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Letter from Nancy Parks, Clean Air Committee Chair
October 18, 2004
To: Secretary Kathleen McGinty
Department of Environmental Protection
16th floor, Rachael Carson State Office Building
P.O. Box 2063
Harrisburg, PA 17105-2063
In the political atmosphere as it exists today, it is disappointing
& of great concern that the DEP/BAQ accepts that “EPA’s
priorities are DEP’s priorities” as described by BAQ
Director Joyce Epps at the AQTAC August 10, 2004 meeting.
EPA has made notable failures to protect public health over the
last three and one half years, and Pennsylvania’s environmental
protection agency should be developing policies and any additional
regulations necessary for Pennsylvania to achieve all legal requirements
under the Clean Air Act, not just on time, but as expeditiously
as practicable. We should be leaders in the northeastern U.S. Ozone
Transport Commission (OTC), and we have the existing authority under
state law, the Air Pollution Control Act, to accomplish such a goal.
I would pose these questions to the Bureau of Air Quality:
- How does Pennsylvania maintain its commitment, and in fact
legal obligation, to protect human health and also create and
maintain a positive environmental benefit in conjunction with
emissions reductions, when emissions “creep” upward
as federal and state laws are weakened?
- How can Pennsylvania’s legally enforceable SIP account
for emissions creep upward – and in fact balance it - when
we had so little leeway to achieve ozone standard attainment by
2005 for the non-defunct one hour ozone standard, and later for
the new 8 hour ozone standard?
My general comments on the enforcement proposal follow.
- Is “Enhanced RE” in effect? I do not believe that
we should ever fool ourselves in thinking that Rule Effectiveness
can ever approach 90% or greater. RE is unenforceable, many times
unmeasureable and unable to be verified.
- I.A.3: Comprehensive environmental management systems have
nothing to do with meeting regulatory obligations. At no time
should any legally required or DEP discretionary enforcement inspections
be reduced or eliminated because of an industry’s acceptance
or implementation of an ISO process, or other environmental management
system;
- I.A.3: Define a “natural minor”;
- I.A.4a: All inspections should be unannounced; i.e., DEP should
not notify a source that it is coming prior to arrival; inspectors
should also review all citizens’ complaints, since these
while sometimes anecdotal, are an accurate indicator of problems
at a source;
- I.A.4b: At no time should it be discretionary for any DEP staff
person or inspector to clearly state the potential or apparent
violation in a report that documents compliance issues; all violations
should be clearly spelled out by their nature, severity and duration.
- I.A.4b: All field inspection reports should become hard copy
– and therefore available to the general public –
in a source’s file in the regional or central office.;
- I.B: 25 Pa Code § 127.513 is not sufficient for Title
V facilities and sources. Reporting should be quarterly for any
Title V controlled source;
- I.E: Permit fees should be at least as high as surrounding
states if not the OTC;
- DEP/BAQ should be able to account for the expense of all program
costs through its permit fee structure;
- II.A.1: we agree that all violations should be documented in
writing, and all documentation should be kept for review by general
public;
- II.A.1 and II.A.2 and II.A.3: a violation is a violation “on
the spot”. There is no reason why a DEP inspector would
need 14 days to mull over whether or not a violation has occurred.
They know that there is a current violation while they are on
site. There should be no discretion to document a violation, and
an NOV should be issued at the time that a violation is identified;
- II.A.1: this policy contains no prohibition on waiving NOV’s
for violations that endanger public health or environment;
- II.A.3: DEP is creating the discretion for staff persons including
inspectors to ignore a violation and the issuance of the NOV that
should be applied to that violation. The general public have a
right to know, and the right to see documentation of pollution
emissions and pollution events that will affect their health and
habitat. An analogous situation might be that a Pennsylvania legislator
is stopped for speeding at 100 mph on Route 80. A clear violation
that it does not take a state trooper 14 days to determine validity.
That legislator should receive a “NOV” on the spot.
I’m sure that I would.
- II.B.1: No. Under no circumstances should a source violating
and enforceable provision of any permit be permitted to “fix
the problem”, “under the table”, as it were.
A violation should receive an NOV each and every time it occurs.
Only under this policy framework will a source know exactly where
it stands, and the policy will act as an incentive for sources
NOT TO VIOLATE?
- II.B.3: At no time should an NOV “be closed out in the
data system “ … eFACTS or otherwise. All records and
documentation of an NOV are necessary since even after compliance,
documentation is needed to determine recurrent violators –
the proverbial “bad actor”.
- III.B: No violation should take 6 months to resolve.
- III.B: All corrections of violations should be immediately
corrected or the source should be shut down.
- IV.C: DEP should also consider in the determination of civil
penalties, the economic benefit to the source of the avoidance
of compliance, the magnitude of the violation, the severity of
the damage that it will cause to human health and the environment
in which we live, and the frequency of violation by this source,
owner or operator of the source.
- IV.D: The “permit bar” is an appropriate prohibition
that again will act as an incentive to prevent violation in the
first place; the permit bar should always be applied if there
is an outstanding violation.
We urge you to formulate the most comprehensive and straightforward
enforcement policy possible since this will serve to eliminate guess
work for applicable sources and more certainty for the public that
they are protected from illegal air pollution emission events.
Thank you.
Nancy F. Parks
Chair, Clean Air Committee
Pennsylvania Chapter, Sierra Club
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