08
- 2 1- 08P03 : 36 RCVD UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION III 1650 Arch Street Philadelphia, Pennsylvania 19103-2029
Mr
. John A
. Benedict, Director Division of Air Quality West Virginia Department of Environmental Protection 

### 601 5ih S1
. SE Charleston, WV 25304 August 18, 2008

Dear Mr. Benedict: Thank you tor the opportunity to comment on West Virginia's proposed repeal of Rules 45CSRI and 45CSR26 which implemented the NOx SIP Call
. We appreciate West Virginia's diligence in complying with the Clean Air Interstate Rule (CAIR) and understand that the repeal of 45CSRI and 45CSR26 is consistent with the requirements of 45CSR40, which was adopted to implement the State's ozone season CAIR trading program but also included the State's other NOx SIP Call requirements. As you are aware, on June 11,2008, the U
. S. Court of Appeals for the D.C
. Circuit issued an opinion in North Carolina v. EPA, No
. 05-1244 (D.C. Cir
. July 11,2008) vacating CAIR and its associated federal implementation plan in its entirety. EP A is still revieI'Ving the court decision to determine its impact and an appropriate course of action. The Court's opinion, however, explicitly notes that "in the absence of CAIR, the NOx SIP Call tbding program will I continue because EPA terminated the NOx SIP Call only as part of the CAIR rulemaking." Slip op. at 59-60. The proposed repeal of 45CSRI and 45CSR26 is inconsistent II with this language in the court ruling and could not be approved as a SIP revision unless the decision to vacate CAIR is altered. In light of the uncertainty regarding CAIR, EP A recommends th~t WV not proceed with the repeal of 45CSRI and 45CSR26. I



## . . .. I Please enter these comments mto the public record. Should you have any

. questions pertaining to these comments, please do not hesitate to contact mbl' or have your staff person contact Marilyn Powers of my staff at (215) 814-2308. 

## I Si erely,
.

J thM.K~r AIr Protection Division I cc: Fred Durham, WVDEP

Printed on 100% recycled/recyclable paper with 100% post-consumer fiber and process chlorine free. {~ Customer Service Hotline: 1~800-438-2474

### 45CSR26 NOX

### BUDGET TRADING PROGRAM AS A MEANS OF CONTROL AND REDUCTION OF NITROGEN OXIDES FROM ELECTRIC GENERATING UNITS RESPONSE TO COMMENTS On July 11, 2008, the Division of Air Quality (DAQ) commenced a thirty day public comment period and subsequently held a public hearing on August 11, 2008 to accept oral comments on the proposed repeal of legislative rule 45CSR26. Written comments were also accepted through 6:00 PM on Monday, August 11, 2008. One commenter submitted written comments regarding the proposed repeal of rule 45CSR26, and no commenter provided verbal comments. DAQ addresses the written comment below.
I. COMMENTER: U.S. Environmental Protection Agency COMMENT A. The commenter states, “The proposed repeal of 45CSR1 and 45CSR26 is inconsistent with ... the court ruling and could not be approved as a SIP revision unless the decision to vacate CAIR is altered. In light of the uncertainty regarding CAIR, EPA recommends that WV not procedd with the repeal of 45CSR1 and 45CSR26.” RESPONSE A. The DEP acknowledges the intimate relationship between 45CSR1, 45CSR26 and the seasonal NOx component of the CAIR. The DEP intends to withdraw the repeals of 45CSR1 and 45CSR26 if the relevant requirements of CAIR cannot be salvaged in a timely manner. However, because of the extension of the time to file petitions for rehearing or rehearing en banc, a mandate to vacate the Clean Air Interstate Rule (CAIR) has not yet been ordered by the U.S. District Court of Appeals. Therefore the vacatur is not in effect at this time. There remains considerable uncertainty regarding the CAIR vacaturand its substantial ramifications. This issue has attracted national attention and could result in potential congressional action. DEP believes it prudent to wait until a more definitive indication of CAIR’s fate is recognized. Depending on future information regarding the vacatur of CAIR, the department may subsequently withdraw the proposed repeal of 45CSR1 in accordance with WV Code §29A-3-14.