Clean AirCounCil .

October 20, 2016

Via Certified Mail and Email

Administrator Gina McCarthy

Office ofthe Administrator

USEPA Headquarters

Room 3000, William Jefferson Clinton Building
1200 Avenue, N.W.

Mail Code: 1101A

Washington, DC 20460
(mccarthy.gina@epa.gov)

Gautam Srinivasan, Deputy Associate General Counsel
USEPA Headquarters -

William Jefferson Clinton Building

1200 Avenue, N.W.

Mail Code: 2355A

Washington, DC 20460

(srinivasangautam@epa.gov)

Re: Petition for Notice of De?ciency
Allegheny County Health Department
Allegheny County, 
Section 502(i) of the Clean Air Act 
Inadequate Implementation of a Title Program

Dear Administrator McCarthy:

The Clean Air Council (the ?Council?) submits this petition to request that the
Environmental Protection Agency publish a Notice of Deficiency with respect to the
implementation of the Title program by the Allegheny County Health Department
(?Department?), located in SOuthwestern The City of Pittsburgh and a number of
other municipalities are located in Allegheny County. It is a highly industrial area with at least
32 current major sources.

The Council is a non?profit environmental organization headquartered at 135 South 19th
Street, Suite 300, Philadelphia, 19103. The Council maintains an office in
Pittsburgh. For more than 40 years, the Council has worked to improve air quality across
The Council has members throughout the Commonwealth who support its
mission to protect everyone?s right to breathe clean air.

 

Philadelphia l35 S. l9lh Slreei Suite 300 Philadelphia, PA l9l03 26567?4004 Fox 2l5-5o7?579l 
Harrisburg ?37 N. Front Slreel Suile l3 Harrisburg, PA l7l Dl 7l7~230-8806 Fox 7l7-230?8808 
Wilmington I W. lOrh Sreel Suile (50.7 Wilmington, DE l980l 302v69l-0l l2 



Three other environmental organizations support this petition. PennEnvironment, Inc.
("PennEnvironment") is a non?profit based organization with over 15,000 dues?
paying members, and nearly 150,000 online activists and volunteers. It advocates for clean air,
clean water, and the preservation of natural resources. Among other activities
in pursuit of these goals, it researches and distributes analytical reports on environmental
issues including the effects of pollution and infrastructure on our water resources, advocates
before legislative and administrative bodies on clean water and energy issues, engages in
environmental litigation when necessary, and conducts public education programs on clean
water issues and other environmental priorities.

Citizens for Future (?PennFuture?) is a non-profit advocacy organization
whose mission is to lead transition to a clean energy economy. It works on
behalf of its members to protect air, land and water, and empower citizens to
build sustainable communities for future generations.

Clean Water Action is an environmental non-profit organization working for clean, safe
and affordable water, prevention of health-threatening pollution, and creation of
environmentally?safe jobs and businesses. Clean Water Action has been working to improve air
quality in the Pittsburgh area for 20 years, and it currently has 9,000 members in Allegheny
County. 

I. Executive Summary.

 

The basis for this petition is a longstanding and continuing programmatic backlog in the
Department?s processing of Title applications. Section 503(c) of the Clean Air Act requires the
Department to approve or disapprove a Title application within 18 months. 42 U.S.C.
?7661b(c). This requirement is reiterated in regulations. 40 C.F.R. The
Department has failed to meet this deadline for the overwhelming majority of the current 32
major sources in Allegheny County.

A longstanding backlog in the processing of Title applications undermines the public
participation requirements of the program. See 42 U.S.C. ?7661a(b)(6) (requiring EPA to issue
Title permit regulations providing "[a]dequate, streamlined, and reasonable procedures for
expeditiously determining when applications are complete, for processing such applications, for
public notice, including offering an opportunity for public comment and a hearing This is a
matter of great importance to the Council and its members. 

EPA regulations require state Title programs to be conducted in accordance with the
Title requirements of the Clean Air Act at all times. 40 C.F.R. These requirements
include the requirement to process a Title permit application within 18 months. See 40 C.F.R.


Section 502(i) of the Clean Air Act requires EPA to provide notice to a State if it makes a
determination that a permitting authority is not adequately administering a program in
accordance with the requirements of Title V:

Whenever the Administrator makes a determination that a
permitting authority is not adequately administering and
enforcing a program, or portion thereof, in accordance with the
requirements of this title, the Administrator shall provide notice
to the State and may, prior to the expiration of the 18?month
period referred to in paragraph (2), in the Administrator's
discretion, apply any of the sanctions specified in section 179(b).

42 U.S.C. ?7661a(i)(1) (emphasis added). While the determination itself is discretionary, the
notice is mandatory. See id. (?Whenever the Administrator makes a determination the
Administrator shall provide notice When EPA issues a notice, it may impose sanctions
under Section 179 ofthe Clean Air Act. 42 U.S.C. ?766la(i)(1), citing 42 U.S.C. ?7509(b). EPA
regulations require that a Section 502(i) notice be published in the Federal Register. 40 C.F.R.


We request that EPA follow its precedents in issuing a Notice of Deficiency for Maricopa
County, Arizona and the State of Wisconsin, for similar delays in reviewing Title applications.
See Notice of Deficiency for Clean Air Operating Permits Program; Maricopa County, AZ, 70 Fed.
Reg. 32,243, 32,244 (June 2, 2005); Notice of Deficiency for Clean Air Act Operating Permit
Program in Wisconsin, 69 Fed. Reg. 10,167, 10,168, 10,170 (March 4, 2004).

The evidence in support of this petition includes the following documentation:

(1) three reports of the Office of the Controller of Allegheny County
demonstrating noncompliance with the 18?month processing requirement in
2014 and 2015,

(2) documentation of breakdown reports from the U.S. Steel Edgar Thomson
facility demonstrating that major sources are not otherwise required to
comply with all applicable regulatory requirements, and

(3) internal tracking documents prepared by the Department on July 19, 2016
and July 28, 2016, demonstrating continuing noncompliance with the 18?
month processing requirement in 2016.

The Department has argued that this is a difficult problem and that the Department is
working on it. But as noted in Part VI ofthis petition (Legal Analysis), the publication of a
Notice of Deficiency is mandatory once EPA makes a determination that a state permitting
agency is not adequately implementing the Title program. In the case of Maricopa County,
Arizona and the State of Wisconsin, EPA made such a factual determination and issued a Notice
of Deficiency, despite the fact that it was a difficult problem and the agency was working on it.

There are significant harms arising out ofthe failure of the Department to timely
process Title applications. The purpose of the Title permit is to memorialize all the
requirements that apply to a major source under the Clean Air Act:

Each permit issued under this title shall include enforceable
emission limitations and standards, a schedule of compliance, a
requirement that the permittee submit to the permitting
authority, no less often than every 6 months, the results of any
required monitoring, and such other conditions as are necessary
to assure compliance with applicable requirements of this Act,
including the requirements of the applicable implementation
plan.

Section 504(a)(1) of the Clean Air Act, 42 U.S.C. ?7661c(a)(1) (emphasis added). Without a final
permit, it is difficult for someone to know the requirements that apply or do not apply to a
major source.

ll. Approval of the Department?s Authority to Implement the Title 
Program.

EPA approved the authority of the Department to implement a Title program in 2001.
Direct Final Rule, Clean Air Act Full Approval of Partial Operating Permit Program; Allegheny
County; 66 Fed. Reg. 55,112, 55,115 (November 1, 2001) (to be codified at 40
C.F.R. part 70, Appendix A paragraph 

The Department has full approval for a partial program, meaning that the program is
limited to sources within Allegheny County. Clean Air Act Full Approval of Partial Operating
Permit Program; Allegheny County; 66 Fed. Reg. 55,113, col. 1 (?The term
?partial? is a geographic reference. It is not a reference to the approval status ofthe 
program?). See 40 may approve a partial program that applies to all
part 70 sources within a limited geographical area?).

Ill. The Department's Delay in Processing Title Permit Applications.

3. The Independent Auditor?s Report by the Office of the Controller, Allegheny
County (August 27, 2015).

On August 27, 2015, the Office ofthe Controller of Allegheny County issued an
Independent Auditor?s Report that criticized the Department?s delayed processing of Title 
applications for many major sources, for calendar year 2014. Exhibit 1, County of Allegheny,
Office ofthe Controller, independent Auditor?s Report, dated August 27, 2015. The Controller
made a finding that the Department had not complied with Section 503(c) of the Clean Air Act,
which requires approval or disapproval of a Title application within 18 months. id. at 7. The

4

Controller made a finding that the Department had not issued or denied a Title permit within
the 18?month period for at least five major sources tested. Id. at 4.

The report stated that a significant cause of this problem is the manner in which the
Department processes Title applications:

ACHD does not have an effective system in place to track delays in
the provision of information requested from major sources in
order to process Title permit applications. Consequently, ACHD
cannot effectively hold major sources accountable for complying
with requests for additional information within a reasonable
period of time. Denying Title permit applications when major
sources do not provide ACHD with the information it needs in
order to make a determination in a reasonable period of time
would facilitate compliance with Title Section 503(c) of
the Clean Air Act.

Id. at 4?5.
The Controller made recommendations for addressing this problem. Id. at 7?8.

In response to the report, the Department stated that it ?recognizes the need for
improvement.? Id. at 13. It noted that this is a difficult problem and that it was working on the
problem. Id. at 13-15. But nothing in the response suggests that the Department?s
implementation of the Title program is adequate.

In an attempt to defend its delays, the Department asserted that "[s]ources operating
without an issued Title permit are still required to comply with terms set in previous
installation/operating permits, as well as, all other applicable regulations and are inspected
regularly by ACHD inspectors.? Id. at 13. But this is not a legal defense to a petition that the
Department is not adequately implementing the Title program. In addition, the assertion
itself is factually incorrect, as we will note in Part IV with respect to the U5. Steel facility in
Braddock, 

The Department also attempts to justify its delays by asserting that it takes time to
obtain follow?up information from permit applicants. Id. at 13 ("Unfortunately, there is
currently little incentive for the source to return the information But the real
problem is that applicants know that the Department will delay the processing of these permits
well beyond the 18-month processing period required by the Clean Air Act.

b. The Analysis of the Allegheny County Health Department?s Air Quality
Program by the Office of the Controller, Allegheny County (May 16, 2016).

On May 16, 2016, the Controller issued another report critical ofthe Department?s
implementation of its Title program, this time for the calendar year 2015. Exhibit 2, County of
Allegheny, Office of the Controller, Analysis of the Allegheny County Health Department?s Air
Quality Program (Non-Audit Service), dated May 16, 2016.

In contrast to the first report, this was a non?audit report. It made a finding that
adequate measures to eliminate the backlog of outstanding permit applications had not been
taken in a timely fashion. Id. at 11. The report noted that operating permits under Title had
not yet been issued or denied for a number of outstanding initial permit applications and
renewal permit applications. Id. at 11?12.1 By way of example, the Department cited a renewal
application for Gulf Oil that was submitted in 2007, but not decided until July 2014, seven years
later. Id. at 13.

The report concluded that the backlog in permit application processing would likely
continue until adequate measures are taken to address the operational factors contributing to
the backlog. Id. at 15. It made a number of recommendations to address these problemsThe Independent Auditor?s Report by the Office of the Controller, Allegheny
County (August 26, 2016).

On August 26, 2016, the Controller issued another Independent Auditor?s Report that
criticized the Department?s delayed processing of Title applications, this time for the calendar
year 2015. Exhibit 3, County of Allegheny, Office ofthe Controller, Independent Auditor?s
Report, dated August 26, 2016.

Again, the Controller made a finding that the Department had not complied with Section
503(c) of the Clean Air Act, which requires approval or disapproval of a Title application
within 18 months. Id. at 5. The Controller made a finding that the Department had not met
this requirement for nine out of the ten major sources tested. Id. at 4.

The report noted the continuing problem in the manner in which the Department
processes Title applications:

 

1 The report identifies 50 outstanding initial applications and 140 outstanding renewal
applications, on pages 11?12. These numbers include all operating permit applications, for both
major sources (subject to Title V) and minor sources (not subject to Title V). The present
petition only involves major sources subject to Title V. In actuality, there are at least 32 current
major sources in Allegheny County. Exhibit 10, Letter dated July 28, 2016, enclosing chart
inventory of major sources in Allegheny County.

6

Since ACHD does not have an effective system in place to track
delays in the provision of information requested from major
sources, major sources that do not provide the needed
information timely are not being held accountable.

Id. at 5.

The Controller made recommendations for meeting the requirements of the Clean Air Act. Id.
at 5-6.

In response to the report, the Department again noted that this is a difficult problem
and that it is working on it. Id. at 10?11. But nothing in the response suggests that the
Department?s implementation of the Title program is adequate.

IV. Example of Delayed Processing of a Title Permit Application: the U.S. Steel
Edgar Thomson Facility in Braddock, 

U.S. Steel Corporation owns and Operates a major source at its Edgar Thomson facility in
Braddock, This facility is one ofthe facilities identified in the first Independent
Auditor?s Report as a facility whose Title application had been delayed by the Department.
Exhibit 1, Independent Auditor?s Report dated August 27, 2015, page 4.

This facility has been operating since the late 18005. Congress enacted the Title 
program in 1990. The company submitted its Title application on November 27, 1995. The
facility finally obtained a Title permit on April 13, 2016 over 20 years later, and 14 years
after the Department?s receipt of final authority to implement its Title program.

Contrary to its asserted defense in response to the first report, the Department has not
required this Title facility to comply with the terms of ?all other applicable regulations.? See
id. at 13. For years, the facility has violated a regulatory requirement to file a notice of intent to
shut down equipment that is likely to cause the release of air pollutants to the atmosphere.

See Allegheny County Air Pollution Control Regulations, Article XXI, Section 
available at In response to a right?to?know
request by the Council, in March 2016 the Department produced a number of documents
relating to alleged "breakdowns? associated with its furnaces. Exhibit 4, Breakdown Reports
Submitted by US. Steel (Edgar Thomson facility) to the Allegheny County Health Department,
January 16, 2013 to January 14, 2016.

Specifically, every month for at least three years (January 2013 to January 2016), the
company filed a breakdown report for each of two furnaces, after taking them off line for a
planned outage. This practice does not comply with the Department?s regulations,
which require a breakdown notification only for an event that is ?sudden or unexpected.? Id.,
Section Section 2101.20 (?"Breakdown" means any sudden or unexpected event

which has the effect of causing any air pollution control equipment, process equipment or any
other potential source of air contaminants to fail, malfunction or otherwise abnormally operate



In reality, what the company was required to do was file a notice of intent to shut down,
not a breakdown report. A notice of intent to shut down is required where ?any air pollution
control equipment is shut down for reasons other than a breakdown.? Id., Section
Because these breakdown reports have been filed for planned outages,
they are not and cannot be considered ?sudden or unexpected.?

The Department?s regulatory reporting requirements for shutdowns and breakdowns
have been incorporated into the State Implementation Plan for the Commonwealth of
Direct Final Rule, Approval and Promulgation of Air Quality Implementation
Plans; Revisions to Allegheny County Articles XX and XXI, 67 Fed. Reg. 68,935,
68,941, col. 1 (November 14, 2002); 40 C.F.R. (Part Reporting,
Testing, and Monitoring).

This distinction between a shutdown and a breakdown matters a great deal. The
requirements for shutdowns are more stringent than the requirements for breakdowns. A
notice of intent to shut down must be submitted by the company at least 24 hours in advance,
and the Department must act as as possible on the notice. Article XXI, Section
If the Department does not take action within 10 days, the request is deemed
denied. Id., Section The company has not complied with these requirements in
the case of the attached reports, because they are dated after the relevant event.

In addition, a notice of intent to shut down must include measures to minimize the
amount of air contaminants emitted. ld., Section In filing the attached
reports, the company did not comply with this requirement.

In the case of both shutdowns and breakdowns, the company must identify the air
pollutants and quantify the emissions. Id., Section Section
In. filing the attached reports, the company did not fully comply with these
requirements. While the company generally referred to ?particulates? and it did not
quantify the emissions. Rather, in every report it repeatedly stated that the amount is
"unknown.?

There is a significant harm arising out of the reporting of these planned outages
as breakdowns, as opposed to submitting notices of intent to shut down. Because a report is
filed after the fact, the air pollution incidents avoid review by the Department, which is denied
the opportunity to observe the incidents and explore opportunities for emissions reduction and
monitoring. In addition, by not providing the specific information relating to air releases, the
company fails to disclose information on its air emissions that may be harmful to people
exposed to them.

V. Inventory of Status of Title Permits and Permit Applications.

In response to another right-to-know request by the Council, the Allegheny County
Health Department produced a number of internal tracking spreadsheets on August 11, 2016.2
They provide an updated status of Title permits and applications for major sources.

For the overwhelming majority of the 32 current major sources, the reports
demonstrate delays by the Department past the 18-month processing period required by the
Clean Air Act. Many of these delays are extensive, and some involve decades oftime.

The following charts are based primarily on the Department?s Operating Permit Status
Report, as supplemented by other documents provided by the Department.3 The Status Report
identifies the duration of time when the applications were pending. This duration of time was
measured as ofJuly 19, 2016, the apparent date of the creation of this document.4

a. Pending Applications for More than 18 Months.

Based on available information, there are at least 15 pending Title permit applications
that have been pending for more than 18 months:

 

 

 

 

 

 

 

 

 

Facility Date Permit Date Permit Date Date Days Application
Issued5 Expired Application Application Has Been
Received Deemed Pending
Complete (as of July 19,
2016)
Eastman Chemical No permit No permit 11/27/1995 01/25/1996 7540 days
Resins, lnc.
(95?0058) (over 20 years)
Allegheny Ludlum, LLC No permit No permit 11/27/1995 05/08/1996 7540 days
(95?0059)
(over 20 years)

 



 

2 Exhibit 5, Operating Permit Status Report Major Sources; Exhibit 6, Operating Permit
Tracking Report by Source Type and Issue Date, pages 7-8; Exhibit 7, All Operating Permits
issued From 01/01/2014 to 07/19/2016; Exhibit 8, List of Operating Permit Applications
Received From 01/01/2014 to 07/19/2016; Exhibit 9, Expired Operating Permits; Exhibit 10,
Letter dated July 28, 2016, enclosing chart inventory of major sources in Allegheny County.

3 See Exhibit 5, Operating Permit Status Report Major Sources.

4 Although the document is undated, we may infer it was prepared on July 19,2016, by adding
the number of days an application was pending to the receipt date.

5 Unless otherwise noted, dates are based on Exhibit 10, Chart Inventory of Major Sources.

9

 

 

 

 

 

 

 

 

 

Facility Date Permit Date Permit Date Date Days Application
Issued6 Expired Application Application Has Been
Received Deemed Pending
Complete (as of July 19,
2016)
Liberty Pultrusions 4/8/2002 4/7/2007 8/23/20087 3618 days
(95-0015)
(over 9 years)
Buckeye Terminals 2/11/2003 2/10/2008 8/10/20078 3266 days
Coraopolis (over 8 years)
(95-0040)
Coraopolis Terminals 2/11/2003 2/10/2008 08/10/20079 3266 days
DE LLC
(95-0041) (over 8 years)
US Steel Irvin Plant 2/18/2005 2/17/2010 07/31/2009 2545 days
(95-0050)
(over 6 years)
Universal Stainless 12/20/2005 12/19/2010 06/18/2010 2223 days
and Alloy Products,
Inc. (over 6 years)
(95-0027)
AKJ Industries 12/28/200610 12/28/2011 08/17/201211 1432 days
(01-0637)
(over 3 years)

 

 

 

 

 

 

 

5 Unless otherwise noted, dates are based on Exhibit 10, Chart Inventory of Major Sources.

7 Exhibit 6, Operating Permit Tracking Report. While not listed by the Department in Exhibit 5,
it apparently should have been listed. See Exhibit 10, Chart Inventory of Major Sources.

3 Id. In the Status Report, the Department identifies September 29, 2011 as the renewal
application date. See Exhibit 5, Operating Permit Status Report. Documents from the
Department do not indicate a permit was granted after the renewal application on August 10,
2007.

9 Exhibit 10, Chart Inventory of Major Sources. In the Status Report, the Department identifies
February 23, 2015 as the renewal application date, but this appears to be a typographical error.
See Exhibit 5, Operating Permit Status Report. Documents from the Department do not
indicate a permit was granted after the renewal application on August 10, 2007. February 23,
2015 is the date of a letter requesting an administrative amendment.

10 Exhibit 9, Expired Operating Permits.

11 Exhibit 10, Chart Inventory of Major Sources.

10

 

 

 

 

 

 

 

 

 

 

Facility Date Permit Date Permit Date Date Days Application
Issued12 Expired Application Application Has Been
Received Deemed Pending
Complete (as of July 19,
2016)

Braddock Recovery, 04/13/201013 04/12/2015 01/14/201314 1232 days

Inc.

(96-0265) (over 3 years)

NRG Energy Center 11/19/2009 11/18/2014 5/19/201415 792 days

Pittsburgh LLC

(14-0022) (over 2 years)

Allegheny Energy 12/16/2010 12/15/2015 05/30/2014 781 days

Supply (Springdale)

(99?0580) (over 2 years)

Alcosan No permit No permit 06/20/2014 760 days

(Allegheny County

Sanitary Authority) (over 2 years)

(95-0035)

TMS USX Edgar N0 permit NO permit 06/30/2014 750 days

Thomson

(96?0225) (over 2 years)

PPG Industries, Inc. 5/19/2010 5/18/2015 09/25/2014 663 days

Springdale Complex

(95-0057) (over 18 months)

US Steel Clairton 3/27/2012 3/26/2017 10/14/2014 644 days

Plant

(95-0052) (over 18 months)

 

 

 

 

 

 

In fact, two of these applications (Eastman Chemical Resins, lnc., Allegheny Ludlum, LLC) have
been pending for more than 20 years.

With respect to Allegheny Ludlum, LLC, there have been some recent developments. On
September 29, 2016, the Department published notice of a proposed Title permit. The
Department scheduled a public hearing for October 31, 2016, which is also the deadline for

written comments.

 

12 Unless otherwise noted, dates are based on Exhibit 10, Chart Inventory of Major Sources.

 

13 Exhibit 9, Expired Operating Permits.

14 Exhibit 10, Chart Inventory of Major Sources.

15 Exhibit 6, Operating Permit Tracking Report. While not listed by the Department in Exhibit 5,
it apparently should have been listed. See Exhibit 10, Chart Inventory of Major Sources.

11

In response, and with the support of other environmental organizations, the Council
submitted a request to the Department for an extension of the comment period and a
postponement of the public hearing, because of the need to review voluminous information
and documents accumulated over the course of twenty years. The Department denied this
request. Exhibit 11, Email from Jason Willis, Assistant Solicitor, Allegheny County Health
Department, dated October 18, 2016. The Department has allowed the company to enjoy an
extension of time of over twenty years for processing this permit application, but it has denied
a reasonable request by environmental organizations for an extension of the 30?day time
period for submitting public comments.

The Department only obtained authority to implement its Title program in 2001, and
this approval occurred after the submission of these two applications. But these facilities have
continued to operate without a decision on their Title permit applications for nearly 15 years,
since the time of that approval.

in response to the most recent audit report, the Department makes the following
assertion:
Most applications received are not administratively complete, and
require sufficient re-requests for information. it should be noted
that permit applications for Title sources can be several
hundreds of pages of detailed information.

Exhibit 3, Independent Auditor?s Report, dated August 26, 2016, page 10.

But it would be wrong to justify the Department?s delays under the rationale that the clock has
not starting running for purposes of the 18?month requirement, or that the clock has stopped
running. The 18?month time period for processing runs from the date when a complete
application is received. See 42 U.S.C. 5661b(c) ("The permitting authority shall approve or
disapprove a completed application (consistent with the procedures established under this title
for consideration of such applications), and shall issue or deny the permit, within 18 months
after the date of receipt thereof To obtain the benefit ofthe ?application shield? and
continuing operating despite the lack of a valid Title permit, there must be some
determination of completeness or deeming of completeness. See 42 U.S.C. 5661b(c); 40 C.F.R.
If the applications are not complete, then the Department has tolerated
longstanding operation of facilities in violation ofthe permit requirement.

12

b. Past Applications Pending for More than 18 Months.16

Based on available information, for eight facilities that have recently received permits or
permit renewals, the Department granted those permits only after a delay beyond the 18-
month period required by the Clean Air Act:

 

 

 

 

 

 

 

 

 

Facility Date Permit Date Permit Date Date Days Application

Issued17 Expires Application Application Was Pending

Received Deemed
Complete
Koppers Inc. 23/10/201618 3/9/2021 11/27/1995 01/26/1996 7540 days
Clairton Tar Plant
(95-0029) (over 20 years)
US Steel - Edgar 04/13/2016 4/12/2021 11/27/1995 1/26/1996 7443 days
Thomson Plant
(95?005 1) (over 20 years)
Neville Chemical 09/28/2015 9/27/2020 11/27/1995 03/05/1996 7245 days
Company
(95?0060) (over 19 years)
Gulf Oil, L.P. Neville 07/11/2014 7/10/2019 08/13/2007 2524 days
Island Terminal
(95-0062) (over 6 years)
Bellefield Boiler Plant 12/18/2013 12/17/2018 09/30/2008 1905 days
(95-0047)
(over 5 years)

University of 12/19/2013 12/18/2018 08/29/2011 11/02/2011 843 days
Pittsburgh, PGH
Campus (over 2 years)
(02?0647)
Ashland Inc. (2650 02/22/2013 2/21/2018 08/05/2011 08/12/2011 567 days
Neville Island) (amended
(95-0037) 03/15/2013) (over 18 months)

 

 

 

 

 

 

 

16 This is not necessarily a complete inventory of all past Title applications that had been
pending for more than 18 months. Rather, it is limited to past delays in processing applications
for the 32 current major sources, as can be observed from the Department?s documents. This
list of 32 sources does not include closed facilities. For example, a Title permit was granted to
Shenango Incorporated on May 22, 2013, over two years after the company submitted an
application on October 12, 2010. Exhibit 5, Operating Permit Status Report. That facility was

closed in 2016.

17 Unless otherwise noted, dates are based on Exhibit 10, Chart Inventory of Major Sources.
18 A permit was issued on August 10, 2016, after the Department prepared these documents.

13

 

In fact, three of these facilities (Koppers Inc. Clairton Tar Plant, US Steel Edgar Thomson
Plant and Neville Chemical Company) had been pending for more than 19 years. Considering
the 15 current outstanding applications and seven past outstanding applications, the
Department has not complied with the 18?month requirement for at least 22 current major

sources.

c. Pending and Recently-Approved Applications Pending for Less than 18 Months.

Based on available information, and to complete this inventory of current major
sources, there are a total of 10 current and recently?approved permit applications that have
been or were pending for less than 18 months. -

 

 

 

 

 

 

Facility Date Permit Date Permit Date Date Days Application Has
Issued? Expired Application Application Been Pending
Received Deemed
Complete (as ofJuly 19, 2016)
Pittsburgh No permit No permit 01/22/201520 544 days
Terminals
Corporation (3 days less than 18
(Neville facility, months)21
formerly a 
minor source)
Cheswick 12/30/2010 12/29/2015 06/09/2015 406 days
Generating Station
(95?0054) (less than 18 months)
NRG Power 2/15/2011 2/14/2016 06/24/2015 391 days
(Brunot Island)
(95-0056) (less than 18 months)
General Electric 12/30/2010 12/29/2015 06/29/2015 386 days

Bridgeville Glass
Plant
(95-0005)

 

 

 

 

 

(less than 18 months)

 

 

19 Unless otherwise noted, dates are based on Exhibit 10, Chart Inventory of Major Sources.

2? Exhibit 10, Chart Inventory of Major Sources. While not listed by the Department in Exhibit 5,
it apparently should have been listed.
21 With no evidence that this application has since been decided, the application has now been
pending for more than 18 months. See Exhibit 10, Chart Inventory of Major Sources.

14

 

 

 

 

 

 

 

 

 

Facility Date Permit Date Permit Date Date Days Application Has
issued22 Expired Application Application Been Pending
Received Deemed
Complete (as of July 19, 2016)

Pittsburgh 3/24/2015 3/23/2020 3/17/201423 372 days
Allegheny Co. (as of date of
Thermal, LTD granting of permit)
(14?0044)

(less than 18 months)
Bay Valley Foods 6/14/2005 6/13/201024 10/08/2015 285 days
(95?0079)

(less than 18 months)
Sunoco Partners 6/30/2011 6/29/2016 12/30/201525 202 days
Marketing 
Terminals, L.P. (less than 18 months)
(15?0007)
Imperial Landfill 10/13/2011 10/12/2016 01/13/2016 188 days
(95?0068) 

(less than 18 months)
Kelly Run Sanitation 10/5/2011 10/4/2016 03/22/2016 119 days
Landfill
(96?0190) (less than 18 months)
Monroeville Landfill 10/5/2011 10/4/2016 03/28/2016 113 days

(Chambers
Development

Company, Inc.)

(96-0215)

 

 

 

 

 

(less than 18 months)

 

The fact that these applications have been or were pending for less than 18 months does not
undermine the fact that the Department has not complied with the 18?month statutory
requirement for the overwhelming majority of the current 32 major sources in Allegheny

County.

 

22 Unless otherwise noted, dates are based on Exhibit 10, Chart Inventory of Major Sources.

23 Exhibit 6, Operating Permit Tracking Report. While not listed by the Department in Exhibit 5,
it apparently should have been listed.
24 Based on available information, the permit was not renewed because the facility converted
from coal to natural gas, and the recent application reflects the change in fuel.
25 Exhibit 6, Operating Permit Tracking Report. While not listed by the Department in Exhibit 5,
it apparently should have been listed.

15

 

VI. Legal Analysis.

a. Statutory and Regulatory Law.

The Clean Air Act requires procedures for expeditious processing of Title applications
and an opportunity for public participation, including public comment and a hearing. See 42
U.S.C. ?7661a(b)(6) (requiring EPA to issue Title permit regulations providing ?[a]dequate,
streamlined, and reasonable procedures for expeditiously determining when applications are
complete, for processing such applications, for public notice, including offering an opportunity
for public comment and a hearing (emphasis added).

Section 503(c) of the Clean Air Act requires the Department to approve or disapprove a
Title application within 18 months:

The permitting authority shall approve or disapprove a
completed application (consistent with the procedures
established under this subchapter for consideration of such
applications), and shall issue or deny the permit, within 18
months after the date of receipt thereof 

42 U.S.C. ?7661b(c) (emphasis added). This requirement is reiterated in part 70
regulations. 40 C.F.R. 

EPA regulations require state Title programs to be conducted in accordance with the
Title requirements ofthe Clean Air Act, at all times:

Any State program approved by the Administrator shall at all
times be conducted in accordance with the requirements of this
part and of any agreement between the State and the
Administrator concerning operation of the program.

40 C.F.R. ?70.10(b) (emphasis added). These requirements include the requirement to process
a Title permit application within 18 months. 40 C.F.R. 

Section 502(i) of the Clean Air Act requires EPA to provide notice to a State if it makes a
determination that a permitting authority is not adequately administering a program in
accordance with the requirements of Title V:

Whenever the Administrator makes a determination that a
permitting authority is not adequately administering and
enforcing a program, or portion thereof, in accordance with the
requirements of this title, the Administrator shall provide notice
to the State and may, prior to the expiration of the 18?month

16

period referred to in paragraph (2), in the Administrator's
discretion, apply any of the sanctions specified in section 179(b).

42 U.S.C. ?7661a(i)(1) (emphasis added). While the determination itself is discretionary, the
notice is mandatory. See id. (?makes a determination shall provide notice 

EPA regulations require that a Section 502(i) notice be published in the Federal Register:

Whenever the Administrator makes a determination that a
permitting authority is not adequately administering or
enforcing a part 70 program, or any portion thereof, the
Administrator will notify the permitting authority of the
determination and the reasons therefore. The Administratorwill
publish such notice in the FEDERAL REGISTER.

40 C.F.R. (emphasis added). When it does this, it may impose sanctions under
Section 179 of the Clean Air Act, in its discretion. 42 U.S.C. ?7661a(i)(1), citing 42 U.S.C.
?7509(b).

For all the reasons set forth above, the Council requests that EPA make a finding that
the Department is not adequately implementing the Title program, and publish a Notice of
Deficiency in the Federal Register. This will start the clock running for triggering further
sanctions under the Clean Air Act.

If a state permitting agency fails to take significant action to assure adequate
administration of its program within 90 days of publication of the Notice of Deficiency, EPA may
exercise its discretion to take one or more of the following actions: (1) impose sanctions under
Section 179(b) of the Clean Air Act, (2) withdraw approval of a Title program in whole or in
part, and (3) promulgate, administer, or enforce a Federal program under Title V. 40 C.F.R.


If the situation continues for a period of 18 months after the publication of a Notice of
Deficiency, EPA must impose sanctions. 42 U.S.C. ?7661a(i)(2); 40 C.F.R. If the
situation continues for two years, EPA must promulgate, enforce, and administer its own Title 
program, unless the deficiency has been cured within 18 months. 42 U.S.C. ?7661a(i)(4); 40
C.F.R. 

EPA has promulgated regulations setting criteria for determining whether to withdraw
Title program approval. EPA may withdraw Title authority for in a timely way to
act on any applications for permits including renewals and revisions.? 40 C.F.R. 
The Department?s failure to timely process numerous permit applications would constitute
grounds for withdrawal ofthe Department?s Title authority, if this practice continues for two
years following the publication of a Notice of Deficiency.

17

b. Legal Precedents.

On at least two other similar occasions, EPA published a Notice of Deficiency for
inadequate implementation of a Title program under Section 502(i). The Council requests
that EPA follow these precedents and publish a Notice of Deficiency.

Maricopa County, Arizona missed deadlines for issuing initial Title permits and had a
backlog of renewal applications. Notice of Deficiency for Clean Air Operating Permits Program;
Maricopa County, AZ, 70 Fed. Reg. 32,243, 32,244 (June 2, 2005). EPA stated that "Maricopa
County?s processing of permit revisions is deficient; and Maricopa County has not
demonstrated that it is providing sufficient staffing.? Id. at 32,243. Although Maricopa County
had initiated a number of changes to its Title program, EPA still published a Notice of
Deficiency because believes a NOD [Notice of Deficiency] is necessary in light of the
existing issues, and to ensure that those issues are adequately addressed going forward.? Id. at
32,244.

Similarly, the Wisconsin Department of Natural Resources failed to issue initial title 
permits within the time allowed by law. Notice of Deficiency for Clean Air Act Operating Permit
Program in Wisconsin, 69 Fed. Reg. 10,167, 10,168 (March 4, 2004). EPA stated that
deficiencies had been found in the agency?s Title operating permit program. Id. at 10,168,
10,170. In documents submitted by the state, the state permitting agency admitted it was
understaffed. Id. at 10,170. Although the state agency indicated it was undertaking steps to
complete the issuance of all Title operating permits, EPA still was ?issuing this notice [of
deficiency] based on the totality of facts and circumstances currently associated with the
State?s title program.? Id.

The present problem in Allegheny County is like the problems in Maricopa County and
the State of Wisconsin. The Allegheny County Health Department has been experiencing
problems contributing to a delay in processing Title permit applications. The Department is
working on the problem and will continue to work on the problem in the future. But in the
meantime, it is appropriate for EPA to publish a Notice of Deficiency to ensure that these issues
are adequately addressed in the future.

VII. Conclusions.

The Council requests that EPA publish a Notice of Deficiency in the Federal Register for
the failure of the Allegheny County Health Department to adequately implement its Title 
program, due to a programmatic failure to timely process Title applications. In addition, it
should consider the imposition of sanctions, in the exercise of its discretion. The publication of
a Notice of Deficiency will start the clock for further sanctions under the Clean Air Act.

The Council requests the opportunity to meet with you to discuss this matter. If you
have any questions, please contact me at 215-567?4004, ext. 125.

13

Thank you for your consideration of this matter.

Sincerely,

., . A .
(itic??a?a D. (m 
Christopher/D. Ahlers

Staff Attorney

Clean Air Council

135 s. 19th Street

Philadelphia, 19101
Tel: (215-567-4004, ext. 125)
cahlers@cleanair.org

JosephVOtis Minott 

Executive Director and Chief Counsel
Clean Air Council

135 s. 19th Street

Philadelphia, 19101
Tel: (215-567-4004, ext. 116)

minott@cleanair.org

  
 

cc: Shawn M. Garvin, Regional Administrator, U.S. EPA, Region (certified mail)
Patrick McDonnell, Acting Secretary, Department of
Environmental Protection (certified mail)
Karen Hacker, Director, Allegheny County Health Department (certified mail)

19

Exhibit 1:

Exhibit 2:

Exhibit 3:

Exhibit 4:

Exhibit 5:

Exhibit 6:

Exhibit 7:

Exhibit 8:

Exhibit 9:

Exhibit 10:

Exhibit 11:

Exhibits

County of Allegheny, Office ofthe Controller, Independent Auditor?s Report,
dated August 27, 2015

County of Allegheny, Office of the Controller, Analysis ofthe Allegheny County
Health Department?s Air Quality Program (Non?Audit Service), dated May 16,
2016

County of Allegheny, Office ofthe Controller, Independent Auditor?s Report,
dated August 26, 2016

Breakdown Reports Submitted by US. Steel (Edgar Thomson facility) to the
Allegheny County Health Department, from January 16, 2013 to January 14, 2016

Allegheny County Health Department, Operating Permit Status Report - Major
Sources, prepared on July 19, 2016

Allegheny County Health Department, Operating Permit Tracking Report by
Source Type and Issue Date, pages 7?8

Allegheny County Health Department, All Operating Permits issued From
01/01/2014 to 07/19/2016, dated July 19, 2016

Allegheny County Health Department, List of Operating Permit Applications
Received From 01/01/2014 to 07/19/2016

Allegheny County Health Department, Expired Operating Permits, dated July 19,
2016

Allegheny County Health Department, Letter in Response to the Clean Air
Council?s Right?to?Know Request, dated July 28, 2016, enclosing chart inventory
of major sources in Allegheny County

Email from Jason Willis, Assistant Solicitor, Allegheny County Health Department

dated October 18, 2016, denying request for an extension of the public comment
period for the proposed Allegheny Ludlum Title permit

20