The article “Regional Reports: EPA Region 3” by Gale Lea Rubrecht first appeared in the Air Quality Committee Newsletter, Vol. 10, No. 3, August 2007,
Section of Environment, Energy, and Resources, American Bar Association. © Copyright 2007. American Bar Association. All rights reserved.
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REGIONAL REPORTS:
EPA Region 3
company to undertake stack sampling for mercury.
Claymont Steel previously reported mercury emissions
ranging from 28 to 39 pounds per year, but the stack
testing indicated that mercury emissions from the
facility’s electric arc furnace were 360 pounds per year
with a potential to reach or exceed 500 pounds per
year with the plant operating at full capacity. DNREC
ordered Claymont Steel to reduce mercury emissions
either by reducing the mercury entering the furnace or
by using end-of-pipe controls. Claymont Steel
immediately discontinued the use of municipal scrap
metal which includes household appliances, such as
washers and dryers, that can contain mercury switches.
Subsequent stack tests indicated a 40 percent
reduction in mercury emissions compared to the test
done earlier in the year. Claymont Steel also uses scrap
vehicles to make steel slag. Mercury switches can also
be found in convenience lights in trunk and hood
compartments and in anti-locking brake system
modules of vehicles built before model year 2003.
DNREC is encouraging scrap and salvage dealers to
remove and recycle mercury switches from pre-2003
vehicles before they are crushed, shredded and melted.
Gale Lea Rubrecht
Jackson Kelly PLLC
Charleston, West Virginia
galelea@jacksonkelly.com
I. EPA Region 3 Developments
On April 20, the United States District Court for the
Eastern District of Virginia entered a consent decree
requiring four of Mirant Mid-Atlantic’s plants in
U.S. EPA Region 3 to decrease total annual nitrogen
oxides (NOx) emissions by 29,000 tons and ozone
season NOx emissions by 15,000 tons. The consent
decree requires installation of selective catalytic
reduction controls in 2007 and 2008 on the two coalfired units at Mirant’s Morgantown Plant. The consent
decree also requires Mirant to improve SO2 controls
and reconfigure the five stacks at the Potomac River
Plant. Under the consent decree, the five stacks will be
merged into two taller stacks that will release the flue
gas higher into the atmosphere to avoid downwash.
Maryland and Virginia along with EPA are parties to
the consent decree.
2. Enforcement: During the first quarter of 2007,
DNREC’s Division of Air and Waste Management
enforcement officers handled 1,012 complaints and
seventy-four enforcement actions. Individual
complaints included 118 air-related releases. In
addition, thirty-six idling vehicle complaints resulted in
ten arrests.
II. State Developments
A. Delaware
1. Air Toxics: Delaware is looking for ways to reduce
mercury emissions. In November 2006, the Delaware
Department of Natural Resources and Environmental
Control (DNREC) adopted new air quality regulations
requiring power plants to reduce mercury emissions by
more than 80 percent. The regulations require initial
reductions by May 2009 and full compliance by
January 2012. After Delaware’s power plants, the next
largest emitter of mercury in Delaware is Claymont
Steel. Claymont Steel submitted estimates of mercury
emissions based on mathematical calculations, rather
than actual emissions testing, and DNREC asked the
3. NAAQS: On April 3, EPA published a final rule (72
Fed. Reg. 15,839) updating the materials submitted by
Delaware that are incorporated by reference into the
SIP. The final rule took effect April 3, 2007.
4. Permitting: DNREC is using a tool called “Value
Stream Mapping,” to revise its Synthetic Miner permit
process, with a goal of reducing the permitting time
from 7 months to 4 months. DNREC used the tool
with respect to its Regulation 2 construction permit, a
permit required in order to build new equipment that
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turbines from the NOx emission standards due to their
infrequent operation. The proposed regulation would
also reduce NOx emissions in Delaware from peaking
units during high electric demand days. The proposed
regulation would meet Delaware’s obligation to
support the Ozone Transport Commission’s regional
High Electric Demand Days NOx Reduction Initiative
for the peaking units subject to the proposed
regulation.
will emit air pollutants. Under the tool, each step of the
permitting process, from receiving the application to
issuing a permit, was diagramed. Mapping the process
showed that it took an average of 104.5 days to issue
the permit and that less than 1 percent of the permit
applications made it through the permitting process
without re-work. DNREC then re-designed the permit
application and prepared guidance on how to fill out
the application, prepared several “templates” for staff
to use, and set up a tracking board for each permit
application. As a result, DNREC’s Air Quality
Management Section reduced the time it takes to issue
a Regulation 2 construction permit from 104.5 days to
within 60 days and reduced the permit backlog from
199 to 15 permits.
B. District of Columbia: Nothing to report.
C. Maryland
1. Mercury: Maryland has joined in the litigation
challenging the federal Clean Air Mercury Rule, UARG
v. EPA, No. 06-1394, pending in the United States
Court of Appeals for the District of Columbia Circuit.
EPA’s Clean Air Mercury Rule would require states to
meet a cap of 0.49 tons per year by 2010 and
0.193 tons per year by 2018, a reduction of
79 percent from estimated 1999 levels. Maryland’s
mercury state implementation plan (SIP) requires
companies to reduce mercury emissions 80 percent by
2010 and 90 percent by 2013. Maryland and other
petitioners in the litigation claim that the federal rule is
too weak and that trading will result in mercury “hot
spots” near power plants that choose to buy
allowances rather than install mercury controls.
5. Regulations: On March 15, DNREC Secretary John
A. Hughes issued Secretary’s Order No. 2007-A0010 to promulgate amendments to Delaware’s open
burning regulation, No. 1113. The amendments expand
the open burning ban window from June 1 through
Aug. 31 in the current regulation, to May 1 through
Sept. 30, expand the geographic area covered from
only New Castle and Kent Counties to state-wide, and
clarify the prohibitions in the existing regulation and
their interaction with other applicable laws and
regulations. The amendments took effect April 11,
2007.
On April 3, DNREC Secretary John A. Hughes issued
Secretary’s Order No. 2007-A-0011 to amend
regulation No. 1124 by adding section 46 to regulate
the release of VOC emissions during crude oil
lightering. Lightering is the transfer of cargo from larger
ships to smaller ships in order to allow the larger ships
to deliver the cargo to shallower locations along the
Delaware Bay. The amendments took effect May 11,
2007.
2. NAAQS: On April 25, EPA published a proposed
rule (72 Fed. Reg. 20,488) and a direct final rule (72
Fed. Reg. 20,428) to approve revisions to the
Maryland Operating Permit Program. The revisions
amend incorporation-by-reference citations in
Maryland’s regulations to ensure that future changes to
the federal Acid Rain Program will continue to be
incorporated into Maryland’s regulations. Because
EPA did not receive adverse written comment by
May 25, 2007, the rule automatically took effect
June 25, 2007.
On April 26, DNREC held a public hearing on a
proposed regulation, No. 1148, to control the
emissions of NOx from existing, stationary combustion
turbine electric generating units, which are typically
known as peaking units. Under the proposed
regulation, high emitting combustion turbines would be
required to meet the specific emission standards for
NOx. The current regulation exempts some combustion
D. Pennsylvania
1. Air Toxics: On April 23, Pennsylvania Gov. Edward
G. Rendell sent a letter to EPA, urging the agency to
reverse its ruling exempting certain industries from
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county’s portion of the SIP for complying with the
federal Clean Air Act (CAA). The revision would
demonstrate that reasonably available control
technology (RACT) is already in place on pollution
sources to meet the 8-hour national ambient air quality
standard for ozone. No new emission limits are
proposed for the county.
trichloroethylene (TCE) emissions standards. The letter
was sent in response to EPA’s April 17 release of the
final rule entitled “National Air Emissions Standards for
Hazardous Air Pollutants: Halogenated Solvent
Cleaning,” which will exempt three industry sectors,
including aerospace, narrow tubing, and facilities that
use continuous web-cleaning machines. The
Pennsylvania Department of Environmental Protection
(DEP) has monitored high levels of TCE emissions
around the Collegeville, Pennsylvania area attributable
to Title V facilities that use TCE to degrease metal
tubing. These facilities are working with DEP to reduce
TCE emissions voluntarily.
On April 25, DEP announced that it has officially
petitioned EPA to re-designate Cambria County from
nonattainment to attainment for the 8-hour ozone
national ambient air quality standard based on 2003 to
2005 ambient air quality concentrations. DEP has also
submitted a ten-year maintenance plan for Cambria
County that includes additional emission reductions
from the transportation sector.
2. Climate Change: On May 9, DEP announced that
Pennsylvania has joined The Climate Registry. The
purpose of The Climate Registry is to measure, track,
verify, and report greenhouse gas emissions.
Pennsylvania is one of thirty-one founding member
states of The Climate Registry. Other EPA Region 3
member states are Delaware and Maryland.
On May 8, EPA published a proposed rule (72 Fed.
Reg. 26,046) proposing to approve Pennsylvania’s
request that the Tioga County ozone nonattainment
area be re-designated as attainment for the 8-hour
ozone national ambient air quality standard. EPA is also
proposing to approve the maintenance plan for the
Tioga area that provides for continued attainment of the
8-hour ozone national ambient air quality standard for
at least ten years after re-designation and the 2002
base year inventory for the Tioga Area. In addition,
EPA is proposing to determine that the motor vehicle
emission budgets in the maintenance plan are adequate
for transportation conformity and is proposing to
approve those motor vehicle emission budgets.
Comments were due June 7, 2007.
3. NAAQS: On April 17, DEP announced that it has
officially petitioned EPA to re-designate the
Harrisburg-Carlisle-Lebanon area from nonattainment
to attainment status for the 8-hour ozone national
ambient air quality standard based on 2003 to 2005
ambient air quality concentrations. The area is
comprised of Cumberland, Dauphin, Lebanon, and
Perry counties. DEP has also submitted a maintenance
plan for the Harrisburg-Carlisle-Lebanon area,
showing that the area can maintain air quality for the
next ten years. The maintenance plan includes
additional emission reductions from the transportation
sector.
On May 15, EPA published a proposed rule (72 Fed.
Reg. 27,265) proposing to approve Pennsylvania’s
request that the Lancaster County ozone nonattainment
area be re-designated as attainment for the 8-hour
ozone national ambient air quality standard. EPA is also
proposing to approve a maintenance plan for the
Lancaster area that provides for continued attainment
of the 8-hour ozone standard for eleven years and a
2002 base-year inventory. Further, EPA is proposing
to determine that the motor vehicle emission budgets in
the maintenance plan are adequate for transportation
conformity and is proposing to approve those motor
vehicle emission budgets. Comments were due
June 14, 2007.
On April 24, DEP announced that it has officially
petitioned EPA to re-designate Mercer County, which
is part of the Youngstown-Warren-Sharon area, from
nonattainment to attainment for the 8-hour ozone
national ambient air quality standard based on 2003 to
2005 ambient air quality concentrations. The ten-year
maintenance plan for Mercer County includes
additional emission reductions from the transportation
sector.
On April 24, the Allegheny County Board of Health
held a public hearing on a proposed change to the
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4. New Source Review: On April 5, the Pennsylvania
Independent Regulatory Review Commission
approved Pennsylvania’s final new source review
regulation.
Virginia’s request that the Richmond-Petersburg ozone
nonattainment area be re-designated as attainment for
the 8-hour ozone national ambient air quality standard.
The area is comprised of the Cities of Petersburg,
Colonial Heights, Hopewell, and Richmond, and the
Counties of Prince George, Chesterfield, Hanover,
Henrico, and Charles City. In addition, EPA is
proposing to approve Virginia’s maintenance plan for
the Richmond area that provides for continued
attainment of the 8-hour ozone standard for at least ten
years after re-designation and a 2002 base-year
inventory for the Richmond area. Additionally, EPA is
proposing to determine that the motor vehicle
emissions budgets identified in the maintenance plan for
the Richmond area are adequate for purposes of
transportation conformity, and is proposing to approve
those motor vehicle emission budgets. Comments were
due May 14, 2007.
5. Permitting: On March 24, DEP published a
proposed regulation entitled Air Quality Permit
Streamlining in the Pennsylvania Bulletin. The public
comment period closed May 25, 2007.
6. Regulations: On April 28, 2007, DEP published in
the Pennsylvania Bulletin Pennsylvania’s proposed
Clean Air Interstate Rule. Pennsylvania’s proposed rule
does not make significant changes to the federal Clean
Air Interstate Rule (CAIR). Pennsylvania’s proposed
rule will require additional NOx controls for large
electric generating units. DEP is also proposing to
award additional NOx allowances to independent
power producers that did not receive Acid Rain sulfur
dioxide (SO2) allowances. Pennsylvania has filed an
amicus brief in support of the independent power
producers that burn waste coal in the legal challenge to
the federal CAIR, North Carolina v. U.S. EPA,
No. 05-1244 (D.C. Cir.). Comments on
Pennsylvania’s proposed Clean Air Interstate Rule
were due July 2, 2007.
On April 13, EPA published a proposed rule (72 Fed.
Reg. 18,602) proposing to approve Virginia’s request
that the Hampton Roads ozone nonattainment area be
re-designated as attainment for the 8-hour ozone
national ambient air quality standard. The area is
comprised of the Cities of Chesapeake, Hampton,
Newport News, Norfolk, Poquoson, Portsmouth,
Suffolk, Virginia Beach, and Williamsburg, and the
Counties of Gloucester, Isle of Wight, James City, and
York. In addition, EPA is proposing to approve
Virginia’s maintenance plan for the Hampton Roads
area that provides for continued attainment of the
8-hour ozone standard for at least ten years after
re-designation and a 2002 base-year inventory for the
Hampton Roads area. EPA is also proposing to
determine that the motor vehicle emissions budgets
identified in the maintenance plan for the Hampton
Roads area are adequate for purposes of
transportation conformity, and is proposing to approve
those motor vehicle emission budgets. Comments were
due May 14, 2007.
E. Virginia
1. Mercury: The Virginia Department of Environmental
Quality (DEQ) is studying ways to reduce mercury
contamination in Virginia, pursuant to the 2006 state
legislation that established a schedule for reducing
coal-fired power plants’ emissions of SO2, NOx, and
mercury. The analysis will include an evaluation of how
much of the airborne form of mercury is generated in
and out of the Commonwealth. DEQ will examine
existing data on airborne mercury emissions and
conduct modeling to better understand how mercury
falls on land and water, while also seeking to identify
the origins of mercury that falls in Virginia. DEQ is
consulting with industry and others to develop an
inventory of mercury-generating sources. Partial
findings of the study are due later in 2007, and the final
report is due March 2008.
On May 10, EPA published a correction of the
April 12, 2007 proposed rule (72 Fed. Reg. 18,434)
announcing the approval and promulgation of Virginia’s
re-designation of the Richmond-Petersburg 8-hour
ozone non-attainment area to attainment and approval
of the associated maintenance plan and 2002 baseyear inventory. In the preamble of the April 12, 2007
2. NAAQS: On April 12, EPA published a proposed
rule (72 Fed. Reg. 18,434) proposing to approve
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proposed rule, EPA inadvertently printed incorrect
data in Table V entitled “Total NOx Emissions for
2005-2018 (tpd).” The May 10 correction revises
Table V so that it reflects the current NOx emissions
for the Richmond-Petersburg Area for 2005-2018.
3. Regulations: On March 31, DEQ announced
withdrawal of the hazardous air pollutant sources
regulatory amendments that update the Virginia
regulations that incorporate by reference certain federal
regulations to reflect the Code of Federal Regulations
as published on July 1, 2006.
ketone. The amendments took effect June 1, 2007.
On April 20, DEQ announced the suspension of the
effective date of certain provisions of Virginia’s CAIR
concerning non-attainment area requirements and the
reopening of the comment period. In particular, DEQ
suspended the effective date of the following
provisions: 9 VAC5-140-1061, 1062, 2061, 2062,
3061, and 3062. The remaining sections are unaffected
and took effect April 18, 2007. DEQ suspended the
effective date in response to a petition requesting the
reopening of the comment period on changes made to
the original proposal after the close of the public
comment period. Changes to the NOx annual trading
program since publication of the proposal include:
(1) revisions to the provisions related to compliance in
non-attainment areas to establish an independent
annual emissions cap equivalent to the number of
allowances issued to the affected unit, (2) new
provisions to establish a set-aside budget for efficient
energy/renewable energy sources, and (3) revisions to
the provisions related to the compliance supplement
pool. Changes to the NOx ozone season trading
program include: (1) revisions to the provisions related
to compliance in non-attainment areas to establish an
independent annual emissions cap equivalent to the
number of allowances issued to the affected unit,
(2) revisions to the provisions related to the efficient
energy/renewable energy sources to increase the setaside to a value equal to 1 percent of the electric
generating unit (EGU) trading budget, and (3) revisions
to the non-EGU provisions to follow recent guidance
from EPA regarding the transition from the NOx SIP
Call program to the CAIR program. Changes to the
SO2 annual trading program include provisions to
address compliance in non-attainment areas similar to
those for the NOx trading programs. A hearing on the
changes was held on June 18, 2007.
On April 6, DEQ announced that the following three
regulations have been submitted for publication in the
Virginia Register: (1) variance for open burning
(9 VAC 5-240), (2) regulation for transportation
conformity (9 VAC 5-151), and (3) hazardous air
pollutant sources (9 VAC 5-60). The open-burning
variance provides relief from the seasonal restrictions
for the County of Gloucester in the Hampton Roads
Volatile Organic Compound Emissions Control Area.
The variance will allow time for the locality to develop
alternatives to the current practice of open burning for
debris disposal. The variance will cease to be in effect
after Dec. 31, 2008. The regulation for transportation
conformity is the final regulation that has been adopted
by the Virginia Air Pollution Control Board. The
regulation requires that transportation plans, programs,
and projects conform to the Virginia state
implementation plan and establishes the criteria and
procedures for determining whether or not they do.
The hazardous air pollutant sources regulation
amendments update state regulations that incorporate
by reference certain federal regulations to reflect the
Code of Federal Regulations as published on July 1,
2006. The amendments incorporate into the state
NSPS the following regulations by reference: Subpart
EEEE—Other Solid Waste Incineration Units for
which construction is commenced after Dec. 9, 2004,
or for which modification or reconstruction is
commenced on or after June 16, 2006. In addition,
amendments revise the reference to Subpart EEEE
(Hazardous Waste Incinerators) to include references
to several new sections. Finally, the amendments revise
Subpart C (list of hazardous air pollutants, petitions
process, lesser quantity designations, and source
category list) to include the deletion of methyl ethyl
F. West Virginia
1. Climate Change: The mayors of Fayetteville and
Oak Hill, West Virginia, and a Fayette County
Commissioner have signed the United States Mayors
Climate Protection Agreement. The agreement was
created by Seattle Mayor Greg Nickels. It urges state
and federal governments to uphold the standards of the
Kyoto Treaty, which obligates signatory nations to
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the supplemental proposed rule that the D.C. Circuit’s
decision, “as it currently stands or as it may be
modified based upon any petition for rehearing that
may be filed, imposes no impediment to moving
forward with re-designation of these areas to
attainment.” Id. at 1342/1. Comments were due
April 6, 2007.
reduce their greenhouse gas emissions. Under the
United States Mayors Climate Protection Agreement,
the Fayette County officials have agreed to:
(1) maintain healthy urban forest and promote tree
planting to increase shading and absorb carbon
dioxide; (2) help educate citizens and industry about
reducing global warming pollution; (3) increase
recycling; (4) evaluate opportunities to increase pump
efficiency in water and wastewater systems, and
update water heating systems; (5) increase the average
fuel efficiency of municipal fleet vehicles, reduce the
number of vehicles, and convert diesel vehicles to biodiesel; (6) purchase only Energy Star equipment and
appliances for city use; (7) make energy efficiency a
priority through building-code improvements,
retrofitting city facilities with energy-efficient lighting,
and training employees how to conserve energy and
save money; (8) increase the use of clean, alternative
energy; (9) promote transportation options such as
bicycle trails, commute-trip reduction programs, and
incentives for carpooling and public transit; and
(10) adopt and enforce land-use policies that reduce
sprawl, preserve open space, and create compact,
walkable urban communities.
On May 8, EPA published a final rule (72 Fed. Reg.
25,967) approving West Virginia’s request that the
Parkersburg, West Virginia portion of the ParkersburgMarietta, WV-OH area be re-designated as attainment
for the 8-hour ozone national ambient air quality
standard and associated maintenance plan. EPA is
also approving the maintenance plan as meeting the
requirements of the CAA with respect to 1-hour ozone
maintenance plan update. In addition, EPA is
approving the adequacy determination for the motor
vehicle emission budgets in the maintenance plan for
proposes of transportation confirmatory and is
approving those motor vehicle emission budgets. The
final rule took effect June 7, 2007.
On May 14, EPA approved a final rule (72 Fed. Reg.
27,060) approving West Virginia’s request that the
Brooke and Hancock County, West Virginia (Weirton)
portion of the Steubenville-Weirton, OH-WV area be
re-designated as attainment for the 8-hour ozone
national ambient air quality standard. EPA is also
approving the associated maintenance plan for Weirton
that provides for continued attainment of the 8-hour
ozone standard for the next twelve years. In addition,
EPA is approving the adequacy determination for the
motor vehicle emission budgets in the maintenance plan
for purposes of transportation conformity and is
approving those motor vehicle emission budgets. The
final rule took effect June 13, 2007.
2. NAAQS: On March 22, EPA published a
supplemental proposed rule (72 Fed. Reg. 13,452) on
8-hour ozone re-designations for various areas,
including four areas in West Virginia. The four areas in
West Virginia on which EPA has proposed redesignations from nonattainment to attainment of the
8-hour ozone standard but has not yet finalized those
actions are: Parkersburg-Marietta, WV-OH (Wood
County, West Virginia); Steubenville-Weirton, OHWV (Brooke and Hancock Counties, West Virginia);
and Wheeling, WV-OH (Marshall and Ohio Counties,
West Virginia). In the supplemental proposal, EPA sets
forth its views on the potential effect of the Dec. 22,
2006 court decision in South Coast Air Quality
Management District v. EPA, 472 F.3d 882 (D.C.
Cir. 2006), which vacated and remanded EPA’s
Phase 1 8-Hour Ozone Implementation Rule, on a
number of proposed re-designation actions. EPA is
proposing to find that the D.C. Circuit’s ruling does not
alter any requirements relevant to these proposed redesignations that would prevent EPA from finalizing
these re-designations. EPA states in the preamble to
On May 15, EPA published a final rule (72 Fed. Reg.
27,247) approving West Virginia’s request that the
Marshall and Ohio County, West Virginia (Wheeling)
portion of the Wheeling, WV-OH area be redesignated as attainment for the 8-hour ozone national
ambient air quality standard. EPA is also approving the
associated maintenance plan that provides for
continued attainment of the 8-hour ozone standard for
the next twelve years, until 2018. Further, EPA is
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approving the adequacy determination for the motor
vehicle emission budgets that are identified in the
maintenance plan for purposes of transportation
conformity and is approving those motor vehicle
emission budgets. The final rule took effect June 14,
2007.
3. Permitting: The West Virginia Department of Air
Quality (DAQ) has finalized its general permits for
emergency generators. The permits and corresponding
documents, including the WV DAQ’s response to
comments, is available on the Internet at: http://
www.wvdep.org/item.cfm?ssid=8&ss1id=289.
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