Air Management Services Expected to Continue Advancement of Air Toxics Regulations Requiring Health Risk Assessments
As published in our Special Alert in May 2022 and subsequently updated, the City of Philadelphia’s Air Management Services (AMS) is anticipated to continue advancement of a substantive rulemaking package into 2023 seeking revisions to existing Air Management Regulation VI Control of Emissions of Toxic Air Contaminants (the “AMR VI”).
Under the proposed AMR VI, permit applicants seeking an air permit or license, or any permit renewal required by the AMS code (with limited exceptions) – including Title V renewals – would be required to determine whether their facilities have the potential to emit any one of the more than 200 listed air toxics in an amount above the designated pollutant-specific applicable threshold. If so, then an applicant would be required to conduct a health risk assessment for which AMS’ “Risk Screening Workbook” may be used and must demonstrate that the proposed activity does not pose an unreasonable risk as compared to published inhalation reference values for the relevant air toxics. Notably, the proposed AMR VI would require AMS to review the existing air toxics concentrations surrounding an applicant’s facility prior to acting on the permit application. Although the proposed rule language and supporting documents lack critical detail on how this assessment would be completed, this evaluation would suggest that AMS must account for, and make decisions based on, emissions generated by other emission sources, in addition to those emitted by the applicant source itself.
The proposed AMR VI rulemaking presumably caught many potentially regulated entities by surprise, as the rulemaking was published at the Department of Records with a date of final effectiveness by June 1, 2022, unless a public hearing was requested. Potentially impacted entities and those interested in the regulatory changes requested a public hearing in advance of the June 1 deadline. A virtual public hearing subsequently was held in August 2022, with formal written comments due to AMS by September 2022. We understand that a substantial number of comments were received by AMS and that the City is analyzing these submissions and will make a final determination as to whether or how the proposed AMR VI will need to be modified further to address the comments received. As for next steps, Section 8-407(c) of the Home Rule Charter requires that a report of the hearing be provided that either reaffirms the proposed regulations or modifies them with approval of the Law Department. Then the Department of Public Health will summarize the comments provided by each commenter (or in the case of written comments, incorporate the written comments), provide a short response to comments, and prepare a summary of the changes AMS intends to make to the proposed regulations and explanation of the reasons for the changes. It is unclear at this time if a modification of the proposed AMR VI will be subject to the same public notice and publication on the Department of Records website as the original May 2022 proposal, or whether the rule will simply be finalized without additional opportunity for comment.
Due to the scope of the proposed AMR VI rulemaking and potential inclusion of novel “cumulative” risk assessment approaches, AMR VI warrants close attention in 2023.