State: Proposed air ordinance won’t stand

A letter from the Governor’s Office of General Counsel to New Milford and Herrick townships and the county admonishes that the adoption of New Milford Township’s proposed “Clean Air Ordinance” is likely not practical nor legally defensible.
New Milford Township’s proposed “Clean Air Ordinance” is similar to the ones proposed in both Allentown and Mount Pocono Borough, according to a Sept. 28 letter from the Office of General Counsel came in response to the local governments’ inquiries directed to the state’s Department of Environmental Protection.
Attorney Michael Briechle, solicitor for New Milford Township, said the ordinance DEP and the Governor’s Office of General Counsel was the one written by Energy Justice Network’s Mike Ewall that was presented by members of the public to the supervisors earlier this year for consideration and adoption.
The proposed New Milford Twp. ordinance is also the model being looked at by the county and Herrick Township.
New Milford Township will hold a special meeting on Thursday, Oct. 13, at 7 p.m., to consider and vote upon the engagement of Liberty Environmental, Inc., as consultants to assist with the possible enactment of a different ordinance.
Preemption likely
The letter, sent by Assistant Counsel Sean Robbins, states that New Milford Township’s air pollution control ordinance – like the ones in Allentown and Mount Pocono – “would likely be preempted by the Pennsylvania Air Pollution Control Act,” as well as the Department of Environmental Protection’s rules and regulations created under that act.
“Terms in the model also conflict with certain Department regulatory requirements and the Department believes the ordinance presents enforcement hurdles,” according to the letter from Robbins.
The Pennsylvania General Assembly has determined that DEP, with few exceptions, has the “exclusive authority to regulate the types of stationary sources that the proposed ordinance seeks to address,” states Robbins. DEP is also in charge of implementing provisions of the federal Clean Air Act.
“Essentially, the Act provides the Department with the authority to implement an air pollution regulatory program that covers permitting, the operation of sources and enforcement,” wrote Robbins.
In addition to DEP, the state’s Environmental Quality Board (EQB) also regulates air emission sources. Provisions adopted by the EQB are enforced by DEP.
But Robbins does go on to say counties, townships and boroughs can enact air pollution ordinances, but the development of an “air pollution program” is limited to the Philadelphia and Allegheny counties.
Many municipalities have adopted ordinances that regulate open burning, wood-fired boilers, dust and noise. Regulating those items at a municipal level does not reach the level of being considered an air pollution control program.
Conflicts, challenges would be likely
DEP believes the proposed ordinance is actually an air pollution control program with its monitoring requirements, stack testing and data collection, emission limits, as well as fees and penalties.
According to the Governor’s Office of General Counsel letter, DEP believes “this is more comprehensive than what is allowed” and the proposed ordinance also conflicts, in some cases, with DEP. requirements.
The letter from Robbins points out one such conflict in the model ordinances from the two townships and the county: Article V, Section 3 which requires each stationary source to modify the facility of install control technology to reduce emissions “within such a timeframe as the Township may reasonable determine.”
Robbins noted the potential that the county, Herrick Twp. and New Milford Twp. might all impose different, conflicting timeframes.
And the provision does not account or acknowledge DEP’s “permitting requirements associated with the installation of control equipment on a source.”
Another issue could also come from language of the proposed ordinance’s Article VII allowing for the ordering corrective action measures.
The letters states the imposition of time requirements for modifications or the installation of equipment on a facility without a permit from DEP would “run afoul to state law.”
Robbins further explains “best available technology” by noting that technologies advance over time and that, according to Pennsylvania code, new sources must utilize best available technology as determined by DEP at the time the plan is approved.
“For these, and other reasons, this ‘Best Available Technology’ provision conflicts with state law requirements,” Robbins’ letter states.
He also points out the proposed ordinance’s enforceability and implementation challenges, such as calling for access to inspect emissions monitoring equipment; compiling of daily, weekly, monthly and yearly summaries of emissions levels and violations; the maintenance of a website for data disclosure; and the adoption of limits for the purpose of making them “independently enforceable.”
Those provisions would require a dedicated technical staff, according to the letter. And DEP regulations handle monitoring, recordkeeping, reporting requirements, as well as provisions for enforcement.
According to the letter, DEP believes the proposed ordinance is preempted and not compatible with regulatory programs under the Air Pollution Control Act and Air Resources Regulations.
DEP also questions some of the “factual findings” that form the basis of the proposed ordinance, and what “appears to be an attempt to target certain types of facilities.”