PRIOR PRINTER'S NO. 2047 PRINTER'S NO. 2060
No. 1650 Session of 1992
INTRODUCED BY MUSTO, BRIGHTBILL, MELLOW, LOEPER, JUBELIRER,
BODACK, CORMAN, WENGER, STAPLETON, LINCOLN, O'PAKE, STEWART,
SALVATORE, HOLL, RHOADES, LEMMOND, LAVALLE, PETERSON,
ANDREZESKI, AFFLERBACH, HOPPER, FISHER, ARMSTRONG, HELFRICK,
MADIGAN, SHUMAKER, SHAFFER, HART, SCANLON, LEWIS, FUMO,
LYNCH, BELAN, STOUT, TILGHMAN AND PECORA, MARCH 25, 1992
SENATOR BRIGHTBILL, ENVIRONMENTAL RESOURCES AND ENERGY, AS
AMENDED, MARCH 31, 1992
AN ACT
1 Amending the act of January 8, 1960 (1959 P.L.2119, No.787),
2 entitled, as amended, "An act to provide for the better
3 protection of the health, general welfare and property of the
4 people of the Commonwealth by the control, abatement,
5 reduction and prevention of the pollution of the air by
6 smokes, dusts, fumes, gases, odors, mists, vapors, pollens
7 and similar matter, or any combination thereof; imposing
8 certain powers and duties on the Department of Environmental
9 Resources, the Environmental Quality Board and the
10 Environmental Hearing Board; establishing procedures for the
11 protection of health and public safety during emergency
12 conditions; creating a stationary air contamination source
13 permit system; providing additional remedies for abating air
14 pollution; reserving powers to local political subdivisions,
15 and defining the relationship between this act and the
16 ordinances, resolutions and regulations of counties, cities,
17 boroughs, towns and townships; imposing penalties for
18 violation of this act; and providing for the power to enjoin
19 violations of this act; and conferring upon persons aggrieved
20 certain rights and remedies," adding and amending certain
21 definitions; further providing for the powers and duties of
22 the Department of Environmental Resources, the Environmental
23 Quality Board and the Environmental Hearing Board; further
24 providing for plans and permits; providing for certain fees
25 and civil penalties, for acid control and for hazardous air
26 pollutants; further providing for certain procedures;
27 providing for compliance; establishing the Compliance
28 Advisory Panel and providing for its powers and duties;
29 further providing for enforcement, for criminal and civil
1 penalties and for the abatement and restraint of violations;
2 and making editorial changes.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 Section 1. Section 2 of the act of January 8, 1960 (1959
6 P.L.2119, No.787), known as the Air Pollution Control Act,
7 amended June 12, 1968 (P.L.163, No.92), is amended to read:
8 Section 2. Declaration of Policy.--(a) It is hereby
9 declared to be the policy of the Commonwealth of Pennsylvania to
10 protect the air resources of the Commonwealth to the degree
11 necessary for the (i) protection of public health, safety and
12 well-being of its citizens; (ii) prevention of injury to plant
13 and animal life and to property; (iii) protection of the comfort
14 and convenience of the public and the protection of the
15 recreational resources of the Commonwealth; [and] (iv)
16 development, attraction and expansion of industry, commerce and
17 agriculture[.]; and (v) implementation of the requirements of
18 the Clean Air Act (Public Law 95-95, 42 U.S.C. § 7401 et seq.)
19 in the Commonwealth.
20 (b) It is further declared that:
21 (1) Positions taken by individuals representing the
22 Commonwealth on interstate pollution transport commissions
23 established under the Clean Air Act which commit the
24 Commonwealth to propose or adopt certain pollution control
25 strategies shall be developed with the benefit of public review
26 and comment.
27 (2) The public shall be involved in developing and
28 committing the Commonwealth to the adoption of particular
29 pollution control strategies through review of State
30 Implementation Plan revisions and plans required to be submitted
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1 by the Clean Air Act.
2 (3) The department shall have the staff and technical
3 resources needed to comply with the Clean Air Act and shall be
4 required to develop a special budget demonstrating its resource
5 needs. The department shall be required to explore the role
6 private industry can play in developing and implementing the
7 clean air programs as a mechanism to insure the Commonwealth
8 meets Clean Air Act deadlines.
9 (4) States shall not be penalized for missing Clean Air Act
10 deadlines when the delay is the result of the Federal government
11 not finalizing guidance to states on implementing the act. The
12 Commonwealth and other states must be given a reasonable
13 opportunity to meet Clean Air Act deadlines.
14 Section 2. Section 3 of the act, amended October 26, 1972
15 (P.L.989, No.245), is amended to read:
16 Section 3. Definitions.--The following words and phrases,
17 when used in this act, unless the context clearly indicates
18 otherwise, shall have the meaning ascribed to them in this
19 section:
20 [(1) "Department." Department of Environmental Resources of
21 the Commonwealth of Pennsylvania.
22 (2) "Board." The Environmental Quality Board established in
23 the department by the act of December 3, 1970 (P.L.834).
24 (2.1) "Hearing board." The Environmental Hearing Board
25 established in the department by the act of December 3, 1970
26 (P.L.834).
27 (3) "Person." Any individual, public or private corporation
28 for profit or not for profit, association, partnership, firm,
29 trust, estate, department, board, bureau or agency of the
30 Commonwealth, political subdivision, municipality, district,
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1 authority or any other legal entity whatsoever which is
2 recognized by law as the subject of rights and duties.
3 (4) "Air contaminant." Smoke, dust, fume, gas, odor, mist,
4 vapor, pollen, or any combination thereof.
5 (5) "Air pollution." The presence in the outdoor atmosphere
6 of any form of contaminant including but not limited to the
7 discharging from stacks, chimneys, openings, buildings,
8 structures, open fires, vehicles, processes, or any other source
9 of any smoke, soot, fly ash, dust, cinders, dirt, noxious or
10 obnoxious acids, fumes, oxides, gases, vapors, odors, toxic or
11 radioactive substances, waste, or any other matter in such
12 place, manner, or concentration inimical or which may be
13 inimical to the public health, safety, or welfare or which is,
14 or may be injurious to human, plant or animal life, or to
15 property, or which unreasonably interferes with the comfortable
16 enjoyment of life or property.
17 (6) "Air contamination." The presence in the outdoor
18 atmosphere of an air contaminant which contributes to any
19 condition of air pollution.
20 (7) "Air contamination source." Any place, facility or
21 equipment, stationary or mobile, at, from or by reason of which
22 there is emitted into the outdoor atmosphere any air
23 contaminant.
24 (8) "Stationary air contamination source." Any air
25 contamination source other than that which, when operated, moves
26 in a given direction under its own power.
27 (9) "Region." Any geographical subdivision of the
28 Commonwealth whose boundaries shall be determined by the board.
29 (10) "Approved air pollution control agency." An air
30 pollution control agency of any political subdivision of the
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1 Commonwealth which has been granted approval by the board.]
2 "Administrator." The Administrator of the United States
3 Environmental Protection Agency.
4 "Air contaminant." Smoke, dust, fume, gas, odor, mist,
5 radiation, vapor, pollen, or any combination thereof.
6 "Air contamination." The presence in the outdoor atmosphere
7 of an air contaminant which contributes to a condition of air
8 pollution.
9 "Air contamination source." Any place, facility or
10 equipment, stationary or mobile, at, from or by reason of which
11 there is emitted into the outdoor atmosphere an air contaminant.
12 "Air pollution." The presence in the outdoor atmosphere of a
13 form of contaminant including, but not limited to, the
14 discharging from stacks, chimneys, openings, buildings,
15 structures, open fires, vehicles, processes, or any other source
16 of any smoke, soot, fly ash, dust, cinders, dirt, noxious or
17 obnoxious acids, fumes, oxides, gases, vapors, odors, toxic,
18 hazardous or radioactive substances, waste, or any other matter
19 in such place, manner, or concentration inimical or which may be
20 inimical to the public health, safety, or welfare or which is,
21 or may be injurious to human, plant or animal life, or to
22 property, or which unreasonably interferes with the comfortable
23 enjoyment of life or property.
24 "Approved air pollution control agency." An air pollution
25 control agency of a political subdivision of the Commonwealth
26 which has been granted approval by the board.
27 "Board." The Environmental Quality Board.
28 "Clean Air Act." Public Law 95-95, 42 U.S.C. § 7401 et seq.
29 The term includes only those provisions which direct a state to
30 take actions or authorize a state to administer a provision of
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1 the act.
2 "Department." The Department of Environmental Resources of
3 the Commonwealth.
4 "Environmental Protection Agency" or "EPA." The United
5 States Environmental Protection Agency or the Administrator of
6 the United States Environmental Protection Agency.
7 "Hearing board." The Environmental Hearing Board.
8 "Person." An individual, public or private corporation for
9 profit or not for profit, association, partnership, firm, trust,
10 estate, department, board, bureau or agency of the Commonwealth
11 or the Federal government, political subdivision, municipality,
12 district, authority or any other legal entity whatsoever which
13 is recognized by law as the subject of rights and duties. In a
14 provision of this act prescribing a fine, imprisonment or
15 penalty, or a combination of the foregoing, the term shall also
16 include the officers and directors of any corporation or other
17 legal entity having officers and directors.
18 "Plan approval." The written approval from the Department of
19 Environmental Resources which authorizes a person to construct,
20 assemble, install or modify a stationary air contamination
21 source, install thereon any air pollution control equipment or a
22 device or reactivate an air contamination source after the
23 source has been out of operation or production for a period of
24 two years or more.
25 "Region." A geographical subdivision of the Commonwealth
26 whose boundaries shall be determined by the Environmental
27 Quality Board.
28 "Small business stationary source." A stationary source
29 that:
30 (1) is owned or operated by a person that employs one
19920S1650B2060 - 6 -
1 hundred (100) or fewer individuals;
2 (2) is a small business concern as defined in the Small
3 Business Act (Public Law 85-536, 15 U.S.C. § 78a et seq.);
4 (3) is not a major stationary source;
5 (4) does not emit fifty (50) tons or more per year of any
6 regulated pollutant; and
7 (5) emits less than seventy-five (75) tons per year of all
8 regulated pollutants.
9 "State Implementation Plan." The plan that a state is
10 authorized and required to submit under section 110 of the Clean
11 Air Act (Public Law 95-95, 42 U.S.C. § 7410 et seq.) to provide
12 for attainment of the national ambient air quality standards.
13 "Stationary air contamination source." An air contamination
14 source other than that which, when operated, moves in a given
15 direction under its own power.
16 Section 3. Section 4 of the act, amended October 26, 1972
17 (P.L.989, No.245) and repealed in part April 28, 1978 (P.L.202,
18 No.53), is amended to read:
19 Section 4. Powers and Duties of the Department of
20 Environmental Resources.--The department shall have power and
21 its duty shall be to--
22 (1) Implement the provisions of the Clean Air Act in the
23 Commonwealth, including the enforcement of the requirements that
24 the Commonwealth is authorized to implement or enforce under the
25 Clean Air Act.
26 [(1)] (2) Enter any building, property, premises or place
27 and inspect any air contamination source for the purpose of
28 investigating an actual or a suspected source of air pollution
29 or for the purpose of ascertaining the compliance or non-
30 compliance with [any rule or regulation which may have been
19920S1650B2060 - 7 -
1 adopted and promulgated by the board hereunder.] this act, the
2 Clean Air Act, a rule or regulation promulgated under either
3 this act or the Clean Air Act, a plan approval, permit or order
4 of the department. In connection with such inspection or
5 investigation, samples of air, air contaminants, fuel, process
6 material or other matter may be taken for analysis, a duplicate
7 of the analytical report shall be furnished promptly to the
8 person who is suspected of causing such air pollution or air
9 contamination.
10 [(2)] (3) Have access to, and require the production of,
11 books [and], papers and records, including, but not limited to,
12 existing computerized records pertinent to any matter under
13 investigation.
14 [(2.1)] (4) Require the owner or operator of any air
15 contamination source to establish and maintain such records and
16 make such reports and furnish such information as the department
17 may reasonably prescribe.
18 [(2.2)] (5) Require the owner or operator of any air
19 contamination source to install, use and maintain such air
20 contaminant monitoring equipment or methods as the department
21 may reasonably prescribe.
22 [(2.3)] (6) Require the owner or operator of any air
23 contamination source to sample the emissions thereof in
24 accordance with such methods and procedures and at such
25 locations and intervals of time as the department may reasonably
26 prescribe and to provide the department with the results
27 thereof.
28 [(3)] (7) Enter upon any property on which an air
29 contamination source may be located and make such tests upon the
30 source as are necessary to determine whether the air
19920S1650B2060 - 8 -
1 contaminants being emitted from such air contamination source
2 are being emitted at a rate in excess of a rate provided for by
3 [board rule or regulation] this act, the Clean Air Act, a rule
4 or regulation promulgated under either this act or the Clean Air
5 Act, a plan approval, permit or order of the department or
6 otherwise causing air pollution. Whenever the department
7 determines that a source test is necessary, it shall give
8 reasonable written or oral notice to the person owning,
9 operating, or otherwise in control of such source, that [it] the
10 department will conduct a test on such source. Thereafter, the
11 person to whom such notice is given shall provide such
12 reasonably safe access to the testing area, and such sampling
13 [holes] ports, facilities, electrical power and water as the
14 department shall specify in its notice.
15 [(4)] (8) Receive, initiate and investigate complaints,
16 institute and conduct surveys and testing programs, conduct
17 general atmospheric sampling programs, make observations of
18 conditions which may or do cause air pollution, make tests or
19 other determinations at air contamination sources, and assess
20 the degree of abatement required.
21 [(4.1)] (9) (i) Issue orders to any person owning or
22 operating an air contamination source, or owning or possessing
23 land on which such source is located, if such source is
24 introducing or is likely to introduce air contaminants into the
25 outdoor atmosphere in excess of any [board rule or regulation,
26 or any permit requirement] rate provided for by this act, the
27 Clean Air Act, a rule or regulation promulgated under either
28 this act or the Clean Air Act, a plan approval or permit
29 applicable to such source, or at such a level so as to cause air
30 pollution. Any such order may require the cessation of any
19920S1650B2060 - 9 -
1 operation or activity which is introducing air contaminants into
2 the outdoor atmosphere so as to cause air pollution, the
3 reduction of emissions from such air contamination source,
4 modification or repair of such source or air pollution control
5 device or equipment or certain operating and maintenance
6 procedures with respect to such source or air pollution control
7 device or equipment, [institution] recommendation of a process
8 change, installation of air pollution control devices or
9 equipment, or any or all of said requirements as the department
10 deems necessary. Such orders may specify a time for compliance,
11 require submission of a proposed plan for compliance, and
12 require submission of periodic reports concerning compliance. If
13 a time for compliance is given, the department may, in its
14 discretion, require the posting of a bond in the amount of twice
15 the money to be expended in reaching compliance.
16 (ii) All department orders shall be in writing, contain
17 therein a statement of the reasons for their issuance, and be
18 served either personally or by certified mail. Within thirty
19 (30) days after service of any such order the person to whom the
20 order is issued or any other person aggrieved by such order may
21 file with the hearing board an appeal setting forth with
22 particularity the grounds relied upon. An appeal to the hearing
23 board of the department's order shall not act as a supersedeas:
24 Provided, however, That upon application and for cause shown,
25 the hearing board may issue such a supersedeas.
26 [(5)] (10) Institute, in a court of competent jurisdiction
27 proceedings to compel compliance with [any] this act, the Clean
28 Air Act, a rule or regulation promulgated under either this act
29 or the Clean Air Act, plan approval, permit or order of the
30 department from which there has been no appeal or which has been
19920S1650B2060 - 10 -
1 sustained on appeal.
2 [(6)] (11) Act as the agent for the board in holding public
3 hearings when so directed by the board.
4 [(7)] (12) Institute prosecutions under this act.
5 [(8)] (13) Recommend the minimum job qualifications of
6 personnel employed by county and municipal air pollution control
7 agencies hereafter created.
8 [(9)] (14) Require the submission of, and consider for
9 approval, plans and specifications of air pollution control
10 equipment, devices or process changes, and inspect such
11 installations or modifications to insure compliance with the
12 plans which have been approved.
13 [(10)] (15) Conduct or cause to be conducted studies and
14 research with respect to air contaminants, their nature, causes
15 and effects, and with respect to the control, prevention,
16 abatement and reduction of air pollution and air contamination.
17 [(10.1)] (16) Evaluate motor vehicle emission control
18 programs, including vehicle emission standards, clean
19 alternative fuels, oxygenated fuels, reformulated fuels, vehicle
20 miles of travel, congestion levels, transportation control
21 measures and other transportation control strategies with
22 respect to their effect upon air pollution and determine the
23 need for modifications of such programs.
24 [(11)] (17) Determine by means of field studies and sampling
25 the degree of air pollution existing in any part of the
26 Commonwealth.
27 [(12)] (18) Prepare and develop a general comprehensive plan
28 for the control and abatement of existing air pollution and air
29 contamination and for the abatement, control and prevention of
30 any new air pollution and air contamination, recognizing varying
19920S1650B2060 - 11 -
1 requirements for the different areas of the Commonwealth, and to
2 submit a comprehensive plan to the board for its consideration
3 and approval.
4 [(13)] (19) Encourage the formulation and execution of plans
5 in conjunction with air pollution control agencies or civil
6 associations of counties, cities, boroughs, towns and townships
7 of the Commonwealth wherein any sources of air pollution or air
8 contamination may be located, and enlist the cooperation of
9 those who may be in control of such sources for the control,
10 prevention and abatement of such air pollution and air
11 contamination.
12 [(14)] (20) Encourage voluntary efforts and cooperation by
13 all persons concerned in controlling, preventing, abating and
14 reducing air pollution and air contamination.
15 [(15)] (21) Conduct and supervise educational programs with
16 respect to the control, prevention, abatement and reduction of
17 air pollution and air contamination, including the preparation
18 and distribution of information relating to the means of
19 controlling and preventing such air pollution and air
20 contamination.
21 [(16)] (22) Develop and conduct in cooperation with local
22 communities demonstration programs relating to air contaminants,
23 air pollution and air contamination and the control, prevention,
24 abatement and reduction of air pollution and air contamination.
25 [(17)] (23) Provide advisory technical consultative services
26 to local communities for the control, prevention, abatement and
27 reduction of air pollution and air contamination.
28 [(18)] (24) Cooperate with the appropriate agencies of the
29 United States or of other states or any interstate agencies with
30 respect to the control, prevention, abatement and reduction of
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1 air pollution, and where appropriate formulate interstate air
2 pollution control compacts or agreements for the submission
3 thereof to the General Assembly.
4 [(19)] (25) Serve as the agency of the Commonwealth for the
5 receipt of moneys from the Federal government or other public or
6 private agencies, and expend such moneys for studies and
7 research with respect to air contaminants, air pollution and the
8 control, prevention, abatement and reduction of air pollution.
9 (26) Establish and implement a Small Business Stationary
10 Source Technical and Environmental Compliance Assistance
11 Program.
12 [(20)] (27) Do any and all other acts and things not
13 inconsistent with any provision of this act, which it may deem
14 necessary or proper for the effective enforcement of this act,
15 the Clean Air Act, and the rules or regulations [which have
16 been] promulgated [thereunder] under either this act or the
17 Clean Air Act.
18 Section 4. Section 4.1 of the act, added December 2, 1976
19 (P.L.1263, No.279), is amended to read:
20 Section 4.1. Agricultural Regulations Prohibited.--[The]
21 Except as may be required by the Clean Air Act or the
22 regulations promulgated under the Clean Air Act, the
23 Environmental Quality Board shall not have the power nor the
24 authority to adopt rules and regulations relating to air
25 contaminants and air pollution arising from the production of
26 agricultural commodities in their unmanufactured state but shall
27 not include the use of materials produced or manufactured off
28 the premises of the farm operation.
29 Section 5. The act is amended by adding a section SECTIONS <--
30 to read:
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1 Section 4.2. Permissible Actions.--In implementing the
2 requirements of the Clean Air Act, the department and
3 Environmental Quality Board may take only those actions directly
4 required to obtain the administrator's approval and to implement
5 the Federal operating permit program and other requirements of
6 the Clean Air Act. Such actions shall be no more stringent than
7 the requirements of the Clean Air Act, unless specifically
8 authorized in this act. This section shall not apply to rules
9 and regulations adopted as final prior to the effective date of
10 this act. This section shall not be construed to weaken
11 standards in place prior to the effective date of this act for
12 emissions from sources of air pollution.
13 SECTION 4.3 EVALUATION.--BEGINNING FIVE YEARS AFTER THE <--
14 EFFECTIVE DATE OF THIS ACT AND EVERY FIVE YEARS THEREAFTER, THE
15 DEPARTMENT SHALL CONDUCT AND SUBMIT TO THE GENERAL ASSEMBLY AN
16 EVALUATION OF THE EFFECTIVENESS OF THE PROGRAMS ADOPTED TO
17 IMPLEMENT THE CLEAN AIR ACT. THE EVALUATION SHALL INCLUDE:
18 (1) A DETERMINATION OF WHETHER THE LIMITATION IMPOSED IN
19 SECTION 4.2 WITH RESPECT TO AIR CONTAMINATION SOURCES REGULATED
20 BY THE CLEAN AIR ACT HAS HINDERED IN ANY WAY THE COMMONWEALTH'S
21 EFFORTS TO COMPLY WITH THE CLEAN AIR ACT AND A RECOMMENDATION ON
22 WHETHER THAT PROVISION SHOULD BE CHANGED.
23 (2) THE SPECIFIC STEPS TAKEN TO IMPLEMENT THE CLEAN AIR ACT
24 AND PROGRESS MADE TOWARD MEETING THE EMISSION REDUCTIONS
25 REQUIRED BY THE ACT AND RECOMMENDATIONS ON ANY ADDITIONAL STEPS
26 WHICH MUST BE TAKEN.
27 (3) AN EVALUATION OF THE FUNDING AVAILABLE TO IMPLEMENT THE
28 CLEAN AIR ACT PROGRAMS AND WHETHER THAT FUNDING IS SUFFICIENT OR
29 INADEQUATE AND RECOMMENDATIONS ON WHERE ADJUSTMENTS SHOULD BE
30 MADE.
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1 (4) AN ANALYSIS OF THE COSTS IMPOSED ON MOBILE AND
2 STATIONERY AIR CONTAMINATION SOURCES TO IMPLEMENT THE
3 REQUIREMENTS OF THE CLEAN AIR ACT, INCLUDING ON INDIVIDUALS AND
4 COMPANIES.
5 (5) AN EVALUATION, IN CONSULTATION WITH THE DEPARTMENT OF
6 COMMERCE AND THE OFFICE OF SMALL BUSINESS OMBUDSMAN, OF THE
7 ADEQUACY OF MEASURES TAKEN BY THE COMMONWEALTH TO ASSIST SMALL
8 BUSINESSES IN COMPLYING WITH THE CLEAN AIR ACT.
9 (6) A SUMMARY OF THE ACTIVITIES UNDERTAKEN BY THE CITIZENS
10 ADVISORY COUNCIL AND THE CLEAN AIR TECHNICAL ADVISORY COMMITTEE
11 UNDER SECTION 7.6.
12 (7) AN EVALUATION OF THE EFFECTIVENESS OF THE NORTHEAST
13 OZONE TRANSPORT COMMISSION IN MEETING THE MANDATES OF THE CLEAN
14 AIR ACT AND RECOMMENDATIONS ON ANY CHANGES THAT COULD MAKE THE
15 COMMISSION MORE EFFECTIVE.
16 (8) AN ASSESSMENT OF THE IMPACT OF ANY DELAYS CAUSED BY
17 MISSING DEADLINES UNDER SECTION 7.13 HAS HAD OR WILL HAVE ON THE
18 STATE IMPLEMENTATION OF THE CLEAN AIR ACT PROGRAMS.
19 Section 6. Sections 5 and 6 of the act, amended October 26,
20 1972 (P.L.989, No.245), are amended to read:
21 Section 5. Environmental Quality Board.--The board shall
22 have the power and its duty shall be to--
23 (1) Adopt rules and regulations, for the prevention,
24 control, reduction and abatement of air pollution, applicable
25 throughout the Commonwealth or to such parts or regions or
26 subregions thereof specifically designated in such regulation
27 which shall be applicable to all air contamination sources
28 regardless of whether such source is required to be under permit
29 by this act. Such rules and regulations may establish maximum
30 allowable emission rates of air contaminants from such sources,
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1 prohibit or regulate the combustion of certain fuels, prohibit
2 or regulate open burning, prohibit or regulate any process or
3 source or class of processes or sources, require the
4 installation of specified control devices or equipment, or
5 designate the control efficiency of air pollution control
6 devices or equipment required in specific processes or sources
7 or classes of processes or sources. Such rules and regulations
8 shall be adopted pursuant to the provisions of the act of July
9 31, 1968 (P.L.769), known as the "Commonwealth Documents Law,"
10 upon such notice and after such public hearings as the board
11 deems appropriate. In exercising its authority to adopt rules
12 and regulations, the board may, and to the extent deemed
13 desirable by it shall, consult with a council of technical
14 advisers, properly qualified by education or experience in air
15 pollution matters, appointed by the board and to serve at the
16 pleasure of the board, to consist of such number of advisers as
17 the board may appoint, but such technical advisers shall receive
18 no compensation, other than their actual and necessary expenses,
19 for their services to the board.
20 (2) Establish and publish maximum quantities of air
21 contaminants that may be permitted under various conditions at
22 the point of use from any air contaminant source in various
23 areas of the Commonwealth so as to control air pollution.
24 (3) By [the] rule or regulation, classify air contaminant
25 sources, according to levels and types of emissions and other
26 characteristics which relate to air pollution. Classifications
27 made pursuant to this subsection shall apply to the entire
28 Commonwealth or any part thereof. Any person who owns or
29 operates an air contaminant source of any class to which the
30 rules and regulations of the board under this subsection apply,
19920S1650B2060 - 16 -
1 shall make reports containing information as may be required by
2 the board concerning location, size and height of air
3 contaminant outlets, processes employed, fuels used and the
4 nature and time periods or duration of emissions, and such other
5 information as is relevant to air pollution and available or
6 reasonably capable of being assembled.
7 (4) Recommend to the Secretary of Transportation performance
8 or specification standards, or both, for emission control
9 systems and devices on motor vehicles.
10 (5) Adopt rules and regulations for the protection of public
11 health and safety for periods when the accumulation of air
12 contaminants in any area is attaining or has attained levels
13 which, if sustained or exceeded, could lead to an acute threat
14 to the health of the public. Such rules and regulations shall
15 contain appropriate procedures to protect public health and
16 safety during such periods.
17 (6) Adopt rules and regulations for the approval and the
18 recision and suspension of approval of local air pollution
19 control agencies.
20 (7) Adopt rules and regulations designed to reduce emissions
21 from motor vehicles, including vehicle emission standards, clean
22 alternative fuels, oxygenated fuels, reformulated fuels, vehicle
23 miles of travel, transportation control measures and other
24 transportation control strategies. Such rules and regulations
25 shall be developed in consultation with the Department of
26 Transportation.
27 (8) Adopt rules and regulations to implement the
28 requirements imposed on the Commonwealth by the Clean Air Act,
29 provided that the regulations shall be fully consistent with the
30 Clean Air Act and equivalent to regulations promulgated by EPA
19920S1650B2060 - 17 -
1 including such operational flexibility as is authorized by the
2 Clean Air Act.
3 Section 6. Environmental Hearing Board.--The hearing board
4 shall have the power and its duty shall be to hear and determine
5 all appeals from orders issued by and appealable actions of the
6 department as defined in the act of July 13, 1988 (P.L.530,
7 No.94), known as the "Environmental Hearing Board Act," in
8 accordance with the provisions of this act. Any and all action
9 taken by the hearing board with reference to any such appeal
10 shall be in the form of an adjudication, and all such action
11 shall be subject to the provisions of [the act of June 4, 1945
12 (P.L.1388), known as the "Administrative Agency Law."] 2 Pa.C.S.
13 (relating to administrative law and procedure).
14 Section 7. Section 6.1 of the act, added October 26, 1972
15 (P.L.989, No.245) and repealed in part April 28, 1978 (P.L.202,
16 No.53), is amended to read:
17 Section 6.1. Plan Approvals and Permits.--(a) [On or after
18 July 1, 1972, no] No person shall construct, assemble, install
19 or modify any stationary air contamination source, or install
20 thereon any air pollution control equipment or device or
21 reactivate any air contamination source after said source has
22 been out of operation or production for a period of [one year or
23 more] two years or more unless such person has applied to and
24 received [from the department] written plan approval [so to do]
25 from the department to do so: Provided, however, That no such
26 written approval shall be necessary with respect to normal
27 routine maintenance operations, nor to any such source,
28 equipment or device used solely for the supplying of heat or hot
29 water to one structure intended as a one-family or two-family
30 dwelling, [or with respect to any other class of units as the
19920S1650B2060 - 18 -
1 board, by rule or regulation, may exempt from the requirements
2 of this section.] nor where construction, assembly, installation
3 or modification is specifically authorized by the rules or
4 regulations of the department to be conducted without written
5 approval. All applications for approval shall be made in writing
6 and shall be on such forms and contain such information as the
7 department shall prescribe and shall have appended thereto
8 detailed plans and specifications related to the proposed
9 installation.
10 (b) (1) No person shall operate any stationary air
11 contamination source [which is subject to the provisions of
12 subsection (a) of this section], INCLUDING ANY STATIONARY AIR <--
13 CONTAMINATION SOURCE required by Title V of the Clean Air Act to
14 have a permit after the dates specified in Title V, unless the
15 department shall have issued to such person a permit to operate
16 such source under the provisions of this section in response to
17 a written application for a permit submitted on forms and
18 containing such information as the department may prescribe. The
19 department shall provide public notice and the right to comment
20 on all permits prior to issuance or denial and may hold public
21 hearings concerning any permit. Upon request of an applicant,
22 the department may include all air contamination sources at a
23 facility in one facility permit.
24 (2) [No] A permit shall be issued after the effective date
25 of this act to any applicant [unless it appears that, with
26 respect to the source,] for a stationary air contamination
27 source requiring construction, assembly, installation,
28 modification or reactivation, where the requirements of
29 subsection (a) of this section have been met and [that] there
30 has been performed upon such source a test operation or
19920S1650B2060 - 19 -
1 evaluation which shall satisfy the department that the air
2 contamination source will not discharge into the outdoor
3 atmosphere any air contaminants at a rate in excess of that
4 permitted by applicable regulation of the board, or in violation
5 of a performance or emission standard or other requirement
6 established by the Environmental Protection Agency or the
7 department for such source, and which will not cause air
8 pollution.
9 (3) A stationary air contamination source operating lawfully
10 without a permit for which fees required by section 6.3 of this
11 act or the regulations promulgated under this act have been paid
12 is authorized to continue to operate without a permit until one
13 hundred twenty (120) days after the department provides notice
14 to the source that a permit is required or until November 1,
15 1995, whichever occurs first. If the applicant submits a
16 complete permit application within the time frames in this
17 subsection, and the department fails to issue a permit through
18 no fault of the applicant, the source may continue to operate if
19 the fees required by section 6.3 of this act or the regulations
20 promulgated under this act have been paid and the source is
21 operated in conformance with this act, the Clean Air Act and
22 final regulations promulgated under both this act and the Clean
23 Air Act. For a performance or emission standard or other
24 requirement established by the Environmental Protection Agency
25 or the department for the source subsequent to the effective
26 date of this section but prior to the permit issuance date, the
27 permit may contain a compliance schedule authorizing the source
28 to operate out of compliance and requiring the source to achieve
29 compliance.
30 (4) For repermitting of a stationary air contamination
19920S1650B2060 - 20 -
1 source which is operating under a valid permit on the effective
2 date of this section or which has received a permit under the
3 provisions of clauses (2) and (3) of this subsection and which
4 is required to meet performance or emission standards or other
5 requirements established subsequent to the issuance of the
6 existing permit, the new permit may contain a compliance
7 schedule authorizing the source to operate out of compliance and
8 requiring the source to achieve compliance as soon as possible
9 but no later than the time required by this act, the Clean Air
10 Act or the regulations promulgated under either this act or the
11 Clean Air Act.
12 (b.1) [Permits] A permit or plan approval issued hereunder
13 may contain such terms and conditions as the department deems
14 necessary to assure the proper operation of the source in
15 compliance with applicable provisions of this act and final
16 regulations promulgated under this act. [Each permittee, on or
17 before the anniversary date set forth in his permit, shall
18 submit to the department an annual report containing such
19 information as the department shall prescribe relative to the
20 operation and maintenance of the installation under permit.
21 (c) Any permit issued hereunder may be revoked or suspended
22 if the permittee operates the source subject to the permit in
23 such a manner as to be in violation of the conditions of any
24 permit or rule or regulation of the board or in such a manner as
25 to cause air pollution, if the permittee fails to properly or
26 adequately maintain or repair any air pollution control device
27 or equipment attached to or otherwise made a part of the source,
28 or if the permittee has failed to submit any annual report as
29 required under this section.
30 (d) The department may refuse to grant approval for any
19920S1650B2060 - 21 -
1 stationary air contamination source subject to the provisions of
2 subsection (a) of this section or to issue a permit to operate
3 such source if it appears, from the data available to the
4 department, that the proposed source, or proposed changes in
5 such source, are likely either to cause air pollution or to
6 violate any board rule or regulation applicable to such source,
7 or if, in the design of such source, no provision is made for
8 adequate facilities to conduct source testing. The department
9 may also refuse to issue a permit to any person who has
10 constructed, installed or modified any air contamination source,
11 or installed any air pollution control equipment or device on
12 such source contrary to the plans and specifications approved by
13 the department.] Each permit issued under this act shall provide
14 that compliance with the permit shall be considered compliance
15 with other applicable provisions of this act or regulations
16 promulgated under this act, as provided in section 504(f) of the
17 Clean Air Act. Each permittee, on a schedule established by the
18 department, shall submit reports to the department containing
19 such information as the department may prescribe relative to the
20 operation and maintenance of the source.
21 (b.2) A permit issued or reissued under subsection (b) of
22 this section shall be for a fixed term of five (5) years. A
23 permit may be terminated, modified, suspended or revoked and
24 reissued for cause. The terms and conditions of an expired
25 permit are automatically continued pending the issuance of a new
26 permit where the permittee has submitted a timely and complete
27 application for a new permit and paid the fees required by
28 section 6.3 of this act or the regulations promulgated under
29 this act and the department is unable, through no fault of the
30 permittee, to issue or deny a new permit before the expiration
19920S1650B2060 - 22 -
1 date of the previous permit. For the purposes of this section,
2 the department shall inform a plan approval or permit applicant
3 within thirty (30) days of filing of the application whether the
4 application is complete. Upon failure to notify the applicant,
5 the application shall be considered complete. Upon determination
6 that a plan approval or permit application is complete, the
7 department shall have up to one hundred twenty (120) days to
8 take action on the application. Failure to take action by the
9 deadline shall mean the application is deemed approved. Failure
10 of the department to issue or deny a new permit prior to the
11 expiration date of the previous permit shall be an appealable
12 action as described in section 10.2 of this act.
13 (c) A plan approval or permit issued under this act may be
14 terminated, modified, suspended or revoked and reissued if the
15 permittee constructs or operates the source subject to the plan
16 approval or permit in such a manner as to be in violation of
17 this act, the Clean Air Act, the regulations promulgated under
18 either this act or the Clean Air Act, a plan approval or permit
19 or in such a manner as to cause air pollution, if the permittee
20 fails to properly or adequately maintain or repair any air
21 pollution control device or equipment attached to or otherwise
22 made a part of the source or if the EPA determines that the
23 permit is not in compliance with the requirements of the Clean
24 Air Act or the regulations promulgated under the Clean Air Act.
25 (d) The department may refuse to grant plan approval for any
26 stationary air contamination source subject to the provisions of
27 subsection (a) of this section or to issue a permit to any
28 source that the department determines is likely to cause air
29 pollution or to violate this act, the Clean Air Act or the
30 regulations promulgated under either this act or the Clean Air
19920S1650B2060 - 23 -
1 Act applicable to such source, or if, in the design of such
2 source, no provision is made for adequate facilities to conduct
3 source testing. The department may also refuse to issue a permit
4 or may for cause terminate or revoke and reissue any permit to
5 any person if the Environmental Protection Agency determines
6 that the permit is not in compliance with the requirements of
7 the Clean Air Act or the regulations promulgated under the Clean
8 Air Act or if the applicant has constructed, installed, modified
9 or operated any air contamination source or installed any air
10 pollution control equipment or device on such source contrary to
11 the plans and specifications approved by the department.
12 (e) Whenever the department shall refuse to grant an
13 approval or to issue or reissue a permit hereunder or terminate,
14 modify, suspend or revoke a plan approval or permit already
15 issued, such action shall be in the form of a written notice to
16 the person affected thereby informing him of the action taken by
17 the department and setting forth, in such notice, a full and
18 complete statement of the reasons for such action. Such notice
19 shall be served upon the person affected, either personally or
20 by certified mail, and the action set forth in the notice shall
21 be final and not subject to review unless, within thirty (30)
22 days of the service of such notice, any person affected thereby
23 shall appeal to the hearing board, setting forth with
24 particularity the grounds relied upon. The hearing board shall
25 hear the appeal pursuant to the provisions of the rules and
26 regulations relating to practice and procedure before the
27 hearing board, and thereafter, shall issue an adjudication
28 affirming, modifying or overruling the action of the department.
29 [(f) The board may, by rule, require the payment of a
30 reasonable fee, not to exceed two hundred dollars ($200.00), for
19920S1650B2060 - 24 -
1 the processing of any application for plan approval or for an
2 operating permit under the provisions of this section.]
3 (g) The department shall, by regulation, establish a general
4 plan approval and a general permit program. After the program is
5 established, the department may grant general plan approval or a
6 general permit for any category of stationary air contamination
7 source if the department determines that the sources in the
8 category are similar in nature, and can be adequately regulated
9 using standardized specifications and conditions. An applicant
10 proposing to use a general plan approval or general permit shall
11 notify the department and receive written approval prior to the
12 proposed use. The department shall have up to thirty (30) days
13 to take action on a notification. Failure to take action by the
14 deadline shall mean the general plan approval or general permit
15 is deemed approved.
16 (h) The department may, by regulation, establish a plan
17 approval and permit program for stationary sources operated at
18 multiple temporary locations. After the program is established,
19 the department may grant a plan approval or issue a single
20 permit to a stationary air contamination source that may be
21 operated at multiple temporary locations. Such approval or
22 permit shall require the owner or operator to notify the
23 department and municipality where the operation shall take place
24 ten (10) days in advance of each change in location and may
25 require a separate permit fee for operations at each location.
26 The department shall take action on a request within ten (10)
27 days or the request is deemed approved.
28 (i) The department shall establish comprehensive plan
29 approval and operating permit programs which, at a minimum, meet
30 the requirements of the Clean Air Act, while minimizing costs
19920S1650B2060 - 25 -
1 and fees and providing all such operational flexibility as
2 authorized by the Clean Air Act.
3 Section 8. Section 6.2(a) of the act, added October 26, 1972
4 (P.L.989, No.245), is amended to read:
5 Section 6.2. Emergency Procedure.--(a) Any other provision
6 of law to the contrary notwithstanding, if the department finds,
7 in accordance with the rules and regulations of the board
8 adopted under the provisions of clause (5) of section 5 of this
9 act, that a generalized condition of air pollution exists and
10 that it creates an emergency requiring immediate action to
11 protect human health or safety, the department, with the
12 concurrence of the Governor, shall order or direct persons
13 causing or contributing to the air pollution to immediately
14 reduce or discontinue the emission of air contaminants.
15 * * *
16 Section 9. The act is amended by adding sections to read:
17 Section 6.3. Fees.--(a) The board is authorized to
18 establish annual air emission fees for air contaminant sources
19 within this Commonwealth. The fees shall be sufficient to cover
20 the indirect and direct costs of administering the air pollution
21 control plan approval and permitting program required by Title V
22 of the Clean Air Act and the indirect and direct costs of
23 administering the Small Business Stationary Source Technical and
24 Environmental Compliance Assistance Program, Compliance Advisory
25 Committee and Office of Small Business Ombudsman, subject to the
26 criteria in subsection (f) of this section.
27 (b) The board shall establish, by regulation, annual interim
28 air emission fees covering emissions of sulfur dioxide, nitrogen
29 oxides, particulate matter of ten (10) microns or less and
30 volatile organic compounds. In determining the amount each
19920S1650B2060 - 26 -
1 facility is to pay, the facility is not required to include any
2 amount of a contaminant listed in this section emitted by the
3 facility in quantities less than one hundred (100) tons per year
4 or greater than four thousand (4,000) tons per year. The revenue
5 generated by the interim emission fee proposal shall equal no
6 more than fifty per centum of the estimated cost of implementing
7 the Title V program. The fees shall be based on a funding plan
8 submitted by the department under subsection (f) of this section
9 and shall be due on emissions occurring in the calendar year
10 immediately preceding the effective date of regulations
11 establishing the emission fees. In no case shall the interim fee
12 be more than seventeen dollars ($17.00) per ton of pollutant
13 emitted.
14 (c) The board shall establish, by regulation, annual air
15 emission fees as required for regulated pollutants by section
16 502(b) of the Clean Air Act for sources emitting less than four
17 thousand (4,000) tons of regulated pollutants per year. In no
18 case shall the fees be more than twenty-five dollars ($25.00)
19 per ton of regulated pollutant emitted. The fee amounts shall be
20 based on the funding plan submitted by the department under
21 subsection (f) of this section and shall be due on emissions
22 occurring in calendar year 1995 and thereafter.
23 (d) The board shall establish emission fees which consider
24 the size of the air contamination source, the resources
25 necessary to process the application for plan approval or an
26 operating permit, the complexity of the plan approval or
27 operating permit, the quantity and type of emissions from the
28 sources, the amount of fees charged in neighboring states, the
29 importance of not placing existing or prospective sources in
30 this Commonwealth at a competitive disadvantage and other
19920S1650B2060 - 27 -
1 relevant factors.
2 (e) Until alternative fees are established by the board
3 under subsection (b) of this section, stationary air
4 contamination sources shall pay the following interim fees:
5 (1) Five hundred dollars ($500.00) for the processing of an
6 application for plan approval.
7 (2) Five hundred dollars ($500.00) for the processing of an
8 application for an operating permit.
9 (f) Within thirty (30) days of the effective date of this
10 section the department shall submit a budget to the
11 Appropriation Committee of the Senate and the Appropriation
12 Committee of the House of Representatives and to the
13 Environmental Resources and Energy Committee of the Senate and
14 the Conservation Committee of the House of Representatives
15 outlining the need for funding to implement the permitting
16 provisions of Title V of the Clean Air Act for ten (10) years
17 after the effective date of this section. The plan shall
18 include:
19 (1) Estimates of the number of field staff needed, including
20 their classifications, location by region and estimated workload
21 and cost.
22 (2) Estimates of the cost of reviewing plan approvals and
23 operating permits under the requirements of the Clean Air Act,
24 including an estimate of the number and types of sources which
25 will be required to have plan approvals and permits.
26 (3) Estimates of the cost of developing and operating the
27 Small Business Stationary Source Technical and Environmental
28 Compliance Assistance Program established under this act,
29 including the Compliance Advisory Committee and Office of Small
30 Business Ombudsman.
19920S1650B2060 - 28 -
1 (4) Estimates of the amount of Federal funds available to
2 offset the cost of implementing the Clean Air Act and a
3 description of the efforts made by the department to secure
4 those funds.
5 (5) Estimates of funds which may be available from private
6 or other sources to conduct special projects needed to implement
7 the Clean Air Act.
8 (6) A comparison of how other states with similar numbers of
9 air contamination sources are funding the plan approval and
10 operating permit program required by the Clean Air Act.
11 (7) An evaluation of potential opportunities for contracting
12 with consultants to undertake program development, permit review
13 and other tasks required by the Clean Air Act in order to speed
14 their completion. This evaluation shall be conducted in
15 consultation with the Pennsylvania Society of Professional
16 Engineers.
17 (8) The department shall also make the following
18 recommendations:
19 (i) An interim fee proposal to cover the expected expenses
20 resulting from the review of plan approvals and operating
21 permits and the development and operation of the Small Business
22 Stationary Source Technical and Environmental Compliance
23 Assistance Program, Compliance Advisory Committee and Office of
24 Small Business Ombudsman, prior to the imposition of air
25 emission fees required by Title V of the Clean Air Act, as
26 required by subsection (b) of this section.
27 (ii) A fee proposal covering stationary sources as required
28 by subsection (c) of this section.
29 (9) The board shall annually audit the air pollution control
30 program to assure compliance with the funding plan.
19920S1650B2060 - 29 -
1 (g) Any fees imposed under this section in areas with
2 approved local air pollution control programs shall be deposited
3 in a restricted account established by the governing body
4 authorizing the local program for use by that program to
5 implement the provisions of this act for which they are
6 responsible. The governing body shall annually submit to the
7 department an audit of the account in order to insure the funds
8 were properly spent.
9 (h) An air contamination source that fails to pay the fees
10 within the time frame established by regulation shall pay a
11 penalty of fifty per centum of the fee amount, plus interest on
12 the fee amount computed in accordance with section 6621(a)(2) of
13 the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C.
14 § 1 et seq.) from the date the fee was required to be paid. In
15 addition, such source may have its permit terminated or
16 suspended. The fee, penalty and interest may be collected
17 following the process for assessment and collection of a civil
18 penalty contained in section 9.1 of the act.
19 (i) Any fees, penalties and interest owed the Commonwealth
20 for delinquent payment collected under this section shall be
21 deposited in a special account in the Clean Air Fund and shall
22 be utilized to cover a portion of the reasonable direct and
23 indirect costs of the plan approval and permit programs required
24 by Title V of the Clean Air Act and a portion of the reasonable
25 direct and indirect costs of administering the Small Business
26 Stationary Source Technical and Environmental Compliance
27 Assistance Program, Compliance Advisory Committee and Office of
28 Small Business Ombudsman. The fee established under subsection
29 (a) of this section to cover the cost of the permitting program
30 under Title V of the Clean Air Act shall generate sufficient
19920S1650B2060 - 30 -
1 funds to cover all reasonable direct and indirect costs required
2 to develop and administer the Title V operating permit program
3 and all reasonable direct and indirect costs of administering
4 the Small Business Stationary Source Technical and Environmental
5 Compliance Assistance Program, Compliance Advisory Committee and
6 Office of Small Business Ombudsman and shall only be expended
7 for these purposes.
8 (j) The fees under this section shall be increased in each
9 year after implementation of the fee by regulation by the
10 percentage, if any, by which the Consumer Price Index for the
11 most recent calendar year exceeds the Consumer Price Index for
12 the calendar year 1989. For purposes of this clause:
13 (1) The Consumer Price Index for any calendar year is the
14 average of the Consumer Price Index for All-Urban Consumers,
15 published by the United States Department of Labor, as of the
16 close of the twelve (12) month period ending on August 31 of
17 each calendar year.
18 (2) The revision of the Consumer Price Index which is most
19 consistent with the Consumer Price Index for calendar year 1989
20 shall be used.
21 Section 6.4. Fee for Certain Ozone Areas.--(a) If an area
22 identified in a State Implementation Plan or any revision as a
23 severe or extreme ozone nonattainment area has failed to meet
24 the national primary ambient air quality standard for ozone by
25 the applicable attainment date, each major source of volatile
26 organic compounds (VOCs), as defined in the Clean Air Act and
27 the regulations promulgated under the Clean Air Act, located in
28 the area shall, except with respect to emissions during any year
29 treated as an extension year under section 181(a)(5) of the
30 Clean Air Act, pay a fee to the department as a penalty for such
19920S1650B2060 - 31 -
1 failure for each calendar year beginning after the attainment
2 date, until the area is redesignated as an attainment area for
3 ozone. This fee shall be assessed and collected following the
4 process for collection and assessment of a civil penalty
5 contained in section 9.1 of the act.
6 (b) (1) The fee shall equal five thousand dollars
7 ($5,000.00), adjusted in accordance with clause (3) of this
8 subsection, per ton of VOCs emitted by the source during the
9 calendar year in excess of eighty per centum of the baseline
10 amount, computed under clause (2) of this subsection. The fee
11 shall be in addition to all other fees required to be paid by
12 the source.
13 (2) (i) For purposes of this section, the baseline amount
14 shall be computed, in accordance with such guidance as the
15 administrator may provide, as the lower of the amount of actual
16 VOC emissions (referred to as actuals) or VOC emissions allowed
17 under the permit applicable to the source or, if no permit has
18 been issued for the attainment year, the amount of VOC emissions
19 allowed under the applicable implementation plan (referred to as
20 allowables) during the attainment year.
21 (ii) Notwithstanding subclause (i) of this clause, the
22 administrator may issue guidance authorizing the baseline amount
23 to be determined in accordance with the lower of average actuals
24 or average allowables, determined over a period of more than one
25 calendar year. This guidance may provide that the average
26 calculation for a specific source may be used if that source's
27 emissions are irregular, cyclical or otherwise vary
28 significantly from year to year.
29 (3) The fee amount under clause (1) of this subsection shall
30 be adjusted annually, beginning in 1991 in accordance with
19920S1650B2060 - 32 -
1 section 6.3(j).
2 Section 6.5. Acid Deposition Control.--(a) The department
3 is authorized to develop a permit program for acid deposition
4 control in accordance with Titles IV and V of the Clean Air Act
5 and to submit it to the administrator for approval.
6 (b) For purposes of the permit program authorized under
7 subsection (a) of this section, the definitions in sections 402
8 and 501 of the Clean Air Act are incorporated in this act by
9 reference.
10 (c) The owner or operator or the designated representative
11 of each source affected under section 405 of the Clean Air Act
12 shall submit a permit application and compliance plan for the
13 affected source to the department no later than January 1, 1996.
14 In the case of affected sources for which application and plans
15 are timely received, the permit application and the compliance
16 plan, including amendments, shall be binding on the owner or
17 operator or the designated representative of the owners or
18 operators and shall be enforceable as a permit for purposes of
19 this section until a permit is issued by the department. A
20 permit issued by the department shall require the source to
21 achieve compliance as soon as possible but no later than the
22 date required by this act, the Clean Air Act or the regulations
23 promulgated under either this act or the Clean Air Act for the
24 source.
25 (d) At any time after the submission of a permit application
26 and compliance plan, the applicant may submit a revised
27 application and compliance plan. In considering a permit
28 application and compliance plan under this section, the
29 department shall coordinate with the Pennsylvania Public Utility
30 Commission consistent with requirements that may be established
19920S1650B2060 - 33 -
1 by the administrator.
2 (e) In addition to other provisions, permits issued by the
3 department shall prohibit all of the following:
4 (1) Annual emissions of sulfur dioxide in excess of the
5 number of allowances to emit sulfur dioxide that the owner or
6 operator or designated representative hold for the unit.
7 (2) Exceedances of applicable emissions rates or standards,
8 including ambient air quality standards.
9 (3) The use of any allowance prior to the year for which it
10 is allocated.
11 (4) Contravention of any other provision of the permit.
12 Section 6.6. Hazardous Air Pollutants.--(a) The Work
13 Practice Standards of section 112(h) of the Clean Air Act and
14 the regulations establishing performance or emission standards
15 promulgated under section 112 of the Clean Air Act are
16 incorporated by reference into the department's permitting
17 program. After the effective date of the performance or emission
18 standard, new, reconstructed, modified and existing sources
19 shall comply with the performance or emission standards pursuant
20 to the compliance schedule established under section 112 of the
21 Clean Air Act and the regulations promulgated under the Clean
22 Air Act.
23 (b) In the event the administrator has not promulgated a
24 standard to control the emissions of hazardous air pollutants
25 for a category or subcategory of major sources under section 112
26 of the Clean Air Act by the dates established pursuant thereto,
27 the department in issuing any permit under Title V of the Clean
28 Air Act shall have the authority to establish a performance or
29 emission standard on a case-by-case basis for individual major
30 sources or a category of major sources. A person challenging the
19920S1650B2060 - 34 -
1 performance or emission standards established by the department
2 shall have the burden to demonstrate by the preponderance of the
3 evidence that the performance or emission standard does not meet
4 the requirements of section 112 of the Clean Air Act. The
5 department shall incorporate the standard to control the
6 emissions of hazardous air pollutants into the Title V operating
7 permit of any major source within the category or subcategory
8 and shall require compliance with the schedule established by
9 section 112 of the Clean Air Act. The performance or emission
10 standard established on a case-by-case basis by the department
11 shall be equivalent to the limitation that would apply to the
12 source if a performance or emission standard had been
13 promulgated in a timely manner by the administrator under
14 section 112 of the Clean Air Act.
15 (c) Nothing in this section shall alter or otherwise affect
16 the department's existing authority to prevent air pollution
17 from hazardous air pollutants by regulation or on a case-by-case
18 basis during the department's review of a plan approval or
19 operating permit application.
20 Section 7.1. Compliance Review.--(a) The department shall
21 not issue, reissue or modify any plan approval or permit
22 pursuant to this act or amend any plan approval or permit issued
23 under this act and may suspend, terminate or revoke any permit
24 or plan approval previously issued under this act if it finds
25 that the applicant or permittee or a partner, parent or
26 subsidiary cooperation of the applicant or permittee is in
27 violation of this act, or the rules and regulations promulgated
28 under this act, any plan approval, permit or order of the
29 department, as indicated by the department's compliance docket,
30 unless the violation is being corrected to the satisfaction of
19920S1650B2060 - 35 -
1 the department.
2 (b) The department may refuse to issue any plan approval or
3 permit pursuant to this act if it finds that the applicant or
4 permittee or a partner, parent or subsidiary corporation of the
5 applicant or permittee has shown a lack of intention or ability
6 to comply with this act or the regulations promulgated under
7 this act or any plan approval, permit or order of the
8 department, as indicated by past or present violations, unless
9 the lack of intention or ability to comply is being or has been
10 corrected to the satisfaction of the department.
11 Section 7.2. Permit Compliance Schedules.--In addition to
12 the other enforcement provisions of this act, the department may
13 issue a permit under section 6.1(b)(3) and (4) of this act to a
14 source that is out of compliance with this act, the Clean Air
15 Act or the regulations promulgated under either this act or the
16 Clean Air Act. A permit must contain an enforceable schedule
17 requiring the source to attain compliance. The compliance
18 schedule may contain interim milestone dates for completing any
19 phase of the required work, as well as a final compliance date.
20 If the permittee fails to achieve compliance by the final
21 compliance date, the permit shall terminate. The permit shall be
22 part of an overall resolution of the outstanding noncompliance
23 and shall include the payment of an appropriate civil penalty
24 for past violations and shall contain such other terms and
25 conditions as the department deems appropriate. A permit may
26 incorporate by reference a compliance schedule contained within
27 a consent order and agreement, including all provisions related
28 to implementation or enforcement of the compliance schedule or
29 consent order and agreement.
30 Section 7.3. Responsibilities of Owners and Operators.--(a)
19920S1650B2060 - 36 -
1 Whenever the department finds that air pollution or danger of
2 air pollution is or may be resulting from an air contamination
3 source in the Commonwealth, the department may order the owner,
4 operator, landowner or occupier to take action in a manner
5 satisfactory to the department to bring the source into
6 compliance.
7 (b) The department may order the owner, operator, landowner
8 or occupier to allow access to the land by the department or a
9 third party to take such action.
10 (c) The department may recover its costs where it directly
11 or through third parties as authorized under subsection (b) of
12 this section took actions to bring a source into compliance. The
13 department may collect the amount in the same manner as civil
14 penalties are assessed and collected following the process for
15 assessment and collection of a civil penalty contained in
16 section 9.1 of the act.
17 Section 7.4. Interstate Transport Commissions.--(a) A
18 person appointed by the Governor or appointed to serve as his
19 designee on any interstate transport commission formed under
20 section 176(A) or 184 of the Clean Air Act shall be confirmed by
21 the Senate.
22 (b) A person representing the Commonwealth on any interstate
23 transport commission formed under the Clean Air Act shall not
24 commit the Commonwealth to proposing or adopting any pollution
25 control measure unless the suggested control measure has been
26 subject to public review, such as under section 184(c) of the
27 Clean Air Act, or is part of an approved plan or State
28 Implementation Plan submitted to the Environmental Protection
29 Agency by the Commonwealth.
30 Section 7.5. Public Review of Plans.--(a) A plan, program
19920S1650B2060 - 37 -
1 or State Implementation Plan revision required by the Clean Air
2 Act which commits the Commonwealth to adopt air pollution
3 control measures or procedures shall be the subject of a public
4 comment period. The board shall authorize a comment period of no
5 less than sixty (60) days and may, at its discretion, hold
6 public informational meetings or public hearings as part of the
7 comment period.
8 (b) Notice of the proposed plan, program or State
9 Implementation Plan revision or submission shall be published in
10 the Pennsylvania Bulletin and at least six (6) newspapers of
11 general circulation throughout the Commonwealth.
12 (c) A plan or revision subject to this section shall include
13 the following provisions:
14 (1) Statements clearly indicating the specific provisions of
15 the Clean Air Act with which the plan or revision is intended to
16 comply.
17 (2) An analysis of the alternative control strategies
18 considered in arriving at the recommended control strategies and
19 the reasons the department or other agency selected the final
20 strategy.
21 (3) An analysis of the economic impact of the alternative
22 control strategies and the selected strategies on the regulated
23 community and local governments.
24 (4) An analysis of the staff and technical resources needed
25 by the department or other agency to implement the control
26 strategy.
27 (d) After the public comment period and prior to the
28 submission of any plan or State Implementation Plan revision
29 required by the Clean Air Act which commits the Commonwealth to
30 adopt air pollution control measures or procedures, the
19920S1650B2060 - 38 -
1 department shall submit a final plan or revision to the board
2 for its review together with a document which responds to all
3 comments made during the public comment period. No plan, program
4 or State Implementation Plan revision committing the
5 Commonwealth to adopt air pollution control measures or
6 procedures may be submitted to the Environmental Protection
7 Agency without the approval of the board.
8 (e) These provisions shall also apply in the case of plans
9 required by the Clean Air Act which are developed by State
10 agencies other than the department which commit the Commonwealth
11 to the adoption of air pollution control measures or procedures.
12 Section 7.6. Advice to Department.--(a) The department
13 shall consult with the Citizens Advisory Council established
14 under section 448 of the act of April 9, 1929 (P.L.177, No.175),
15 known as "The Administrative Code of 1929," as appropriate in
16 the development and consideration of plans, guidance and
17 regulations needed for the implementation of the Clean Air Act.
18 Nothing in this section shall limit the council's ability to
19 consider, study and review department policies and other
20 activities related to Clean Air Act implementation as provided
21 under section 1922-A of "The Administrative Code of 1929."
22 (b) (1) A Clean Air Technical Advisory Committee shall be
23 appointed by the Secretary of Environmental Resources within
24 thirty (30) days after the effective date of this act. The
25 committee shall consist of eleven (11) members with technical
26 backgrounds in the control of air pollution from stationary or
27 mobile sources. The members shall serve for terms fixed by the
28 Secretary of Environmental Resources. The Secretary of
29 Environmental Resources, the Secretary of Transportation and the
30 chairman of the Pennsylvania Public Utility Commission, or their
19920S1650B2060 - 39 -
1 designees, shall serve as ex-officio members of the committee.
2 (2) The committee, at the request of the department, may be
3 utilized to provide technical advice on department policies,
4 guidance and regulations needed to implement the Clear Air Act.
5 The committee may also make a request to the department to
6 review such a policy, guidance or regulation.
7 (3) The committee shall meet at the call of the Secretary of
8 Environmental Resources, but not less than semi-annually, to
9 carry out its duties. The committee shall select a chairman and
10 such other officers as it deems appropriate.
11 (c) Members of the Citizens Advisory Council and the Clean
12 Air Technical Advisory Committee shall serve without
13 compensation other than reimbursement for reasonable and
14 necessary expenses in accordance with Commonwealth policy.
15 (d) All actions by the Citizens Advisory Council and the
16 Clean Air Technical Advisory Committee to provide advice under
17 this section shall be by majority of those present. A quorum
18 shall consist of a majority of the appointed members.
19 Section 7.7. Economic Impact Report.--(a) For each proposed
20 rulemaking, final-form rulemaking, plan, State Implementation
21 Plan revision or program submitted by the department or other
22 agency to the board under this act and the Clean Air Act, the
23 Department of Commerce shall prepare a report which contains a
24 detailed analysis of the economic impact of such rulemaking,
25 plan, revision or program.
26 (b) The report shall include, but not be limited to:
27 (1) An analysis of the economic impact of the selected
28 control strategies on the regulated community, local governments
29 and consumers.
30 (2) Consideration of testimony received by the board during
19920S1650B2060 - 40 -
1 the public comment period and information received under
2 subsections (c) and (d) of this section relating to compliance
3 costs.
4 (3) Economic data on comparable regulatory programs or plans
5 administered by other states.
6 (4) An analysis of the economic impact of alternative
7 control strategies.
8 (5) All other information the Department of Commerce
9 considers necessary for the board's review.
10 (c) In preparing the report, the Department of Commerce
11 shall consult with the Office of Small Business Ombudsman
12 established by section 7.10 of this act. The Office of Small
13 Business Ombudsman shall be given a reasonable opportunity to
14 review the report prior to its submission to the board and to
15 submit written comments, provide additional information on
16 compliance costs, and offer recommendations on the rulemaking,
17 plan, revision or program. Such comments and recommendations
18 shall be included as appendices to the report.
19 (d) The Department of Commerce is authorized to hold such
20 hearings and meetings, conduct such research, and solicit such
21 comments as are considered necessary to prepare the report.
22 (e) The Department of Commerce shall submit the report to
23 the board upon consideration of the proposed rulemaking, final-
24 form rulemaking, plan, State Implementation Plan revision, or
25 program. The department shall not submit a proposed rulemaking,
26 final-form rulemaking, plan, State Implementation Plan revision,
27 or program to the board under this act and the Clean Air Act
28 unless it is accompanied by the report required by this section.
29 Section 7.8. Small Business Compliance Assistance Program.--
30 (a) The department shall develop and implement a Small Business
19920S1650B2060 - 41 -
1 Stationary Source Technical and Environmental Compliance
2 Assistance Program which shall include the following:
3 (1) Adequate mechanisms for developing, collecting and
4 coordinating information concerning compliance methods and
5 technologies for small business stationary sources and programs
6 to encourage lawful cooperation among such sources and other
7 persons to further comply with this act and the Clean Air Act.
8 (2) Adequate mechanisms for assisting small business
9 stationary sources with pollution prevention and accidental
10 release detection and prevention, including providing
11 information concerning alternative technologies, process
12 changes, products and methods of operation that help reduce air
13 pollution.
14 (3) A compliance assistance program for small business
15 stationary sources which assists small business stationary
16 sources in determining applicable requirements and in receiving
17 permits under this act in a timely and efficient manner.
18 (4) Adequate mechanisms to assure that small business
19 stationary sources receive notice of their rights under this act
20 and the Clean Air Act in such manner and form as to assure
21 reasonably adequate time for such sources to evaluate compliance
22 methods and any relevant or applicable proposed or final
23 rulemaking plan, state implementation plan revision, or program
24 issued under this act and the Clean Air Act.
25 (5) Adequate mechanisms for informing small business
26 stationary sources of their obligations under this act and the
27 Clean Air Act, including mechanisms for referring these sources
28 to qualified auditors or, at the department's option, for
29 providing audits of the operations of such sources to determine
30 compliance with this act.
19920S1650B2060 - 42 -
1 (6) Procedures for consideration of requests from a small
2 business stationary source for modification of:
3 (i) any work practice or technological method of compliance;
4 or
5 (ii) the schedule of milestones for implementing such work
6 practice or method of compliance preceding any applicable
7 compliance date, based on the technological and financial
8 capability of any small business stationary sources. No
9 modification may be granted unless it is in compliance with the
10 applicable requirements of this act and the Clean Air Act,
11 including the requirements of the applicable implementation
12 plan. Where applicable requirements are set forth in Federal
13 regulations, only modifications authorized in such regulations
14 may be allowed.
15 (7) Procedures for soliciting input from and exchanging
16 information with the Office of Small Business Ombudsman
17 regarding compliance requirements for small business stationary
18 sources.
19 (8) Adequate mechanisms for the collection and dissemination
20 of information to small business stationary sources, including,
21 but not limited to:
22 (i) Development of small business stationary source guidance
23 manuals indicating the categories of small businesses subject to
24 the requirements of this act and the Clean Air Act, specific
25 compliance requirements and options, a schedule of compliance
26 deadlines and other pertinent information.
27 (ii) Establishment of a toll-free telephone number dedicated
28 to questions involving small business stationary source
29 compliance.
30 (9) Procedures for assuring the confidentiality of
19920S1650B2060 - 43 -
1 information received from small business stationary sources.
2 (10) Procedures for conducting confidential, on-site
3 consultations with small business stationary sources regarding
4 applicability of compliance requirements.
5 (b) The department shall evaluate the feasibility of
6 contracting with consultants to administer all or part of the
7 Small Business Stationary Source Technical and Environmental
8 Compliance Assistance Program. The department shall submit a
9 report to the Governor, General Assembly, Compliance Advisory
10 Committee and Office of Small Business Ombudsman summarizing the
11 results of this evaluation and the department's recommendations.
12 (c) The department shall consult with the Compliance
13 Advisory Committee established in section 7.9 and the Office of
14 Small Business Ombudsman established in section 7.10 in
15 developing the Small Business Stationary Source Technical and
16 Environmental Compliance Assistance Program.
17 (d) The department shall provide a reasonable opportunity
18 for public comment on the proposed Small Business Stationary
19 Source Technical and Environmental Compliance Assistance
20 Program.
21 (e) The department is authorized to expend funds from the
22 Clean Air Fund to support the development and implementation of
23 the Small Business Stationary Source Technical and Environmental
24 Compliance Assistance Program, Office of Small Business
25 Ombudsman and Compliance Advisory Committee.
26 (f) Upon petition by a source, the department may, after
27 notice and opportunity for public comment, include as a small
28 business stationary source for purposes of this act any
29 stationary source which does not meet the definition of "small
30 business stationary source" in section 3 of this act but which
19920S1650B2060 - 44 -
1 does not emit more than one hundred (100) tons per year of all
2 regulated pollutants.
3 (g) The department, in consultation with the administrator
4 and the Administrator of the Small Business Administration, and
5 after providing notice and opportunity for public hearing, may
6 exclude from the definition of "small business stationery
7 source" in section 3 of this act any category or subcategory of
8 sources that the department determines to have sufficient
9 technical and financial capabilities to meet the requirements of
10 this act and the Clean Air Act without the application of this
11 section.
12 (h) The department may reduce any fee required under this
13 act and the Clean Air Act to take into account the financial
14 resources of small business stationary sources.
15 Section 7.9. Compliance Advisory Committee.--(a) There is
16 hereby established a Compliance Advisory Committee which shall
17 perform all of the following:
18 (1) Provide guidance and recommendations to the department
19 on the development of the Small Business Stationary Source
20 Technical and Environmental Compliance Assistance Program.
21 (2) Render advisory opinions concerning the effectiveness of
22 the Small Business Stationary Source Technical and Environmental
23 Compliance Assistance Program, difficulties encountered and
24 degree and severity of enforcement.
25 (3) Make periodic reports to the administrator concerning
26 the Small Business Stationary Source Technical and Environmental
27 Compliance Assistance Program.
28 (4) Review information for small business stationary sources
29 to assure such information is understandable by the layperson.
30 (5) Have the Small Business Stationary Source Technical and
19920S1650B2060 - 45 -
1 Environmental Compliance Assistance Program serve as the
2 secretariat for the development and dissemination of such
3 reports and advisory opinions.
4 (6) Review and advise the department on rulemakings, plans,
5 plan revisions and programs under this act and the Clean Air Act
6 which affect small business stationary sources.
7 (7) Make recommendations for the development of programs to
8 assist compliance for small business stationary sources,
9 including technical and financial assistance programs.
10 (b) The committee shall consist of eleven (11) members as
11 follows:
12 (1) Four (4) members appointed by the Governor, three (3) of
13 whom shall not be owners or representatives of owners of small
14 business stationary sources.
15 (2) Four (4) members, each of whom shall be an owner or the
16 representative of an owner of a small business stationary
17 source. Of these four (4) members, one shall be appointed by
18 each of the following:
19 (i) The Majority Leader of the Senate.
20 (ii) The Minority Leader of the Senate.
21 (iii) The Majority Leader of the House of Representatives.
22 (iv) The Minority Leader of the House of Representatives.
23 (3) The Secretary of Commerce or his designee.
24 (4) The Secretary of Environmental Resources or his
25 designee.
26 (5) The Executive Director of the Office of Small Business
27 Ombudsman or his designee.
28 (c) The terms of appointed members shall be for four (4)
29 years. Vacancies shall be filled by the original appointing
30 member for the remainder of the unexpired term. Initial terms of
19920S1650B2060 - 46 -
1 appointed members shall be as follows:
2 (1) Of the members appointed by the Governor under
3 subsection (c)(1):
4 (i) Two members shall be appointed for two (2) years.
5 (ii) Two (2) members shall be appointed for four (4) years.
6 (2) Of the members appointed under subsection (c)(2):
7 (i) The Majority Leader of the Senate shall appoint one
8 member for four (4) years.
9 (ii) The Minority Leader of the Senate shall appoint one
10 member for two (2) years.
11 (iii) The Majority Leader of the House of Representatives
12 shall appoint one member for three (3) years.
13 (iv) The Minority Leader of the House of Representatives
14 shall appoint one member for one (1) year.
15 (d) The department shall consult with the advisory committee
16 in the formulation, drafting and presentation of all
17 rulemakings, plans, plan revisions and programs under this act
18 and the Clean Air Act which affect small business stationary
19 sources. The advisory committee shall be given a reasonable
20 opportunity to review and comment on all rulemakings, plans,
21 plan revisions and programs under this act and the Clean Air Act
22 which affect small business stationary sources prior to their
23 submission to the board for consideration. The written report of
24 the committee shall be presented to the board with any
25 submission. The chairman of the committee shall be invited to
26 participate in the presentation before the board of all
27 rulemakings, plans, plan revisions and programs under this act
28 and the Clean Air Act which affect small business stationary
29 sources. Nothing in this act shall preclude any member of the
30 committee from filing a petition for rulemaking with the board
19920S1650B2060 - 47 -
1 in accordance with procedures established by the board.
2 Section 7.10. Small Business Ombudsman.--(a) There is
3 hereby established an Office of Small Business Ombudsman within
4 the Department of Commerce for the purpose of serving as the
5 primary point of contact for small businesses on issues relating
6 to compliance with this act and the Clean Air Act.
7 (b) The Office of Small Business Ombudsman shall perform all
8 of the following:
9 (1) Solicit input from small businesses regarding compliance
10 with this act and the Clean Air Act and interact with
11 organizations representing small businesses, including Small
12 Business Development Centers, the Small Business Administration,
13 industry and trade associations and other entities.
14 (2) Provide guidance and recommendations to the department
15 on the development of the Small Business Stationary Source
16 Technical and Environmental Compliance Assistance Program.
17 (3) Make recommendations to the department regarding the
18 content and operation of the Small Business Stationary Source
19 Technical and Environmental Compliance Assistance Program.
20 (4) Collect and distribute information and materials on the
21 requirements of this act and the Clean Air Act.
22 (5) Report to the Small Business Stationary Source Technical
23 and Environmental Compliance Assistance Program on problems and
24 difficulties experienced by small businesses in complying with
25 this act and the Clean Air Act.
26 (6) Review and comment on economic impact reports under
27 section 7.7 of this act.
28 (7) Serve on the Compliance Advisory Committee established
29 by section 7.9 of this act.
30 (8) Conduct independent evaluations of all aspects of the
19920S1650B2060 - 48 -
1 Small Business Stationary Source Technical and Environmental
2 Compliance Assistance Program.
3 (9) Review and provide comments and recommendations to the
4 Environmental Protection Agency and department regarding the
5 development and implementation of regulations that impact small
6 businesses.
7 (10) Arrange for and assist in the preparation of guidance
8 documents by the Small Business Stationary Source Technical and
9 Environmental Compliance Assistance Program to ensure that the
10 language is readily understandable by the lay person.
11 (11) Assist small businesses in locating sources of funding
12 for compliance with the requirements of this act and the Clean
13 Air Act.
14 (12) Report annually to the Governor and General Assembly on
15 the effectiveness of the Small Business Stationary Source
16 Technical and Environmental Compliance Assistance Program and
17 other issues relating to the impact of the Clean Air Act
18 implementation on small businesses in this Commonwealth.
19 (c) The Office of Small Business Ombudsman shall have an
20 executive director, who shall possess a background in small
21 business and knowledge of environmental compliance issues
22 affecting the operation of small businesses. The executive
23 director shall have the power to employ such staff as is
24 considered necessary to carry out the work of the office.
25 Section 7.11. Transportation Management Associations.--(a)
26 The department, in consultation with the Department of
27 Transportation, may designate transportation management
28 associations to serve specific regions of this Commonwealth to
29 deliver services to employers required by the Clean Air Act to
30 reduce employe vehicle trips and encourage the use of
19920S1650B2060 - 49 -
1 carpooling, vanpooling and public transportation to reduce air
2 pollution.
3 (b) For purposes of this section, transportation management
4 associations shall consist of nonprofit corporations designated
5 by the department to broker transportation services, including,
6 but not limited to, public transportation, vanpools, carpools,
7 bicycling and pedestrian modes, as well as strategies such as
8 flextime, staggered work hours and compressed work weeks to
9 corporations, employes, developers, individuals and other
10 groups.
11 (c) The department is authorized to expend funds from the
12 Clean Air Fund to support the activities of local transportation
13 management associations.
14 Section 7.12. Notice of Sanctions.--(a) Whenever the
15 Commonwealth is notified that it has missed a deadline for
16 taking an action for which it was responsible under the Clean
17 Air Act, the department shall within two (2) working days of the
18 receipt of notice notify the Environmental Resources and Energy
19 Committee of the Senate and the Conservation Committee of the
20 House of Representatives.
21 (b) Whenever the Commonwealth is notified that it may be
22 subject to discretionary or mandatory sanctions under section
23 179 of the Clean Air Act, the department shall within two (2)
24 working days of the receipt of this notice notify the
25 Environmental Resources and Energy Committee of the Senate and
26 the Conservation Committee of the House of Representatives.
27 Section 7.13. Missed Federal Deadlines.--(a) The department
28 shall maintain a report which tracks the compliance of the
29 Environmental Protection Agency with deadlines in the Clean Air
30 Act for developing regulations or guidance on which states must
19920S1650B2060 - 50 -
1 rely to comply with deadlines in the Clean Air Act. The
2 department shall submit the report to the Environmental
3 Resources and Energy Committee of the Senate and the
4 Conservation Committee of the House of Representatives every six
5 (6) months beginning thirty (30) days after the effective date
6 of this act.
7 (b) Whenever the Environmental Protection Agency has missed
8 a deadline outlined in subsection (a) by more than ninety (90)
9 days and, in the opinion of the department, the Environmental
10 Protection Agency has failed to provide it with timely guidance
11 needed to comply with the act in a timely manner, the department
12 shall bring a legal action against the Environmental Protection
13 Agency in a court of competent jurisdiction seeking an
14 injunction to restrain the Environmental Protection Agency from
15 enforcing the applicable Clean Air Act deadline on the
16 Commonwealth until and unless the Environmental Protection
17 Agency develops the appropriate regulation or guidance which
18 allows the Commonwealth a reasonable opportunity to comply with
19 the Clean Air Act.
20 Section 10. Sections 8, 9, 9.1 and 9.2 of the act, amended
21 or added October 26, 1972 (P.L.989, No.245), are amended to
22 read:
23 Section 8. Unlawful Conduct.--It shall be unlawful to fail
24 to comply with [any rule or regulation of the board], or to
25 cause or assist in the violation of, any of the provisions of
26 this act, the Clean Air Act or the rules and regulations adopted
27 under either this act or the Clean Air Act; or to fail to comply
28 with any order, plan approval or operating permit of the
29 department[, to violate or to assist in the violation of any of
30 the provisions of this act or rules and regulations adopted
19920S1650B2060 - 51 -
1 hereunder, to cause air pollution, or to in any manner hinder,
2 obstruct, delay, resist, prevent or in any way interfere or
3 attempt to interfere with the department or its personnel in the
4 performance of any duty hereunder.] or to cause a public
5 nuisance; or to cause air pollution, soil or water pollution
6 resulting from an air pollution incident; or to prevent or
7 interfere with the department or its personnel in their
8 performance of any duty in this act, including denying the
9 department access to the source or facility; or to violate the
10 provisions of 18 Pa.C.S. § 4903 (relating to false swearing) or
11 4904 (relating to unsworn falsification to authorities) in
12 regard to papers required to be submitted under this act. The
13 owner or operator of an air contamination source and the
14 landowner or occupier on whose land an air contamination source
15 is or was located shall not allow pollution of the air, water or
16 other natural resources of the Commonwealth resulting from the
17 source.
18 [Section 9. Penalties.--(a) Summary offense. Any person as
19 herein defined, except a department, board, bureau or agency of
20 the Commonwealth, engaging in unlawful conduct as set forth in
21 section 8 of this act, shall, for each offense, upon conviction
22 thereof in a summary proceeding before a district justice,
23 magistrate, alderman or justice of the peace, be sentenced to
24 pay the costs of prosecution and a fine of not less than one
25 hundred dollars ($100.00) nor more than one thousand dollars
26 ($1,000.00), and, in default thereof, to undergo imprisonment of
27 not less than ten (10) days nor more than thirty (30) days.
28 (b) Misdemeanors. Any person as herein defined, except a
29 department, board, bureau or agency of the Commonwealth, who,
30 within two years after being convicted of a summary offense
19920S1650B2060 - 52 -
1 pursuant to subsection (a) of this section, engages in similar
2 unlawful conduct, shall be guilty of a misdemeanor and, upon
3 conviction thereof, shall, for each separate offense, be subject
4 to a fine of not less than five hundred dollars ($500.00) nor
5 more than five thousand dollars ($5,000.00), or to imprisonment
6 for a period of not more than one year for each separate offense
7 hereunder, or both. For the purposes of this subsection, similar
8 unlawful conduct shall mean a violation of the same order of the
9 department, or a violation of the same provision of any rule or
10 regulation of the department by the same organizational unit of
11 the defendant.
12 (c) For the purpose of this section, violations on separate
13 days shall be considered separate offenses. Where a person
14 engages in continuing unlawful conduct, such person shall be
15 guilty of separate offenses for each day such conduct continues
16 up until the time of hearing or trial.
17 (d) Upon conviction of an association, partnership or
18 corporation of an offense under subsection (a) or (b) of this
19 section, the responsible members, officers, employes or agents
20 may be imprisoned for the term provided therein which shall run
21 concurrently with any term of imprisonment imposed upon such
22 persons individually upon conviction for the same offense.
23 Section 9.1. Civil Penalties.--In addition to proceeding
24 under any other remedy available at law, or in equity, for a
25 violation of a provision of this act, or a rule or regulation of
26 the board, or an order of the department, the hearing board,
27 after hearing, may assess a civil penalty upon a person for such
28 violation. Such a penalty may be assessed whether or not the
29 violation was wilful. The civil penalty so assessed shall not
30 exceed ten thousand dollars ($10,000.00), plus up to two
19920S1650B2060 - 53 -
1 thousand five hundred dollars ($2,500.00) for each day of
2 continued violation. In determining the amount of the civil
3 penalty, the hearing board shall consider the wilfulness of the
4 violation, damage or injury to the outdoor atmosphere of the
5 Commonwealth or its uses, and other relevant factors. It shall
6 be payable to the Commonwealth of Pennsylvania and shall be
7 collectible in any manner provided at law for the collection of
8 debt. If any person liable to pay any such penalty neglects or
9 refuses to pay the same after demand, the amount, together with
10 interest and any costs that may accrue, shall be a lien in favor
11 of the Commonwealth upon the property, both real and personal,
12 of such person, but only after same has been entered and
13 docketed of record by the prothonotary of the county where such
14 is situated. The hearing board may, at any time, transmit to the
15 prothonotaries of the respective counties certified copies of
16 all such liens, and it shall be the duty of each prothonotary to
17 enter and docket the same of record in his office, and to index
18 the same as judgments are indexed, without requiring the payment
19 of costs as a condition precedent to the entry thereof.]
20 Section 9. Penalties.--(a) A person who violates any
21 provision of this act, the Clean Air Act, any rule or regulation
22 adopted under either this act or the Clean Air Act, an order of
23 the department or any condition or term of a plan approval or
24 permit issued under this act commits a summary offense and
25 shall, upon conviction, be sentenced to pay a fine of not less
26 than five hundred dollars ($500.00) nor more than five thousand
27 dollars ($5,000.00) for each separate offense, and, in default
28 of the payment of such fine, may be sentenced to imprisonment
29 for ninety (90) days for each separate offense. Employes of the
30 department authorized to conduct inspections or investigations
19920S1650B2060 - 54 -
1 are declared to be law enforcement officers authorized to issue
2 or file citations for summary violations under this act, and the
3 General Counsel is authorized to prosecute these offenses. For
4 purposes of this subsection, a summary offense may be prosecuted
5 before any district justice in the county where the offense
6 occurred. There is no accelerated rehabilitative disposition
7 authorized for a summary offense.
8 (b) (1) A person who wilfully or negligently violates any
9 provision of this act, the Clean Air Act, any rule or regulation
10 adopted under either this act or the Clean Air Act, an order of
11 the department or any condition or term of a plan approval or
12 permit issued under this act commits a misdemeanor of the second
13 degree and shall, upon conviction, be sentenced to pay a fine of
14 not less than ten thousand dollars ($10,000.00) nor more than
15 fifty thousand dollars ($50,000.00) for each separate offense or
16 to imprisonment for a period of not more than two (2) years for
17 each separate offense, or both.
18 (2) A person who knowingly makes a false statement or
19 representation in any application, record, report, certification
20 or other document required to be either filed or maintained by
21 this act, the Clean Air Act or the regulations promulgated under
22 either this act or the Clean Air Act commits a misdemeanor of
23 the second degree and shall, upon conviction, be sentenced to
24 pay a fine of not less than ten thousand dollars ($10,000.00)
25 nor more than fifty thousand dollars ($50,000.00) for each
26 separate offense or to imprisonment for a period of not more
27 than two (2) years for each separate offense, or both.
28 (3) A person who negligently releases into the ambient air
29 any hazardous air pollutant listed under section 112 of the
30 Clean Air Act or any extremely hazardous substance listed under
19920S1650B2060 - 55 -
1 section 302(a)(2) of the Superfund Amendments and
2 Reauthorization Act of 1986 (Public Law 99-499, 100 Stat. 1613)
3 that is not listed in section 112 of the Clean Air Act and who
4 at the time negligently places another person in imminent danger
5 of death or serious bodily injury commits a misdemeanor of the
6 third degree and shall, upon conviction, be sentenced to pay a
7 fine of not less than ten thousand dollars ($10,000.00) nor more
8 than fifty thousand dollars ($50,000.00) for each separate
9 offense or to imprisonment for a period of not more than one (1)
10 year for each separate offense, or both.
11 (c) (1) A person who knowingly releases into the ambient
12 air any hazardous air pollutant listed under section 112 of the
13 Clean Air Act or any extremely hazardous substance listed under
14 section 302(a)(2) of the Superfund Amendments and
15 Reauthorization Act of 1986 that is not listed in section 112 of
16 the Clean Air Act and who knows at the time that he places
17 another person in imminent danger of death or serious bodily
18 injury commits a felony of the first degree and shall, upon
19 conviction, be sentenced to pay a fine of not less than twenty-
20 five thousand dollars ($25,000.00) nor more than one hundred
21 thousand dollars ($100,000.00) per day for each violation or to
22 imprisonment for a period of not less than two (2) years nor
23 more than twenty (20) years, or both. Any person which is an
24 organization committing such violation shall, upon conviction
25 under this clause, be subject to a fine of not more than one
26 million dollars ($1,000,000.00) per day for each violation. If a
27 conviction of a person under this clause is for a violation
28 committed after a first conviction of such person under this
29 clause, the maximum punishment shall be doubled with respect to
30 both the fine and imprisonment.
19920S1650B2060 - 56 -
1 (2) In determining whether a defendant who is an individual
2 knew that the violation placed another person in imminent danger
3 of death or serious bodily injury:
4 (i) the defendant is responsible only for actual awareness
5 or actual belief possessed; and
6 (ii) knowledge possessed by a person other than the
7 defendant, but not by the defendant, may not be attributed to
8 the defendant; except that, in proving a defendant's possession
9 of actual knowledge, circumstantial evidence may be used,
10 including evidence that the defendant took affirmative steps to
11 be shielded from relevant information.
12 (3) It is an affirmative defense to a prosecution under this
13 subsection that the conduct charged was freely consented to by
14 the person endangered and that the danger and conduct charged
15 were reasonably foreseeable hazards of either of the following:
16 (i) an occupation, a business or a profession; or
17 (ii) medical treatment or medical or scientific
18 experimentation conducted by professionally approved methods,
19 and such other person had been made aware of the risks involved
20 prior to giving consent. The defendant may establish an
21 affirmative defense under this subclause by a preponderance of
22 the evidence.
23 (4) All general defenses, affirmative defenses and bars to
24 prosecution that may apply with respect to other State criminal
25 offenses may apply under this clause and shall be determined by
26 the courts according to the principles of common law. Concepts
27 of justification and excuse applicable under this section may be
28 developed according to those principles.
29 (5) For purposes of this subsection, the term "organization"
30 means a legal entity, other than a government, established or
19920S1650B2060 - 57 -
1 organized for any purpose; the term also includes a corporation,
2 a company, an association, a firm, a partnership, a joint stock
3 company, a foundation, an institution, a trust, a society, a
4 union or any other association of persons.
5 (d) For purposes of subsections (b) and (c), the term
6 "serious bodily injury" means bodily injury which involves a
7 substantial risk of death, unconsciousness, extreme physical
8 pain, protracted and obvious disfigurement or protracted loss or
9 impairment of the function of a bodily member, organ or mental
10 faculty.
11 Section 9.1. Civil Penalties.--(a) In addition to
12 proceeding under any other remedy available at law or in equity
13 for a violation of a provision of this act, the Clean Air Act or
14 a rule or regulation promulgated under either this act or the
15 Clean Air Act or an order, plan approval or permit issued under
16 this act, the department may assess a civil penalty for the
17 violation. The penalty may be assessed whether or not the
18 violation was wilful. The civil penalty so assessed shall not
19 exceed twenty-five thousand dollars ($25,000.00) per day for
20 each violation. In determining the amount of the penalty, the
21 department shall consider the wilfulness of the violation,
22 damage to air, soil, water or other natural resources of the
23 Commonwealth or their uses, financial benefit to the person in
24 consequence of the violation, deterrence of future violations,
25 cost to the department, and other relevant factors.
26 (b) When the department proposes to assess a civil penalty,
27 it shall inform the person of the proposed amount of the
28 penalty. The person charged with the penalty shall then have
29 thirty (30) days to pay the proposed penalty in full, or if the
30 person wishes to contest the amount of the penalty or the fact
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1 of the violation to the extent not already established, the
2 person shall forward the proposed amount of the penalty to the
3 hearing board within the thirty (30) day period for placement in
4 an escrow account with the State treasurer or any Commonwealth
5 bank or post an appeal bond to the hearing board within thirty
6 (30) days in the amount of the proposed penalty, provided that
7 the bond is executed by a surety licensed to do business in the
8 Commonwealth and is satisfactory to the department. If, through
9 administrative or final judicial review of the proposed penalty,
10 it is determined that no violation occurred or that the amount
11 of the penalty shall be reduced, the hearing board shall, within
12 thirty (30) days, remit the appropriate amount to the person
13 with any interest accumulated by the escrow deposit. Failure to
14 forward the money or the appeal bond at the time of the appeal
15 shall result in a waiver of all legal rights to contest the
16 violation or the amount of the civil penalty. The amount
17 assessed after administrative hearing or after waiver of
18 administrative hearing shall be payable to the Commonwealth and
19 shall be collectible in any manner provided by law for the
20 collection of debts, including the collection of interest at the
21 rate established in section 6.3(c), which shall run from the
22 date of assessment of the penalty. If any person liable to pay
23 any such penalty neglects or refuses to pay the same after
24 demand, the amount, together with interest and any costs that
25 may accrue, shall constitute a debt of such person, as may be
26 appropriate, to the Clean Air Fund. The debt shall constitute a
27 lien on all property owned by that person when a notice of lien
28 incorporating a description of the property of the person
29 subject to the action is duly filed with the prothonotary of the
30 court of common pleas where the property is located. The
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1 prothonotary shall promptly enter upon the civil judgment or
2 order docket, at no cost to the department, the name and address
3 of the person, as may be appropriate, and the amount of the lien
4 as set forth in the notice of lien. Upon entry by the
5 prothonotary, the lien shall attach to the revenues and all real
6 and personal property of the person, whether or not the person
7 is solvent. The notice of lien, filed under this subsection,
8 which affects the property of the person shall create a lien
9 with priority over all subsequent claims or liens which are
10 filed against the person, but it shall not affect any valid
11 lien, right or interest in the property filed in accordance with
12 established procedure prior to the filing of a notice of lien
13 under this subsection.
14 Section 9.2. Disposition of Fees, Fines and Civil
15 Penalties.--(a) All fines, civil penalties and fees collected
16 under this act shall be paid into the Treasury of the
17 Commonwealth in a special fund known as the ["]Clean Air
18 Fund,["] hereby established, which, along with interest earned,
19 shall be administered by the department for use in the
20 elimination of air pollution. Fees deposited into the fund shall
21 be used as authorized in sections 6.3, 7.8 and 7.11 of this act.
22 The department may establish such separate accounts as may be
23 necessary or appropriate to implement the requirements of this
24 act and the Clean Air Act. The board shall adopt rules and
25 regulations for the management and use of the money in the fund.
26 (b) The Clean Air Fund may be supplemented by appropriations
27 from the General Assembly, the Federal, State or local
28 government or any private source.
29 (c) The Clean Air Fund shall not be subject to 42 Pa.C.S.
30 Ch. 37 Subch. C (relating to judicial computer system).
19920S1650B2060 - 60 -
1 Section 11. The act is amended by adding a section to read:
2 Section 9.3. Continuing Violations.--Each day of continued
3 violation and each violation of any provision of this act, the
4 Clean Air Act, any rule or regulation adopted under either this
5 act or the Clean Air Act, any order of the department or any
6 condition or term of any plan approval or permit issued pursuant
7 to this act shall constitute a separate offense and violation.
8 Section 12. Section 10 of the act is repealed.
9 Section 13. The act is amended by adding sections to read:
10 Section 10.1. Enforcement Orders.--(a) The department may
11 issue such orders as are necessary to aid in the enforcement of
12 the provisions of this act. These orders shall include, but not
13 be limited to, orders modifying, suspending, terminating or
14 revoking any plan approvals or permits, orders requiring persons
15 to cease unlawful activities or cease operation of a facility or
16 air contamination source which in the course of its operation is
17 in violation of any provision of this act, the Clean Air Act,
18 any rule or regulation promulgated under either this act or the
19 Clean Air Act, plan approval or permit, order to take corrective
20 action or to abate a public nuisance or an order requiring the
21 testing, sampling or monitoring of any air contamination source
22 or orders requiring production of information. This order may be
23 issued if the department finds that any condition existing in or
24 on the facility or source involved is causing or contributing to
25 or is creating a danger of air pollution or if it finds that the
26 permittee or any person is in violation of any provision of this
27 act or of any rule, regulation or order of the department.
28 (b) The department may, in its order, require compliance
29 with such conditions as are necessary to prevent or abate air
30 pollution or effect the purposes of this act.
19920S1650B2060 - 61 -
1 (c) An order issued under this section shall take effect
2 upon notice, unless the order specifies otherwise. An appeal to
3 the hearing board of the department's order shall not act as a
4 supersedeas: Provided, however, That, upon application and for
5 cause shown, the hearing board may issue such a supersedeas
6 under rules established by the hearing board.
7 (d) The authority of the department to issue an order under
8 this section is in addition to any remedy or penalty which may
9 be imposed under this act. The failure to comply with an order
10 is declared to be a public nuisance.
11 Section 10.2. Appealable Actions.--A person aggrieved by an
12 order or other administrative action of the department issued
13 under this act or any person who participated in the public
14 comment process for a plan approval or permit shall have the
15 right, within thirty (30) days from actual or constructive
16 notice of the action, to appeal the action to the hearing board
17 in accordance with the act of July 13, 1988 (P.L.530, No.94),
18 known as the "Environmental Hearing Board Act," and 2 Pa.C.S.
19 Ch. 5 Subch. A (relating to practice and procedure of
20 Commonwealth agencies).
21 Section 10.3. Limitation on Action.--The provisions of any
22 other statute to the contrary notwithstanding, actions for civil
23 or criminal penalties under this act may be commenced at any
24 time within a period of six (6) years from the date the offense
25 is discovered.
26 Section 14. Sections 12, 12.1, 13 and 13.1 of the act,
27 amended or added October 26, 1972 (P.L.989, No.245), are amended
28 to read:
29 Section 12. Powers Reserved to Political Subdivisions.--(a)
30 Nothing in this act shall prevent counties, cities, towns, home
19920S1650B2060 - 62 -
1 rule municipalities, townships or boroughs from enacting
2 ordinances with respect to air pollution which [will not be less
3 stringent than the provisions of this act] meet the requirements
4 of this act, the Clean Air Act or the rules and regulations
5 promulgated [pursuant to its provisions] under either this act
6 or the Clean Air Act. This act shall not be construed to repeal
7 existing ordinances, resolutions or regulations of the
8 aforementioned political subdivisions existing at the time of
9 the effective date of this act, except as they may be less
10 stringent than the provisions of this act, the Clean Air Act or
11 the rules or regulations adopted under either this act or the
12 Clean Air Act.
13 (b) The administrative procedures for the abatement,
14 reduction, prevention and control of air pollution set forth in
15 this act shall not apply to any [political subdivision of the
16 Commonwealth which has an approved air pollution control
17 agency.] county of the first or second class of the Commonwealth
18 which has and implements an air pollution control program that
19 meets the requirements of this act, the Clean Air Act and the
20 rules and regulations promulgated under both this act and the
21 Clean Air Act and has been approved by the department.
22 (c) (1) Whenever, either upon complaint made to or
23 initiated by the department, the department finds that any
24 person is in violation of air pollution control standards, or
25 rules and regulations promulgated pursuant to the grant of
26 authority made in subsection (b), the department shall give
27 notification of that fact to that person and to the air
28 pollution control agency of the [political subdivision] county
29 involved.
30 (2) If such violation continues to exist after said
19920S1650B2060 - 63 -
1 notification has been given, the department may take any
2 abatement action provided for under the terms of this act.
3 (d) Whenever the department finds that violations of [the
4 air pollution control standards, or rules and regulations
5 promulgated pursuant to the grant of authority under subsection
6 (b)] this act, the Clean Air Act or the rules and regulations
7 promulgated under either this act or the Clean Air Act are so
8 widespread that such violations appear to result from a failure
9 of the local county control agency involved to enforce those
10 [standards, or rules and regulations,] requirements, the
11 department may assume the authority to enforce [those standards,
12 and rules and regulations] this act in that county.
13 (e) The department shall have the power to refuse approval,
14 or to suspend or rescind approval, once given, to any county air
15 pollution control agency if the department finds that such
16 county agency is unable or unwilling [so] to conduct an air
17 pollution control program [as] to abate or reduce air pollution
18 problems within its jurisdiction in [an effective manner]
19 accordance with the requirements of this act, the Clean Air Act
20 or the rules and regulations promulgated under both this act and
21 the Clean Air Act.
22 (f) Whenever the department takes action under the
23 provisions of subsections (d) or (e) of this section, it shall
24 give written notification to the air pollution control agency of
25 the [political subdivision] county involved and such
26 notification shall be [subject to the appeal provisions of
27 clause (4.1) of section 4 of this act] an appealable action.
28 (g) Irrespective of subsection (b) above, and in order that
29 the civil and criminal penalties and equitable remedies for air
30 pollution violations shall be uniform [except insofar as they
19920S1650B2060 - 64 -
1 are inconsistent with the jurisdictional limitations of the
2 minor judiciary and the Philadelphia Municipal Court,]
3 throughout the Commonwealth, the penalties and remedies set
4 forth in this act [in sections 9, 9.1, 10 and 11,] shall be the
5 penalties and remedies available for enforcement of any
6 municipal air pollution ordinances or regulations, and shall be
7 available to any municipality, public official, or other person
8 having standing to initiate proceedings for the enforcement of
9 such municipal ordinances or regulations, and the amounts of the
10 fines or civil penalties set forth herein shall be the amounts
11 of the fines or civil penalties assessable and to be levied for
12 violations of any municipal ordinances or regulations. It is
13 hereby declared to be the purpose of this section to enunciate
14 further that the purpose of this act is to provide additional
15 and cumulative remedies to abate the pollution of the air of
16 this Commonwealth. Any action for the assessment of civil
17 penalties brought for the enforcement of a municipal air
18 pollution ordinance or regulation shall be brought in accordance
19 with the procedures set forth in such ordinance. Where any
20 municipal ordinance or regulation does not provide a procedure
21 for the assessment of civil penalties, the provisions [of
22 subsection (h) of this section] related to assessment and
23 collection of civil penalties of section 9.1 of this act shall
24 apply.
25 [(h) Any person, as herein defined, except a department,
26 board, bureau, or agency of the Commonwealth, engaging in
27 conduct in violation of a municipal air pollution control
28 ordinance, shall, for each offense, upon conviction thereof in a
29 civil proceeding before a judge of the Municipal Court of
30 Philadelphia, district justice, magistrate, alderman or justice
19920S1650B2060 - 65 -
1 of the peace be sentenced to pay the cost of prosecution and a
2 civil penalty of not less than twenty-five dollars ($25.00), nor
3 more than five hundred dollars ($500.00), for each day of
4 continued violation. Such a penalty may be assessed whether or
5 not the violation was wilful. Failure to pay any such penalty
6 within the time prescribed by law shall be punishable as a civil
7 contempt. Notwithstanding anything contained in section 9.2 of
8 this act, all civil penalties and fees collected under this
9 subsection shall be paid to the appropriate political
10 subdivision, as provided by law, and shall be collectible in any
11 manner provided by law for the collection of debt. If any person
12 liable to pay any such penalty neglects or refuses to pay the
13 same after demand, the amount, together with interest and any
14 costs that may accrue, shall be a lien in favor of the
15 appropriate political subdivision upon the property, both real
16 and personal, of such person, but only after the same has been
17 entered and docketed of record by the prothonotary of the county
18 where such is situated: Provided, That nothing contained in this
19 subsection shall preclude any public official from seeking, at
20 law or at equity or before any appropriate administrative body,
21 the assessment of civil penalties in the amount provided by
22 section 9.1 of this act.]
23 Section 12.1. Construction.--Nothing in this act shall be
24 construed as estopping the Commonwealth, or any district
25 attorney or solicitor of a municipality, from proceeding in
26 courts of law or equity to abate pollutions forbidden under this
27 act, or abate nuisances under existing law. It is hereby
28 declared to be the purpose of this act to provide additional and
29 cumulative remedies to abate the pollution of the air of this
30 Commonwealth, and nothing contained in this act shall in any way
19920S1650B2060 - 66 -
1 abridge or alter rights of action or remedies now or hereafter
2 existing in equity, or under the common law or statutory law,
3 criminal or civil, nor shall any provision of this act, or the
4 granting of any plan approval or permit under this act, or any
5 act done by virtue of this act, be construed as estopping the
6 Commonwealth, persons or municipalities, in the exercise of
7 their rights under the common law or decisional law or in
8 equity, from proceeding in courts of law or equity to suppress
9 nuisances, or to abate any pollution now or hereafter existing,
10 or enforce common law or statutory rights. No courts of this
11 Commonwealth having jurisdiction to abate public or private
12 nuisance shall be deprived of such jurisdiction to abate any
13 private or public nuisance instituted by any person for the
14 reason that such nuisance constitutes air pollution.
15 [Section 13. Public Nuisances.--A violation of any order or
16 of any provision of any rule or regulation promulgated pursuant
17 to a local air pollution code or to a State air pollution act,
18 which limits or controls the emission of any air contaminant
19 shall constitute a public nuisance and shall be abatable in the
20 manner provided by law.]
21 Section 13. Public Nuisance.--A violation of this act, the
22 Clean Air Act or of any rule or regulation promulgated under
23 either this act or the Clean Air Act or any order, plan approval
24 or permit issued by the department under this act shall
25 constitute a public nuisance. The department shall have the
26 authority to order a person causing a public nuisance to abate
27 the public nuisance. In addition, the department or any
28 Commonwealth agency which undertakes to abate a public nuisance
29 may recover the expenses of abatement following the process for
30 assessment and collection of a civil penalty contained in
19920S1650B2060 - 67 -
1 section 9.1 of this act. Whenever the nuisance is maintained or
2 continued contrary to this act, the Clean Air Act or any rule or
3 regulation promulgated under either this act or the Clean Air
4 Act, an order, plan approval or permit, the nuisance may be
5 abatable in the manner provided by this act. A person who causes
6 the public nuisance shall be liable for the cost of abatement.
7 Section 13.1. Search Warrants.--Whenever an agent or employe
8 of the department, charged with the enforcement of the
9 provisions of this act, has been refused access to property, or
10 has been refused the right to examine any air contamination
11 source, or air pollution control equipment or device, or is
12 refused access to or examination of books, papers and records
13 pertinent to any matter under investigation, such agent or
14 employe may apply for a search warrant to any Commonwealth
15 official authorized by the laws of the Commonwealth to issue the
16 same to enable him to have access [and], examine and seize such
17 property, air contamination source, air pollution control
18 equipment or device, or books, papers and records, as the case
19 may be. It shall be sufficient probable cause to issue a search
20 warrant that the inspection is necessary to properly enforce the
21 provisions of this act.
22 Section 15. Sections 13.3, 13.4 and 13.5 of the act are
23 repealed.
24 Section 16. The act is amended by adding a section to read:
25 Section 13.6. Suits to Abate Nuisance and Restrain
26 Violations.--(a) Any activity or condition declared by this act
27 to be a nuisance or which is otherwise in violation of this act
28 shall be abatable in the manner provided by law or equity for
29 the abatement of public nuisance. In addition, in order to
30 restrain or prevent any violation of this act, the Clean Air Act
19920S1650B2060 - 68 -
1 or the rules and regulations promulgated under either this act
2 or the Clean Air Act or any plan approval or permit or orders
3 issued by the department, or to restrain the maintenance and
4 threat of public nuisance, suits may be instituted in equity or
5 at law in the name of the Commonwealth upon relation of the
6 Attorney General, the General Counsel, the district attorney of
7 a county or the solicitor of a municipality affected, after
8 notice has first been served upon the Attorney General of the
9 intention of the General Counsel, district attorney or solicitor
10 to proceed. Such proceedings may be prosecuted in the
11 Commonwealth Court or in the court of common pleas of the county
12 where the activity has taken place, the condition exists or the
13 public is affected, and to that end jurisdiction is conferred in
14 law and equity upon such courts. Except in cases of emergency
15 where, in the opinion of the court, the exigencies of the case
16 require immediate abatement of the nuisance, the court may in
17 its decree fix a reasonable time during which the person
18 responsible for the nuisance may make provision for the
19 abatement of the same.
20 (b) In cases where the circumstances require or the public
21 health is endangered, a mandatory preliminary injunction,
22 special injunction or temporary restraining order may be issued
23 upon the terms prescribed by the court, notice of the
24 application having been given to the defendant in accordance
25 with the rules of equity practice, and in that case the Attorney
26 General, the General Counsel, the district attorney or the
27 solicitor of a municipality shall not be required to give bond.
28 In any such proceeding the court shall, upon motion of the
29 Commonwealth, issue a prohibitory or mandatory preliminary
30 injunction if it finds that the defendant is engaging in
19920S1650B2060 - 69 -
1 unlawful conduct as defined by this act or is engaged in conduct
2 which is causing immediate and irreparable harm to the public.
3 In addition to an injunction, the court in such equity
4 proceedings may levy civil penalties in the same manner as the
5 department in accordance with section 9.1 of this act.
6 (c) Except as provided in subsection (d) of this section,
7 any person having an interest which is or may be affected may
8 commence a civil action to compel compliance with this act or
9 any rule, regulation, final order or plan approval or permit
10 issued pursuant to this act by any owner, operator, landowner or
11 occupier alleged to be causing or contributing to a violation of
12 any provision of this act, the Clean Air Act or any rule or
13 regulation promulgated under either this act or the Clean Air
14 Act or any plan approval, permit or order issued by the
15 department. In addition to seeking to compel compliance, any
16 person may request the court to award civil penalties. The court
17 shall use the factors and amounts contained in section 9.1 of
18 this act in awarding civil penalties under this subsection. Such
19 penalties shall be paid into the Clean Air Fund established by
20 section 9.2 of this act. Except where 42 Pa.C.S. (relating to
21 judiciary and judicial procedure) requires otherwise, the courts
22 of common pleas shall have jurisdiction of these actions. This
23 action may not be commenced if the person or operator is in
24 compliance with a permit issued under this act or with a
25 schedule of compliance contained in a permit, consent order or
26 other legally enforceable document or if the department has
27 commenced and is diligently prosecuting a civil action in a
28 Federal or State court or is in litigation before the hearing
29 board regarding any order, plan approval or operating permit
30 issued under this act, but, in any such action in a Federal or
19920S1650B2060 - 70 -
1 State court or before the hearing board, any person having or
2 representing an interest which is or may be adversely affected
3 may intervene as a matter of right without posting bond.
4 (d) An action under subsection (c) of this section may not
5 be commenced prior to sixty (60) days after the plaintiff has
6 given notice, in writing, of the violation to the department and
7 to any alleged violator.
8 (e) The sixty (60) day notice provisions of subsection (d)
9 of this section to the contrary notwithstanding, any action
10 under subsection (c) of this section may be initiated
11 immediately upon written notification to the department in the
12 case where the violation or condition complained of constitutes
13 an imminent threat to the health or safety of the plaintiff or
14 would immediately affect a legal interest of the plaintiff.
15 (f) The court, in issuing any final order in an action
16 brought under subsection (c) of this section, may award costs of
17 litigation, including attorney and expert witness fees, to any
18 party whenever the court determines such an award is
19 appropriate. Except as provided in subsection (b) of this
20 section, the court may, if a temporary restraining order or
21 preliminary injunction is sought, require the filing of a bond
22 or equivalent security in accordance with the Pennsylvania Rules
23 of Civil Procedure.
24 Section 17. This act shall take effect immediately.
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