The article “Regional Reports: Region 3” by Gale Lea Rubrecht first appeared in the Air Quality Committee Newsletter, Vol. 10, No. 1, January 2007,
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REGIONAL REPORTS:
Region 3
Emission Control Requirements,” by adding a new
section. The new section would require new and/or
additional controls on industrial boilers and process
heaters with heat input capacity equal to or greater
than 200 mmBtu/hour at petroleum refineries in
Delaware. The regulation is part of the agency’s effort
to reduce volatile organic compound (VOC) and
nitrogen oxides (NOx) emissions in Delaware and
attain the 8-hour ozone National Ambient Air Quality
Standards (NAAQS).
Gale Lea Rubrecht
Jackson Kelly PLLC
Charleston, West Virginia
galelea@jacksonkelly.com
I. EPA Region 3 Developments
On Aug. 9, EPA published a proposed rule (71 Fed.
Reg. 45,492) proposing to defer for the third time
Clean Air Act (CAA) requirements to reduce ozone
pollution for areas that continue to make progress in
reducing ground-level ozone under EPA’s Early Action
Compact (EAC) program. EPA is proposing to defer
certain 8-hour ozone pollution requirements for the
EAC areas from Dec. 31, 2006 to April 15, 2008.
The Region 3 EAC areas are: Washington County/
Hagerstown, Maryland; Frederick County/Winchester,
Virginia and Roanoke, Virginia; and Berkeley and
Jefferson Counties, West Virginia. Comments were
due Sept. 8, 2006.
DNREC is considering a new regulation, No. 1146,
“Electric Generating Unit (EGU) Multi-Pollutant
Regulation,” to reduce NOx, SO2 and mercury from
Delaware’s coal and residual oil-fired power plants.
Public workshops were held in July and August and
hearings were held in late September.
DNREC convened a public hearing on Aug. 1
regarding Delaware’s draft reasonably available control
technology (RACT) State Implementation Plan (SIP)
revision. The draft revision identifies RACT level
controls on all stationary sources of VOCs and NOx
emissions. With one exception, the controls have been
approved by EPA under the 1-hour ozone NAAQS.
The revision certifies that these controls represent
RACT control levels under the new 8-hour ozone
national ambient air quality standard. The one
exception is the VOC emissions from the crude oil
lightering process being conducted in the Delaware
Bay. No controls were established under the RACT
requirements for this source under the 1-hour ozone
NAAQS because controls were determined to be not
feasible at the time.
West Virginia is the only Region 3 state that submitted
a Clean Air Interstate Rule (CAIR) State
Implementation Plan (SIP) by Sept. 11, 2006.
II. State Developments
A. Delaware
1. Mercury: Delaware is proposing to follow the
STAPPA/ALAPCO model rule, but on a slightly less
accelerated timeline. Delaware’s proposal would
require plants to capture 80 percent of mercury
emissions by 2009 and 90 percent by 2013. Under
the STAPPA/ALAPCO model rule, plants are
required to capture 80 percent of mercury emissions
by 2008, and 90-95 percent by 2012.
DNREC is proposing to amend Regulation 24,
“Control of Volatile Organic Compound Emissions,”
by adding a new section that will require the control of
VOC emissions from lightering operations. Lightering
is the transfer of cargo (usually crude oil) from oceangoing vessels to service barges and ships. Lightering
decreases the draft of the ocean-going vessel and
allows them to proceed up the Delaware River.
2. Regulations: The Delaware Department of Natural
Resources & Environmental Control (DNREC)
considering revising Regulation 1142, “Specific
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3. Regulations: On Aug. 14, MDE sent to the
Maryland General Assembly’s Joint Committee on
Administrative, Executive, and Legislative Review a
proposed emergency regulation setting unit-by-unit
targets under Maryland’s new Healthy Air Act for
approval. The lawmakers responded by asking MDE
to spend more time on the emergency regulation with
stakeholders so that there are no surprises during the
rulemaking. Maryland’s Healthy Air Act calls for an
85 percent reduction in SO2 emissions by 2013, a
75 percent reduction in NOX emissions by 2012 and a
90 percent removal rate for mercury by 2013.
DNREC is proposing to amend Delaware’s open
burning air quality regulations, No. 1113, to include
Sussex County in the open burning ban and to expand
the ban statewide from June 1-Aug. 31 in the current
regulation to May 1-Sept. 30. The draft regulation
includes Sussex County in the open burning ban as a
result of Sussex County’s non-attainment with the 8hour ozone national ambient air quality standard.
DNREC held three public workshops to discuss the
draft’s regulations in August 2006.
On Sept. 11, DNREC announced a public hearing on
Oct. 1 to discuss amending Regulation 41, “Limiting
Emissions of Volatile Organic Compounds from
consumer and Commercial Products, Section 1—
Architectural and Industrial Maintenance Coatings.”
The proposed amendments include: (1) specify a finite
period for certain record retention by manufacturers;
and (2) revise the definition of a specialty primer,
sealer, undercoater product to include sealing in
efflorescence.
C. Pennsylvania
1. Mercury: Pennsylvania legislators are fighting with
the Pennsylvania Department of Environmental
Protection (DEP) over its plan to impose tighter
requirements than the federal Clean Air Mercury Rule.
The DEP proposal that was approved by the
Pennsylvania Environmental Quality Board (EQB) on
May 17 calls for an 80 percent removal by 2010 and
90 percent removal by 2015 and would not allow
mercury allowance trading. The Senate Environmental
Resources and Energy Committee has held three
public hearings on how to reduce mercury emissions,
and is pushing S. B. 1201, which basically would
implement the federal Clean Air Mercury Rule
(CAMR) and require mercury emissions reductions of
nearly 21 percent by 2010 and 70 percent by 2018.
S.B. 1201 would also direct the use of the emissions
trading program authorized under CAMR. The
Pennsylvania Senate approved S.B. 1201 on June 20,
2006, and the bill now goes to the Pennsylvania House
of Representatives for consideration. The EQB held
three public hearings in July, and the public comment
period ended Aug. 26. On Sept. 6, DEP held public
hearings to accept testimony on the proposed rule.
B. Maryland
1. Mercury: Maryland has passed the Healthy Air Act,
which will cut mercury emissions from its coal-fired
power plants 80 percent by 2009 and 90 percent by
2013. Sources may not use allowances to comply
with emission limitations. The Maryland Department of
the Environment (MDE) is still deliberating as to
whether to allow sources to sell their allowances to
facilities in other states.
2. NAAQS: On Aug. 23, EPA published a proposed
rule (71 Fed. Reg. 49,393) proposing to approve a
Maryland SIP revision, removing an Aug. 2, 1984,
Secretarial Order from the Maryland SIP. The order
allowed for certain VOC emissions sources at a facility
to achieve compliance with the emissions limits through
averaging or “bubbling” of emissions over a 24-hour
period. Removal of the order from the SIP will
remove the “bubbling” compliance option for these
sources. Instead, the sources must comply with the
approved and more stringent Maryland SIP provisions
for the control of VOC emissions that do not allow
“bubbling.” Comments were due Sept. 22.
2. NAAQS: On July 12, DEP announced that it would
petition EPA to re-designate Lancaster County from
“marginal” nonattainment to attainment for the 8-hour
ozone NAAQS. DEP also said that it would submit a
proposed maintenance plan that includes additional
emission reductions from the transportation sector,
namely Pennsylvania’s Clean Vehicles Program.
Comments on the re-designation proposal were due by
the close of the public hearing on Aug. 8.
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Locating in Nonattainment Areas” as if they were
classified as “moderate” nonattainment for ozone,
except that the threshold for major stationary sources
of VOCs would be 50 tons instead of 100 tons.
Sources in the Virginia portion of the Ozone Transport
Region are also required to meet offset requirements in
9 VAC 5-80-2120 B 2 for areas classified as
“moderate” nonattainment for ozone. The offset
requirements provide that all increases of VOCs and/
or NOx emissions attributable to the new or modified
source be offset by emission reductions elsewhere in
the Virginia portion of the Ozone Transport Region at a
ratio of 1.15 to 1.00. The revisions also add new
regulatory language indicating that sources in the
Virginia portion of the Ozone Transport Region are
subject to the requirements of 9 VAC 5-80-2000 et
seq. regardless of the nonattainment status of the area
where the source is located. The revisions further
provide that sources located or planning to locate in
the areas within the Ozone Transport Region that are
classified as “serious” or “severe” nonattainment areas
are required to meet the respective emission thresholds
listed within the State’s definition of a “major stationary
source” at 9 VAC 5-80-2010 C Section a (1) (2) and
the more restrictive requirements located in 9 VAC 580-2120 B 3 and B 4, respectively.
3. NSR: The comment period on Pennsylvania’s
proposed Nonattainment New Source Review Rule
Making ended July 31. The proposed rule making
amends 25 PA. Code Section 121.1 (relating to
definitions) Chapter 127, Subchapter E (relating to
NSR) and includes certain revisions required by EPA
to implement the final federal rule that was published
Dec. 31, 2002 (67 Fed. Reg. 80,186) entitled
“Prevention of Significant Deterioration in
Nonattainment New Source Review: Baseline
Emissions Determination, Actual-to-Future-Actual
Methodology, Plant Wide Applicability Limits, [Clean]
Units, Pollution Control Projects.” Pennsylvania’s
proposed amendments would incorporate the
provisions for base line emissions determinations,
actual-to-future actual methodology, and Plantwide
Applicability Limits that were upheld by the D.C.
Circuit in New York v. EPA, 45 F.3d (D.C. Cir.
June 24, 2005).
D. Virginia
1. Mercury: The Virginia Department of Environmental
Quality (DEQ) was planning to go beyond the federal
CAMR, but the legislature passed a bill preventing the
Air Pollution Control Board (APCB) from setting
stricter mercury limits. The bill places some restrictions
on trading for certain facilities in the state but not on the
sale of allowances outside the state.
On Aug. 18, EPA published a final rule (71 Fed. Reg.
47,744) approving Virginia SIP revisions consisting of
amendments to state regulation provisions pertaining to
maintenance, nonattainment, and Prevention of
Significant Deterioration (PSD) areas for incorporation
into the Virginia SIP. The revisions reflect the redesignation of the Hampton Roads and Richmond
ozone nonattainment areas to attainment of the 1-hour
ozone NAAQS, and the repeal of the 1-hour ozone
NAAQS which removed the White Top Mountain
area from the list of 1-hour ozone nonattainment areas
and from the list of PSD areas. In addition, the
revision incorporates the new 8-hour ozone nonattainment areas into the list of Virginia’s nonattainment
areas and revises the list of PSD areas. The final rule
took effect Sept. 18.
2. NAAQS: On Aug. 18, EPA published a final rule
(71 Fed. Reg. 47,742) approving a Virginia SIP
revision amending Virginia’s regulations by updating the
definition of “volatile organic compound.” The final
rule took effect Sept. 18.
3. NSR: On July 13, EPA published a final rule (71
Fed. Reg. 39,570) approving a Virginia SIP revision
establishing and requiring major new and modified
sources of VOCs or NOx to meet certain
nonattainment NSR requirements if they are located, or
are proposing to locate, in the Virginia portion of the
Ozone Transport Region. The revisions clarify that
areas located in the Virginia portion of the Ozone
Transport Region must meet the requirements of
Virginia Code Article 9 VAC 5 chapter 80 “Permits for
Major Stationary Sources and Major Modifications
4. Regulations: On June 30, DEQ submitted Virginia’s
proposed version of CAIR (Rev. E05) for publication
in the Virginia Register.
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waste, debris waste and demolition waste. The rule
extends the seasonal restriction to all VOC emissions
control areas and expands the seasonal restriction in
those areas from June, July and August to include May
and September.
On July 14, DEQ announced final regulatory
amendments concerning the 8-hour ozone
nonattainment areas (Revision B06). The amendments
revise the geographic delineation of the maintenance
area and the nonattainment areas to correspond to the
federal areas. Specifically, the Fredericksburg Ozone
Maintenance Area (Spotsylvania County, Strafford
County and Fredericksburg City) and the Shenandoah
National Park Ozone Maintenance Area (the portions
of Madison County and Page County located in
Shenandoah National Park) have been added to the
list of maintenance areas. The Fredericksburg Ozone
Nonattainment Area and the Shenandoah National
Park Ozone Nonattainment Area have been deleted
from the list of nonattainment areas. The amendments
took effect Sept. 1.
E. West Virginia
1. Climate Change: The West Virginia Department of
Environmental Protection (DEP) has confirmed that
reporting of greenhouse gases will be voluntary for
2005. DEP is expected to pursue legislation
concerning a mandatory greenhouse gas inventory in
2007.
On Aug. 25, DEQ announced a final rule for VOC and
NOx emissions control areas (REV. D04). In Virginia
the geographic applicability of control measures
designed to attain and maintain the ozone air quality
standard is defined by establishing VOC and NOx
emissions control areas. The final rule expands these
areas into the new 8-hour ozone nonattainment areas.
The final rule establishes new Fredericksburg NOx and
VOC Emissions Control Areas and expands the
Richmond and Hampton Roads VOC and NOx
Emissions Control Areas to include those counties and
cities in the corresponding new 8-hour ozone
nonattainment areas that were not previously listed.
The proposal was changed to limit the expansion of
portable fuel containers, mobile equipment repair and
refinishing, architectural and industrial maintenance
coatings, and consumer products to the
Fredericksburg VOC Emissions Control Area, and to
ensure that Stage II vapor recovery requirements are
not extended into the new areas incorporated into the
Richmond VOC Emissions Control Area. The final
rule also amends provisions that apply only to certain
existing VOC and NOx emissions control areas. The
final rule took effect Oct. 4.
2. Mercury: West Virginia is adopting the federal
CAMR basically “as is.” However, the legislature is
requiring DEP to conduct a study and make a finding
before Jan. 1, 2007, as to whether the citizens of West
Virginia or regions of West Virginia are exposed to
potential health risks because of mercury
contamination. DEP is tasked with evaluating scientific
evidence, considering specific environmental
characteristics of the state, and to study further the
current West Virginia mercury-control rule, 45 CSR
37, “Mercury Budget Trading Program to Reduce
Mercury Emissions.” DEP is also tasked with
accepting and reviewing appropriate evidence
regarding mercury exposure, including
recommendations from the Bureau for Public Health
within the Department of Health and Human Services.
In addition, DEP has begun an assessment that
evaluates available mercury control technologies for
coal-fired steam generating units and other industrial
activities that emit mercury, the availability and cost of
mercury measurements technology, and an analysis of
feasibility and implementation of these technologies.
On July 6, the West Virginia Department of Health and
Human Resources Bureau of Public Health released its
draft public health report on exposure to mercury in
West Virginia.
On Sept. 8, DEQ released the final rule for the control
of open burning and the use of special incineration
devices by existing stationary sources. The rule
permits open burning or the use of special incineration
devices for disposal of clean burning construction
3. NAAQS: On July 11, EPA published a final rule
(71 Fed. Reg. 39,001) approving the WV DEP’s
request that the Charleston area be re-designated as
attainment for the 8-hour NAAQS. EPA also
approved the maintenance plan for the Charleston area
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that provides continued attainment for the 8-hour
NAAQS for the next 12 years or until 2018 as meeting
the requirements of the CAA with respect to the
1-hour ozone maintenance plan update. In addition,
EPA approved the adequacy determination for the
motor vehicle emissions budget that are identified in the
8-hour maintenance plan for the Charleston area for
purposes of transportation conformity and approved
those motor vehicle emission budgets. The final rule
took effect Aug. 10.
Wood County, to attainment for the 8-hour ozone
NAAQS. West Virginia is also requesting that EPA
concurrently approve the associated maintenance plan
as a revision to the SIP. Finally, West Virginia is
requesting that EPA approve the maintenance plan as
meeting the requirements of the CAA with respect to
the 1-hour ozone maintenance plan update. Written
comments were due by Aug. 17.
On Sept. 15, EPA published a final rule (71 Fed. Reg.
54,421) approving a re-designation request and SIP
revision submitted by West Virginia. EPA is approving
West Virginia’s request to re-designate the West
Virginia portion of the Huntington-Ashland 8-Hour
Ozone Nonattainment Area to attainment for the
8-hour ozone NAAQS. In addition, EPA is approving
the maintenance plan for Huntington that provides for
continued attainment of the 8-hour ozone NAAQS for
the next 12 years until 2018 as meeting the
requirements of the CAA with respect to the 1-hour
ozone maintenance plan update. Further, EPA is
approving the adequacy determination for the motor
vehicle emission budgets in the 8-hour maintenance
plan for purposes of transportation conformity and is
approving those motor vehicle emission budgets. The
final rule took effect Oct. 16.
On July 13, EPA published a proposed rule (71 Fed.
Reg. 39,618) proposing to approve a re-designation
request and a SIP revision by West Virginia for the
Huntington portion of the Huntington-Ashland WV-KY
interstate area for nonattainment to attainment of the
8-hour ozone NAAQS. The interstate HuntingtonAshland ozone nonattainment area is comprised of
three counties (Cabell and Wayne Counties, West
Virginia and Boyd County, Kentucky). EPA is
proposing to approve the ozone re-designation request
for the Huntington portion of the Huntington-Ashland
area. EPA is also proposing to make a determination
that Huntington has attained the 8-hour ozone national
ambient air quality standard based on three years of
complete, quality assured ambient air quality ozone
monitoring data for 2003-2005. EPA is providing
information on the status of its adequacy determination
for the motor vehicle emission budgets that are
identified in the Huntington maintenance plan for the
purposes of transportation conformity and is also
proposing to approve these motor emission budgets.
Comments were due Aug. 14.
4. NSR: On Aug. 9, EPA published a proposed rule
(71 Fed. Reg. 45,482) proposing to approve a
revision to the West Virginia SIP consisting of
amendments to West Virginia’s existing nonattainment
New Source Review (NSR) preconstruction air quality
permit program. The revisions adopt the federal NSR
Reform regulations that EPA published on Dec. 31,
2002 and include provisions for base line emissions
determinations, actual-to-future actual methodology,
and Plantwide Applicability Limits. Comments were
due Sept. 8.
On July 14, EPA published a final rule (71 Fed. Reg.
40,023) approving a request and SIP revision
submitted by West Virginia to re-designate the Weirton
nonattainment area to attainment for national ambient
air quality standard for particulate matter with an
aerodynamic diameter less than or equal to a nominal
10 micrometers. EPA also approved West Virginia’s
limited maintenance plan for the Weirton Area. The
final rule took effect Aug. 14.
5.Regulations: DEP has proposed and on July 7 held a
hearing on the following proposed air rules: 45 CSR 6,
“Control of Air Pollution from Combustion of Refuse”;
45 CSR 8, “Ambient Air Quality Standards”; 45 CSR
16, “Standards of Performance for New Stationary
Sources”; 45 CSR 18, “Control of Air Pollution from
Combustion of Solid Waste”; 45 CSR 25, “Control of
Air Pollution from Hazardous Waste Treatment
DEP is requesting that EPA re-designate the West
Virginia portion of the Parkersburg (WV)-Marietta
(OH) 8-hour ozone nonattainment area, comprising
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Storage and Disposal Facilities”; 45 CSR 34,
“Emission Standards for Hazardous Air Pollutants”; 45
CSR 39, “Control of Annual Nitrogen Oxide
Emissions”; 45 CSR 40, “Control of Ozone Season
Nitrogen Oxides Emissions”; 45 CSR 41, “Control of
Annual Sulfur Dioxide Emissions.” Rules 39, 40, and
41 adopt the federal CAIR. The proposed revisions
leave Rule 6 as a basic open burning-incinerator rule.
Federal counterpart language for large municipal waste
combustors, small municipal waste combustion units,
and commercial and industrial solid waste incineration
units has been relocated to 45 CSR 18. Rule 8 puts all
of the national ambient air quality standards into one
rule. As part of the streamlining effort, the
incorporation of Hospital/Medical/Infectious Waste
Incinerator requirements under 45 CSR 24, “To
Prevent and Control Emissions from Hospital/Medical/
Infectious Waste Incinerators,” has been moved to
Rule 18, and Rule 24 will be repealed and replaced by
Rule 18. Rules 16 and 34 are standard updates of
federal requirements. Rule 34 replaces Rule 15 and
combines all federal national emissions standards for
hazardous air pollutants into one rule and repeals 45
CSR 15, “Emission Standards for Hazardous Air
Pollutants Pursuant to 40 CSR Part 61.”
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