# dep

west virginia department of environmental protection
Division of Air Qu ality 60 I 57 th Street SE Charleston , WV 25304 Phone: (3 04) 926-0475 Fax: (3 04 ) 92 6 -047 9 Joe Manchi n III , G o v ernor Randy C. Hu f

fman, Cabinet Secretary www.dep.wv.gov July 30,2010 Mr
. Shawn M. Garvin (3RAOO) Regional Administrator US EP A Region 3 1650 Arch Street Philadelphia , PA 19103-2029 Re: Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule

- 60 Day Letter Dear Administrator Garvin: In the June 3, 2010 final rule, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (75 FR at 31514), EP A requests that states outline how they expect to implement permitting for greenhouse gases (GHG) under the PSD and Title V permitting programs. The rule suggests a deadline of August 2 , 2010
. EP A has adamantly pursued a course that places states , which are generally the primary permitting authority, in a completely untenable position
. If states ignore GHG entirel y, EPA will find the permitting programs deficient
. If states acknowledge GHG but fail to adopt EPA ' s " tailoring" approach, the states would be completely overwhelmed by the number of needed permits, effectively stopping the permit process. If states adopt EP A's approach through whatever mechanism they can, many will be compromising their own principles and ideals of good policy while the permit programs remain open to litigation
. As we did in our comments on the proposed tailoring rule, we once again urge EP A to work with Congress to exempt GHG from applicability under the PSD and Title V programs. As the EP A Administrator is well aware, there are proposed bills which either delay GHG permitting applicability or which would obviate it altogether
. We believe congressional action is the surest way to minimize litigation and provide certainty to permitting authorities and the regulated community. Notwithstanding our strong position on this matter , we feel compelled to take action to retain primacy with respect to permitting within West Virginia
. This action is predicated upon the legal principles of " administrative necessity " and the " absurd results " doctrine which EP A explained in the GHG tailoring rule
. We are herein providing EP A with our planned approach to address GHG in our related programs. Provisionall y, West Virginia plans to appl y the meaning of the term subject to regulation established by EP A in the final Greenhouse Gas Tailoring Rule in implementing both the established


### Promoting a healthy environment.L e tter to Shaw n G arvi n

Jul y 30 , 2010 P age 2

W e st Virginia PSD and P art 70 Title V p ermittin g p ro g ram s. The st ate inte nd s to do so w hil e al s o pur s uing rule-m akin g . For PSD: The We s t Virginia Di v ision of A i r Qu ality intend s to appl y th e me aning of the term subj ec t to regu lat i o n a s defin e d in 40 C FR §51.166(b)( 48) to PSD rule 45CSR14 in the same m ann er as EPA 's final tailorin g rule. Bec ause West Virgini a interprets this reading of the counterp art regulations, greenhouse g as s ources in West Virgini a w hich fall below the specifi e d cutof

fs would not be emi tti n g p o llutants subject to regu lation within the de f inition of regu lated NS

R pollut a nt and , th eref

ore , would not b e sub

j ect to PSD permitting as a major station ary s ource or for makin g a ma jor modific ation. The Di v i s ion h as alre a dy rev is e d i ts P S D rul e 45CSR14 wi th n o n-G H G update s for co nsideratio n duri ng th e 20 11 Le g i s l ative Sess i o n. Our agency w ould seek a ddition al modification s to re vise th e ex i sti n g d ef i n iti on of regu lated NS R po ll utant

, and add th e definition s ubj ect to regulat i on a s now d efi ned in 40 CFR § 51
. 166 ( b )( 48 )
. I f appro v ed b y th e W es t Virg ini a Le g i s l ature, th e rev i s i o n s to the ru le s h o uld b e co me e f f e cti v e in June 2 0 1 1. F or T itle V : Wes t V i rgi n ia w ill ad o pt an i nterpretation of th e term s major source or an y of its compon e nt term s - a ma j or s t at i onar y source , any air poll uta n t , or sub j ect to regu lation, or the numeri c al thre shold s - that i s c o n s is tent wi th E P A' s reg ul ato ry interpre tation of the se terms a s codi f

i e d at 40 C FR §70. 2
.

- Filing deadlin es hav e passed for conv e nti o nal rule-making during the current legislative session. There fore, West Virginia intends to revise its Title V Rule 45 C SR30 in 2011 by emergency rule
. Timin g is dictated b y the fact that a state emerg enc y rule can only last for fifteen month s s uch that it must be s uppl ante d b y a conventio nal l e g i s lati v e rule. The emergenc y rul e w ill co nt ain revision s to the definition of maj or so u rce to include the term s ubj e ct to reg ulation, as w ell a s addin g th e d ef in ition of s ubj ect to regu lation a s defined in 40 CFR § 70. 2 and become eff e c ti ve earl y in Feb ruary 2011. If appro v ed b y the Wes t V irg inia L eg i s l ature , th e p ermanent rul e th at fo llo ws and s un sets th e emerge nc y rule w ill likel y b e come ef

f ec ti v e M ay 2 01 2
. I f y ou hav e any qu estions or w ould l ike f urther d e t ail s , pl e a s e fee l fre e to c ontact me , b y m ail or ph o n e at ( 304 ) 926

- 0462
.

cc: Diana Esher ( 3 A POO) Fred Durham 

### Promoting a healthy environment,