Findings

The Department has found and determined the following:

1. The Department is the agency with the duty and authority to administer and enforce the Air Pollution Control Act, Act of January 8, l960, P.L. 2119 (1959), as amended, 35 P.S. § 4001 et seq. ("APCA"); the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, as amended, 35 P.S. § 6018.101 et seq. ("SWMA"); Section l917-A of the Administrative Code of 1929, Act of April 9, l929, P. L. 177, as amended, 71 P.S. § 510-17 ("Administrative Code"); and the rules and regulations promulgated thereunder.

2. Harrisburg is a third class city of the Commonwealth of Pennsylvania, authorized and existing pursuant to Third Class City Code, 53 Pa. C.S.A. §35101 et seq. and operating pursuant to the Optional Third Class City Charter Law, 53 Pa. C.S.A. §41101 et seq., with a principal place of business at the Rev. Dr. Martin L. King City Government Center, 10 North Second Street, Harrisburg, PA 17101.

3. The Harrisburg Authority (the "Authority"), a municipal authority created by the City pursuant to the Municipal Authorities Act of 1945, May 2, P.L. 382, §1, 53 P.S. §301 et seq., is the owner of a municipal solid waste incinerator known as the Harrisburg Materials, Energy, Recycling, and Recovery Facility ("Facility") located at 1670 South 19th Street, Harrisburg, PA 17104.

4. Harrisburg operates and maintains the Facility pursuant to a Management Agreement dated December 8, 1993 between Harrisburg and the Authority.

5. The Facility includes, among other equipment, two independent mass burn refuse combustion/steam generation units ("Units"), each consisting of an International Boiler Works boiler with a Joseph Martin reciprocating grate. Prior to December 19, 2000, each Unit was permitted at a capacity of 360 tons per day (tpd). Rothemuhle electrostatic precipitators ("ESPs") control particulate emissions from each Unit. The emissions from the ESPs exit from one common stack ("Stack").

6. The Units and the ESPs are air contamination sources as defined by Section 3 of the APCA, 35 P.S. § 4003. From June 2, 1995, until August 18, 1998, the operation of the Units and ESPs was authorized by RACT Permit No. 22-2007 ("RACT Permit"). After August 18, 1998, the operation of the Units and ESPs was authorized by Federally Enforceable State Operating Permit No. 22-2007A ("FESOP"). Special Condition 21 of the FESOP stated: "The permittee shall cease operating the two designated facilities (municipal, waste combustor units by no later than December 19, 2000. On or before November 1, 1998, the permittee shall submit a cease-operation notice to the Department and U.S. EPA." Condition 22 states that "after the municipal waste combustor units cease operation, the permittee shall not restart any such unit until after the designated unit is either: (i) Retrofitted with the required emission control equipment capable of meeting all of the applicable emission limitations and the operating requirements of Subpart Cb upon startup or; (ii) Derated to a maximum combustion capacity of each unit to less than or equal to 250 tons per day prior to startup."

7. At the Facility, the Authority also owns and Harrisburg operates a waste transfer station which was permitted pursuant to the SWMA on March 5, 1998.

8. On December 19, 1995, the United States Environmental Protection Agency ("EPA") issued Emission Guidelines ("EG") for existing large municipal waste combustors ("MWCs") under Sections 111 and 129 of the federal Clean Air Act ("CAA"), 42 U.S.C §§ 7411 and 7429. See 60 Fed. Reg. 65387. These guidelines, codified at 40 CFR Part 60, Subpart Cb, apply to existing large MWCs constructed on or before September 2, 1994, if a combustion unit at a facility has the capacity to combust more than 250 tpd of municipal solid waste. On August 25, 1997, EPA made minor revisions to the emission limitations for lead, sulfur dioxide, hydrogen chloride and nitrogen oxides ("1997 Supplemental Limits"). 62 Fed. Reg. 45116.

9. Pursuant to Section 129(b)(2) of the CAA, states must develop section 111(d)/129 State plans to implement and enforce the EG within one (1) year after the EPA Administrator promulgates guidelines for a category of solid waste incineration units. 42 U.S.C. § 7429(b)(2). State plans implementing the 1995 guidelines for large MWCs should have been submitted to EPA by December 19, 1996. State Plans for the 1997 Supplemental Limits were due to EPA by August 25, 1997. If an approvable plan is not submitted to EPA within two years after the promulgation date of the EG, the EPA Administrator is required to develop, implement and enforce a federal plan for existing solid waste incineration units. 42 U.S.C. § 7429(b)(3).

10. On May 15, 1997, Harrisburg and EPA entered into an EPA Administrative Order by Consent ("1997 AOC") requiring compliance by the Authority with the Pennsylvania State Implementation Plan ("SIP") provisions related to visible and fugitive air emissions and establishing an interim federally enforceable Compliance Schedule and Emissions Reduction Work Plan. As part of the Order, Harrisburg and EPA also agreed to a dioxin limit of 1500 ng/dscm, a limit which neither Unit has exceeded during any emission test required by the 1997 AOC.

11. On December 27, 1997, the Pennsylvania Environmental Quality Board amended 25 Pa. Code §122.3 (relating to adoption of standards) to incorporate by reference, in their entirety, the EG promulgated in 40 CFR Part 60 for existing sources. See 27 Pa. Bull. 6909.

12. On November 12, 1998, EPA promulgated the Federal Plan Requirements for Large Municipal Waste Combustors Constructed on or Before September 20, 1994. See 63 Fed. Reg. 63191 (November 12, 1998). The Federal Plan Requirements, codified at 40 CFR Part 62 Subpart FFF, apply to any MWC combustor unit that is not regulated by an EPA-approved State plan and will no longer apply after the effective date of a State Plan.

13. As defined in 40 CFR § 62.14101 of the Federal Plan, the term, "derate", means to make a permanent physical change to the municipal waste maximum combustion capacity of a unit to less than or equal to 250 tpd of municipal solid waste. A permit restriction or a change in the method of operation does not qualify as derating capacity. (See the procedures specified in 40 CFR 60.58b(j) of subpart Eb for calculating the municipal waste combustor unit capacity) 40 CFR § 62.14101. The FESOP issued for the Harrisburg Units requires (1) that the permittee shall cease operating the two MWCs by no later than December 19, 2000, and (2) that the permittee shall not restart either Unit until the designated Unit is either retrofitted with the required emission control equipment capable of meeting the limitations applicable to large MWCs in 40 CFR Part 60, Subpart Cb, or the designated Unit is derated to a maximum combustion capacity of less than or equal to 250 tpd, as specified in 40 CFR Part 60, Subpart Eb, Section 60.58b(j). See Conditions 21 and 22(b) of Operating Permit No. 22-02007A.

14. On April 27, 1998, the Department submitted the Commonwealth of Pennsylvania's Section 111(d)/129 State Plan for Large MWCs to EPA for approval. On September 8, 1998, the Department submitted a federally enforceable plan approval and five federally enforceable operating permits ("FESOPs") to EPA for approval as a revision to the State Plan. These FESOPs serve as the legally enforceable mechanism for implementing the plan requirements.

15. On August 23, 1999, EPA granted conditional approval of the State Plan for MWCs. This conditional approval applies to the 1995 EG requirements for large MWC units. This conditional approval was effective on October 22, 1999. See 64 Fed. Reg. 45880. The Federal and State plans no longer apply to the Units since the Units ceased operations prior to December 19, 2000. 64 Fed. Reg. 45883. The Units will no longer be considered large MWC units if the combustion capacity of each Unit is derated to 250 tons per day or less.

16. Under its existing FESOP, Harrisburg is not authorized to make physical changes to the Facility for the purpose of derating without obtaining prior plan approval or a new operating permit from the Department.

17. On December 7, 1998, Harrisburg notified the Department that it would cease operation of the two Units on or before December 19, 2000 in accordance with its operating permit and would not restart until each unit is retrofitted or derated. On January 21, 2000, Harrisburg submitted a derating proposal to DEP, which DEP forwarded to EPA. On September 13, 2000, Harrisburg submitted a revised derating proposal to the Department proposing to limit the maximum capacity of the combustors steam production by using a secure electronic combustion controller. The Department submitted this proposal to EPA for consideration on September 26, 2000. On September 29 and October 24, Harrisburg met with the Department and EPA, respectively, to discuss the September 13th derating proposal.

18. On November 20, 2000, EPA Region III notified the Department, in writing, that the derating proposal was not approvable because EPA determined that the proposed modification would not result in a "permanent physical change" to the Facility.

19. On December 18, 2000, Harrisburg notified the Department that the City would cease operation of its large MWC Units prior to December 19, 2000. Since no additional waste was charged to the Units as of 6:00 PM on December 18, 2000, the two Units ceased operating by the end of the day.

20. On December 22, 2000, Harrisburg submitted to the Department a revised plan for derating the Facility's MWCs ("Derate Plan") to a maximum capacity of less than the applicability threshold for large MWCs of 250 tpd waste charge rate. Among other things, the Derate Plan included permanent installation of two forced draft fans for the purpose of reducing the amount of design combustion air flow and of a related steam interlock system with a programmable logic control system, for the purpose of regulating or stopping the waste feeding system to ensure steam flow does not exceed the permissible limit. The programmable logic control system is designed to prevent easy alteration of the hardware and softwarecontrolling the steam limit. At the commencement of the Verification Test required by Paragraph 9, below, access to the processor which runs the system will be controlled by a key which will be held offsite by the Department. Any change to the program which runs the processor requires that the Units be shut down for approximately twenty-four hours before he Unit(s) may be restarted. This COA requires the City to request access to the control system from the Department in writing at least twenty four hours in advance and to report any shut down which exceeds twenty four hours. The Derate Plan also calls for the installation of crane load cells, which will be used during the fine-tuning of the Units and during verification and all stack testing, for the purpose of weighing the waste being fed to each Unit. The plan was supplemented by a submission, considered to be part of the plan, dated January 9, 2001. A copy of the Derate Plan (and the supplementary submission) is attached as Exhibit 1.

21. Harrisburg has previously advised DEP that long-term closure of the Facility will have significant negative impacts on the City. Expenses and loss of revenue from closure of the Facility would necessitate a significant increase in taxes and utility fees for City residents, the layoff of numerous City employees and the loss of backup and emergency steam supplies for heating of downtown residential, commercial and business establishments including the State Capitol Complex.

22. On January 9, 2001, Harrisburg informed the Department in writing that it had completed the physical modifications described in the Derate Plan.

23. The Department will hold a public hearing on the Application being submitted by Harrisburg in accordance with Paragraph 6, below.

24. EPA and Harrisburg have entered into an Administrative Order by Consent dated the same date as this Consent Order and Agreement.

ORDER

After full and complete negotiation of all matters set forth in this Consent Order and Agreement and upon mutual exchange of covenants contained herein, the parties desiring to avoid litigation and intending to be legally bound, it is hereby ORDERED by the Department and AGREED to by Harrisburg as follows:

1. Authority. This Consent Order and Agreement is an Order of the Department authorized and issued pursuant to Sections 4 and 10.1 of the APCA, 35 P.S. §§ 4004 and 10.1; and Section 1917-A of the Administrative Code, 71 P.S. § 510-17.

2. Findings.
   1. Harrisburg agrees that the findings in Paragraphs A through O and Q through V, are true and correct and, in any matter or proceeding involving Harrisburg and the Department, Harrisburg shall not challenge the accuracy or validity of these findings.

   2. The parties do not authorize any other persons to use the findings in this COA in any matter or proceeding.

3. Effective Date.

   The effective date of this COA is three days after the Execution Date (the "Effective Date").

4. Definitions.

   Unless otherwise stated, terms used in this COA shall have the same meaning given to those terms in 40 CFR Part 60, Subparts A, B, Cb and Eb.

   "Four-Hour Block" means the arithmetic average of four consecutive hourly averages, measured over four hour periods of time from 12:00 midnight to 4:00 a.m.; 4:00 a.m. to 8:00 a.m.; 8:00 a.m. to 12:00 noon; 12:00 noon to 4:00 p.m.; 4:00 p.m. to 8:00 p.m; and 8:00 p.m. to 12:00 midnight.

   "24-Hour Block" means the twenty-four (24) hour period rolling arithmetic averaging period calculated from the six (6) preceding four (4) hour block averaging periods.

   "245 tpd Steam Limit" means the lesser of 54,189 1bs/hr or the steam flow corresponding to 245 tpd waste feed rate determined during the Verification Testing Phase, averaged over any 24-Hour Block for each Unit.

   "250 tpd Steam Limit" means the lesser of 55,295 lbs/hr or the steam flow corresponding to 250 tpd waste feed rate determined during the Verification Testing Phase, averaged over any Four- Hour Block for each Unit.

   "Monitoring Equipment" means all equipment and instruments necessary to determine process variables including without limitation devices to measure steam flow, temperatures, carbon monoxide ("CO") and oxygen levels, fan amperage, any other parameters that are part of the verification or stack tests, and any parameters that are included in the remote access or other requirements of this COA.

5. Derate Plan.

   1. The Derate Plan, which is attached hereto as Exhibit 1 and incorporated by reference, is acceptable only for purposes of this Consent Order and Agreement.

   2. The Department's willingness to accept the Derate Plan for purposes of this COA and to enter into this COA are without prejudice to its right to deny, for any reason, the plan approval or operating permit applications required by Paragraph 6. Nothing in this Consent Order and Agreement shall mean or otherwise indicate that the Department will approve either application.

   3. Should the Department approve either application, it reserves the right to attach conditions, including provisions not included in this COA.

6. Plan Approval/Operating Permit Applications

   1. Within seven (7) days of the Effective Date of the COA, Harrisburg shall submit to the Department a complete a plan approval application, in accordance with 25 Pa. Code Section 127.11, for the project to derate the Units below the large MWC applicability threshold of 250 tpd waste charge rate in accordance with the CAA and 40 CFR Part 60. Harrisburg shall simultaneously submit an operating permit application pursuant to 25 Pa. Code Section 127.402 et seq. The plan approval application and the operating permit application are hereinafter collectively referred to as the "Application."

   2. Harrisburg shall submit to the Department any supplemental information necessary for processing of the Application request within five (5) days of notice from the Department of the need for submission of such information.

   3. Should the Department deny the Application, Harrisburg immediately shall cease operation of the Units.

   4. Harrisburg's willingness to enter into this COA and to submit the Application is without prejudice to its right to appeal or otherwise challenge any action of the Department or EPA with respect to the Derate Plan, plan approval application or operating permit application, or any enforcement action taken. Harrisburg reserves any and all rights and defenses which it may have, including its claims that no plan approval or operating permit application was required. For purposes of any appeal, any denial of the Application is also an order ceasing operation and Harrisburg's agreement to subparagraph c above is not a waiver of its right to contest cessation and to seek immediate injunctive relief.

7. Interim Operations.

   1. Harrisburg may operate the Facility in accordance with the terms and conditions of this Consent Order and Agreement pending a decision on the Application.

   2. Steam flow shall not exceed the 245 tpd Steam Limit or the 250 tpd Steam Limit, as defined in Paragraph 4, above.

   3. At all times after December 18, 2000, Harrisburg shall not operate the Units except in accordance with the terms of this COA, and shall not operate the Units prior to completing the Verification Testing described in Paragraph 9, below, except for the purpose of conducting testing to determine whether the Units have been successfully derated and to establish the appropriate steam flow limits.

   4. Harrisburg shall maintain and operate the steam interlock control system so that the charging of municipal waste to the Units shall automatically cease to ensure that the steam flow does not exceed the limits specified in subparagraph b, above. Harrisburg shall report any malfunctions with the steam interlock control system in accordance with Paragraph 18.a.ii.

   5. Harrisburg shall install, operate, and maintain equipment or instruments necessary to determine process variables, such as steam flow, and ESP inlet temperature in accordance with the applicable performance testing provisions of 40 CFR § 60.58b(i)(6) and (7), or other equipment method approved by the Department, in order to determine compliance of the Units with the applicable operating limits provided in this COA. Sensors in the equipment used to determine steam flow, ESP inlet temperature and furnace temperature shall be calibrated and adjusted to indicate the true value of the parameter being measured with sufficient accuracy (at least + 2 per cent of the true value) to allow the applicable process variable to be determined within the limits specified by the equipment or instrument vendor. At all times after the Effective Date of this COA, Harrisburg shall calibrate the steam flow, ESP inlet temperature, furnace temperature, CO and oxygen and related data acquisition systems in the combustion chambers every ninety (90) days.

   6. Within thirty (30) days of the effective date of this COA, Harrisburg shall submit to the Department and EPA for approval a protocol for Post-Verification monitoring and reporting of carbon monoxide, oxygen, steam load, ESP inlet and temperature monitoring equipment. The protocol shall include data accuracy and availability criteria and provide that all data averages be calculated using valid data.

8. Initialization and Shakedown Phase.
   1. Harrisburg shall not commence the Initialization and Shakedown Phase set forth in the Derate Plan until the Effective Date of this COA, specified in Paragraph 3.

   2. During the Initialization and Shakedown Phase, Harrisburg shall take measures to fine-tune the Units in order to properly operate the Facility as a small MWC. During this phase, Harrisburg shall establish the actual steam rates that will be demonstrated during the Verification Testing Phase to show a derated design capacity rate of 245 tons per day (the 245 tpd Steam Limit), or less, and a steam rate that will demonstrate a maximum waste capacity rate of 250 tons per day, or less, (the 250 tpd Steam Limit) for each Unit. Harrisburg shall also verify induced draft fan speed and balance of underfire and overfire air in accordance with the January 9, 2001 submission referred to in Paragraph T. Any further modifications to the Unit(s) necessitated by the fine-tuning shall be submitted to the Department as an amendment to the plan approval application.

   3. Once Harrisburg has commenced the Initialization and Shakedown Phase, it shall have no longer than sixty (60) days to conduct the necessary fine-tuning of the derated Facility prior to the verification testing required by Paragraph 9, below.

   4. Within three (3) days of completing the Initialization and Shakedown Phase, Harrisburg shall submit to the Department and EPA a written certification by a licensed professional engineer providing that the operation of the Units in the derated capacity as described in the Derate Plan will not present inordinate safety problems with respect to an explosion hazard, will provide for an adequate balancing of the underfire and overfire air flows, and will provide sufficient air flow to ensure adequate combustion.

9. Verification Testing Phase.
   1. Upon completion of the Initialization and Shakedown Phase, Harrisburg shall conduct Verification Testing of each of the derated Units as specified in the Derate Plan attached hereto as Exhibit 1.

   2. Prior to commencement of the Verification Testing, Harrisburg shall give the key to the programmable logic control system to the Department. The key to the programmable logic control system shall be kept in the control Regional Air Program Manager. Should Harrisburg require the access to the control system, it shall notify the Department at least twenty-four hours in advance in writing that Harrisburg needs the Department to provide access with an explanation of the need for access. In addition, should Harrisburg need to modify the program which controls the steam interlock control system, it shall submit a written request to modify the system to the Department and EPA and shall obtain prior written approval of the agencies.

   3. Except as provided for in Subparagraph f, below, the Verification Test shall be conducted over a continuous 168-hour period. Harrisburg shall demonstrate that each Unit's operating capacity cannot exceed the 250 tpd Steam Limit, and will not exceed the 245 tpd Steam Limit, utilizing steam flow measurements based on calibrated instrumentation at the Facility as determined during the Initialization and Shakedown Phase and weight measurements taken from the load cell devices on the cranes. Within fifteen (15) days of the Effective Date of this COA, Harrisburg shall submit to the Department and EPA a protocol for the Verification Test which shall include the requirements of this paragraph, the Derate Plan and the applicable requirements of 40 CFR § 60.8.

   4. Harrisburg will provide written notification of the scheduled dates for the Verification Testing to the Department at least fourteen (14) days prior to commencing the Test.

   5. The maximum 24-hour waste charge capacity rate shall not exceed 245 tons during each 24-hour period tested and the steam flow rate shall not exceed 54,187 lbs. of steam/hr. on a 24-Hour Block or other steam flow rate corresponding to 245 tpd Steam Limit established during the Initialization Shakedown Phase for each Unit.

   6. The maximum waste capacity rate shall not exceed either 250 tpd or an average of 55,295 lbs. of steam/hr. or other steam flow rate corresponding to the 250 tpd Steam Limit established during the Initialization and Shakedown Phase for each Unit.

   7. If an equipment failure or upset condition occurs that prevents either or both of the Units from operating normally, the Verification Test shall be temporarily suspended for that Unit(s) until normal operations can be reestablished. If 75 % of all the data points necessary for a Four-Hour Block can be verified as accurate and representative of normal operation, that Four-Hour Block will be considered valid. Otherwise, that Four-Hour Block will be eliminated from the Verification Test, and the verification will resume with the next available 4- hour block. The Verification Test will end when at least 168 valid hours of data (comprised of 37 data points) have been collected. If normal operations cannot be reestablished within a reasonable period of time, the Verification Test shall be stopped and repeated in its entirety once the problem can be corrected.

   8. Within three days after completion of the Verification Testing, Harrisburg shall provide to the Department a report demonstrating that each Unit has been derated to a capacity of equal to or less than 250 tons per day, and provide notice of intent to begin normal operation of the Units as small MWCs in accordance with the terms and conditions of this COA.

   9. In the event that the Verification Testing fails to demonstrate that either or both Units meet the derated waste capacity or steam flow rates, Harrisburg shall have fourteen (14) days in which to evaluate and rectify any problems it may have identified in the Units. Harrisburg must then conduct a second Verification Test in accordance with the full test protocol required by this COA.

   10. In the event that the second Verification Test for either Unit fails to demonstrate compliance with the established waste capacity and steam limit rates, Harrisburg shall immediately cease operation of the Unit(s) which failed. In addition, any second failure shall be sufficient basis for the Department to deny Harrisburg's Application.

10. Post-Verification Operation Phase.

    Harrisburg may begin operating in the Post-Verification Operation Phase once the Department has reviewed and accepted the Verification Test report required by Paragraph 9.h., above.

11. Testing.
    1. Harrisburg shall conduct three (3) stack tests on each Unit according to the following schedule:
       1. between sixty (60) and seventy (70) days after completing the Verification Testing Phase;

       2. between three hundred and sixty five (365) and three hundred and seventy-five (375) days after completing the Verification Testing Phase; and

       3. between six hundred and seventy (670) and six hundred and eighty (680) days after completing the Verification Testing Phase.

    2. Harrisburg shall conduct the stack tests on each Unit to determine the level of dioxin/furan, particulate matter, carbon monoxide, lead, cadmium, mercury and nitrogen oxides emissions and ESP inlet temperature. Harrisburg shall submit a testing protocol for the stack tests, prepared according to 40 CFR Part 60, Appendix A. to the Department and EPA for approval at least forty-five (45) days prior to the scheduled stack test for each unit. If the Department or EPA notifies the Harrisburg that revisions to the testing protocol are necessary, Harrisburg shall revise the plan within five (5) days of receipt of either agency's written notification. Harrisburg shall conduct the stack test in accordance with the following requirements:
       1. Harrisburg shall notify the Department and EPA of testing at least seven (7) days prior to the test date.

       2. The unit being tested shall be operated at the maximum municipal solid waste ("MSW") firing rate of 80 to 100 percent of the 245 tpd Steam Limits.

       3. Stack testing procedures shall be consistent with the following procedures provided in 40 CFR Part 60, Appendix A:
          1. Dioxin/furan - EPA Method 23
          2. PM - EPA Method 5
          3. VE - EPA Method 9
          4. CO - EPA Method 10, 10A or 10B
          5. Cadmium, lead and mercury - EPA Method 29
          6. Nitrogen oxides - EPA Method 7E

       4. MSW fired during the test shall be representative of MSW normally fired at the Facility. Harrisburg shall not separate, or segregate refuse during the test period which differs from the Facility's normal operating procedures.

       5. Harrisburg shall submit the following operating information for each test run:
          1. MSW feed rate (tons per hour)
          2. Boiler steam flow (pounds per hour), temperature (degrees Fahrenheit) and pressure (pounds per square inch gage)
          3. Boiler oxygen value (percent)
          4. Boiler furnace temperature (degrees Fahrenheit)
          5. ESP inlet temperature (economizer outlet) (degrees Fahrenheit)
          6. Boiler CO value (parts per million volume ("ppmv") @ 7 percent O2) taken at ESP outlet
          7. Forced draft fan and overfire air fan amperage and discharge pressures (amperage and inches water column pressures).

       6. A summary of the emission test results for dioxin/furan, particulate matter, visible emissions, lead, cadmium, mercury, nitrogen oxides and carbon monoxide shall be submitted to the Department and EPA within forty-five (45) days of completion of stack testing. Harrisburg shall submit to the Department and EPA a complete test report, including all information described above, within sixty (60) days of completion of stack testing.

    3. In conducting stack testing and verification testing, Harrisburg shall comply with all applicable performance and testing procedures and monitoring requirements set forth in 40 CFR § 60.38(b) of Subpart Cb and 40 CFR § 60.58b(c), (d), (g) and (i)(6) and (7), or other equipment method approved by the Department. The provisions at 40 CFR §§ 60.58b(c)(8) through (11), and 60.58b(g)(5) and (6) and 60.58d(2)(v) are not applicable procedures for purposes of this COA.

12. Exceedances of the Dioxon Limitation.
    1. If Harrisburg exceeds a dioxin/furan concentration of 1500 ng/dscm at either Unit after conducting any stack test, Harrisburg shall conduct bi-monthly stack tests (i.e., conducting a stack test every other month) on the Unit(s) which exceeded the 1500 ng/dscm of dioxin/furan concentration performed in accordance with the procedures set forth in Paragraph 11, and shall also conduct monthly inspections of such boiler or boilers for leakage, as provided below, until such time as Harrisburg can demonstrate dioxin/furan concentrations of 1500 ng/dscm or less of dioxin/furan for two consecutive bi-monthly stack tests. Harrisburg shall inspect the boiler or boilers for leakage which allow unwanted excess air into the boilers (primary areas to inspect and to reseal or re-gasket include, but are not limited to: (1) sifting valves; (2) front boiler door panels; (3) boiler inspection ports; (4) quench basins; (5) MSW feed chutes; (6) vibration pan seal and doors; (7) air preheater seals; (8) ESP seals; (9) expansion joints; (10) boiler/stoker connection seals). Any stack tests required by this Paragraph are in addition to those required by Paragraph 11.

    2. If Harrisburg exceeds the dioxin/furan concentration of 1500 ng/dscm, in addition to the other reservations of rights in Paragraph 22 and the stipulated penalties in Paragraph 20, the Department specifically and expressly reserves the right to require additional measures with respect to dioxin, including, without limitation, the right to deny, suspend or revoke any approval or permit and the right to order cessation of a Unit or Units. Harrisburg reserves the right to challenge or defend any action of the Department.

13. ESP Inlet Temperatures.
    1. At all times after the first dioxin stack test, ESP inlet (economizer outlet) temperature shall not exceed by 30 degrees Fahrenheit the highest 4-hour block arithmetic average flue gas temperature measured at the electrostatic precipitator ("ESP") inlet (economizer outlet) during four (4) consecutive hours of each stack test described in Paragraph 11 and demonstrating compliance with the applicable dioxin/furan emission limit of 1,500 nanograms per dry standard cubic meter ("ng/dscm") at 7 percent O2, total mass. In the event that the ESP inlet temperature exceeds this limit, Respondent shall comply with the reporting requirements provided in Paragraph 18, below.

    2. Until the limit in subparagraph a. is determined, above, the limit is 600 degrees Fahrenheit.

    3. In the event that the ESP inlet temperature exceeds the limit in Paragraph 13, Harrisburg shall slow the waste feed to reduce the temperature below the limit and shall implement the procedures in the revised Operation and Maintenance Manual.

    4. In the event the temperature does not drop below the limit after any two Four-Hour Blocks which occur in a twenty-four (24) hour period, Harrisburg shall immediately cease feeding waste, begin visual inspection of the baffle walls and conduct the following:
       1. Check the flue gas pressure drop across the economizer against values recorded previously at similar loads when the economizer outlet temperature remained below the limit in this paragraph. In the event of an increase in pressure drop of more than one-half (1/2) inch in water gage, thoroughly clean the economizer section;

       2. Compare the difference between furnace temperature and economizer inlet temperature to levels recorded previously at similar loads when the economizer outlet temperature remained below the limit in this paragraph. Routinely inspect the refractory baffle wall and the metal division wall during off-line cleaning to assure that they are still intact; and

       3. Conduct off-line cleaning.

    5. If the ESP temperature data is unavailable and cannot be restored with four (4) hours, Harrisburg will cease feeding waste to the Unit(s) until the ESP inlet temperature is restored, unless Harrisburg takes manual temperatures, takes the economizer inlet temperature and repairs the system within twenty-four hours or the next business day.

14. Exceedances of 245/250 tpd Steam Limits.

    1. If at any time, after the Verification Testing Phase, either Unit exceeds the 245 tpd Steam Limit, Harrisburg shall:

       1. within 24 hours or the next business day, notify the Department and EPA of the exceedance; and

       2. within ten (10) days, report to the Department and EPA in writing a description of the exceedance, its cause(s), and the corrective measures to be taken to ensure that the Unit is capable of operating at the 245 tpd Steam Limit.

    2. If at any time, after the Verification Testing Phase, either Unit exceeds the steam output level corresponding to the 250 tpd Steam Limit, Harrisburg shall:

       1. immediately cease feeding waste to that MWC Unit;

       2. within 24 hours or the next business day, notify the Department and EPA of the exceedance;

       3. within ten (10) days, report to the Department and EPA in writing a description of the exceedance, its cause(s), and the corrective measures (which could include, if requested by the Department or EPA, the submission of a new derate plan) to be taken to ensure that the Unit is physically limited to operating at the 250 tpd Steam Limit;

       4. not restart that Unit unless the Department determines that the Unit is physically limited to operating at the 250 tpd Steam Limit; and

       5. bear the burden of proof in any proceeding or forum in which it contests the Department's determination that the Unit is not physically limited to operating at the 250 tpd Steam Limit.

    3. In addition to the other reservations of rights in Paragraph 22 and the stipulated penalties in Paragraph 20, the Department specifically and expressly reserves the right to require additional measures with respect to exceedances of the 250 tpd Steam Limit, including, without limitation, the right to deny, suspend or revoke any approval or permit and the right to order cessation of a Unit or Units. Harrisburg reserves the right to challenge or defend any action of the Department.

15. Revision to Operations and Maintenance Manual.

    Within forty-five (45) days of the beginning of the Post-Verification Phase, Harrisburg shall revise its current Operations and Maintenance Manual to reflect any changes relative to operation at lower air flows and waste feeds. Harrisburg shall submit the revised manual to the Department for review and approval and shall implement the revised manual as approved. More specific requirements are set forth in Exhibit 2.

16. Remote Access.

    1. As set forth in the Derate Plan, Harrisburg shall provide a single dedicated dial-up modem accessible to the Department and EPA with remote access to monitor operating system parameters, which will consist of actual furnace temperature, the steam flow set point, the steam flow, an indicator of feeder operation, CO, oxygen, ESP inlet temperature and average steam flow calculated to correspond to the 245 tpd and 250 tpd Steam Limits.

    2. Data shall be available on a real time trending basis and a thirty (30 day) day historical basis. The trend charts shall indicate any exceedances of the 245 tpd and 250 tpd Steam Limits.

    3. Remote access shall be operable and available to the Department and EPA before the Verification Phase commences and shall remain operable and available until midnight on June 18, 2003.

17. New Title V Application.

    If the Department approves the Application, Harrisburg shall submit within 120 days an application for a permit pursuant to Title V of the CAA and 25 Pa. Code Chapter 127, Subchapters F and G.

18. Recordkeeping and Reporting.

    1. In addition to the recordkeeping requirements in the existing FESOP for the Facility, Harrisburg shall maintain the following records to demonstrate compliance with this Agreement:

       1. Records of the occurrence and duration of any startup, shutdown or malfunction in the operation of the Facility; any malfunction of an air contamination source, air pollution control equipment or air cleaning device; or any periods during which a continuous monitor or monitoring device is inoperative.
       2. Records of all measurements, including continuous monitors, monitoring device and performance testing measurements; all continuous monitor performance evaluations; all continuous monitors or monitoring device calibration checks and adjustments and maintenance performed on these systems or devices.

    2. The records shall be maintained for at least five (5) years following the dates of such records, reports, measurements or maintenance and shall be available to the Department and EPA upon request.

    3. Harrisburg shall record the following information for each Unit:
       1. The tons of municipal waste combusted each day based on steam flow data; and
       2. The hours of operation

    4. No later than 21 days after the end of each month, Harrisburg shall submit monthly reports containing, but not limited to, the following information:
       1. The tons of municipal waste combusted based on steam flow data; and
       2. The hours of operation;
       3. A summary of maintenance performed; and
       4. A summary of both planned and forced outages

    5. The reports required under this Agreement shall be forwarded in accordance with Paragraph 25.

19. Cessation After 30 Months.

    Harrisburg shall cease operation of each Unit no later than midnight June 18, 2003 unless permitted and/or otherwise approved by the Department and retrofitted with all necessary emissions control equipment capable of meeting all of the applicable requirements of 40 CFR 60 Subpart Cb.

20. Stipulated Civil Penalties.

    1. If Harrisburg fails to comply with the midnight of June 18, 2003 deadline in Paragraph 19, Harrisburg shall be in violation of this Consent Order and Agreement and shall pay a civil penalty in the amount of $25,000 per day.

    2. If Harrisburg at any time after Verification Testing operates either Unit such that it is in excess of the 245 tpd Steam Flow, Harrisburg shall be in violation of this Consent Order and Agreement and shall pay to the Department a civil penalty in the amount of $1,000 per calendar day for any 24-hour period in which such an exceedance occurred. This provision shall remain in effect until June 19, 2003.

    3. If Harrisburg at any time after Verification Testing operates either Unit in excess of 250 tpd Steam Flow, Harrisburg shall be in violation of this Consent Order and Agreement and shall pay to the Department a civil penalty in the amount of $25,000 per calendar day for any 24-hour period in which such an exceedance occurred. This provision shall remain in effect until June 29, 2003.

    4. If Harrisburg does not achieve emission concentration levels of 1500 ng/dscm or less of dioxin/furan at each Unit after conducting a test required by this Consent Order and Agreement, Harrisburg shall be in violation of this Consent Order and Agreement and shall pay to the Department a civil penalty in the amount of: $5,000 per Unit for the first failure; $8,000 per Unit for a second failure; and $25,000 per Unit for any subsequent failure.

    5. If Harrisburg feeds waste to either Unit in the absence of steam flow monitoring data, Harrisburg shall be in violation of this Consent Order and Agreement and shall pay a civil penalty in the amount of $10,000 per Unit per calendar day.

    6. Stipulated civil penalty payments shall be payable monthly on or before the fifteenth day of each succeeding month, and shall be forwarded to William Weaver, Compliance Specialist, Air Quality Program, 909 Elmerton Avenue, Harrisburg, Pennsylvania 17110.

    7. Any payment under this paragraph shall neither waive Harrisburg's duty to meet its obligations under this COA nor preclude the Department from commencing an action to compel Harrisburg's compliance with the terms and conditions of this COA and/ or from exercising the Department's rights pursuant to Paragraph 12.b. The payment resolves only Harrisburg's liability for civil penalties arising from the violation of this COA for which the payment is made.

    8. Stipulated civil penalties shall be due automatically and without notice.

21. Additional Remedies.
    1. In the event Harrisburg fails to comply with any provision of this COA, the Department may, in addition to the remedies prescribed herein, pursue any remedy available for a violation of an order of the Department, including an action to enforce this COA. Harrisburg reserves the right to challenge or defend any such action.

    2. The remedies provided by this Paragraph and Paragraphs 12 and 14 are cumulative and the exercise of one does not preclude the exercise of any other. The failure of the Department to pursue any remedy shall not be deemed to be a waiver of that remedy. The payment of a stipulated civil penalty, however, shall preclude any further assessment of civil penalties for the violation for which the stipulated civil penalty is paid.

22. Reservation of Rights. The Department reserves the right to require additional measures to achieve compliance with applicable law. Harrisburg reserves the right to challenge any action which the Department may take to require those measures.

23. Liability of Operator. Harrisburg shall be liable for any violations of this COA, including those caused by, contributed to, or allowed by its officers, agents, employees, or contractors.

24. Transfer of Site.
    1. The duties and obligations under this Consent Order and Agreement shall not be modified, diminished, terminated or otherwise altered by the transfer of any legal or equitable interest in the Facility or any part thereof.

    2. If Harrisburg intends to transfer any legal or equitable interest in the Facility which is affected by this Consent Order and Agreement, Harrisburg shall serve a copy of this Consent Order and Agreement upon the prospective transferee of the legal and equitable interest at least thirty (30) days prior to the contemplated transfer and shall simultaneously inform the Southcentral Regional Office of the Department of such intent.

    3. The Department in its sole discretion may agree to modify or terminate Harrisburg's duties and obligations under this Consent Order and Agreement upon transfer of the Facility. Harrisburg waives any right that it may have to challenge the Department's decision in this regard.

25. Correspondence with Department. All correspondence with the Department concerning this COA shall be addressed to:

    Mr. Leif Ericson
    Air Quality Program Manager
    Southcentral Regional Office
    909 Elmerton Ave.
    Harrisburg, PA 17110

    All payments, reports and applications required of Harrisburg shall be deemed effective upon mailing to the Department's designee by first class mail, postage prepaid.

26. Correspondence with Harrisburg. All correspondence with Harrisburg concerning this COA shall be addressed to:

    Mr. John Lukens, Director
    Harrisburg Materials Energy,
    Recycling and Recovery Facility
    1670 South 19th Street
    Harrisburg, PA 17104

    Harrisburg shall notify the Department whenever there is a change in the contact person's name, title, or address. Service of any notice or any legal process for any purpose under this COA, including its enforcement, may be made by mailing a copy by first class mail to the above address.

27. Severability. The paragraphs of this COA shall be severable and should any part hereof be declared invalid or unenforceable, the remainder shall continue in full force and effect between the parties.

28. Entire Agreement. This COA and Exhibits shall constitute the entire integrated agreement of the parties. No prior or contemporaneous communications or prior drafts shall be relevant or admissible for purposes of determining the meaning or extent of any provisions herein in any litigation or any other proceeding.

29. Attorney Fees. The parties shall bear their respective attorney fees, expenses and other costs in the prosecution or defense of this matter or any related matters, arising prior to execution of this COA.

30. Modifications. No changes, additions, modifications, or amendments of this COA shall be effective unless they are set out in writing and signed by the parties hereto.

31. Titles. A title used at the beginning of any paragraph of this COA may be used to aid in the construction of that paragraph, but shall not be treated as controlling.

32. This COA shall not be considered as a limitation or abridgment of the Department's rights and duties to take action as necessary to implement emergency control strategies under Section 6.2 of the APCA, 35 P.S. § 4006.2.

33. Force Majeure.
    1. In the event that Harrisburg is prevented from complying in a timely manner with any time limit imposed in this COA solely because of a strike, fire, flood, act of God, or other circumstances beyond Harrisburg's control, and which Harrisburg, by the exercise of all reasonable diligence, is unable to prevent, then Harrisburg may petition the Department for an extension of time. An increase in the cost of performing the obligations set forth in this COA shall not constitute circumstances beyond Harrisburg's control. Harrisburg's economic inability to comply with any of the obligations of this COA shall not be grounds for any extension of time.

    2. Harrisburg shall only be entitled to the benefits of this paragraph if it notifies the Department within five (5) working days by telephone, and within ten (10) working days in writing of the date it becomes aware or reasonably should have become aware of the event impeding performance. The written submission shall include all necessary documentation, as well as a notarized affidavit from an authorized individual specifying the reasons for the delay, the expected duration of the delay, the efforts which have been made and are being made by Harrisburg to mitigate the effects of the event and to minimize the effects of the delay. The initial written submission may be supplemented within 10 working days of its submission. Harrisburg's failure to comply with the requirements of this paragraph specifically and in a timely fashion shall render this paragraph null and of no effect as the particular incident involved.

    3. The Department will decide whether to grant all or part of the extension requested on the basis of all documentation submitted by Harrisburg and other information available to the Department. In any subsequent litigation, Harrisburg shall have the burden of proving that the Department's refusal to grant the requested extension was an abuse of discretion based upon the information available to it.

34. Termination. This COA shall terminate when: Harrisburg has obtained permits and other approvals from the Department and has retrofitted either Unit with the emission control and monitoring equipment capable of meeting all of the applicable requirements of 40 CFR Part 60, Subpart Cb; or June 19, 2003, whichever occurs later.

35. This COA does not grant a variance from any requirement of the APCA, the Clean Air Act, 42 U.S.C. § 7401 et seq., the SWMA, or any regulations promulgated under either of these statutes; nor does it purport to modify any requirement of Pennsylvania's State Implementation Plan as approved under the Section 110 of the Clean Air Act, 42 U.S.C. § 7410.

    IN WITNESS WHEREOF, the parties hereto have caused this COA to be executed by their duly authorized representatives. The undersigned representatives of Harrisburg certify under penalty of law, as provided by 18 Pa. C.S. § 4904, that they are authorized to execute this COA on behalf of Harrisburg; that Harrisburg consents to the entry of this COA as a final ORDER of the Department; and that Harrisburg hereby knowingly waives its rights to appeal this COA, which rights may be available under Section 4 of the Environmental Hearing Board Act, Act of July 13, 1988, P.L. 530, No. 1988-94, 35 P.S. §7514; the Administrative Agency Law, 2 Pa. C.S. § 103(a) and Chapters 5A and 7A; or any other provision of law.

    
    FOR CITY OF HARRISBURG:

    _______________________________
    The Honorable Stephen R. Reed Mayor, City of Harrisburg

    FOR THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION:

    _______________________________
    Leif Ericson, Program Manager - Air Quality

    _______________________________
    Martin H. Sokolow, Jr. Regional Counsel

    
    EXHIBIT 2

    1. Combustion air settings under normal operating conditions and a description of circumstances under which settings would be altered to compensate for changing conditions.

    2. Plant startup from cold - general operating procedure

    3. Unit startup (plant in operation) - general operating procedure

    4. Plant shutdown - general operating procedure

    5. Unit shutdown (plant in operation) - general operating procedure

    6. Plant performance monitoring - general operating procedure

    7. Fuel feed system - operating procedure

    8. RAM extractor - operating procedure

    9. RAM hydraulic system - operating procedure

    10. Soot blower - operating procedure

    11. Loss of FD fan - emergency procedure

    12. Loss of ID fan - emergency procedure

    13. Loss of combustor forced circulation - emergency procedure

    14. Loss of RAM extractor/hydraulics - emergency procedure

    15. Boiler/combustor water tube leaks - emergency procedure

    16. Loss of the fuel feed conveyor - emergency procedure

    17. Loss of ESP field - emergency procedure

    18. Boiler emergency shutdown

    19. Temperature excursions at the ESP inlet (economizer outlet) above the limit provided in Paragraph 13

    20. Soot blower system maintenance

    21. MSW conveyor system maintenance

    22. Boiler feedwater pump system maintenance

    23. Combustor forced circ. system maintenance

    24. Component cooling water system maintenance

    25. ID fan system maintenance

    26. FD fan system maintenance

    27. Overfire air system maintenance
    54. ESP system maintenance
    81. Grate maintenance
    108. Frequency of boiler power washing
    135. Plant performance quality program - quality assurance procedures
    162. Calibration of thermocouples - quality assurance procedures
    189. Operations monitoring parameters and practices for maintaining good combustion conditions and minimizing economizer outlet temperature.