WVDEP Rules With Federal Counterparts

9/6/2017

Pursuant to W. Va. Code § 22-1-3a, which was enacted by the Legislature in 1994:

[L]egislative rules promulgated by the [Secretary of the Department of Environmental Protection] which become effective on or after July 1, 1994 may include new or amended environmental provisions which are more stringent than the counterpart federal rule or program to the extent that the [Secretary] first provides specific written reasons which demonstrate that the provisions are reasonably necessary to protect, preserve or enhance the quality of West Virginia’s environment or human health or safety, taking into consideration the scientific evidence, specific environmental characteristics of West Virginia or an area thereof, or stated legislative findings, policies or purposes relied upon by the [Secretary] in making such determination. . . . In the absence of a federal rule, the adoption of a state rule shall not be construed to be more stringent than a federal rule, unless the absence of a federal rule is the result of a specific federal exemption.

Below is a spreadsheet of DEP's rules that have federal counterpart regulations, which are now out to public comment pursuant to W. Va. Code § 29A-3-20(a)(3). This information will be out for public comment until Tuesday October 10, 2017. The agency has reviewed and evaluated its rules that have federal counterpart regulations and determined and noted which ones are more stringent than the federal counterparts. In accordance with W. Va. Code § 29A-3-20(a)(4), the agency must submit a report to the Joint Committee on Government and Finance and the Legislative Rule-Making Rule Committee on or before November 1, 2017 that includes both a description of the state rules that are more stringent than their federal counterparts and the comments received from this comment period. Comments can be emailed to DEP.Comments@wv.gov.

Number

Title

Stringency

Comments

office of Abandoned Mine Lands

59-1

Abandoned Mine Lands Reclamation Rule

No

This rule follows the parameters established in its federal counterpart regulation.

Federal Counterpart Regulation: 30 CFR Parts 870 and 872

division of Air Quality

45-1

Alternative Emission Limitations During Startup, Shutdown, and Maintenance Operations

No

This rule follows the parameters established in its federal counterpart regulation.

Federal Guidance: The EPA explicitly details SSM policy as guidance in the Federal Register as a final regulation at 80 Fed. Reg. 33840 (June 12, 2015) that was used to develop this rule.

45-2

To Prevent and Control Particulate Air Pollution from Combustion of Fuel in Indirect Heat Exchangers

No

This rule was part of the original State Implementation Plan (SIP) package in 1972. This rule is a “backstop” for existing sources not subject to federal standards.

The opacity limit is more stringent than similar federal regulations, unless an alternative limit is approved per section 3.2 and 3.3, because West Virginia was not in attainment with the 1971 health based Total Suspended Particulate (TSP) National Ambient Air Quality Standards (NAAQS), and these limits were required to bring the State into attainment. Although there are instances where the particulate matter (PM) limit appears to be more stringent in the State rule, the test method in the appendix of the State rule does not capture condensable PM, since the sample is at the temperature of the exhaust stack and not a lower temperature.

Similar Federal Regulation: While there is no federal counterpart regulation to 45-2, there are federal regulations that may apply to the same sources: New Source Performance Standards (NSPS) of 40 CFR Part 60, subparts D (fossil fuel fired steam generators); Da (electric utility steam generating units); Db (industrial commercial institutional steam generating units); Dc (small industrial commercial institutional steam generating units)

45-3

To Prevent and Control Air Pollution from the Operation of Hot Mix Asphalt Plants

No

This rule was part of the original SIP package in 1972 and follows the parameters of its federal counterpart regulation.

Similar Federal Regulation: NSPS subpart I

45-5

To Prevent and Control Air Pollution from the Operation of Coal Preparation Plants, Coal Handling Operations and Coal Refuse Disposal Areas

No

This rule was part of the original SIP package in 1972 and follows the parameters of its federal counterpart regulation.

Similar Federal Regulation: NSPS subpart Y

45-7

To Prevent and Control Particulate Matter Air Pollution from Manufacturing Processes and Associated Operations

No

This rule was part of the original SIP package in 1972. This rule is a “backstop” for existing sources not subject to federal standards.

West Virginia was not originally in attainment with the 1971 TSP NAAQS, 1997 PM, and 2006 PM2.5. There were six 1997 PM2.5 maintenance areas and two 2006 PM2.5 maintenance areas.

Similar Federal Regulation: Several dealing with opacity limits for manufacturing processes.

45-07A

Compliance Test Procedures for 45CSR7 – “To Prevent and Control Particulate Matter Air Pollution from Manufacturing Processes and Associated Operations”

No

This companion rule to 45-7 establishes test procedures in accordance with the method(s) established by EPA.

Similar Federal Regulation: Method 303

45-8

Ambient Air Quality Standards

No

This rule incorporates by reference its federal counterpart.

Federal Counterpart Regulation: 40 CFR Parts 50 and 53

45-10

To Prevent and Control Air Pollution from the Emission of Sulfur Oxides

No

This rule was part of the original SIP package in 1972. This rule is a “backstop” for existing sources not subject to federal standards.

Similar Federal Regulation: While there is no federal counterpart to this rule, there are federal regulations that may apply to the same sources: New Source Performance standards (NSPS) of 40 CFR Part 60, Subparts D (fossil fuel fired steam generators); Da (electric utility steam generating units); Db (industrial commercial institutional steam generating units); Dc (small industrial commercial institutional steam generating units); J and Ja (petroleum refineries)

45-11

Prevention of Air Pollution Emergency Episodes

No

Although provisions were added for coal and wood stoves in Table 2 and Table 3 that were not listed in Appendix L, the State rule is not more stringent; Appendix L provides only examples of emission control actions.

Similar Federal Regulation: 40 C.F.R. Part 51, Subpart H

45-14

Permits for Construction and Major Modification of Major Stationary Sources for the Prevention of Significant Deterioration of Air Quality

No

This rule adopts language from its federal counterpart.

Federal Counterpart Regulation): 40 CFR § 51.166

45-16

Standards of Performance for New Stationary Sources

No

This rule incorporates by reference its federal counterpart, with limited exception.

Federal Counterpart Regulation: 40 CFR Parts 60 and 65

45-18

Control of Air Pollution from Combustion of Solid Waste

No

This rule incorporates by reference its federal counterparts for new sources and adopts the language from its federal counterparts for existing sources.

Federal Counterpart Regulation: 40 CFR Part 60, Subparts Eb, Ec, AAAA, CCCC, EEEE, and LLLL

Federal Guidance: 40 CFR Part 60, Subpart Ce and DDDD

45-19

Permits for Construction and Major Modification of Major Stationary Sources Which Cause or Contribute to Nonattainment Areas

No

This rule adopts the language from its federal counterpart.

Federal Counterpart Regulation: 40 CFR §51.165

45-20

Good Engineering Practice as Applies to Stack Heights

No

This rule adopts by reference its federal counterpart regulation.

Federal Counterpart Regulation: 40 CFR Part 51

45-21

Regulation to Prevent and Control Air Pollution from the Emission of Volatile Organic Compounds

No

This rule is part of a federally approved maintenance plan and applies only to sources located in Cabell, Kanawha, Putnam, Wayne, and Wood Counties, because those areas were not in attainment with the 1979 ozone NAAQS, and VOCs are a precursor to ozone. The agency submitted this Rule as part of its control plan in 1994 to establish attainment in those areas. Rule 21 is a “backstop” for existing sources in those designated counties not subject to federal standards.

Similar Federal Regulation: While there is no federal counterpart regulation to 45-21, there are approximately 40 federal regulations that may address the source categories subject to this rule.

45-23

To Prevent and Control Emissions from Municipal Solid Waste Landfills

No

This rule incorporates by reference its federal counterparts for new sources and adopts the language of its federal counterparts for existing sources.

Federal Counterpart Regulation: 40 CFR Part 60, Subparts WWW and XXX

Federal Guidance: 40 CFR Part 60, Subparts Cc and Cf

45-25

Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities

No

This rule adopts and incorporates by reference, with limited modification, its federal counterparts.

Federal Counterpart Regulation: 40 CFR Parts 260, 261, 262, 264, 265, 266, 270, and 279

45-30

Requirements for Operating Permits

No

This rule follows the parameters of its federal counterpart.

Federal Counterpart Regulation: 40 CFR Part 70

45-31

Confidential Information

No

This rule establishes the requirements for claiming information submitted to the Secretary as confidential and the procedures for determinations of confidentiality in accordance with the provisions of W. Va. Code § 22-5-10. A federal counterpart to this rule does not exist; however, the criteria for use in confidentiality determinations at 40 CFR § 2.208 and special rules dealing with certain information at 40 CFR § 2.301 have been incorporated into this rule.

Similar Federal Regulation: 40 CFR Part 2, Subpart B

45-31B

Confidential Business Information and Emission Data

No

This rule establishes the requirements for claiming information submitted to the Secretary as confidential and the procedures for determinations of confidentiality in accordance with the provisions of W. Va. Code § 22-5-10. A federal counterpart to this rule does not exist; however, the criteria for use in confidentiality determinations at 40 CFR § 2.208 and special rules dealing with certain information at 40 CFR § 2.301 have been incorporated into this rule.

Similar Federal Regulation: 40 CFR Part 2, Subpart B

45-33

Acid Rain Provisions and Permits

No

This rule incorporates by reference its federal counterpart.

Federal Counterpart Regulation: 40 CFR Parts 72, 74, 75, 76, and 77

45-34

Emission Standards for Hazardous Air Pollutants

No

This rule incorporates by reference its federal counterpart.

Federal Counterpart Regulation: 40 CFR Parts 61, 63 and 65, to the extent referenced in 40 CFR Parts 61 and 63

45-35

Determining Conformity of General Federal Actions to Applicable Air Quality Implementation Plans

No

This rule incorporates by reference its federal counterpart.

Federal Counterpart Regulation: 40 CFR Part 93, Subpart B

45-36

Requirements for Determining Conformity of Transportation Plans, Programs, and Projects Developed, Funded or Approved under Title 23 USC or the Federal Transit Laws, to Applicable Air Quality Implementation Plans

No

This rule incorporates by reference its federal counterpart.

Federal Counterpart Regulation: 40 CFR Part 93, Subpart A

45-38

Provisions for Determination of Compliance with Air Quality Rules

No

This rule follows the parameters established in the federal SIP call.

Federal Guidance: This rule was promulgated in response to a 1994 SIP Call issued by EPA to comply with the enhanced monitoring requirements established in §§ 110(a)(2)(A), (C), and (F), 113(a) and (e), and 114(a)(3) of the Clean Air Act.

45-40

Control of Ozone Season Nitrogen Oxide Emissions

No

This Rule establishes the budget set up in the NOx SIP Call for non-electric generating units.

Federal Guidance: 40 CFR Parts 51.121, 52 96, and 97

division of Land Restoration

None

division of Mining & Reclamation

38-2

West Virginia Surface Mining Reclamation Rule

Yes

Please see attached PDF.

Federal Counterpart Regulation: 30 CFR Parts 700 – 702, 705, 707, 710, 715, 716, 722 – 724, 730 – 733, 735, 762, 764, 769, 772 – 780, 785, 795, 800, 810, 815, 816, 819, 824, 827, 828, 840, and 845 – 847

47-30

WV/NPDES Rules for Coal Mining Facilities

No

This rule follows the parameters established in its federal counterpart regulation.

Federal Counterpart Regulation: 40 CFR Part 122

47-30B

Administrative Proceedings and Civil Penalty Assessment

No

This rule follows the parameters established in its federal counterpart regulation.

Federal Counterpart Regulation: § 309(g) of the Clean Water Act (33 USC § 1319(g))

199-1

Surface Mining Blasting Rule

Yes

The restrictions on distance limits from the blasting site to adjacent structures is more stringent in West Virginia than the federal counterpart regulation requires. West Virginia requires blasting no closer than seven-tenths of a mile from the site of the blast or one-half mile from the permit boundary. This is because studies conducted by the agency in 2001 showed that blasting damage occurred past the federal standard of one-half mile past the permit boundary.

Federal Counterpart Regulation: 30 CFR Part 816-61 – 816.68

office of Oil & Gas

None

 

division of Water & Waste Management

33-1

Solid Waste Management Rule

No

This rule follows the parameters established in its federal counterpart regulation.

Federal Counterpart Regulation: 40 CFR Parts 239 - 258

33-2

Sewage Sludge Management Rule

No

This rule follows the parameters established in its federal counterpart regulation.

Federal Counterpart Regulation: 40 CFR Part 503

33-20

Hazardous Waste Management System

Yes

Section 4 of this rule subjects conditionally exempt small quantity generators of hazardous waste (CESQG) to notification requirements that are not part of the federal counterpart regulation. West Virginia solid waste rules restrict disposal of hazardous waste in municipal and non-hazardous waste industrial landfills. Requiring CESQGs to register helps to ensure hazardous waste does not find its way into a landfill that is not permitted to accept it.

Federal Counterpart Regulation: 40 CFR Parts 260 – 279

33-30

Underground Storage Tanks

No

This rule incorporates by reference its federal counterpart.

Federal Counterpart Regulation: 40 CFR Part 280 – 282

47-1

Administrative Proceedings and Civil Penalty Assessment

No

This rule follows the parameters established in its federal counterpart regulation and is, thus, consistent with the federal program.

Federal Counterpart Regulation: § 309(g) of the Clean Water Act (33 USC § 1319(g))

47-2

Requirements Governing Water Quality Standards

No

Please see attached PDF.

While there is no federal counterpart regulation for this rule, EPA does propose “recommended criteria” for water quality standards through 40 CFR Parts 405 – 471, and the states can either adopt those recommended criteria or establish their own criteria based on conditions specific to each state.

Similar Federal Regulation: § 303 of the Clean Water Act (33 USC § 1313)

47-5A

Regulations for State Certification of Activities Requiring Federal Licenses and Permits

Yes

This rule is more stringent than its federal counterpart in three areas:

(1) Wetlands mitigation (3:1 vs 1:1). WV’s rule is more stringent in this area, because the State determined that manmade wetlands rarely function as well as natural ones, and they take time to mature.

(2) Barge fleeting mitigation. This area is more stringent because barge fleeting areas restrict/eliminate acres of fishable water, and prop wash damages fish nesting sites.

(3) Impingement/entrainment of fish at FERC hydropower facilities. This area is more stringent, because a previous federal court ruling stated impacts to a fishery must occur before mitigation; this provision in the State rule makes it clear we are concerned about impacts to each fish.

Federal Counterpart Regulation: 33 CFR Parts 325 and 332 and 40 CFR Part 230

47-10

National Pollutant Discharge Elimination System (NPDES) Program

No

This rule follows the parameters established in its federal counterpart regulation.

Federal Counterpart Regulation: 40 CFR Part 122 - 125

47-13

Underground Injection Control

No

This rule follows the parameters established in its federal counterpart regulation.

Federal Counterpart Regulation: 40 CFR Parts 144 – 148

47-31

State Water Pollution Control Revolving Fund Program Rule

No

This rule follows the parameters established in its federal counterpart regulation.

Federal Counterpart Regulation: 40 CFR Part 35

47-34

Dam Safety Rule

No

This rule follows the parameters established in its federal guidance.

Federal Guidance: FEMA’s Federal Guidelines for Dam Safety Risk Management

60-5

Antidegradation Implementation Procedures

No

Similar Federal Regulation: While there is not federal counterpart regulation for this rule, EPA required states to develop antidegradation policies through 40 CFR Part 131, and West Virginia developed this rule in accordance with the parameters established pursuant to the federal regulation.

 

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