CHARLESTON – Two West Virginia officials say a new rule proposed by the Environmental Protection Agency would invalidate portions of eight state emissions regulations and exceed the agency’s authority.

State Attorney General Patrick Morrisey and Department of Environmental Protection Secretary Randy Huffman joined in written comments opposing the rule, which requires 36 states to revise their previously approved state implementation plans they administer to comply with the Clean Air Act, on May 13.

“The proposed rules from the EPA would require the state to change regulations that the federal government previously approved and on which the state and West Virginia industries have been relying,” Morrisey said.

“Since the Clean Air Act was passed in 1970, states and the federal government have worked hand in hand to attain and maintain air quality standards. This rule attempts to upset years of accepted practice, and it creates a new level of uncertainty for the State of West Virginia and its citizens.”

The rulemaking process originated with a petition for rulemaking filed by the Sierra Club on June 30, 2011. It targets the treatment of excess emissions in state rules by sources during periods of startup, shutdown or malfunction.

Huffman and Morrisey are opposing the rules on four grounds:

-The EPA has misinterpreted the Clean Air Act as prohibiting states from allowing for emissions exceptions for startup, shutdown and malfunction;

-The EPA lacks authority to issue the proposed SIP Call;

-The rule is arbitrary and capricious and fails to comply with the Administrative Procedures Act; and

-The EPA has misconstrued the state emissions regulations that it proposes to invalidate.

Comments on the proposed rule were originally due in March, but the period was extended until May 13.

The startup, shutdown or malfunction exemptions undermine the emissions limits in state implementation plans, the petition filed by the Sierra Club said.

From the West Virginia Record: Reach John O’Brien at

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State of West Virginia U.S. Environmental Protection Agency (EPA)

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