Pennsylvania’s Reasonably Available Control Technology (RACT) III Rule Expected in 2021

January 11, 2021
Katherine L. Vaccaro, Esq. and Michael C. Nines, P.E., LEED AP, Technical Consultant
MGKF Special Alert - Pennsylvania Forecast 2021

More than two decades ago, Pennsylvania established Reasonably Available Control Technology standards, applicable to facilities whose emissions of Oxides of Nitrogen (NOx) and Volatile Organic Compounds (VOC) exceed major source thresholds, as a way to demonstrate compliance with the federal National Ambient Air Quality Standards (NAAQS) for ozone.  As the name implies, RACT standards are technology based, intended to drive the application of reasonably available air pollution control technology to achieve emission reductions from existing sources.  But unlike similar technology-based standards at the federal level, the notion of “reasonable availability” does take into account both technological and economic feasibility.

The Clean Air Act (CAA) requires EPA to revaluate the NAAQS every five years to ensure that the standards in effect remain sufficiently protective of human health and the environment.  In this context, EPA has strengthened the NAAQS for ozone several times over the years.  In response, PADEP has implemented more stringent RACT standards, most recently in 2019 with the promulgation of what is commonly called “RACT II.”  Incidentally, following a Sierra Club challenge to RACT II, the Third Circuit Court of Appeals vacated in August 2020 certain elements of RACT II relating to the use of selective catalytic reduction to control NOx emissions.  Sierra Club v. EPA, No. 19-2562 (3d. Cir. 2019).  PADEP is in the process of reconsidering the RACT II standards, but at present, it is unclear whether DEP will try to save the existing standards by developing supplemental supporting information, or whether it will establish new, more stringent emission limits.  As directed by the Court, Pennsylvania’s state plan implementing RACT II must be approved by EPA by 2022, and if not, EPA will need to issue its own Federal Implementation Plan.

While these RACT II issues continue to unfold, PADEP is separately poised to propose the third iteration of the state’s RACT standards (RACT III) this year, this time in response to EPA’s 2015 ozone NAAQS.

PADEP started working on the new RACT III standards in late 2019 in conjunction with Pennsylvania’s Air Quality Technical Advisory Committee (AQTAC) and the Citizens Advisory Council (CAC), although the rulemaking is still in its nascent stages.  Thus far, PADEP is considering establishing presumptive emission limits on certain sources subject to RACT III that were in existence before August 3, 2018.  In addition, the proposed rule would establish a “case-by-case” control evaluation requirement for certain sources.  For facilities subject to the RACT III rule, detailed notification requirements are being considered such that affected facilities would need to demonstrate how they plan to comply with the requirements, even if the sources are subject to presumptive RACT. If finalized, these notifications would be required no more than six months after a final rulemaking is published.  PADEP is also considering allowing case-by-case determinations made under RACT II to satisfy the case-by-case requirements of RACT III, except in circumstances where presumptive requirements of RACT III are more stringent.  And further, it is unclear how PADEP’s current reconsideration of the RACT II standards in response to the Third Circuit’s decision could bear upon this proposed approach. 

For specific types of emission sources, the RACT III proposal would seek to control fugitive sources of VOCs at oil and gas facilities by aggregating with an associated stationary source to determine the boundaries of the source with regard to the 1.0-ton and 2.7-ton applicability thresholds.  This could be meaningful for the oil and gas industry, as relatively minor equipment changes, such as adding new piping and related components, have historically been exempt from Plan Approval when evaluated on a project-specific basis.  Combustion units (i.e., boilers) rated between 20 and 50 MMBtu/hour heat input would have enhanced tune-up requirements consistent with the Maximum Achievable Control Technology (MACT) rule for boilers.  For larger combustion units, PADEP is considering a presumptive NOx RACT requirement of 0.10 lb/MMBtu for propane and liquid petroleum gas-fired combustion units rated at 50 MMBtu/hour or greater.  And for simple cycle turbines rated between 1,000 and 3,000 brake horsepower and firing natural gas, PADEP is considering lowering the NOx limit to 85 ppmdv @ 15 percent oxygen, down from 150 ppmdv in RACT II.  Several other source-specific RACT limitations are being considered in the rule, including direct-fired ovens/furnaces, internal combustion engines, and cement kilns, among others.

Between the court mandated RACT II reconsideration process and the RACT III rulemaking development, PADEP appears to have its hands full at least on the RACT front.  Yet, PADEP is still reporting that it expects to deliver a proposed RACT III rule to the Environmental Quality Board (EQB) during the first quarter of 2021.  If authorized by the EQB, a proposed rule could be published in the Pennsylvania Bulletin as early as the second quarter of 2021, thereby triggering the requirement to allow for public comment.