Regional Reports: Region 3

Kathryn B. Thomson
Sidley Austin Brown & Wood LLP
Washington, DC
kthomson@sidley.com

I. EPA Region 3 Developments

EPA Region 3 recently posted on its Web site updated Title V permit issuance statistics. As of the end of 2002, nearly 78 percent of the sources requiring Title V permits had received final operating permits (i.e., approximately 1,250 facilities out of 1,620 facilities). As of Jan. 31, 2003, the District of Columbia has issued 34 final permits; Delaware has issued 79 final permits; Maryland has issued 120 permits; Pennsylvania has issued 665 permits; Virginia has issued 232 permits; and West Virginia has issued 122 permits.

The following proposed Title V operating permits in Region 3 are or were subject to a 60-day public petition period that closes or closed in the period from February through early May 2003: Reichold, Inc. (DE); Christiana Peaking Station (DE); Delaware City Peaking Station (DE); Madison Peaking Station (DE); West Peaking Station (DE); Delaware Terminal Company (DE); Ethan Allen – Cherry Hill Division (PA); Buckeye Pipeline – Coraopolis Terminal (PA); ExxonMobil Neville Island Terminal (PA); Gulf Oil Neville Island Terminal (PA); Motiva Enterprises – Coraopolis Terminal (PA); Sun Inc. Blawnox Terminal (PA); Hamot Medical Center (PA); True Temper Hardware Co. (PA); and Wood Mode, Inc. (PA).

II. State Developments

A. District of Columbia

On Dec. 18, 2002, the United States District Court for the District of Columbia ordered EPA to publish, by Jan. 27, 2003, a determination of the ozone air quality status of the Washington, D.C. metropolitan area. Sierra Club v. Whitman, C.A. No. 02-02235 (D.D.C.). On Jan. 24, 2003, EPA responded to that order, downgrading the ozone nonattainment status of the Washington area from serious to severe. This determination will take effect on March 25, 2003. As a result of this change, EPA will require the metropolitan area (including the District of Columbia and portions of Maryland and Virginia) to, inter alia, reduce motor vehicle emissions, obtain greater offsets for any increases in emissions, and establish more stringent new source review requirements. The jurisdictions subject to the rule will also be required to submit new state implementation plans satisfying the requirements of the rule by March 1, 2004 and to demonstrate a 9 percent reduction in nitrogen oxides and volatile organic emissions by Nov. 15, 2002 and again by Nov. 15, 2005.

B. Delaware

In late February 2003, the Department of Natural Resources and Environmental Control (DNREC) announced that it will require Motiva’s Delaware City refinery to abide by the terms of a March 2001 consent decree which requires the reduction of sulfur dioxide emissions from the Motiva facility through the use of a regenerative process. Although DNREC and Motiva had been discussing modifying the consent decree to allow for a non-regenerative process, DNREC concluded that a regenerative process would be quicker and more reliable and have less environmental impacts. Motiva had urged DNREC to consider the non-regenerative process on the grounds that the regenerative technology required had not been proven successful in the petroleum refining industry.
DNREC will hold a public hearing on two Sunoco permit applications covering the company’s Claymont, Delaware facility. The company is seeking an Air Quality Management Construction Permit and a Coastal Zone Management Permit for its Claymont, Delaware facility. The hearing will be held March 13 in Claymont. Both permit applications pertain to the construction of a dual-train Claus sulfur plant on four acres of land within the boundaries of the current facility. Sunoco maintains that the project (including planned controls) will result in an overall reduction of emissions of sulfur dioxide, nitrogen oxides, carbon monoxide, volatile organic compounds and particulates.

C. Maryland

On Jan. 15, 2003, EPA published a final rule returning, after just one year, control of the Clean Air Act Title V operating program to the state of Maryland. (68 Fed. Reg. 1974.) In making this determination, EPA found that the state, through legislation, had corrected the observed deficiencies in the public participa-tion process. Critics of EPA’s decision argue that the Maryland program remains objection-able because it shields violators from citizen enforcement suits as long as they follow compliance plans agreed to by the state.

D. Pennsylvania

On Dec. 18, 2002, the U.S. District Court for the Eastern District of Pennsylvania found Pennsylvania’s environmental and transportation agencies in violation of federally mandated auto emission testing requirements in 16 counties. Citizens for Pennsylvania’s Future v. Mallory, C.A. No. 02-798 (E.D. Pa.). Specifically, the Court held that the 16 counties had failed to implement enhanced vehicle maintenance and inspection requirements established under Pennsylvania’s approved State Implementation Plan. The counties at issue in the lawsuit are Lehigh, Northhampton, Berks, Cumberland, Dauphin, Lancaster, Lebanon, York, Blair, Cambria, Centre, Erie, Lackawanna, Luzerne, Lycoming and Mercer. The court subsequently ordered the parties to file remedy proposals by Feb. 28, 2003, and will schedule a hearing to evaluate remedy options in the near future.

On Jan. 27, 2003 the Rendell administration announced that it would join a number of other Northeastern states in challenging EPA’s final changes to the New Source Review rules that are scheduled to become effective in early March. Although Pennsylvania filed its own lawsuit, it, like the other states, asserts that EPA lacks the authority to implement the changes at issue and that the changes interfere with Pennsylvania’s ability to determine the best approach to achieving and maintaining air quality in that state.

The NOx Budget Program Early Reduction Credit deadline expired on Feb. 1, 2003. The early reduction allowances will be available for large electric generators and industrial facilities to use to comply with the NOx allowance requirement under Chapter 145 of the Pennsylvania air rules in the 2003 and 2004 compliance period.

The Pennsylvania Department of Environmental Protection (DEP) recently fined DTE River Hill L.L.C. and Covel Fuels $25,000 for air quality violations at their coal processing facility in Clearfield County.

According to DEP, the companies violated the conditions of their operating permit by using a bypass conveyor belt prior to receiving air quality plan approval and exceeding their annual coal production allowance of 613,000 tons. The annual production limit is intended to control the amount of airborne coal dust from the facility. Half the penalty was paid to the State Clean Air Fund; the other half will be used to fund two community projects.

In November 2002, DEP issued a lengthy report entitled “An Evaluation of the Pennsylvania Air Quality Program.” The report assesses the adequacy and success of steps taken to date to reduce air emissions in the state. It also includes recommendations for future actions in an effort to continue to reduce emissions. Copies of the report are available at www.dep.state.pa.us.

E. Virginia and West Virginia

No significant new developments to report.