The article “Regional Reports: Region 3” by Gale Lea Rubrecht first appeared in the Air Quality Committee Newsletter, Vol. 10, No. 1, January 2007, Section of Environment, Energy, and Resources, American Bar Association. © Copyright 2007. American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 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 1 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. 2 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. 3 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 4 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 5 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.” 6