Regional Reports: Region 3

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

State Developments

A. District of Columbia

On July 2, 2002, the D.C. Circuit ruled that EPA had acted in violation of the Clean Air Act by extending by nearly 6 years the metropolitan Washington region’s deadline for complying with the nonattainment requirements of the Act. Sierra Club v. EPA, D.C. Cir. 01-1070. In response to that ruling, EPA proposed, on Nov. 13, 2002, to downgrade the Washington, D.C. metropolitan area from serious to severe for ozone. Under the proposal, the metropolitan area (including the District of Columbia and portions of Maryland and Virginia) would be required 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 proposed rule would 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. The comment period closes on Dec. 13, 2002.
On the same day EPA issued the proposed rule, the Sierra Club filed a new lawsuit, alleging that the Agency’s proposal seeks to circumvent the Court’s requirement that the agency downgrade the attainment status of the Washington, D.C .area.
B. Delaware Pursuant to the terms of a settlement agreement between Sunoco Inc. and the state of Delaware, Sunoco agreed to pay a $390,000 civil penalty and improve certain equipment and operations at its Claymont, Delaware refinery. DiPasquale v. Sunoco Inc., Del. Super. Ct., No. 02C-05-273 SCD (May 29, 2002). The consent agreement is intended to settle alleged violations of Delaware air pollution control laws. The company was alleged to have flared hydrogen sulfide gas on multiple occasions between Dec. 28, 2001 and the present in violation of the refinery’s air permit. Among other things, the settlement requires Sunoco to minimize flaring and to implement an environmental management system modeled after ISO 14001.

On Oct. 18, 2002, the Clean Air Council filed a citizen suit challenging the proposed settlement and alleging more than 67 violations of the Clean Air Act since an operating permit had been granted to Sunoco. The citizens group contends that the consent decree does not bar a separate lawsuit because the decree does not constitute “diligent prosecution” by the state. The citizens group further maintains that the agreement was entered into without public participation and did not result in the elimination of ongoing flaring violations.

The Department of Natural Resources and Environmental Control (DNREC), on Dec. 4, 2002, issued a Notice of Conciliation and Order to Motiva Enterprises, which owns and operates the Delaware City Refinery. According to the Order, Motiva allegedly violated Clean Air Act requirements by failing to adequately control emissions of suspended particulates (such as coke). The Order stipulates up to $10,000 per day for each day of non-compliance with the requirements of the Order. Motiva has 20 days to request a hearing.

Also on Dec. 4, 2002, DNREC issued a Notice of Administrative Penalty Assessment and Secretary’s Order to Qwest Communications concerning operations at a Newport, Delaware facility. According to the Notice, Qwest violated Clean Air Act requirements by installing a diesel-powered emergency generator without first obtaining a permit from the State and operating the generator in the absence of an operating permit. The Order imposes, inter alia, a $25,000 penalty, a $1,646 cost recovery reimbursement to the state, and a requirement that Qwest evaluate all of its Delaware facilities to identify whether other generators used by the company require, but do not currently have, Clean Air Act permits.

On Nov. 26, 2002, DNREC fined General Motors Corporation’s Wilmington Assembly Plant $27,300 in penalties and $2,320 in cost recovery reimbursement for alleged illegal emissions of volatile organic compounds from coating and curing automobile finishes. The alleged releases were the result of operator error and equipment malfunctions on several occasions between February 2000 and June 2001. General Motors was given 30 days to request a hearing.

DNREC announced new requirements for the reporting of environmental releases (including releases of air contaminants) on Nov. 8, 2002. The new regulations, promulgated under 7 Del. C. § 6028, modify the definition of an environmental release, make changes to Delaware’s list of hazardous substances and their reportable quantities, and require written follow-up reports for all releases that meet the reporting requirement. The new rules were to become effective on Dec. 11, 2002.

On Nov. 26, 2002, DNREC held a public hearing to discuss several revisions to air rules and Delaware’s state implementation plan. The planned revisions will address the current definition of “Fire-Resistant Interior Coating” to differentiate between civilian and military aircraft FAA fireworthiness; the adoption of EPA’s methodology for calculating particulate matter during monitoring; and expected changes to Delaware’s motor vehicle emissions reduction programs. The comment period closed on Dec. 1, 2002; however, the proposed rules are available for review at www.dnrec.state.de.us.

DNREC issued a Notice of Administrative Penalty Assessment and Secretary’s Order to Christiana Materials, Inc. for alleged violations Delaware’s air pollution control regulations. The Order assesses $10,000 in civil penalties for the installation and operation of an asphalt crushing and screening equipment without first having obtained a permit from DNREC. The Order also seeks $600 as a cost recovery reimbursement for the costs of the Department’s investigation. Christiana Materials obtained the required permits on March 12, 2002. The company has 30 days to request a hearing.

DNREC recently published a new Compliance and Enforcement Response Guide. Among other things, the guide outlines DNREC’s approach to compliance assurance, inspections and information requests, determining the appropriate response to violations, general enforcement procedures, and administrative and civil penalty calculations. An electronic version of the document can be found by clicking on the link to “Enforcement and Compliance Information” at www.dnrec.state.de.us.

C. Maryland

On Sept. 10, 2002, EPA proposed to return, after just one year, control of the Clean Air Act Title V operating program to the State of Maryland. In making this proposal, EPA found that the State had corrected the observed deficiencies in the public participation process. The comment period closed on the proposal in early October.

D. Pennsylvania

EPA, on Nov. 12, 2002, approved Pennsylvania’s request to declare Allegheny County an attainment area for carbon monoxide. The Agency found that Pennsylvania was able to that demonstrate sharp reductions in carbon monoxide emissions were permanent and that the national ambient air quality standard for carbon monoxide could be maintained for the next decade.

On Nov. 15, 2002, the Pennsylvania Department of Environmental Protection Agency announced that it will begin to report ground-level ozone pollution using the federal Air Quality Index in 2003. To date, Pennsylvania has been the only Northeast State to deviate from the federal index. Thus, in the past, Pennsylvania has at times appeared to have worse air quality than more highly populated areas. By switching to the federal index, Pennsylvania seeks to eliminate these discrepancies.

Also on Nov. 15, 2002, EPA approved a request from Pennsylvania that will allow for inter-pollutant trading of volatile organic emission reduction credits (ERCs) for nitrogen oxide credits using a substitution ration in the Philadelphia area. Specifically, EPA has approved the use of a 1.3 to 1 VOC to NOx substitution for ERC trades in the Philadelphia area.

On Oct. 18, 2002, the U.S. District Court for the Eastern District of Pennsylvania ordered Pennsylvania’s environmental and transportation agencies to comply with enhanced federal inspection and maintenance programs for motor vehicles as part of the federally-approved ozone attainment state implementation plan for the Philadelphia area. Clean Air Council v. Pennsylvania DOT, E.D. Pa. No. 01-179. In reaching this decision, the court found that the state agencies were in violation of emission standards or limitations for hydrocarbons, carbon monoxide and oxides of nitrogen under the Clean Air Act.
The Pennsylvania Environmental Quality Board has proposed revisions to the Clean Air Act rules governing small sources of NOx, cement kilns and large internal combustion engines. The proposed rules would establish additional ozone season NOx emission limits for these sources located in Bucks, Chester, Delaware, Montgomery and Philadelphia Counties. The proposal was adopted by the Board on Sept. 17, 2002, and will go into effect upon publication in the Pennsylvania Bulletin as a final-form rule.

E. Virginia and West Virginia

No significant new developments to report.