08-21-08P03:36 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

6015ih 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. EPA is still revieI'Vingthe 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

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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 inconsistentII 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, EPA 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 mb

l

' 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

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{~ Customer Service Hotline: 1~800-438-2474
45CSR1

CONTROL AND REDUCTION OF NITROGEN OXIDES FROM NON-ELECTRIC

GENERATING UNITS AS A MEANS TO MITIGATE TRANSPORT OF OZONE

PRECURSORS

RESPONSE TO COMMENTS

On July 11, 2008, the Department of Environmental Protection (DEP) 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 45CSR1. 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 45CSR1, and no commenter provided verbal

comments. DEP 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

proceed 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 vacatur and 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.