The article “Regional Reports: Region 3” by Gale Lea Rubrecht first appeared in the Air Quality Committee Newsletter, Vol. 9, No. 3, August 2006,
Section of Environment, Energy, and Resources, American Bar Association. © Copyright 2006. 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
2. Climate Change: On March 23, Delaware joined
seven Northeast states in announcing the release of a
draft set of model regulations that the participating
states will implement to carry out the Regional
Greenhouse Gas Initiative (RGGI). RGGI is a
cooperative effort by Connecticut, Delaware, Maine,
New Hampshire, New Jersey, New York and Vermont
to reduce greenhouse gas emissions from power plants
in the region through a market-based cap-and-trade
program and is the first mandatory cap-and-trade
program to control carbon dioxide emissions in the
United States. The program will place a mandatory
emissions cap on the electric generating sector and
allow emissions trading to achieve the lowest possible
compliance costs. Under the proposal, six electrical
generating facilities in Delaware would be regulated.
Comments on the draft model rule were due May 22.
Gale Lea Rubrecht
Jackson Kelly PLLC
Charleston, WV
galelea@jacksonkelly.com
I. EPA Region 3 Developments
Based upon 2003-2005 air quality data, over 30 areas
in EPA Region 3 are eligible for redesignation to
attainment for the 8-hour ozone standard. It remains
to be seen whether those areas will still be eligible for
redesignation after the 2006 ozone season. No areas
in the U.S. EPA Region 3 are eligible for redesignation
to attainment for the PM2.5 standard. All of the states
in EPA Region 3 are working on rules in response to
EPA’s Clean Air Interstate Rule (CAIR) and Clean Air
Mercury Rule (CAMR).
3. NAAQS: On April 28, EPA published a final rule
(71 Fed. Reg. 25,288) finalizing regulations to include
Delaware in CAIR for PM2.5 based on EPA’s
assessment that Delaware contributes significantly to
downwind nonattainment. Delaware must now meet
the CAIR’s requirements for sulfur dioxide (SO2) and
nitrogen oxides (NOx). The final rule took effect
June 27.
II. State Developments
A. Delaware
1. Air Toxics: On May 4 and 23 and June 1, the
Delaware Department of Natural Resources and
Environmental Control (DE DNREC) held open
educational forums to present the results of Phase I of
the Delaware Air Toxics Assessment Study (DATAS).
DATAS is the largest and most comprehensive study of
air toxic contaminants and the potential risks to human
health in the Mid-Atlantic region. In performing the
study, DE DNREC partnered with the Delaware
Department of Health and Social Services—Division
of Public Health. The study measured air toxics in five
locations in Delaware and determined the potential
risks of these air toxics to human health. Phase I of the
project was completed in the summer of 2005, and
Phase II is on-going. The study found that mobile
emissions are the most significant source of air toxics in
Delaware.
4. Regulations: DE DNREC Secretary John Hughes
has signed Secretary’s Order No. 2006-A-0022
amending Regulation 1102-PERMITS. The
amendments are: (1) minor revisions to insure that the
regulatory language is clear that all Regulation No. 2
permits are federally enforceable, regardless of
whether they are intended to limit the potential to emit;
and (2) renumbering the regulation to be consistent
with the style manual of the Code of Delaware
Regulations. The amendments took effect June 11.
On June 6, DE DNREC released to stakeholders its
multi-pollutant proposal. The proposal would control
emissions of SO2, NOX and mercury from coal and
residual oil-fired power plants with a nameplate
capacity of 25 MW or greater, require all such units to
1
have technology-based controls for the three
pollutants, and prohibit trading. Under the proposal,
DE DNREC would adopt both rate-based emissions
limits and overall caps. For SO2 and NOX, the shortterm rate limits are the same as the CAIR limits. The
compliance deadlines, however, are pushed forward.
The SO2 rate limits under DE DNREC’s proposal are
from 2009 and 2012, whereas the CAIR Phase I limits
are from 2010 and Phase II from 2015. DE DNREC
also proposes an additional annual cap based upon the
estimated effectiveness of best available retrofit
technology. For mercury, DE DNREC proposes to
limit mercury emissions to 1.0 lb/tBtu heat input, or a
minimum 80 percent capture rate, from Jan. 1, 2009,
and to 0.6 lb/tBtu heat input, or a minimum 90 percent
capture rate, from Jan. 1, 2013. DE DNREC expects
to have regulatory language drafted and distributed to
the work group for comment by the end of June and to
release a draft of the proposal for public comment by
Sept. 1, followed by a public hearing. at the end of
September.
2. NAAQS: On March 31, EPA published a
proposed rule (71 Fed. Reg. 16,273) and a direct final
rule (71 Fed. Reg. 16,239) approving Maryland
revisions updating the SIP’s reference to the EPA
definition of volatile organic compounds (VOCs).
Because EPA did not receive adverse written comment
by May 1, 2006, the rule took effect May 30.
B. Maryland
On June 13, EPA published a final rule (71 Fed. Reg.
34,014) approving a Maryland SIP revision clarifying
the definition of “interruptible gas service” in the
regulations pertaining to the control of fuel-burning
equipment, stationary internal combustion engines, and
certain fuel burning installations. The final rule took
effect on July 13.
On March 31, EPA published a final rule (71 Fed.
Reg. 16,237) approving Maryland SIP (SIP) revisions
pertaining to amendments to the control of VOC
emissions from yeast manufacturing facilities. The final
rule took effect May 1.
On May 8, EPA published a proposed rule (71 Fed.
Reg. 26,722) and a direct final rule (71 Fed. Reg.
26,688) to approve a Maryland SIP revision amending
the regulations pertaining to Stage II vapor recovery at
gasoline dispensing facilities. Because EPA did not
receive adverse written comment by June 5, 2006, the
rule automatically took effect July 7.
1. Climate Change: On April 6, Maryland
Gov. Robert Ehrlich signed the Maryland Healthy Air
Act (HAA), which was amended from the original
proposal in an attempt to make the bill more agreeable
to the administration. The law imposes emission limits
of NOx, SO2 and mercury on Maryland’s seven largest
power plants. All three pollutants will be reduced in
two phases of increasing stringency. NOx will be
capped at 20,216 tons per year by 2009 and
16,667 tons per year by 2012; SO2 at 48,618 tons per
year by 2010 and 37,235 tons per year by 2013.
Mercury emissions at the seven plants will be reduced
80 percent by 2010 and 90 percent by 2013. These
caps are more stringent than the federal limits under
EPA’s CAIR and CAMR. The law also requires
Gov. Ehrlich to sign Maryland on as a full participant in
RGGI by June 30, 2007. The law further requires that
Maryland energy and environmental experts conduct a
comprehensive study on the impact of the legislation to
electric reliability and cost issues that may arise as
plants take steps to cut emissions. The law allows
Maryland to withdraw from RGGI after June 1, 2009
if the liability and cost issues are not resolved.
On June 14, EPA published a final rule (71 Fed. Reg.
34,257) approving a Maryland SIP revision
incorporating the 1997 federal 8-hour ozone and
PM2.5 standards into Maryland’s regulations. The final
rule took effect on July 14.
C. Pennsylvania
1. Legislation: In April State Rep. Dave Reed
introduced H.B. 2610 to force implementation of
EPA’s CAMR in Pennsylvania instead of the proposed
Pennsylvania state-specific rule. On April 18,
Sens. Mary Jo White (R) and Raphael Musto (D)
introduced a similar bill in the Senate, S.B. 1201. Both
bills would require Pennsylvania power plants to
reduce mercury emissions by 86 percent no later than
2018 and would allow trading. On April 25 and
2
Pennsylvania SIP establishing and requiring reasonably
available control technology for eight sources of VOCs
and/or NOx in Pennsylvania. The eight sources are:
(1) Carlisle Tire & Rubber Company; (2) The
Carbide/Graphite Group, Inc.; (3) Celotex
Corporation; (4) American Railcars Industries, Inc.—
Shippers Car Line Division; (5) ACF; (6) New
Holland North America, Inc.; (7) Allsteel, Inc.; and
(8) Ball-Foster Glass Container Co. Comments were
due May 30.
May 2, 2006, the Senate held hearings on how to
control mercury. On June 6, the Senate Environmental
Resources and Energy Committee held its third and
final hearing on reducing mercury emissions in
Pennsylvania. On June 13, the Pennsylvania Senate
Energy and Environment Committee passed S.B.
1201. The bill now moves to the Senate floor for a
vote.
2. Mercury: On May 17, the Pennsylvania
Department of Environmental Protection (PA DEP)
presented its mercury rule to the Pennsylvania
Environmental Quality Board (PA EQB), and PA EQB
approved Pennsylvania’s proposed state specific rule
for public comment that same day. The proposed PA
DEP state-specific rule calls for a 90 percent removal
by 2015 and prohibits trading. PA DEP will now move
forward with a 60-day public comment period and the
public hearings. PA DEP will present a final rule to PA
EQB for consideration by October.
On April 28, EPA published a final rule (71 Fed. Reg.
25,070) approving revisions to Pennsylvania’s SIP
establishing and requiring reasonably available control
technology for five major sources of NOx in
Pennsylvania. The five sources are: (1) Pennsylvania
Electric Company; (2) The Harrisburg Authority;
(3) Texas Eastern Transmission Corp.; (4) Graybec
Lime Inc.; and (5) Techneglas, Inc. The final rule was
effective May 30.
3. NAAQS: On March 31, EPA published a final rule
(71 Fed. Reg. 16,235) approving Pennsylvania SIP
revisions establishing and requiring reasonably available
control technology for two major sources of VOCs
and NOx. The two sources are: (1) the International
Metals Reclamations Co.’s Metals Recovery Facility;
and (2) Petrowax PA, Inc.’s Refinery. The final rule
took effect May 1.
On May 4, EPA published a proposed rule (71 Fed.
Reg. 26,297) proposing to approve revisions to the
Pennsylvania SIP establishing and requiring reasonably
available control technology for seven major sources of
VOCs and/or NOx in Pennsylvania. The seven
sources are: (1) Frog, Switch & Manufacturing Co.;
(2) Armstrong World Industries, Inc.; (3) Merck &
Co., Inc.; (4) Peoples Natural Gas Company.;
(5) Dart Container Corporation; (6) AT & T
Microelectronics; and (7) WestPenn Power Co.
Comments were due June 5.
On April 27, EPA published a proposed rule (71 Fed.
Reg. 24,831) proposing to approve revisions to the
Pennsylvania SIP establishing and requiring reasonably
available control technology for eight major sources of
VOCs and/or NOx in Pennsylvania. The eight sources
are: (1) Pennsylvania Power & Light Company—
West Shore; (2) Foster Wheeler Mt. Carmel, Inc.;
(3) Metropolitan Edison Company—Portland;
(4) Pennsylvania Power & Light Company—
Lycoming County; (5) Pennsylvania Power & Light
Company—Clinton County; (6) Texas Eastern
Transmission Corporation; (7) Pennsylvania Power &
Light Company—Northhampton County;
(8) Johnstown Corporation. Comments were due
May 30.
On May 11, EPA published a final rule (71 Fed. Reg.
27,394) approving a revision to the Pennsylvania SIP
establishing and requiring reasonably available control
technology for six major sources of VOCs and/or NOx
in Pennsylvania. The six sources are: (1) DLM Foods
(formerly Heinz USA); (2) NRG Energy Center
(formerly Pittsburgh Thermal Limited Partnership);
(3) Tasty Baking Oxford, Inc.; (4) Silverline
Manufacturing Company; (5) Adhesives Research,
Inc.; and (6) Mohawk Flush Doors, Inc. The final rule
took effect June 12.
On April 27, EPA published a proposed rule (71 Fed.
Reg. 24,834) proposing to approve revisions to the
On May 16, EPA published a withdrawal notice (71
Fed. Reg. 28,290) withdrawing a proposed rule
3
published on June 6, 2002 (66 Fed. Reg. 38,894)
pertaining to Pennsylvania’s timing in incorporating onboard diagnostic checks as an element of its motor
vehicle inspection and maintenance program. The
withdrawal was effective May 16.
case RACT determinations submitted by Pennsylvania
for the affected sources. The comment period closed
on July 17.
4. Permits: On March 24, PA DEP announced the
issuance of a general permit for biofuel and biodiesel
production. The general permit is No. WMGR109
and authorizes the processing of used restaurant oil and
grease as well as oils and greases generated by other
commercial and industrial processes. Commercial
producers are required to register under General
Permit No. WMGR109. Persons or businesses
producing biofuel for non-commercial use are not
required to register under the General Permit unless
PA DEP determines that their activities are causing
harm, creating a nuisance, or threatening human health,
safety or the environment.
On June 13, EPA published a proposed rule (71 Fed.
Reg. 34,050) and a direct final rule (71 Fed. Reg.
34,011) to approve a Pennsylvania SIP establishing
and requiring reasonably available control technology
for eight major sources of VOCs and/or NOx in
Pennsylvania. The eight sources are: (1) Big Bee
Steel and Tank Company; (2) Conoco Phillips
Company; (3) The Hershey Company, East Plant;
(4) LORD Corporation, Cambridge Springs;
(5) Pittsburgh Corning Corporation; (6) Small Tube
Manufacturing, LLC; (7) Texas Eastern Transmission
Corporation, Holbrook Compressor Station; and
(8) Willamette Industries, Johnsonburgh Mill. Unless
EPA receives adverse written comment by July 13,
2006, the rule will take effect on July 28.
5. Regulations: On May 22, 23 and 25, PA DEP held
public meetings regarding control measures under
consideration for adoption as model rules by the
Ozone Transport Commission (OTC). The
commissioners of the Ozone Transport Region (OTR)
jurisdictions, including Pennsylvania, were scheduled to
vote at the OTC annual meeting on June 6-7 on a
number of action items and recommendations for
additional programs to be considered by OTR
jurisdictions for implementation to reduce ground-level
ozone and its precursors. PA DEP was requesting
comments regarding the action items scheduled for
consideration at the OTC meeting and the proposed
inclusion in regional ozone air quality modeling of
anticipated emission reductions from these and
additional candidate control measures that may be
considered at a later time. The action items and
recommendations include: (1) voting on a
memorandum of understanding that would commit a
signatory state to pursue state-specific rulemaking to
reduce emissions of precursors to ground-level ozone
from consumer products, portable fuel containers,
industrial adhesives, and diesel engine chip reflash;
(2) adopting a resolution that would commit each state
in the OTR to revise its rules as appropriate regarding
consistent regional emission reductions to be achieved
in the following categories: asphalt paving; asphalt
production plants; cement kilns; glass furnaces;
industrial, commercial and institutional boilers; and
On June 14, EPA published a proposed rule (71 Fed.
Reg. 34,297) and a direct final rule (71 Fed. Reg.
34,259) to approve a Pennsylvania SIP revision
establishing and requiring reasonably available control
technology for 12 major sources of VOCs and/or
NOx. The 12 sources are: (1) American Refining
Group, Inc.; (2) Bellefonte Lime Company; (3) Butter
Krust Baking Company, Inc.; (4) Carnegie Natural
Gas Company; (5) Caterpillar, Inc.; (6) Gencorp, Inc.;
(7) Harris Semiconductor; (8) Merisol Antioxidants
LLC; (9) Norcon Power Partners, L.P.; (10) Triangle
Pacific Corporation; (11) Viking Energy; and
(12) White Cap Inc. Unless EPA receives adverse
written comment by July 14, the rule will automatically
take effect July 31.
On June 16, EPA published a proposed rule (71 Fed.
Reg. 34,864) proposing to remove the limited status of
its approval of Pennsylvania’s SIP revision that requires
all major sources of VOCs and NOx to implement
reasonably available control technology (RACT). EPA
is proposing to convert its limited approval of
Pennsylvania’s VOC and NOx RACT regulations to
full approval because EPA has approved or is currently
conducting rulemaking to approve all of the case-by4
regional fuels; (3) adopting a resolution requesting that
EPA pursue federal regulations and programs designed
to ensure national implementation of control measures
comparable to the cost-effective and technically
feasible levels OTC has identified to date for the
following source categories: architectural and industrial
maintenance coatings; consumer products; industrial,
commercial and institutional boilers over 100 mmBtu;
portable fuel containers; municipal waste combustors;
regionally consistent and environmentally sound fuels
beyond the OTR; small engine emissions regulation;
and Stage II vapor recovery from gasoline distribution
sources as well as other reduction efforts EPA is in the
best position to advance; and (4) authorizing the chair
of the OTC to send a letter to EPA urging its adoption
of rule-making to require small engine manufacturers to
meet the most stringent technically and economically
feasible emission reduction control measures.
March 2006 to prohibit Mirant from buying allowances
to meet the targets for its Alexandria plant under EPA’s
CAMR. The bill would allow the plant to meet its
CAMR targets through reductions at other Mirant
facilities in neighboring Maryland, provided the facilities
are located within 200 km of the Virginia state line.
3. NAAQS: On April 5, EPA published a proposed
rule (71 Fed. Reg. 17,050) proposing to approve a
revision to the Virginia SIP updating the definition of
VOC. Comments were due May 5.
On June 12, EPA published a proposed rule (71 Fed.
Reg. 33,669) proposing to approve a Virginia SIP
revision consisting of amendments to state regulations
concerning maintenance, nonattainment, and prevention
of significant deterioration areas for incorporation into
the Virginia SIP. Comments were due by July 12.
On June 6, the Allegheny County Board of Health
Department announced a public hearing on July 6, to
accept comment on a proposed regulation that would
allow the use of continuous opacity monitors to
determine compliance with smoke emission limits.
Currently, the Allegheny County Board of Health
Department’s air quality regulations do not allow
compliance with smoke emission limits to be
determined by monitoring equipment but only by a
certified smoke reader who looks at smoke leaving a
stack during daylight hours.
4. New Source Review: On June 8, the VA APCB
released a tentative agenda for its June 21 meeting.
The agenda includes final regulations concerning major
new source review reform (Rev. E03). The
recommended changes to the new final major new
source review reform rule (9 VAC 5 Chapter 80, Rev.
E03) include provisions for a hybrid test for projects
that involve multiple types of emissions units and
provisions that exclude emission increases that could
be accumulated and are unrelated to the project,
including demand growth, from projected actual
emissions. These provisions had been deleted and are
now being restored.
D. Virginia
1. Enforcement: On March 17, the Virginia Air
Pollution Control Board (VA APCB), the State Water
Control Board and the Virginia Waste Management
Board released draft guidelines and procedures for
calculating appropriate environmental civil charges and
civil penalties. The draft document is entitled “Civil
Charges and Civil Penalties in Administrative Actions”
and is available on the Virginia Department of
Environmental Quality’s Web site at: www.deq.virginia.
gov/enforcement/manual.html. Comments were due
May 3.
5. Regulations: The tentative agenda released on
June 8, 2006, by Virginia Air Pollution Control Board
for its June 21, 2006 meeting includes final regulations
concerning 8-hour ozone maintenance areas (Rev.
B06) and VOC and NOx Emissions Control Areas
(Rev. D04). The final regulations reflect the
redesignation of nonattainment areas to attainment/
maintenance. Specifically, the Fredericksburg Ozone
Maintenance Area (Spotsylvania County, Stafford
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, and the
Fredericksburg Ozone Nonattainment Area and the
2. Mercury: On April 19, Virginia’s General Assembly
amended Virginia’s mercury control bill that passed in
5
Shenandoah National Park Ozone Nonattainment Area
have been deleted. The regulations concerning VOC
and NOx Emissions Control Areas (9 VAC 5 Chapter
20, Rev. D04) are being amended to create a new
Fredericksburg VOC and NOx Emissions Control
Area, and the Richmond and Hampton Roads VOC
and NOx Emissions Control Area are being expanded
to include all of the counties and cities in the
corresponding 8-hour ozone nonattainment areas.
Many of the VOC emission standards that are
designed to attain and maintain ozone air quality
standards are extended to the new areas automatically
by reference and include: synthesized pharmaceutical
products manufacturing operations, rubber tire
manufacturing operations, petroleum refinery
operations, solvent metal cleaning operations using
non-halogenated solvents, VOCs storage and transfer
operations, large appliance coating applications,
magnet wire coating application systems, automobile
and light-duty truck coating application systems, can
coating application systems, metal coil coating
application systems, paper and fabric coating
application systems, vinyl coating application systems,
metal furnace coating application systems,
miscellaneous metal parts and products coating
application systems, flat wood paneling coating
application systems, petroleum liquid storage and
transfer operations, and asphalt paving operations.
Other regulations refer to individual VOC emissions
control areas and are being amended in order to be
properly implemented within the appropriate VOC
emissions control areas. For new affected facilities
subject to the final rule, compliance with the VOC
emission standards is automatically required to be
achieved no later than 90-days after the effective date
of the amendment, except sources that require certain
physical or process changes to comply have no later
than one year after the effective date of the
amendment.
inventory. The maintenance plan will be submitted as a
SIP revision in conjunction with a request to the EPA
to redesignate the area from nonattainment to
attainment. VA DEQ is also taking comments on the
redesignation request, but that document will not be
submitted as part of the SIP revision.
E. West Virginia
1. Climate Change: During the 2006 Regular Session,
the West Virginia Department of Environmental
Protection (WV DEP) introduced a greenhouse gas
bill, S.B. 756, similar to the one introduced two years
ago, but with the addition of a required analysis of
carbon sequestration. The bill did not pass. Although
the bill did not pass, the West Virginia Division of Air
Quality (WV DAQ) is nonetheless adding additional
greenhouse gases to the requirements for 2005
emissions inventory reporting. Specifically, WV DAQ
is adding to the reporting requirements
hydroflurocarbons (HFC), perfluorocarbons (PFC)
and sulfur hexafluoride (SF6) in addition to carbon
dioxide (CO2), nitrous oxides (N2O) and methane
(CH4). The 2005 emissions inventory reports are due
July 31.
2. Mercury: The Bundled Environmental Rules Bill,
H.B. 4135, passed and was signed by the governor
with an amendment calling for further study regarding
mercury. The bill is not limited to power plants. It
requires the Bureau for Public Health to participate
with WV DEP to conduct an assessment on the actual
and potential human health pathways and risks from
mercury consumption and make appropriate
recommendations to WV DEP. The bill requires the
WV DEP Division of Air Quality to study West
Virginia’s mercury regulation, 45 CSR 37 “Mercury
Budget Trading Program to Reduce Mercury
Emissions,” to evaluate scientific evidence, considering
specific environmental characteristics of West Virginia,
hold public hearings, and accept and review
appropriate evidence regarding mercury exposure,
including recommendations from the Bureau for Public
Health. The bill requires WV DEP to evaluate
available mercury control technologies and the
availability and cost of mercury measurements
technology, and also requires WV DEP to analyze the
On June 14, the VA APCB announced a public hearing
on July 19 on a proposed revision to the Virginia SIP.
The proposed revision consists of an ozone air quality
maintenance plan for the Richmond and Hampton
Roads 8-Hour Ozone Nonattainment Area, motor
vehicle emissions budgets for the year 2005 and
beyond, and the base year 2002 air pollutant emissions
6
May 11. Also on May 11, EPA published a proposed
rule (71 Fed. Reg. 27,440) proposing to grant West
Virginia’s request to redesignate the Weirton
Nonattainment Area to attainment for the PM10
national ambient air quality standard and to approve a
limited maintenance plan for the Weirton Area. EPA is
also proposing to determine that, because the Weirton
Area has continued to attain the PM10 standard, certain
attainment demonstration requirements, along with
other related requirements of the Clean Air Act are not
applicable to the Weirton Area. Comments were due
June 12.
feasibility of implementation of these technologies.
Further, the bill directs WV DEP to consider the
Bureau for Public Health’s recommendations
concerning health risks of West Virginians and enter a
finding as to whether the citizens of West Virginia or
regions of West Virginia are exposed to a potential
health risk because of mercury contamination, and if
so, to propose for legislative promulgation before
Jan. 1, 2007, revisions to 45 CSR 37 and any other
appropriate rulemaking that would require electric
utility coal-fired steam generating units and other
industrial dischargers of mercury to reduce mercury
emissions at a greater rate or by alternative
methodology than required by EPA’s CAMR.
On June 1, WV DAQ submitted to EPA a request to
redesignate the Wheeling, West Virginia 8-Hour Ozone
Nonattainment Area, comprising Marshall and Ohio
Counties, to attainment for the 8-hour standard and
proposed maintenance plan for the Wheeling Area.
The public comment period ended with a public
hearing on July 6.
3. NAAQS: On April 7, EPA published a correction
(71 Fed. Reg. 17,750) of a direct final rule published
on July 21, 2004 (69 Fed. Reg. 43,522) redesignating
the Hazelwood SO2 NonAttainment Area and the
Monongahela River Valley Unclassifiable Area to
attainment of the SO2 national ambient air quality
standard. The two areas were inadvertently omitted
from the revised designated area listing in the July 21,
2004, final rule making. The correction took effect
April 7.
4. New Source Review: By letter dated April 14,
WV DEP Division of Air Quality Director John A.
Benedict responded to industry’s suggested revisions
to West Virginia’s Minor Source Air Permitting
Program. Director Benedict clarified in his letter that
“Rule 13 allows for the receipt of equipment onsite as
long as no specific installation of such equipment takes
place prior to permit issuance.” Director Benedict also
stated he planned to actively participate in an “internal”
workgroup to review West Virginia’s Minor Source Air
Permit Program. Items identified by Director Benedict
to be reviewed include: “the clarification of the DAQ’s
Administrative Update policy, emissions netting, the
role of HAP emissions limits in minor source permits,
and the development of general permits for additional
sources.” The industry groups responded by letter
dated May 1, complaining that Director Benedict had
addressed only three of their five priorities and had
ignored their question concerning the time frame for the
WV DEP’s rule as well as a statement by Director
Benedict that he does not expect to reopen Rule 13.
The industry group also pointed out in their letter that
Director Benedict did not mention the performance
review that was to be performed by an independent
consultant. By letter date June 8, 2006 Director
Benedict replied to the industry group’s letter. In his
On May 4, EPA published a proposed rule (71 Fed.
Reg. 26,299) proposing to approve a request by West
Virginia to redesignate the Charleston area as
attainment for the 8-hour ozone national ambient air
quality standard, a revision to the West Virginia SIP
consisting of a maintenance plan for the Charleston
area that provides for continued attainment of the
8-hour ozone standard for the next 12 years, and the
motor vehicle emissions budgets in the maintenance
plan for the Charleston area for purposes of
transportation conformity. Comments were due
June 5.
On May 11, EPA published a withdrawal (71 Fed.
Reg. 27,440) of a proposed rule to redesignate the
Weirton PM-10 Nonattainment Area to attainment and
approval of the maintenance plan that was published
on Oct. 27, 2004 (69 Fed. Reg. 62,637). In addition,
EPA withdrew the correcting amendment to the
proposed rule that was published on Nov. 9, 2004 (69
Fed. Reg. 64,860). The withdrawal was effective
7
letter, Director Benedict stated that WV DAQ
“believes[s] that potential-to-potential netting could be
allowed under rule 13” and attached a guidance to
explain how this would work. In addition, Director
Benedict advised that WV DAQ is “looking closely at
what constitutes substitutive rule requirements for
boilers, small combustion sources and tanks, and [is]
also developing guidance for [agency] permit writers
on how to write permit conditions.” A copy of the
permit writers’ “Rule 13 Guidance for Natural Gas
Combustion Sources” and “Policy for Permitting LowEmitting Sources” is attached to the June 8 letter.
5. Regulations: On July 10, WV DAQ held a public
hearing on proposed revisions to the following existing
legislative rules: 45 CSR 6, “To Prevent and Control
Air Pollution from Combustion of Refuse”; 45 CSR 8,
“Ambient Air Quality Standards for Sulfur Oxides and
Particulate Matter”; 45 CSR 16, “Standards of
Performance for New Stationary Sources Pursuant to
40 CFR Part 60”; 45 CSR 18, “To Prevent and
Control Emissions from Commercial and Industrial
Solid Waste Incineration Units”; 45 CSR 25, “To
Prevent and Control Air Pollution from Hazardous
Waste Treatment, Storage, or Disposal Facilities”; 45
CSR 34, “Emission Standards for Hazardous Air
Pollutants Resource Categories Pursuant to 40 CFR
Part 63”; 45 CSR 39, “Control of Annual Nitrogen
Oxide Emissions to Mitigate Interstate Transport of
Fine Particulate Matter and Nitrogen Oxide”; 45 CSR
40, “Control of Ozone Season Nitrogen Oxide
Emissions to Mitigate Interstate Transport of Ozone
and Nitrogen Oxides”; and 45 CSR 41, “Control of
Annual Sulfur Dioxide Emissions to Mitigate Interstate
Transport of Fine Particulate Matter and Sulfur
Dioxide.” 45 CSR 39, 40 and 41 adopt EPA’s Clean
Air Interstate Rule. Upon authorization and
promulgation of revisions to the foregoing rules,
WV DAQ will submit the final rules to EPA for
approval.
8