depwest virginia department of environmental protection

Division of Air Quality

60 I57th Street SE

Charleston, WV 25304

Phone: (304) 926-0475

Fax: (304) 926-0479

Joe Manchin III, Governor

Randy C. Huffman, Cabinet Secretary

www.dep.wv.gov

July 30,2010

Mr. Shawn M. Garvin (3RAOO)

Regional Administrator

US EPA 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), EPA 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. EPA has adamantly pursued a course that places states, which

are generally the primary permitting authority, in a completely untenable position. If states ignore

GHG entirely, 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 EPA'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 EPA to work with

Congress to exempt GHG from applicability under the PSD and Title V programs. As the EPA

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 EPA explained in

the GHG tailoring rule. We are herein providing EPA with our planned approach to address GHG

in our related programs.

Provisionally, West Virginia plans to apply the meaning of the term subject to regulation

established by EPA in the final Greenhouse Gas Tailoring Rule in implementing both the established

Promoting a healthy environment.
Letter to Shawn Garvin

July 30, 2010

Page 2

West Virginia PSD and Part 70 Title V permitting programs. The state intends to do so while also

pursuing rule-making.

For PSD: The West Virginia Division of Air Quality intends to apply the meaning of the

term subject to regulation as defined in 40 CFR §51.166(b)( 48) to PSD rule 45CSR14 in

the same manner as EPA's final tailoring rule. Because West Virginia interprets this reading

of the counterpart regulations, greenhouse gas sources in West Virginia which fall below

the specified cutoffs would not be emitting pollutants subject to regulation within the

definition of regulated NSR pollutant and, therefore, would not be subject to PSD permitting

as a major stationary source or for making a major modification.

The Division has already revised its PSD rule 45CSR14 with non-GHG updates for

consideration during the 2011 Legislative Session. Our agency would seek additional

modifications to revise the existing definition of regulated NSR pollutant, and add the

definition subject to regulation as now defined in 40 CFR §51.166(b)( 48). If approved by

the West Virginia Legislature, the revisions to the rule should become effective in June

2011.

For Title V: West Virginia will adopt an interpretation of the terms major source or any of

its component terms - a major stationary source, any air pollutant, or subject to regulation,

or the numerical thresholds - that is consistent with EPA's regulatory interpretation of these

terms as codified at 40 CFR §70.2.

-Filing deadlines have passed for conventional rule-making during the current legislative

session. Therefore, West Virginia intends to revise its Title V Rule 45CSR30 in 2011 by

emergency rule. Timing is dictated by the fact that a state emergency rule can only last for

fifteen months such that it must be supplanted by a conventional legislative rule. The

emergency rule will contain revisions to the definition of major source to include the term

subject to regulation, as well as adding the definition of subject to regulation as defined in

40 CFR §70.2 and become effective early in February 2011. If approved by the West

Virginia Legislature, the permanent rule that follows and sunsets the emergency rule will

likely become effective May 2012.

If you have any questions or would like further details, please feel free to contact me, by mail

or phone at (304) 926-0462.

cc: Diana Esher (3APOO)

Fred Durham

Promoting a healthy environment,