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Are air pollution exemptions harming air quality?

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UPDATED to clarify Durham's assessment of the effect of the proposal.

 

Revisions the Environmental Protection Agency proposes to air quality rules in 36 states, West Virginia included, would require substantial administrative effort but would not improve air quality, according to a state regulator.

The agency's proposal to change regulations that govern industrial facilities during startup, shutdown and malfunction — SSM events — does not take the entire suite of state air quality regulations into account, said Fred Durham, deputy director of the state Department of Environmental Protection's Division of Air Quality.

"If you look at West Virginia air pollution control law as a holistic, integrated entity, a lot of this stuff falls off the plate," Durham said.

The West Virginia chapter of the Sierra Club believes exemptions should end, said Energy Committee Chair James Kotcon, and it has challenged air pollution permits to have those emissions counted.

Because air pollution controls on some industrial facilities work only during normal operation, spikes of emissions during SSM events long have been seen as unavoidable.

Thirty-six states have written provisions into their Clean Air Act state implementation plans, or SIPs, specifically exempting industrial facilities from some aspects of their permit limits during SSM events, according to the EPA.

In 2011, the national Sierra Club petitioned the EPA for a rulemaking ending this practice, saying it violates the Clean Air Act.

And in February this year, the EPA proposed a rule that would direct those states to submit revised SIPs by March 2015.

The current SIPs, including their SSM exemptions, were approved by the EPA. But the agency proposes now to view startup and shutdown as phases of normal plant operation that could be allowed to meet recommended "special emission limitations" during those periods.

Malfunctions, when shown to be "sudden, avoidable and unpredictable," could continue to be exempt from permit limits in the proposal.

A 13-page comment letter submitted May 13 to the agency by DEP Cabinet Secretary Randy Huffman and Attorney General Patrick Morrisey raise several objections to the proposal.

Most fundamentally, they make Durham's argument: that the agency has taken West Virginia's SSM rules out of context.

Durham provided further explanation, saying the many-layered nature of the air quality rules provides backstops.

"There are certain things that do have exemptions — for example, the opacity provisions, how dark the smoke is coming out of the stack," Durham said. "But there is not an exemption for the mass limit, how many micrograms per cubic centimeter (of particulate matter). They still have to meet that."

Federal rules also may apply, he said.

"You can have a unit that may be subject to one of our rules that has a director's discretion provision (enabling an administrator to grant exemption)," he said. "But then it's backed up by or incorporates  by reference a New Source Performance Standard at the federal level. Under our air pollution control law, it's always the more stringent provision that rules."

It seems to Durham that the objection to West Virginia's air quality regulations is based on a word search of the state's 40 rules that found eight with words like "exemption" or "director's discretion" — but not on a real understanding of how all of the rules work together.

In a related objection, Huffman and Morrisey wrote that the agency has misinterpreted the Clean Air Act requirement that emissions limitations be "continuous."

Congress's intent in the act, they assert, was that some requirement be applied at all times, or continuously. But, they say, it doesn't have to be the same requirement at all times — it can be different requirements for different phases of operation. West Virginia's regulations apply one set of requirements during normal operation and others during SSM events.

As a more procedural objection, Huffman and Morrisey argue in their comments that the agency has not made the factual findings it has to make in order to take the serious step of a "SIP call" — that is, data showing that the regulations as applied during SSMs are leading to violations of National Ambient Air Quality Standards.

West Virginia counties are in attainment for all NAAQS, with the exception that parts or all of nine counties are monitoring attainment for fine particulate matter and awaiting redesignation to attainment status by the EPA, Durham said.

Two counties — Brooke and Marshall — are monitoring exceedances of the most recent standard for fine particulate matter, and SIP revisions should bring those counties into attainment by the 2021 deadline, he said. Those revisions may lead to modifications of some SSM provisions.

Asked about the overall effect of the proposed rule, Durham said it would require the West Virginia DEP to conduct legislative rulemaking on eight of its air quality rules through a significant investment of time and effort.

But while it would change the wording of regulations and some permit limits, he said, it ultimately would not change air quality in West Virginia.

Kotcon of the Sierra Club disagreed, saying removing exemptions would cause those SSM emissions to be measured and counted.

"That can be the majority of air emissions from a facility," he said. "If that doesn't count toward annual emissions, it allows more emissions to come out."

The EPA's review of West Virginia's rules appears on pages 12499-12501 of the 82-page proposal in the Federal Register.

The EPA's comment period closed on May 13. The agency is required to issue its final action by the end of September, and states will have 18 months after that to revise their SIPs.