1 ENVIRONMENTAL PROTEC TION ADVISORY COUNCIL

MEETING MINUTES June 2, 2011

I. C ALL TO O RDER

Kristin A. Boggs, Ex Officio Chair designated by Secretary Randy Huffman , called to order the regular meeting of the DEP A dvisory Council at 1:35 p.m. on June 2, 2011 at the headquarters of the West Virginia Depa rtment of Environmental Protection, 601 57th Street Southeast, Charleston, West Vi rginia. Agendas were distributed.

II. R OLL C ALL

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

and Rick Roberts. Ka ren Price was absent.

The meeting was also attended by the followi ng DEP personnel and invited guests: Lisa A. McClung, Deputy Cabinet Secretary; Ka thy Cosco, Chief Communication Officer; James L. Mason, Division of Air Quality ; Donald W. Martin, Division of Land Restoration; Charles W. Armstead, Divisi on of Water & Waste Management; and David L. Johnston, Division of Water & Waste Ma nagement. 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 Gasp er of Trout Unlimited; and Rosa Rose.

III. O LD B USINESS

Minutes of the March 17, 2011 Meeting. The minutes were emailed and provided to Council in hard copy. Mr. Raney moved fo r approval of the minutes, Ms. Dooley seconded the motion, and it was ca rried by acclamation of Council.

IV. S PECIAL P RESENTATION

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 br ief overview of the possible consequences of the decision re ndered in that case. John Ai les of Bailey & Glasser also participated in the presentation. In sum, an unintended consequence of this ruling could be that watershed groups, which volunteer th eir 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 G ood Samaritan watershed groups would be to partner with the State and let the State obtai n the NPDES permits. Mr. Ailes then opined2 that the chilling effect on beneficial pa rtnerships between citizen groups and the regulatory agencies it is one of the unintended consequences of the ru ling 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 wa ive the permit applic ation fees for Good Samaritan groups like some m unicipalities waive business lic ense fees, and DEP did not foreclose that possibility. That is one of th e issues that could be addressed in future rulemaking.

Mr. Roberts asked if this ruling would appl y to AML, and Ms. Armstrong answered that we do not think so, since AML is gove rned by a separate set of rules.

Mr. Raney asked if this ruling could apply to other industrial discharges, and Ms. Armstrong answered no.

V. P ROPOSED 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 Preven tion of Significant Deterioration – Revisions to the rule incorporate changes to the federa l counterpart, “Prevention of Significant

Deterioration for Particulate Matter Less Than 2.5 Micrometers – In crements, Significant Impact Levels and Significan t 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 Ai r 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 appl y for it. Mr. Mason was unsur e if there were any PALs in West Virginia, but he advised the Counc il 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.

1 Mr. Mason has determined since the June 2 meetin g that, because the TransGas facility is a synthetic
minor source, 45CSR14 did not apply to the permitti ng process. If TransGas were to become a major
source, 45CSR14 may then apply. Mr. Mason also dete rmined that there are no permitted PALs in West
Virginia at this time.3  45 CSR 18 – Combustion of Solid Waste – The revised rule inco rporates by reference the

amended Standards of Performance for Ne w Commercial and Industrial Solid Waste

Incineration Units and sets forth emi ssion 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 de lay of the rule’s effective date.

 45 CSR 19 – Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution Which Caus e or Contribute to Nonattainment – Revisions to the rule include new significant imp act levels promulgated by EPA.

♦ Mr. Raney inquired whether Marcellus pads fa ll under this rule. Th e short answer, as provided by Mr. Garvin and De puty Secretary McClung, is no.

 45 CSR 25 – Control of Air Pollution from Hazar dous 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 Tail oring Rule. Language is added that is

intended to rescind elements of the Tailori ng Rule if a court, Congress, EPA or the President finds that GHGs are not subject to re gulation. In order to effect the provisions of the Tailoring Rule as soon as practi cable, and in accordance with EPA-mandated timelines, West Virginia has adopted this rule as an emergency rule.

♦ Dr. Harris asked what an alternative opera ting 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, th e Secretary can approve it as an alternative operating scenario. Dr. Harri s then asked what “approved replicatable methodology” is, and Mr. Mason clarifie d that approved replicatab le methodology (“ARM”) goes along with alternative operati ng scenarios: we want repr oducible scie nce, and the ARM is used to prove how the permittee plans to meet its permit limits.

♦ Mr. Mason also clarified fo r 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 Implementa tion Plans (General Conformity) – This revised rule incorporates by reference the following pr ovisions 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 greenhouse4 reporting requirements, “Mandatory Reporti ng 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 reporti ng was significantly

different from EPA’s final a pproach, 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 Ga s Inventory Program. Such amendment to the Code will provide for the Cabinet Se cretary to allow reporting under EPA’s Mandatory Reporting of Greenhouse Gases to satisfy greenhouse gas reporting requirements in West Virginia.

D IVISION OF L AND R ESTORATION

 60 CSR 3 – Voluntary Remediation and Redevelopment Rule – This rule is being revised to update the de minimus clean-up standards. This ch ange is necessary, because the toxicological profiles for many ch emicals in the federal IRIS da tabase 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 pa ssage 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 th e authority it previous ly transferred to the Division of Highways to regulate hazardous wa ste 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 propo sed 2012 Legislative rules be a pproved for submission to the Legislature; Mr. Hapney seconde d 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 ca rried by acclamation of Council.5 VI. O THER B USINESS

 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 a nything. 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. A DJOURNMENT

Mr. Hapney moved that the meeting be adj ourned, Ms. Hallinan seconded the motion, Dr. Harris objected, based on Ms. Boggs’ failure to allow public comm ent at the meeting, and the motion carried by acclam ation of Council. The mee ting was adjourned at 2:30

p.m.