Major Differences between West Virginia’s and USEPA’s GHG Reporting Rules

DAQ’s GHG Reporting Rule is more stringent than new federal counterpart in key aspects 

The WVDEP-Division of Air Quality (DAQ) has a relatively new GHG Reporting Rule – 45CSR42 “Greenhouse Gas Emissions Inventory Program” (effective June 1, 2008, known as Rule 42). Rule 42 requires mandatory reporting of specified greenhouse gases (GHG) over de minimis levels for Title V permittees in West Virginia. The first mandatory reporting of GHG for those sources subject to Rule 42 occurred earlier this year for calendar year 2008 emissions. 

The US Environmental Protection Agency (EPA) promulgated its final GHG Reporting Rule on September 22, 2009, at 40 CFR Part 98 “Mandatory Greenhouse Gas Reporting”. The EPA’s GHG Reporting Rule is much more detailed and specific than the DAQ’s Rule 42. 

The purpose of this article is not to discuss in depth each of these GHG reporting rules, but rather to highlight some of the areas in which the DAQ’s state reporting rule is more stringent than the federal rule. This matters for two reasons: 

1.   The West Virginia Air Quality Code (§22-5-4.(4)) contains the following “no more stringent than” federal counterpart provision: 

§22-5-4. Powers and duties of director; and legal services; rules.

 

…

(4) To promulgate legislative rules in accordance with the provisions of chapter twenty-nine-a of this code not inconsistent with the provisions of this article, relating to the control of air pollution: Provided, That no rule of the director shall specify a particular manufacturer of equipment nor a single specific type of construction nor a particular method of compliance except as specifically required by the "Federal Clean Air Act," as amended, nor shall any such rule apply to any aspect of an employer-employee relationship: Provided, however, That no legislative rule or program of the director hereafter adopted shall be any more stringent than any federal rule or program except to the limited extent that the director first makes a specific written finding for any such departure that there exists scientifically supportable evidence for such rule or program reflecting factors unique to West Virginia or some area thereof; 

2.   During the West Virginia rulemaking/legislative process in 2007 & 2008, industry groups were assured by WVDEP management that the DAQ GHG reporting rule would not be any more stringent than any future EPA GHG reporting rule. Industry was told by WVDEP that Section 4.3 of Rule 42 provided that assurance: 

4.3. The Secretary shall determine the form and format of the information reported by affected sources under subsection 4.1 to ensure that the information is consistent as possible with developing regional, national, or international greenhouse gas emissions programs. 

Rule 42 More Stringent than EPA Part 98 in These Key Areas 

A. Emission Thresholds – The EPA rule threshold is 25,000 metric tons/year of CO2 equivalent (CO2e), while the DAQ rule is 10,000 short tons/year of CO2e. Note that one metric ton equals approximately 2,200 pounds, while one short ton equals 2,000 pounds. 

B. Source Category Exclusions – The EPA rule completely exempts the following stationary source categories at this time, while the DAQ rule has no specified stationary source category exemptions:

·     Electronic manufacturing

·     Ethanol production

·     Fluorinated GHG production

·     Food processing

·     Industrial landfills

·     Magnesium production

·     Oil and natural gas systems

·     SF6 from electrical equipment

·     Underground coal mines

·     Wastewater treatment

·     Suppliers of coal 

C. Combustion Source Exemptions – The EPA rule has exemptions for certain combustion sources - unconventional fuels, flares, hazardous wastes, and emergency equipment, while the DAQ rule has no specified exemptions for these types of combustion sources. 

Note that there are many other differences between the EPA rule and the DAQ rule. 

Conclusions & Recommendations 

Since EPA Part 98 is not effective until calendar year 2010 operations, West Virginia sources who are subject to DAQ Rule 42 will still need to report their facility GHG emissions per the requirements of Rule 42 for calendar year 2009 operations.  

The author recommends that WVDEP-DAQ provide written guidance which clarifies that those West Virginia stationary sources who are within the scope of the federal EPA GHG reporting rule do not have to report GHG emissions under Rule 42. The author requests that DAQ specify that any West Virginia facility which either reports GHG emissions to the EPA per 40 CFR Part 98, or is exempt per 40 CFR Part 98 from federal reporting of GHG emissions, should also be exempt from all provisions of DAQ Rule 42. The regulated community is still awaiting official guidance from DAQ on this matter. 

For further details on the DAQ and USEPA GHG Reporting Rules, see the following web sites: 

• 45CSR42 “Greenhouse Gas Emissions Inventory Program”

http://apps.sos.wv.gov/csr/search.asp [to obtain a copy of Rule 42, type 45-42 in the Search For box and press enter, then click the appropriate links to download]

http://www.wvdep.org/Docs/17114_CY2008%20%20WV%20GHG%20Emission%20Inventory%20Instructions.pdf 

• EPA Final Mandatory Reporting of Greenhouse Gases Rule

http://www.epa.gov/climatechange/emissions/ghgrulemaking.html  

This article was partially excerpted from publically available information, and was authored by Rick Wilson, Acacia Environmental Group LLC.  Any opinions expressed in this article are those solely of the author, and are not intended as legal or professional guidance to any specific readers. For more information on the author see here.