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ENVIRONMENTAL PROTECTION ADVISORY COUNCIL 

MEETING MINUTES 

June 2, 2011 

I. CALL TO ORDER

Kristin A. Boggs, Ex Officio Chair designated by Secretary Randy Huffman, called 

to order the regular meeting of the DEP Advisory Council at 1:35 p.m. on June 2, 2011 at 

the headquarters of the West Virginia Department of Environmental Protection, 601 57th 

Street Southeast, Charleston, West Virginia. Agendas were distributed. 

II. ROLL CALL

Members present: Lisa Dooley, Jackie Hallinan, Ted Hapney, Larry Harris, Bill Raney, 

and Rick Roberts. Karen Price was absent. 

The meeting was also attended by the following DEP personnel and invited guests: Lisa 

A. McClung, Deputy Cabinet Secretary; Kathy Cosco, Chief Communication Officer; 

James L. Mason, Division of Air Quality; Donald W. Martin, Division of Land 

Restoration; Charles W. Armstead, Division of Water & Waste Management; and David 

L. Johnston, Division of Water & Waste Management. Sherrie A. Armstrong and John 

Ailes of Bailey & Glasser attended the meeting at Ms. Boggs’ invitation to fulfill Dr. 

Harris’ request at the March 17 meeting that the DEP provide some information on the 

implications of the West Virginia Highlands Conservancy v. Huffman decision. 

Also in attendance were the following members of the public: Don Garvin of the Ohio 

Valley Environmental Coalition; Don Gasper of Trout Unlimited; and Rosa Rose. 

III. OLD BUSINESS

Minutes of the March 17, 2011 Meeting. The minutes were emailed and provided to 

Council in hard copy. Mr. Raney moved for approval of the minutes, Ms. Dooley 

seconded the motion, and it was carried by acclamation of Council. 

IV. SPECIAL PRESENTATION

Ms. Armstrong, who – along with Benjamin L. Bailey - represented the DEP in the 

Fourth Circuit Court of Appeals in West Virginia Highlands Conservancy v. Huffman

(the “special rec” or “bond forfeiture” cases), gave a brief overview of the possible 

consequences of the decision rendered in that case. John Ailes of Bailey & Glasser also 

participated in the presentation. In sum, an unintended consequence of this ruling could 

be that watershed groups, which volunteer their time and resources to clean up pre-law 

mine sites, could be required to get NPDES permits. 

Dr. Harris suggested that a way out for Good Samaritan watershed groups would be to 

partner with the State and let the State obtain the NPDES permits. Mr. Ailes then opined 
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that the chilling effect on beneficial partnerships between citizen groups and the 

regulatory agencies it is one of the unintended consequences of the ruling and that this is 

an opportunity for the DEP to look into rulemaking to address some of these issues. 

Ms. Dooley asked if the agency could waive the permit application fees for Good 

Samaritan groups like some municipalities waive business license fees, and DEP did not 

foreclose that possibility. That is one of the issues that could be addressed in future 

rulemaking. 

Mr. Roberts asked if this ruling would apply to AML, and Ms. Armstrong answered that 

we do not think so, since AML is governed by a separate set of rules. 

Mr. Raney asked if this ruling could apply to other industrial discharges, and Ms. 

Armstrong answered no. 

V. PROPOSED 2012 LEGISLATIVE RULES

Division of Air Quality 

 45 CSR 8 – Ambient Air Quality Standards – Annual incorporation by reference 

amendments to the NAAQS, including Primary National Ambient Air Quality standard 

for sulfur dioxide. 

 45 CSR 14 – Permits for Construction and Major Modification of Major Stationary 

Sources of Air Pollution for the Prevention of Significant Deterioration – Revisions to 

the rule incorporate changes to the federal counterpart, “Prevention of Significant 

Deterioration for Particulate Matter Less Than 2.5 Micrometers – Increments, Significant 

Impact Levels and Significant Monitoring Concentration.” 

♦ Dr. Harris asked the following questions regarding this rule: What is a PAL? Are 

there any in West Virginia? Would it apply to the TransGas facility in Mingo 

County? On behalf of the Division of Air Quality, James L. Mason answered that a 

PAL is a plant-wide applicability unit, and it may apply to the TransGas facility, but 

TransGas would have to apply for it. Mr. Mason was unsure if there were any PALs 

in West Virginia, but he advised the Council he would get back to them with a 

response.1

 

 45 CSR 16 – Standards of Performance for New Stationary Sources – Annual 

incorporation by reference amendments to the NSPS. 

                                                            

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   Mr. Mason has determined since the June 2 meeting that, because the TransGas facility is a synthetic 

minor source, 45CSR14 did not apply to the permitting process. If TransGas were to become a major 

source, 45CSR14 may then apply. Mr. Mason also determined that there are no permitted PALs in West 

Virginia at this time. 
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 45 CSR 18 – Combustion of Solid Waste – The revised rule incorporates by reference the 

amended Standards of Performance for New Commercial and Industrial Solid Waste 

Incineration Units and sets forth emission guidelines for existing commercial and 

industrial solid waste incineration units. The new CISWI language was pulled from the 

proposed rule based on EPA’s recent delay of the rule’s effective date. 

 45 CSR 19 – Permits for Construction and Major Modification of Major Stationary 

Sources of Air Pollution Which Cause or Contribute to Nonattainment – Revisions to the 

rule include new significant impact levels promulgated by EPA. 

♦ Mr. Raney inquired whether Marcellus pads fall under this rule. The short answer, as 

provided by Mr. Garvin and Deputy Secretary McClung, is no. 

 45 CSR 25 – Control of Air Pollution from Hazardous Waste Treatment, Storage and 

Disposal Facilities – Revisions to the rule include annual incorporation-by-reference 

updates. 

 45 CSR 30 – Requirements for Operating Permits – Revisions to the rule implement the 

provisions of EPA’s final Greenhouse Gas Tailoring Rule. Language is added that is 

intended to rescind elements of the Tailoring Rule if a court, Congress, EPA or the 

President finds that GHGs are not subject to regulation. In order to effect the provisions 

of the Tailoring Rule as soon as practicable, and in accordance with EPA-mandated 

timelines, West Virginia has adopted this rule as an emergency rule. 

♦ Dr. Harris asked what an alternative operating scenario is, and Mr. Mason explained 

that, once an operating system is approved, the permittee can propose something 

different and, if it is allowed by the rule, the Secretary can approve it as an alternative 

operating scenario. Dr. Harris then asked what “approved replicatable methodology” 

is, and Mr. Mason clarified that approved replicatable methodology (“ARM”) goes 

along with alternative operating scenarios: we want reproducible science, and the 

ARM is used to prove how the permittee plans to meet its permit limits. 

♦ Mr. Mason also clarified for Council that the rescission language amended into the 

rule in the emergency rulemaking process is only applicable to greenhouse gases and 

not any other pollutant. 

 45 CSR 34 – Emission Standards for Hazardous Air Pollutants – Annual incorporationby-reference revisions to the Hazardous Air Pollutant rule. 

 45 CSR 35 – Requirements for Determining Conformity of General Federal Actions to 

Applicable Air Quality Implementation Plans (General Conformity) – This revised rule 

incorporates by reference the following provisions of 40 CFR 93: Revisions to the 

General Conformity Regulations. 

 45 CSR 42 – Greenhouse Gas Emissions Inventory Program – DAQ is proposing to 

repeal this rule because on October 30, 2009, EPA promulgated standardized greenhouse 
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reporting requirements, “Mandatory Reporting of Greenhouse Gases.” Because 45 CSR 

42 was promulgated before the EPA finalized its mandatory greenhouse gas reporting 

requirements, and the rule’s approach to greenhouse gas reporting was significantly 

different from EPA’s final approach, the DAQ has determined that sources subject to 

EPA’s Mandatory Reporting of Greenhouse Gases shall not be also subject to the 

differing requirements of this State rule. To further eliminate this conflict, the DEP will 

take steps to amend W. Va. Code § 22-5-19, which authorizes the Secretary to propose 

legislative rules establishing a Greenhouse Gas Inventory Program. Such amendment to 

the Code will provide for the Cabinet Secretary to allow reporting under EPA’s 

Mandatory Reporting of Greenhouse Gases to satisfy greenhouse gas reporting 

requirements in West Virginia. 

DIVISION OF LAND RESTORATION

 60 CSR 3 – Voluntary Remediation and Redevelopment Rule – This rule is being revised 

to update the de minimus clean-up standards. This change is necessary, because the 

toxicological profiles for many chemicals in the federal IRIS database have been revised, 

which necessitates changes to the de minimus table. 

Division of Water & Waste Management

 33 CSR 1 – Solid Waste Management Rule – Revisions to this rule are to add the 

definition of “covered electronic devices” to the list of defined terms and to add covered 

electronic devices as an unacceptable waste banned from disposal in the State’s landfills. 

This revision is necessary due to the passage of Senate Bill 298 on March 12, 2010, 

which amended and reenacted W. Va. Code § 22-15A-25 to ban certain electronic 

devices from landfill disposal. 

 33 CSR 20 – Hazardous Waste Management Rule – Revisions to the rule include annual 

incorporation-by-reference updates from the federal counterpart. Further, DWWM 

proposes to amend the rule to reflect that the authority it previously transferred to the 

Division of Highways to regulate hazardous waste on the highways has been transferred 

by statute to the Public Service Commission when the Weights & Measures Section was 

transferred from the DOH to the PSC. 

Dr. Harris moved that the proposed 2012 Legislative rules be approved for submission to the 

Legislature; Mr. Hapney seconded the motion; Mr. Raney objected only on the basis that the 

DAQ rules are complex and difficult to understand, and he wants to make sure DEP is not simply 

adopting federal recommendations without adequate consideration to the needs of the economy 

of West Virginia. The motion to approve the rule was then carried by acclamation of Council. 

 
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VI. OTHER BUSINESS

 Ms. Hallinan advised the DEP to keep pushing Marcellus regulations. 

 Dr. Harris expressed serious concerns about the Marcellus permits issued in Monongalia 

County close to a public drinking water intake. Specifically, he opined that allowing 

natural gas drilling so close to a water intake is the most irresponsible siting he has ever 

seen and that once there has been accident, it is too late to do anything. He advised DEP 

that Morgantown is considering a moratorium on Marcellus drilling. He finally advised 

DEP that there should be a public comment period on Marcellus well work permits. 

 The next Advisory Council meeting will be Thursday, September 22, 2011 at 1:30 p.m. 

VII. ADJOURNMENT

Mr. Hapney moved that the meeting be adjourned, Ms. Hallinan seconded the motion, Dr. 

Harris objected, based on Ms. Boggs’ failure to allow public comment at the meeting, 

and the motion carried by acclamation of Council. The meeting was adjourned at 2:30 

p.m.