CAIR Decision Does Not Change West Virginia's Plans

On July 11, 2008, the US Court of Appeals for the District of Columbia struck down portions of the Clean Air Interstate Rule (CAIR) for failure to comply with the requirements of the Clean Air Act. As CAIR was the regulatory mechanism that several states were relying on to meet ozone and particulate standards, by reducing ozone precursors and particulate from upwind states, EPA petitioned the court to allow the rule to stay in effect pending its revision. On December 23, 2008, the court granted EPA’s request and allowed the CAIR program to remain in effect while EPA revises the rule. The rule was therefore not vacated, but remanded to EPA for further action consistent with the Court's opinion. The court refrained from imposing a deadline as to when the rules must be revised. In addition to the matters that EPA was directed by the court to revise, the Obama administration will likely want to make other changes, so the shape of the new rule is impossible to predict.

My colleague Anne Blankenship reports that Jim Mason of the WV DEP Division of Air Quality says that the CAIR rules that went into effect January 1 will remain in effect. The NOx SIP Call rules (45 CSR 1 and 45 CSR 26) that were proposed for repeal prior to the Court's July 11, 2008 decision, will continue on their current track toward repeal by the Legislature this session. In other words, nothing has changed, and CAIR requirements will be applied in WV as written until EPA revises and reporopses CAIR, or some replacement rule.

If you're looking for information on West Virginia's compliance with Ozone and PM2.5, check the DEP website here.