The article “Regional Reports: EPA Region 3” by Gale Lea Rubrecht first appeared in the Air Quality Committee Newsletter, Vol. 10, No. 2, April 2007,
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REGIONAL REPORTS:
EPA Region 3
by May 2009, and the remaining reductions are to take
place by 2012. The regulations do allow an extension
of the May 2009 compliance date if the plant operator
is unable to meet the deadline through circumstances
beyond its control. The new rule does not prohibit
companies in Delaware from selling their surplus SO2
and NOx allowances to facilities in other states but
does require the affected plants to meet their State
emission limits without the use of allowance purchasing.
The trading of mercury is prohibited. DNREC has
committed to re-examining the progress of the
regulated parties in meeting the requirements in 2010.
The plants affected by the new rule are the largest unit
at the City of Dover’s McKeen Run plant, three units
at Connectiv Delmarva Generation, Inc.’s Edge Moor
generator, and NRG Energy, Inc.’s Indian River
location, and on Dec. 7, 2006, they filed appeals with
the Environmental Appeals Board challenging the new
regulations.
Gale Lea Rubrecht
Jackson Kelly PLLC
Charleston, West Virginia
galelea@jacksonkelly.com
I. EPA Region 3 Developments
On Nov. 29, 2006, EPA published a final rule (71 Fed.
Reg. 69,022) deferring certain CAA requirements for
Early Action Compact areas. The Early Action
Compact areas in Region 3 are: Frederick County/
Winchester, Virginia; Roanoke, Virginia; Washington
County/Hagerstown, Maryland; and Berkeley and
Jefferson Counties, West Virginia. EPA is deferring the
8-hour ozone requirements for these areas from
Dec. 31, 2006 to April 15, 2008. The final rule took
effect Dec. 29, 2006.
3. NAAQS: On Dec. 6, 2006, EPA published a
proposed rule (71 Fed. Reg. 70,702) and a direct final
rule (71 Fed. Reg. 70,665) to approve amendments to
the definition of “a major source” in Delaware’s state
operating permit program. The revision would require
all fugitive emissions to be included in major source
determinations for sources subject to federal New
Source Performance Standards (NSPS) or the
National Emissions Standards for Hazardous Air
Pollutants (NESHAPs). The amendments make the
definition of “a major source” as stringent as the
corresponding provision of the federal Title V
regulations, which went into effect on Nov. 27, 2001.
The rule took effect Feb. 5, 2007.
SIP rules to implement CAMR were due to EPA by
Nov. 17, 2006. Only Delaware, Pennsylvania, and
West Virginia in Region 3 submitted timely rules as
revisions to their respective SIPs.
II. State Developments
A. Delaware
1. Climate Change: Delaware is participating in RGGI.
Under the Model Rule developed under RGGI, six
electrical generating facilities in Delaware would be
regulated. RGGI and the Model Rule are described
above.
On Dec. 7, 2006, EPA published a proposed rule (71
Fed. Reg. 70,914) and a direct final rule (71 Fed. Reg.
70,883) approving revisions to Delaware’s SIP. The
revisions ensure that all pre-construction air quality
permits issued pursuant to Delaware’s Regulation 1102
are federally enforceable, regardless of whether they
are intended to limit a source’s potential to emit. The
rule took effect Feb. 5, 2007.
2. Multi-Pollutant Regulation: In November 2006, the
Delaware Department of Natural Resources and
Environmental Control (DNREC) adopted a new
regulation to reduce mercury, SO2, and NOX
emissions. The new rule requires affected plants to cut
their allowable emissions of mercury by 80 percent,
SO2 by 87 percent, and NOx by 76 percent. Under
the new rule, initial emissions reductions are to begin
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developed by California and is commonly referred to
as the low emission vehicles 2 or LEV-2 standard.
LEV-2 requires reduced CO2 emissions, which the
federal standard does not.
4. Regulations: On Oct. 16, 2006, the DNREC
secretary issued Order No. 2006-A-0045 amending
Regulation No. 1141, “Limiting Emissions of Volatile
Organic Compounds from Consumer and Commercial
Products, Section 1—Architectural and Industrial
Maintenance Coatings.” The amendments include:
(1) a specified finite period for the retention by
manufacturers of certain records; and (2) a revised
definition of specialty primer, sealer, under-coater
product to include sealing in efflorescence. The
amendments took effect Nov. 11, 2006.
3. NAAQS: On Oct. 10, 2006, EPA published a
proposed rule (71 Fed. Reg. 59,413) to approve a
Maryland SIP revision pertaining to the control of
VOCs.
On Oct. 24, 2006, EPA published a final rule (71 Fed.
Reg. 62,210) approving a request by Maryland to
remove an Aug. 2, 1984 Secretarial Order from the
Maryland SIP. The Secretarial Order constituted a
Plan for Compliance and an alternative method of
assessing compliance at an American Cyanamid
Company facility in Havre de Grace, Harford County,
Maryland. The Secretarial Order allowed for certain
VOC emissions sources at the facility to achieve
compliance with emissions limits through averaging or
“bubbling” of emissions over a twenty-four-hour
period. In lieu of “bubbling,” the sources will now have
to comply with the more stringent Maryland SIP
requirements. The final rule took effect Nov. 24, 2006.
On Oct. 16, 2006, DNREC issued Order No. 2006A-0046 withdrawing the proposed lightering regulation
dated Aug. 1, 2001. The regulation has since been
superseded by a Nov. 1 proposed regulation. The
Nov. 1 proposal would add a new section, Section 46
“Crude Oil Lightering Operations,” to Regulation
No. 1124, “Control of Volatile Organic Compound
Emissions,” to help control emissions of volatile organic
compounds (VOCs) and hazardous air pollutants
(HAPs) from crude oil lightering operations. Lightering
is the process where the draft of a large ocean-going
vessel is reduced by bulk transfer of cargo (usually
crude oil) from the ocean-going vessel to smaller
service vessels and is necessary for the ocean-going
vessel to be able to proceed upriver. Lightering
operations represent the single, largest volatile organic
compound point source in Delaware. A public hearing
on the Nov. 1 proposed regulation was held Dec. 4,
2006.
On Nov. 3, 2006, EPA published a proposed rule (71
Fed. Reg. 64,668) and a direct final rule (71 Fed. Reg.
64,647) approving a revision to the Maryland SIP
consisting of the NOx allowance allocations for the
2008 ozone season in accordance with Maryland’s
approved NOx SIP Call trading program. The rule
took effect Jan. 2, 2007.
C. Maryland
On Dec. 22, 2006, EPA published a final rule (71 Fed.
Reg. 76,920) approving a request by Maryland to redesignate the Kent and Queen Anne’s 8-Hour Ozone
NonAttainment Area as attainment for the 8-hour
ozone NAAQS. In addition, EPA approved the
maintenance plan as meeting the requirements of the
CAA with respect to the 1-hour ozone maintenance
plan update, as well as the adequacy determination for
the motor vehicle emission budgets in the maintenance
plan and also approved those budgets. The final rule
took effect Jan. 22, 2007.
1. Climate Change: Maryland is a participant in
RGGI.
2. Mobile Sources: On Dec. 27, 2006, Environment
Maryland called for Maryland to adopt the proposed
Clean Cars Program, which would tighten Maryland’s
auto emissions standards beyond federal requirements.
In support of its call for the Clean Cars Program,
Environment Maryland cited a report that stated that
Maryland had levels of airborne toxins at least ten
times higher than the EPA cancer risk standard. The
Clean Cars Program would be more stringent than the
federal Tier 2 standards. The Clean Cars Program was
On Jan. 3, 2007, EPA published a proposed rule (72
Fed. Reg. 68) and a direct final rule (72 Fed. Reg. 18)
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3. Mobile Sources: On Sept. 19, 2006, the
Pennsylvania Environmental Quality Board approved,
by a vote of 16-2, Pennsylvania’s Clean Vehicles
Program. The final regulation implements much of
California’s clean car program. Beginning with the
2008 model year, only those vehicles certified by the
California Air Resources Board can be sold and
registered in Pennsylvania. The Pennsylvania Clean
Vehicle Program also includes the California language
requiring reductions in CO2 emissions beginning in
2009. On Nov. 2, 2006, the Independent Regulatory
Review Commission voted 4-1 to approve the final
regulation, and on Dec. 8, 2006, the Pennsylvania
attorney general approved Pennsylvania’s Clean
Vehicles Program.
to approve revisions to the Maryland SIP incorporating
by reference EPA’s test methods for PM10. The rule
took effect March 5, 2007.
On Jan. 11, 2007, EPA approved a final rule (72 Fed.
Reg. 1289) approving a Maryland SIP revision
pertaining to the control of VOCs from medical device
manufacturing. The final rule takes effect Feb. 12,
2007. Also on Jan. 11, 2007, EPA published a final
rule (72 Fed. Reg. 1291) approving a revision to the
Maryland SIP pertaining to a consent order
establishing a VOC reasonably available control
technology (RACT) for Perdue Farms, Incorporated.
The final rule took effect Feb. 12, 2007.
C. Pennsylvania
4. NAAQS: On Sept. 29, 2006, EPA published a
final rule (71 Fed. Reg. 57,428) approving a
Pennsylvania SIP revision pertaining to: (1) NOx
reductions that are required for the Commonwealth to
support its approved attainment demonstration for the
Philadelphia-Trenton-Wilmington 1-hour ozone
nonattainment area, (2) NOx reductions from stationary
internal combustion engines to meet the NOx SIP Call
Phase II, and (3) NOx reductions from cement kilns to
meet the NOx SIP Call. The revisions also include
provisions for emission credits for sources that
generate zero-emission at renewable energy. The final
rule took effect Oct. 30, 2006.
1. Climate Change: On Oct.17, 2006, the
Pennsylvania Department of Environmental Protection
(PADEP) announced that the Lancaster County Solid
Waste Management Authority had become the first
public environmental services organization in the United
States to become a member of the Chicago Climate
Exchange, North America’s only and the world’s first,
voluntary, legally binding multi-sector market for
reducing and treating GHG emissions. The authority is
voluntarily committing to reduce its GHG emissions by
6 percent by 2010 using its emissions in 2000 as the
baseline.
On Sept. 29, 2006, PADEP announced that
Pennsylvania is petitioning EPA to re-designate Tioga
County from nonattainment to attainment for the
8-hour ozone NAAQS and submitting an attainment
maintenance plan. The maintenance plan includes
additional emission reductions from the transportation
sector.
2. Mercury: On Sept. 27, 2006, the sixteen-member
Air Quality Technical Advisory Committee for PADEP
voted 7-4, with one abstention, to send Pennsylvania’s
state-specific mercury rule to the Environmental
Quality Board for final approval. On Oct. 17, 2006,
the 20-member Pennsylvania Environmental Quality
Board voted 17–3 to approve the state-specific
mercury rule. The Independent Regulatory Review
Commission approved Pennsylvania’s mercury rule by
a 3-2 vote at its Nov. 16, 2006 meeting, and PADEP
submitted Pennsylvania’s rule to EPA as a SIP revision.
Pennsylvania’s rule still requires review by the state
attorney general before becoming final. The rule
requires an 80 percent reduction in mercury emissions
by 2010 and a 90 percent reduction by 2015.
Pennsylvania’s rule also prohibits trading.
On Nov. 9 and 20, 2006, PADEP announced that it
also would petition EPA to re-designate Greene
County and Franklin County, respectively, from
nonattainment to attainment for the 8-hour ozone
NAAQS based on 2003 to 2005 ambient air quality
concentrations. Reading’s and Franklin County’s
proposed maintenance plans, which demonstrate that
the areas can maintain air quality at the required levels
for the next ten years, include additional emission
reductions from the transportation sector.
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imposes operating restrictions on the facility’s boilers
and the shutdown of the remainder of the facility. The
rule took effect Dec. 18, 2006.
On Jan. 3, 2007, EPA published a final rule (72 Fed.
Reg. 200) updating the materials submitted by
Pennsylvania that are incorporated by reference into
the Pennsylvania SIP. The final rule took effect Jan. 3,
2007.
On Dec. 26, 2006, EPA published a proposed rule
(71 Fed. Reg. 77,353) proposing to approve revisions
to the Virginia SIP. The revisions expand the VOC and
NOx emissions control areas and extend the
geographic applicability of the VOC and NOx
regulatory rules into the new 8-hour ozone
nonattainment areas. The counties and cities in the
corresponding new 8-hour ozone nonattainment areas
that were not previously listed in the Virginia VOC and
NOx areas include Spotsylvania County and
Fredericksburg City in the Fredericksburg area,
Gloucester County and Isle of Wight County in the
Hampton Roads area, and Prince George County and
Petersburg City in the Richmond area.
D. Virginia
1. Climate Change: On Jan. 1, 2007, Arlington
County, Virginia, adopted a GHG initiative, known as
the Fresh Arlington Initiative to Reduce Emissions
(Fresh AIRE), aimed at cutting the county’s emissions
by 10 percent by 2012. Fresh AIRE calls on the local
government to: increase its purchase of wind energy
from 3 percent to 5 percent, install solar technology in
one or two county buildings by 2012, increase energy
efficiency in government buildings to lower energy use
by 2 percent through 2012, draft a county-wide energy
and climate-action plan, require new public buildings to
achieve Leadership in Energy Efficient Design
certification, and plant 1,200 trees in 2007.
On Jan. 8, 2007, EPA published a proposed rule (72
Fed. Reg. 697) and a direct final rule (72 Fed. Reg.
653) approving revisions to the Virginia SIP consisting
of the addition of counties to the Northern Virginia
nonattainment area for the PM2.5 NAAQS. The
counties and local areas included in the nonattainment
area are: Arlington County, Fairfax County, Loudon
County, Prince William, Alexandria City, Fairfax City,
Falls Church City, Manassas City, and Manassas Park
City. The rule took effect March 9, 2007.
2. Mercury: On Oct. 19, 2006, the Virginia
Department of Environmental Quality (VADEQ)
announced the opening of the public comment period
on Virginia’s proposed mercury rule. The proposal
consists of adding three new parts for the control of
mercury emissions from coal-fired electric steam
generating units. The three new parts are: (1) a state
model rule that meets the EPA requirements for
participation in the federal mercury emissions trading
program and is to be submitted to EPA to meet the
requirements of CAMR, (2) a state-specific rule that
addresses mercury reductions to meet Virginia’s
environmental needs, and (3) a state-specific rule for
nonattainment areas that addresses mercury
compliance obligations and non-attainment areas.
Under the proposal, mercury emission reductions are
required beginning in 2010.
4. New Source Review: On Oct. 10, 2006, VADEQ
announced a policy adopting the current EPA guidance
on interim implementation of new source review for
PM2.5, which directs states to use PM10 as a surrogate
for PM2.5 New Source Review (NSR) until such time
as the state establishes a more appropriate
implementation methodology, EPA promulgates revised
implementation guidance or policy, or EPA
promulgates final regulations.
3. NAAQS: On Nov. 16, 2006, EPA published a
final rule (71 Fed. Reg. 66,679) approving a SIP
revision removing a consent agreement currently in
place for the control of sulfur dioxide (SO2) emissions
from Burlington Industries located in Clarksville,
Virginia. The consent agreement has been superseded
by a federally enforceable state operating permit that
5. Regulations: On Nov. 3, 2006, VADEQ
announced that the final regulations for case-by-case
RACT determinations for existing stationary sources
had been submitted for publication in the Virginia
Register. The amendments clarify and re-codify the
existing provisions covering case-by-case RACT
determinations (Article IV) and create a new Article 51
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in which to separate the RACT-specific requirements
from the general process requirements of Article IV. In
addition, the amendments add the new 8-hour ozone
NAAQS requirements.
On Oct. 2, 2006, EPA published two proposed rules
(71 Fed. Reg. 57,894 and 71 Fed. Reg. 57,905)
proposing to approve re-designation requests and state
implementation plan revisions for the West Virginia
portions of the Wheeling, WV-OH area and the
Steubenville-Weirton, OH-WV area from
nonattainment to attainment of the 8-hour NAAQS.
Specifically, EPA is proposing to approve a request by
WVDEP that the Marshall and Ohio County, West
Virginia portion of the Wheeling, WV-OH area and the
Brooke and Hancock County, West Virginia portion of
the Steubenville-Weirton, OH-WV area be redesignated as attainment for the 8-hour ozone
standard. In addition, EPA is proposing to approve
West Virginia’s maintenance plans for the Wheeling
area and the West Virginia portion of the Weirton area
that provide for continued attainment of the 8-hour
ozone standard for the next twelve years. EPA is also
proposing to approve the motor vehicle emission
budgets that are identified in the maintenance plans for
purposes of transportation conformity.
E. West Virginia
1. Climate Change: The West Virginia Department of
Environmental Protection (WVDEP) has proposing
another climate change bill during the 2007 Regular
Session of the West Virginia Legislature. The bill, if
passed, would establish a GHG inventory, requiring
facilities to report emissions to the state, and would set
up a voluntary reporting registry for voluntary
reductions. The bill is intended to determine if West
Virginia is a net sink or emitter of GHGs and whether
GHGs could be developed as an asset for economic
development. The bill would establish a mandatory
reporting program for all stationary, mobile, and
agricultural sources of GHG and require tracking of
GHG sinks in West Virginia.
2. Mercury: On Nov. 1, 2006, WVDEP released its
mercury study evaluating technology for the control of
mercury air emissions from coal-fired electric
generating units and other industrial stationary sources.
The study concludes that commercially available
mercury-specific technology for coal-fired power
plants does not exist and that research and
development and commercial demonstrations as well
as technical and economic evaluations are needed.
With respect to other industrial facilities, the study
concludes that federal and state rules for hazardous air
pollutants will control mercury air emissions from the
single mercury-cell chlor alkali plant in West Virginia,
as well as industrial/commercial/institutional boilers and
process heaters. WVDEP is required to make a
finding in 2007 as to whether the citizens of West
Virginia or regions of West Virginia are exposed to
potential health risks because of mercury
contamination.
On Nov. 2, 2006, EPA published two final rules (71
Fed. Reg. 64,470 and 71 Fed. Reg. 64,468)
approving amendments to West Virginia’s prevention
of significant deterioration preconstruction and
nonattainment NSR permit program regulations, 45
CSR 14 and 45 CSR 19, respectively as revisions to
the West Virginia SIP. The amendments exclude from
the West Virginia state implementation plan the “Clean
Unit” and “Pollution Control Project” exemption and
thereby make the West Virginia prevention of
significant deterioration and nonattainment NSR
programs consistent with the June 24, 2005 ruling of
the United States Court of Appeals for the District of
Columbia Circuit in New York v. EPA, 413 F.3d 3
(D.C. Cir. 2005). The final rule took effect Dec. 4,
2006.
On Jan. 12, 2007, EPA published a proposed rule (72
Fed. Reg. 1474) proposing to approve a redesignation request and a state implementation plan
revision submitted by West Virginia for the
Parkersburg portion of the Parkersburg-Marietta,
WV-OH area from non-attainment to attainment of the
8-hour ozone NAAQS. West Virginia is requesting
that the Wood County, West Virginia (Parkersburg)
portion of the area be re-designated as attainment for
3. NAAQS: On Sept. 28, 2006, EPA published a
proposed rule (71 Fed. Reg. 56,921) and a direct final
rule (71 Fed. Reg. 56,881) converting a conditional
approval of West Virginia’s Phase II NOx SIP Call
Rule to a full approval. The rule automatically took
effect Nov. 27, 2006.
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the 8-hour ozone NAAQS. EPA is also proposing to
approve the maintenance plan for Parkersburg that
provides for continued attainment of 8-hour ozone
standards for the next twelve years and is proposing to
approve the motor vehicle emission budgets that are
identified in the Parkersburg maintenance plan for
purposes of transportation conformity.
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