to minor operating permit modifications) unless precluded by the Clean Air Act or the regulations thereunder, or the applicant may request approval, in writing, from the Department for the plan approval exemption. The change may not be made until written approval is obtained from the Department and the necessary permit modification procedure has been completed.

 (d)  The Department may establish a list of sources and physical changes meeting the requirements of subsections (a)(8) and (9). The Department will publish notice of its intention to establish or modify the list in the Pennsylvania Bulletin and will establish a comment period of at least 30 days. After the close of the comment period, the Department will publish the final list or any modifications to the final list in the Pennsylvania Bulletin.

   The provisions of this §  127.14 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; amended March 17, 1989, effective March 18, 1989, 19 Pa.B. 1169; amended November 25, 1994, effective November 26, 1994, 24 Pa.B. 5899. Immediately preceding text appears at serial pages (173551) to (173552).

   Minor Significance

   A rock quarry is not a source of minor significance within the meaning of 25 Pa. Code §  127.14 (relating to exemptions) if nothing in the record supports such a determination and the DER has not so determined. Mignatti Construction Co., Inc. v. Environmental Hearing Board, 411 A.2d 860 (Pa. Cmwlth. 1980).

 A person may not cause or permit the operation of a source subject to §  127.11 (relating to plan approval requirements), unless the source and air cleaning devices identified in the application for the plan approval and the plan approval issued to the source, are operated and maintained in accordance with specifications in the application and conditions in the plan approval issued by the Department. A person may not cause or permit the operation of an air contamination source subject to this chapter in a manner inconsistent with good operating practices.

 (a)  A plan approval may not be transferred from one person to another except when a change of ownership is demonstrated to the satisfaction of the Department and the Department approves the transfer of the plan approval in writing.

 (b)  Section 127.12a (relating to compliance review) applies to a request for transfer of a plan approval.

 (c)  A plan approval is valid only for that specific source and that specific location of the source as described in the application.

 (a)  This section establishes the process that the Department will follow in establishing maximum achievable control technology standards in plan approvals.

 (b)  The regulations establishing performance or emission standards promulgated under section 112 of the Clean Air Act (42 U.S.C.A. §  7412) at 40 CFR Part 63 (relating to National Emission Standards for Hazardous Air Pollutants for Source Categories) are incorporated by reference into the Department’s plan approval program. After the effective date of the performance or emission standard, new, reconstructed, modified and existing sources shall comply with the performance or emission standards pursuant to the compliance schedule established under section 112 of the Clean Air Act and the regulations thereunder.

 (c)  If the Administrator of the EPA has not promulgated a standard to control the emissions of hazardous air pollutants for a category or subcategory of major stationary sources under section 112 of the Clean Air Act pursuant to the schedule established under section 112(c) of the Clean Air Act, the Department will establish a performance or emission standard on a case-by-case basis for individual sources or a category of sources for those major stationary sources.

 (d)  The Department will establish performance or emission standards as required by section 112(g) of the Clean Air Act for the construction, reconstruction or modification of sources.

 (e)  The standards established under this section will be incorporated into the plan approval of each source within the category or subcategory for which a maximum achievable control technology requirement has been established. The Department has the authority to require, in the plan approval, reasonable monitoring, recordkeeping and reporting requirements for sources which emit hazardous air pollutants.

 (f)  A person challenging the performance or emission standards established by the Department has the burden to demonstrate that the performance or emission standard does not meet the requirements of section 112 of the Clean Air Act.

 (g)  In addition to the requirements of this section, the Department is authorized to require that new sources demonstrate in the plan approval application that the source will reduce or control emissions of air pollutants, including hazardous air pollutants, by using best available technology.

 (h)  The early emissions reduction program authorized under section 112(i)(5) of the Clean Air Act is incorporated by reference into the Department’s plan approval and operating permit program.

   The provisions of this §  127.35 adopted November 25, 1994, effective November 26, 1994, 24 Pa.B. 5899.

 (a)  This section describes the process for establishing health risk-based emission standards and operating practice requirements.

 (b)  When needed to protect public health, welfare and the environment from emissions of hazardous air pollutants from new and existing sources, the Department may impose health risk-based emission standards or operating practice requirements, except as precluded by section 6.6(d)(2) and (3) of the act (35 P. S. §  4006.6(d)(2) and (3)).

 (c)  In developing health risk-based emission standards or operating practice requirements, the Department will provide an explanation and rationale for the standards or requirements.

 (d)  The Department will provide for public review and comment on a plan approval, guideline and regulation which contains a health risk-based emission standard or operating practice requirement.

 (e)  Standards or requirements adopted under this section shall be developed using an analysis which, among other factors, considers, when appropriate for a source or source category, the criteria in section 112(f)(1) of the Clean Air Act (42 U.S.C.A. §  7412(f)(1)), in assessing the proposed risk to the public health, welfare and the environment from the source.

 (f)  The standards established under this section shall be incorporated into the plan approval of each source within the category or subcategory for which the health risk-based performance or emission standard has been established. The Department has the authority to require, in the plan approval and operating permit, reasonable monitoring, recordkeeping and reporting requirements for sources which emit hazardous air pollutants.

 (g)  A person challenging a performance or emission standard established by the Department has the burden to demonstrate that the performance or emission standard does not meet the requirements of section 112 of the Clean Air Act.

 The applicant for a plan approval shall notify the local municipality and county where the air pollution source is to be located that the applicant has applied for the plan approval as required by section 1905-A of The Administrative Code of 1929 (71 P. S. §  510-5). The notification shall clearly describe the source and modifications that are to take place. The notice shall state that there is a 30-day comment period which begins upon receipt of the notice by the municipality and county.

   The provisions of this §  127.43a issued under section 5 of the Air Pollution Control Act (35 P. S. §  4005).

   The provisions of this §  127.43a adopted March 17, 1989, effective March 18, 1989, 19 Pa.B. 1169.

 (a)  The Department will prepare a notice of action to be taken on applications for plan approvals for the following:

   (1)  Sources subject to Subchapter D (relating to prevention of significant deterioration of air quality).

   (2)  Sources subject to Subchapter E (relating to new source review).

   (3)  Sources of VOCs that submit plan approval applications demonstrating compliance with Chapter 129 (relating to standards for sources) using §  129.51(a) (relating to general).

   (4)  Sources located within a Title V facility.

   (5)  Other sources required to obtain plan approval.

   (6)  Other sources for which the Department has determined there is substantial public interest or for which the Department invites public comment.

 (b)  The notice required by subsection (a)(1)—(4) will be completed and sent to the applicant, the EPA, any state within 50 miles of the facility and any state whose air quality may be affected and that is contiguous to this Commonwealth. The applicant shall, within 10 days of receipt of notice, publish the notice on at least 3 separate days in a prominent place and size in a newspaper of general circulation in the county in which the source is to be located; proof of the publication shall be filed with the Department within 1 week thereafter. A plan approval will not be issued by the Department in the event of failure by the applicant to submit the proof of publication.

 (c)  If the Department denies a plan approval, the requirements of subsection (b) do not apply. Written notice of a denial will be given to requestors and to the applicant.

 (d)  In each case, the Department will publish notices required in subsection (a) in the Pennsylvania Bulletin.

 (e)  The notice will state, at a minimum, the following:

   (1)  The location at which the application may be reviewed. This location shall be in the region affected by the application.

   (2)  A 30-day comment period, from the date of publication, will exist for the submission of comments.

   (3)  Plan approvals issued to sources identified in subsection (a)(1)—(4) or plan approvals issued to sources with limitations on their potential to emit may become part of the SIP and will be submitted to the EPA for review and approval.

   The provisions of this §  127.44 adopted August 12, 1977, effective August 29, 1977, 7 Pa.B. 2251; amended August 12, 1983, effective August 13, 1983, 13 Pa.B. 2478; amended March 17, 1989, effective March 18, 1989, 19 Pa.B. 1173; amended November 25, 1994, effective November 26, 1994, 24 Pa.B. 5899. Immediately preceding text appears at serial pages (185999) to (186000).

 The notice of proposed plan approval issuance required by §  127.44(a) (relating to public notice) shall include the following:

   (1)  The name and address of applicant.

   (2)  The location and name of the plant or facility at which construction or modification is taking place.

   (3)  The type and quantity of air contaminants being emitted.

   (4)  For sources subject to Subchapter D (relating to prevention of significant deterioration of air quality), the degree of increment consumption expected to result from the operation of the plant or facility.

   (5)  The conditions being placed in the plan approval and a brief description of the reasons for including these conditions with reference to applicable State and Federal requirements.

   (6)  A description of the procedures for reaching a final decision on the proposed plan approval action including:

     (i)   The ending date for the receipt of written protests.

     (ii)   Procedures for requesting a hearing and the nature of that hearing.

     (iii)   Any other procedure by which the public may participate in the final decision.

   (7)  The name and telephone number of a person to contact for additional information.

   (8)  A statement that a person may oppose the proposed plan approval by filing a written protest with the Department, at the appropriate regional office described in §  121.4 (relating to regional organization of the Department).

 (a)  A protest to a proposed action shall be filed with the Department within 30 days of the date that notice of the proposed action was published under §  127.44 (relating to public notice).

 (b)  A protest shall include the following:

   (1)  Name, address and telephone number of the person filing the protest.

   (2)  Identification of the proposed plan approval issuance being opposed.

   (3)  Concise statement of the objections to the plan approval issuance and the relevant facts upon which the objections are based.

   The provisions of this §  127.46 amended under section 5 of the Air Pollution Control Act (35 P. S. §  4005).

   The provisions of this §  127.46 adopted August 12, 1977, effective August 29, 1977, 7 Pa.B. 2251; amended August 12, 1983, effective August 13, 1983, 13 Pa.B. 2478; corrected October 7, 1983, effective August 13, 1983, 13 Pa.B. 3094; amended March 17, 1989, effective March 18, 1989, 19 Pa.B. 1173. Immediately preceding text appears at serial page (84527).

 (a)  A protest alerts the Department to the fact and nature of the objection of the protestant to the proposed action on the application.

 (b)  The Department is not required to consider protests filed subsequent to the time designated in §  127.46 (relating to filing protests), but it may consider them if filed prior to issuance of a plan approval as detailed in this subchapter.

   The provisions of this §  127.47 amended under section 5 of the Air Pollution Control Act (35 P. S. §  4005).

 (a)  Prior to any plan approval issuance, the Department may, in its discretion, hold a fact finding conference or hearing at which the petitioner, and any person who has properly filed a protest under §  127.46 (relating to filing protests) may appear and give testimony; provided, however, that in no event will the Department be required to hold such a conference or hearing.

 (b)  The applicant, the protestant, and other participants will be notified of the time, place and purpose of a conference or hearing, in writing or by publication in a newspaper or the Pennsylvania Bulletin, except where the Department determines that notification by telephone will be sufficient.

 (a)  Conferences and hearings shall be conducted by a presiding officer.

 (b)  Except if provided otherwise in the notice or by the presiding officer, conferences and hearings shall be conducted in an informal manner and the rules of evidence are not applicable.

 (c)  When provided in the notice, a participant may be required to present a written statement, together with exhibits required, at the conference or hearing for the use of the participants. Persons unable to attend the conference or hearing may submit three copies of a written statement and exhibits within 10 days thereafter to the Department.

 (d)  At the conference or hearing, a participant may, at his own cost, record the proceedings using a stenographer, tape recorder or other means.

 (a)  Following the conference or hearing, the presiding officer shall prepare a summary which shall contain the following:

   (1)  Identification of the plan approval application and the name of the plant or facility which is being constructed or modified.

   (2)  The names and addresses of each participant and whom the participant represents.

   (3)  The substance of the opening and closing statement by the presiding officer.

   (4)  The substance of the matters discussed or testified to and agreements reached by the participants.

   (5)  Other relevant matters to inform the Department of the results of the conference or hearing.

 (b)  A copy of the summary shall be submitted upon request to each participant in the proceeding. Copies of the summary, together with any transcript of the proceedings, written statements, exhibits and protests will also be placed in the file in the appropriate office in the Department for review by the participants prior to disposition of the plan approval application.

 (a)  After reviewing a protest or record of a conference or hearing, the Department may take action authorized by this chapter.

 (b)  A notice of denial or a plan approval will be issued to the applicant. Each protestant who has submitted a comment within the time period set forth in §  127.46 (relating to filing protests) will be notified personally or by mailing a copy of the plan approval disposition to the address set forth in the protest.

 (c)  The Department will also publish notice of its action in the Pennsylvania Bulletin which will be deemed to be sufficient notice to others.

   The provisions of this §  127.52 adopted August 12, 1977, effective August 29, 1977, 7 Pa.B. 2251; reserved August 12, 1983, effective August 13, 1983, 13 Pa.B. 2478. Immediately preceding text appears at serial pages (35384) and (62474).

Subchapter C. [Reserved]

§ 127.61. [Reserved].

   The provisions of these § §  127.70—127.73 adopted June 22, 1979, effective July 1, 1979, 9 Pa.B. 1935; corrected June 29, 1979, effective July 1, 1979, 9 Pa.B. 2150; reserved January 14, 1994, effective January 15, 1994, 24 Pa.B. 443. Immediately preceding text appears at serial pages (149166) to (149168).

Subchapter D. PREVENTION OF SIGNIFICANT
DETERIORATION OF AIR QUALITY

Sec.

 The purpose of this subchapter is to adopt the Prevention of Significant Deterioration (PSD) requirements promulgated by the United States Environmental Protection Agency under the Clean Air Act. The requirements are adopted to make the PSD requirements independently enforceable by the Department and to implement Part C of the Clean Air Act.

   The provisions of this §  127.81 adopted May 30, 1980, effective May 31, 1980, 10 Pa.B. 2160; reserved March 20, 1981, effective March 21, 1981, 11 Pa.B. 1025; amended June 17, 1983, effective June 18, 1983, 13 Pa.B. 1940. Immediately preceding text appears at serial page (62483).

 The requirements adopted in this chapter do not apply to sources located in areas under the jurisdiction of local air pollution control agencies under section 12 of the act (35 P. S. §  4012). The local agencies may adopt such requirements as they deem appropriate.

 The Prevention of Significant Deterioration requirements promulgated in 40 CFR 52 by the Administrator of the EPA under section 161 of the Clean Air Act (42 U.S.C.A. §  7471) are adopted in their entirety by the Department and incorporated herein by reference. The adoption of these requirements supplements the requirements of this chapter and does not supersede or rescind requirements of the act or this article. The term ‘‘Administrator’’ used in 40 CFR 52.21(b)(17), (f)(1)(v), (3) and (4)(i), (g)(1)—(6), (l)(2), (p)(1) and (2) and (t) means the Administrator of the EPA. The term ‘‘Administrator’’ used in 40 CFR 52.21(b)(3)(iii), (r)(2) and (w)(2) means the Administrator of the EPA or the Secretary of the Department. The term ‘‘Administrator’’ means the Department in all other portions of 40 CFR 52.21.

   The provisions of this §  127.83 amended under section 5 of the Air Pollution Control Act (35 P. S. §  4005).

   The provisions of this §  127.83 adopted June 17, 1983, effective June 18, 1983, 13 Pa.B. 1940; amended March 17, 1989, effective March 18, 1989, 19 Pa.B. 1169. Immediately preceding text appears at serial page (114831).

   In evaluating application by electric utility for approval of plan to build electric generating plant, Department of Environmental Protection could use significant impact levels (SIL) method to determine whether proposed electric generating plant’s emissions would not cause or contribute to air pollution in nearby national park in violation of national ambient air quality standards or the allowable increment; draft of federal manual for new source review included SIL as a de minims threshold, manual was considered authoritative as a primary guidance document on the degree of increment consumption, and Department’s use of SIL threshold balanced Congress’ intent in passing the Clean Air Act. Croce v. Department of Environmental Protection, 921 A.2d 567, 577-578 (Pa. Cmwlth. 2007).

   Department’s consideration of Federal best available control technology criteria when drafting ‘‘best available technology’’ criteria for municipal waste incineration facilities was not an error of law and DER did not err in not requiring that the ‘‘lowest achievable emission rate’’ be included in plan approval application. T.R.A.S.H., Ltd. v. Department of Environmental Resources, 574 A.2d 721 (Pa. Cmwlth. 1990).

Subchapter E. NEW SOURCE REVIEW

Sec.

 (a)  A person may not cause or permit the construction or modification of an air contamination facility in a nonattainment area or having an impact on a nonattainment area unless the Department or an approved local air pollution control agency has determined that the requirements of this subchapter have been met.

 (b)  The nonattainment area classification that applies for offset trading and offset ratio selection shall be the highest classification designated by the EPA Administrator in 40 CFR 81.339 (relating to Pennsylvania) or by operation of law.

 (c)  The NSR requirements of this subchapter also apply to a facility located in an attainment area for ozone and within an ozone transport region that emits or has the potential to emit at least 50 TPY of VOC or 100 TPY of NOx. A facility within either an unclassifiable/attainment area for ozone or within a marginal or incomplete data nonattainment area for ozone or within a basic nonattainment area for ozone and located within an ozone transport region will be considered a major facility and shall be subject to the requirements applicable to a major facility located in a moderate nonattainment area.

 (d)  The NSR requirements of this subchapter apply to an owner or operator of a facility at which a net emissions increase that is significant would occur as determined in accordance with §  127.203a (relating to applicability determination). If an emissions increase meets or exceeds the applicable emissions rate that is significant as defined in §  121.1 (relating to definitions), the facility is subject to the permitting requirements under §  127.205 (relating to special permit requirements). An emissions increase subject to this subchapter must also be offset through the use of ERCs at the offset ratios specified in §  127.210 (relating to offset ratios). The generation, use, transfer and registration requirements for ERCs are listed in § §  127.206—127.209.

 (e)  In the event of an inconsistency between this rule and any other rule promulgated by the Department, the inconsistency must be resolved by the application of the more stringent provision, term, condition, method or rule.

 (f)  A facility located in Bucks, Chester, Delaware, Montgomery or Philadelphia Counties that emits or has the potential to emit at least 25 TPY of VOC or NOx will be considered a major facility and shall be subject to the requirements applicable to a major facility located in a severe nonattainment area for ozone.

 Measurements, abbreviations and acronyms used in this subchapter are defined as follows:

 BAT—Best available technology

 BACT—Best available control technology

 CEMS—Continuous emissions monitoring system

 CERMS—Continuous emissions rate monitoring system

 CPMS—Continuous parametric monitoring system

 CO—Carbon monoxide

 ERC—Emission reduction credit

 LAER—Lowest achievable emission rate

 MACT—Maximum achievable control technology

 NSPS—New source performance standard

 NSR—New source review

 PEMS—Predictive emissions monitoring system

 lb—Pounds

 µg/m3—Micrograms per cubic meter

 MERC—Mobile emission reduction credit

 mg/m3—Milligrams per cubic meter

 NOx—Nitrogen oxides

 O₂—Oxygen

 PAL—Plantwide Applicability Limit

 PM—Particulate matter

 RACT—Reasonably available control technology

 SOx—Sulfur oxides

 TPY—Tons per year

 VOC—Volatile organic compound

 (a)  The special permit requirements in this subchapter apply to an owner or operator of a facility to which a plan approval will be issued by the Department after May 19, 2007.

 (b)  For SOx, PM-10, lead and CO, this subchapter applies until a given nonattainment area is redesignated as an unclassifiable or attainment area. After a redesignation, special permit conditions remain effective until the Department approves a permit modification request and modifies the permit.

 (a)  This subchapter applies to the construction of a new major facility or modification at an existing major facility located in a nonattainment area, an ozone transport region or an attainment or unclassifiable area which impacts a nonattainment area in excess of the following significance levels:

 (b)  The following provisions apply to an owner or operator of a facility located in Bucks, Chester, Delaware, Montgomery or Philadelphia County or an area classified as a serious or severe ozone nonattainment area:

   (1)  The applicability requirements in §  127.203a (relating to applicability determination) apply except as provided by this subsection. The requirements of this subchapter apply if the aggregated emissions determined according to subparagraph (i) or (ii) exceed 25 TPY of NOx or VOCs.

     (i)   The proposed increases and decreases in emissions are aggregated with the other increases in net emissions occurring over a consecutive 5 calendar-year period, which includes the calendar year of the modification or addition which results in the emissions increase.

     (ii)   The proposed increases and decreases in emissions are aggregated with other increases and decreases which occurred within 10 years prior to the date of submission of a complete plan approval application. If the aggregated emissions increase calculated using this subparagraph meets or exceeds the emissions rate that is significant, only the emissions offset requirements in §  127.205(3) (relating to special permit requirements) apply to the aggregated emissions.

   (2)  An increase in emissions of VOCs or NOx, other than a de minimis emission increase, from a discrete operation, unit or other pollutant emitting activity at a facility with a potential to emit less than 100 TPY of VOCs or NOx is considered a modification unless the owner or operator elects to offset the increase by a greater reduction in emissions of VOCs or NOx from other operations, units or activities within the facility at an internal offset ratio of at least 1.3 to 1. If the owner or operator does not elect to offset at the required ratio, the increase is considered a modification and the BACT requirement is substituted for LAER. The owner or operator of the facility shall comply with all applicable requirements including the BAT requirement.

   (3)  An increase in emissions of VOCs or NOx, other than a de minimis emission increase, from a discrete operation, unit or other pollutant emitting activity at a facility with a potential to emit of 100 TPY or more is considered a modification unless the owner or operator elects to offset the increase by a greater reduction in emissions of VOCs or NOx from other operations, units or activities within the facility at an internal offset ratio of at least 1.3 to 1. If the owner or operator elects to offset at the required ratio, the LAER requirement does not apply. The owner or operator of the facility shall comply with the applicable requirements including the BAT requirement.

 (c)  The NSR requirements of this subchapter apply to an owner or operator of:

   (1)  A facility at which the net emissions increase as determined under this subchapter meets or exceeds the applicable emissions rate that is significant. A decrease in a facility’s emissions will not qualify as a decrease for purposes of this subchapter unless the ERC provisions in §  127.207(1) and (3)—(7) (relating to creditable emissions decrease or ERC generation and creation) are met.

   (2)  A major facility subject to this subchapter which was deactivated for a period in excess of 1 year and is not in compliance with the reactivation requirements of §  127.215 (relating to reactivation).

 (d)  The requirements of this subchapter which apply to VOC emissions from major facilities and major modifications apply to NOx emissions from major facilities and major modifications in an ozone transport region or an ozone nonattainment area classified as marginal, basic, moderate, serious, severe or extreme, except in areas which the EPA has determined that additional reductions of NOx will not produce net air quality benefits.

 (e)  The following provisions apply to an owner or operator of a major facility subject to this subchapter:

   (1)  Approval to construct or modify an air contamination source or facility does not relieve an owner or operator of the responsibility to comply fully with applicable provisions of the SIP and other requirements under local, State or Federal law.

   (2)  If a particular source or modification becomes a major facility or major modification solely by virtue of a relaxation in an enforcement limitation which was established after August 7, 1980, on the capacity of the source or modification to emit a pollutant including a restriction on hours of operation, the requirements of this subchapter also apply to the source or modification as though construction had not yet commenced on the source or modification.

 (f)  The NSR requirements of this subchapter do not apply to an owner or operator of a major facility at which:

   (1)  A physical change or change in the method of operation still maintains its total facility-wide emissions below the PAL, meets the requirements in §  127.218 (relating to PALs) and complies with the PAL permit.

   (2)  A project results in a net emissions increase which does not meet or exceed the applicable emissions rate that is significant.

   (3)  A proposed de minimis increase results in a net emissions increase calculated using emissions increases and decreases which occurred within 10 years prior to the date of submission of a complete plan approval application, which does not meet or exceed the emissions rate that is significant.

   (4)  Construction of a new facility or a project at an existing major facility located in an attainment or unclassifiable area does not impact a nonattainment area for the applicable pollutant in excess of the significance level specified in §  127.203a.

   The provisions of this §  127.203 amended May 18, 2007, effective May 19, 2007, 37 Pa.B. 2385. Immediately preceding text appears at serial pages (221970) to (221972) and (313711).

 (a)  The Department will conduct an applicability determination during its review of a plan approval application for the construction of a new major facility or modification at an existing major facility under the following provisions:

   (1)  As part of the plan approval application, the owner or operator of the facility shall calculate whether a significant emissions increase and a significant net emissions increase will occur as a result of a physical change or change in the method of operation. The owner or operator of the facility shall use the procedures in subparagraph (i) to calculate the emissions increase in a regulated NSR pollutant due to the project, and the procedures in subparagraph (ii) to calculate the net emissions increase in a regulated NSR pollutant. A project is a major modification for a regulated NSR pollutant if it causes two types of emissions increases—a significant emissions increase and a significant net emissions increase. If the project causes a significant emissions increase, the project is a major modification if it also results in a significant net emissions increase.

     (i)   The emissions increase in a regulated NSR pollutant due to the project will be the sum of the following:

       (A)   For existing emissions units, an emissions increase of a regulated NSR pollutant is the difference between the projected actual emissions and the baseline actual emissions for each unit, as determined in paragraphs (4) and (5). Exclude, in calculating an increase in emissions that results from the particular project, that portion of the unit’s emissions following completion of the project that existing units could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions and that is also unrelated to the particular project, including all increased utilization due to product demand growth as specified in paragraph (5)(i)(C).

       (B)   For new emissions units, the emissions increase of a regulated NSR pollutant will be the potential to emit from each new emissions unit.

     (ii)   The net emissions increase for a regulated NSR pollutant emitted by a major facility will be the amount by which the sum of the following exceeds zero:

       (A)   The increase in emissions from a physical change or change in the method of operation at a major facility as calculated under subparagraph (i).

       (B)   Other increases and decreases in actual emissions at the major facility that are contemporaneous with the project and are otherwise creditable.

         (I)   An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs between the date 5 years before construction on the project commences and the date that construction on the project is completed.

         (II)   Baseline actual emissions for calculating increases are determined as specified under paragraph (4), except that paragraph (4)(i)(D) does not apply.

   (2)  As part of the plan approval application for a proposed de minimis emission increase, the owner or operator of the facility shall use subparagraphs (i) and (ii) to calculate the net emissions increase. For a proposed de minimis increase in which the net emissions increase calculated using subparagraphs (i) and (ii) meets or exceeds the emissions rate that is significant, only the emissions offset requirements in §  127.205(3) (relating to special permit requirements) apply to the net emissions increase.

     (i)   The net emissions increase is the sum of the proposed de minimis increase due to the project and the previously determined increases in potential emissions or actual emissions and decreases in actual emissions that are contemporaneous with the project.

     (ii)   An increase or decrease is contemporaneous if it occurred within 10 years prior to the date of the Department’s receipt of a complete plan approval application.

   (3)  An increase or a decrease is creditable for applicability determination purposes if it meets the following conditions:

     (i)   The Department has not relied on it in issuing a permit for the facility under this subchapter, for which the permit is in effect when the increase in emissions from the project occurs.

     (ii)   The increase is creditable to the extent that the new level of emissions exceeds the old level of emissions.

     (iii)   An actual emissions decrease is creditable if the following conditions are met:

       (A)   The ERC provisions in §  127.207(1) and (3)—(7) (relating to creditable emissions decrease or ERC generation and creation) have been complied with, and the decrease in emissions is Federally enforceable by the time construction begins on the project. The plan approval for the project will contain a provision specifying that the emissions decrease is Federally enforceable on or before the construction date.

       (B)   The emissions decrease is such that when compared with the proposed emissions increase there is no significant change in the character of the emissions, including seasonal emission patterns, stack heights or hourly emission rates.

       (C)   The emissions decrease represents approximately the same qualitative significance for public health and welfare as attributed to the proposed increase. This requirement is satisfied if the emissions rate that is significant is not exceeded.

       (D)   An emissions decrease or an ERC generated at the facility may be used as a creditable decrease in a net emissions increase. The use of the ERCs in applicability determinations for netting purposes is limited to the period specified in paragraphs (1)(ii) and (2). A portion of an ERC generated at another facility, acquired by trade and incorporated in a plan approval for use at the facility, is not creditable as an emissions decrease.

     (iv)   An actual or potential emissions increase that results from a physical change in a facility occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. A replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

   (4)  The following procedures apply in determining the baseline actual emissions for an existing emissions unit:

     (i)   For an existing emissions unit, baseline actual emissions are the average rate, in TPY, at which the unit emitted the regulated NSR pollutant during a consecutive 24-month period selected by the owner or the operator within the 5-year period immediately prior to the date a complete plan approval application is received by the Department. The Department may approve the use of a different consecutive 24-month period within the last 10 years upon a written determination that it is more representative of normal source operation.

       (A)   The average rate includes fugitive emissions to the extent quantifiable and emissions associated with startups and shutdowns; the average rate does not include excess emissions including emissions associated with upsets or malfunctions.

       (B)   The average rate is adjusted downward to exclude noncompliant emissions that occurred while the source was operating above an emissions limitation that was legally enforceable during the consecutive 24-month period.

       (C)   The average rate is adjusted downward to exclude emissions that would have exceeded an emissions limitation with which the facility must currently comply, had the facility been required to comply with the limitations during the consecutive 24-month period. The baseline actual emissions is based on the emissions limitation in this subchapter or a permit limitation or other more stringent emissions limitation required by the Clean Air Act or the act, whichever is more restrictive.

       (D)   For a regulated NSR pollutant, when a project involves multiple emissions units, the same consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units being changed. The same consecutive 24-month period shall be used for all regulated NSR pollutants unless the owner or operator demonstrates, in writing, to the Department that a different consecutive 24-month period is more appropriate and the Department approves, in writing, the different consecutive 24-month period for a regulated NSR pollutant or pollutants.

       (E)   The average rate is not based on a consecutive 24-month period for which there is inadequate information for:

         (I)   Determining annual emissions, in TPY.

         (II)   Adjusting this amount if required by clause (B) or (C).

       (F)   The average rate is not greater than the emissions previously submitted to the Department in the required emissions statement and for which applicable emission fees have been paid.

     (ii)   For a new emissions unit, the baseline actual emissions equal zero and thereafter, for all other purposes, shall equal the unit’s potential to emit.

     (iii)   The baseline actual emissions is determined by measurement, calculations or estimations in the order of the following preferences:

       (A)   Monitoring systems including:

         (I)   CEMS data interpolated to annual emissions using flow meters and conversion factors.

         (II)   PEMS approved, in writing, by the Department.

       (B)   Other measurements and calculations including:

         (I)   Stack measurement which generates emission estimates using stack test derived emission factors and throughput.

         (II)   A mass balance equation which includes the following elements:

           (-a-)   The amount of materials used per unit of time, determined through measurements of parameters representing process conditions.

           (-b-)   The emissions per unit mass of material used, determined using mass balance techniques.

           (-c-)   The annual emissions, calculated using emissions per unit mass of material and amount of material used per unit of time.

       (C)   Emission factors, including generally recognized and accepted emission factors by EPA, such as USEPA ‘‘Compilation of Air Pollutant Emission Factors’’ (AP-42) or other emission factors accepted by the Department.

       (D)   Other calculations and measurements as approved by the Department.

   (5)  Projected actual emissions is the maximum annual rate, in TPY, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years (12-month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the emissions unit’s design capacity or its potential to emit of that regulated NSR pollutant and full utilization of the unit would result in a significant emissions increase or a significant net emissions increase at the major facility. The following procedures apply in determining the projected actual emissions of a regulated NSR pollutant for an emissions unit, before beginning actual construction on the project:

     (i)   The owner or operator of the major facility shall:

       (A)   Consider all relevant information, including, but not limited to, historical operational data, the company’s own representations, the company’s expected business activity and the company’s highest projections of business activity, and the company’s filings with the State or Federal regulatory authorities.

       (B)   Include fugitive emissions to the extent quantifiable, and emissions associated with startups and shutdowns.

       (C)   Exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit’s emissions following completion of the project that existing units could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions and that is also unrelated to the particular project, including any increased utilization due to product demand growth.

     (ii)   In lieu of using the method set out in subparagraph (i), the owner or operator of the major facility may elect to use the emissions unit’s potential to emit, in TPY.

     (iii)   If the projected actual emissions for a regulated NSR pollutant are in excess of the baseline actual emissions, the following apply:

       (A)   The projected actual emissions for the regulated NSR pollutant must be incorporated into the required plan approval or the operating permit as an emission limit.

       (B)   The owner or operator shall monitor the emissions of the regulated NSR pollutant for which a limit is established in clause (A) and calculate and maintain a record of emissions, in TPY on a calendar year basis, for 5 years following resumption of regular operations after the change, or for 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated NSR pollutant at the emissions unit.

       (C)   The owner or operator shall record sufficient information to identify for all emission units in the approved project their total actual annual emissions and their actual annual emissions increase due to the project.

       (D)   The owner or operator shall submit a report to the Department, within 60 days after the end of each calendar year, which contains the emissions data required by clauses (B) and (C). This report must also contain a demonstration of how these emissions were determined if the determination was not by direct measurement with a Department-certified CEMS system.

 (b)  An owner or operator of a major facility with a PAL for a regulated NSR pollutant shall comply with the requirements under §  127.218 (relating to PALs).

   The provisions of this §  127.203a adopted May 18, 2007, effective May 19, 2007, 37 Pa.B. 2365.

 (a)  In determining whether a project exceeds the emission rate that is significant or the significance levels specified in §  127.203 (relating to facilities subject to special permit requirements), the potential to emit, actual emissions and actual emissions increase shall be determined by aggregating the emissions or emissions increases from contiguous or adjacent properties under the common control of a person or entity. This includes emissions resulting from the following: flue emissions, stack and additional fugitive emissions, material transfer, use of parking lots and paved and unpaved roads on the facility property, storage piles and other emission generating activities resulting from operation of the new or modified facility.

 (b)  Secondary emissions may not be considered in determining whether a facility meets the requirements of this subchapter. If a facility is subject to this subchapter on the basis of the direct emissions from the facility, the conditions of §  127.205 (relating to special permit requirements) shall also be met for secondary emissions.

 The Department will not issue a plan approval, or an operating permit, or allow continued operations under an existing permit or plan approval unless the applicant demonstrates that the following special requirements are met:

   (1)  A new or modified facility subject to this subchapter shall comply with LAER, except as provided in §  127.203a(a)(2) (relating to applicability determination). When a facility is composed of several sources, only sources which are new or which are modified shall be required to implement LAER. In addition, LAER applies to the proposed modification which results in an increase in emissions and to subsequent or previous modifications which result in emissions increases that are directly related to and normally included in the project associated with the proposed modification and which occurred within the contemporaneous period of the proposed emissions increase.

     (i)   A project that does not commence construction within 18 months of the date specified in the plan approval shall be reevaluated for its compliance with LAER before the start of construction.

     (ii)   A project that discontinues construction for 18 months or more after construction is commenced shall be reevaluated for its compliance with LAER before resuming construction.

     (iii)   A project that does not complete construction within the time period specified in the plan approval shall be reevaluated for its compliance with LAER.

     (iv)   A project that is constructed in phases shall be reevaluated for its compliance with LAER if there is a delay of greater than 18 months beyond the projected and approved commencement date for each independent phase.

   (2)  Each facility located within this Commonwealth which meets the requirements of and is subject to this subchapter, which is owned or operated by the applicant, or by an entity controlling, controlled by or under common control with the applicant, and which is subject to emissions limitations shall be in compliance, or on a schedule for compliance approved by the Department in a plan approval or permit, with the applicable emissions limitation and standards contained in this article. A responsible official of the applicant shall certify as to the facilities’ compliance in writing on a form provided by the Department.

   (3)  Each modification to a facility which meets the requirements of and is subject to this subchapter shall offset, in accordance with § §  127.203, 127.203a and 127.210 (relating to facilities subject to special permit requirements; applicability determination; and offset ratios), the total of the net increase. Emissions offsets shall be required for the entire net emissions increase which occurred over the contemporaneous period except to the extent that emissions offsets or other reductions were previously applied against emissions increases in an earlier applicability determination.

   (4)  Each new facility which meets the requirements of and is subject to this subchapter shall offset the potential to emit of that facility with ERCs in accordance with §  127.210.

   (5)  For a new or modified facility which meets the requirements of and is subject to this subchapter, an analysis shall be conducted of alternative sites, sizes, production processes and environmental control techniques for the proposed facility, which demonstrates that the benefits of the proposed facility significantly outweigh the environmental and social costs imposed within this Commonwealth as a result of its location, construction or modification.

   (6)  In the case of a new or modified facility which is located in a nonattainment area, and within a zone, identified by the EPA Administrator, in consultation with the Secretary of Housing and Urban Development, as a zone to which economic development should be targeted, emissions of a pollutant resulting from the proposed new or modified facility may not cause or contribute to emission levels which exceed the allowance permitted for the pollutant for the area from new or modified facilities in the SIP.

   (7)  The Department may determine that the BAT requirements of this chapter are equivalent to BACT or LAER.

   The provisions of this §  127.205 amended May 18, 2007, effective May 19, 2007, 37 Pa.B. 2365. Immediately preceding text appears at serial pages (313712) and (221975).

 (a)  Emissions reductions or ERCs banked prior to January 1, 1991, may not be used as ERCs for emission offsets or netting purposes.

 (b)  The EQB may, by regulation and upon notice in the Pennsylvania Bulletin and opportunity for public comment, proportionally reduce the quantity of registered ERCs not previously included in a plan approval, or may halt transfer activity, in a nonattainment area or throughout this Commonwealth only as necessary when the other measures required by the Clean Air Act and the act may fail to achieve NAAQS or SIP requirements.

 (c)  ERCs shall be proportionally reduced prior to use in a plan approval in an amount equal to the reductions that the generating facility is or would have been required to make in order to comply with new requirements promulgated by the Department or the EPA, which apply to the generating facility after the ERCs were created.

 (d)  The Department may iss