To become effective, all proposed changes, additions or deletions to West Virginia’s environmental rules and regulations must be approved by the state legislature. This is normally uncontroversial – the operative word here is normally. Although each rule change is filed individually, they are collectively gathered together into what is called a “rules bundle” or “rules package.”
This year, the West Virginia Department of Environmental Protection (WVDEP) “rules bundle” would have implemented more than a dozen new or amended environmental rules including a number of significant changes to air regulations. These included updated New Source Performance Standards (NSPS), waste combustion regulations, and regulations affecting a number of National Ambient Air Quality Standards (NAAQS).
In addition to the above rules, the WVDEP included a rule adopting by reference a newly promulgated EPA rule affecting the manufacture of wood burning stoves. The rule is already effective at the federal level and only impacts manufacturers of wood stoves sold to the public. It is not an issue for people who already own a wood stove in their home.
Specifically, the EPA rule requires manufacturers to reduce wood stove air emissions — which can include particulate matter, volatile organic compounds, carbon monoxide, and air toxics— in new stoves by roughly two-thirds. It also requires them to provide buyers with manuals with recommended operating conditions and best practices, such as not burning unseasoned or wet wood. Opponents of this rule have characterized it as another unwanted EPA intrusion into private lives, an effective ban on wood stoves, and allowing the government to inspect the type of wood being burned.
The rules package contained this and other rules that WVDEP stated are necessary to maintain its state-based regulatory program; noting that this rule was already federal law. Nonetheless, the House stripped the rules package of the wood stove portion because they claimed the rule would make the WVDEP primarily responsible for “enforcing this rule in thousands of homes across West Virginia, wasting state tax dollars and sapping resources that could be used for legitimate pollution enforcement elsewhere.” According to one House Delegate, “[b]y rejecting this portion of the rule, the House sent a signal to Washington that if they wish to make such foolish regulations, they will have to enforce them on their own and send EPA officials to do so.”
The Senate put back the wood-stove regulation into the bundle at the request of WVDEP. The result was a stalemate with the House refusing to back down. Consequently, the entire environmental rules package died with no action taken.
So where does this leave the rule package? West Virginia law says that the legislature cannot just ignore it. The governor can put the rules bundle on a call for a special session. WVDEP officials are also examining the possibility that the agency could legally implement some of the rules as they were submitted to lawmakers, rather than with various changes that were made during the legislative process, including some amendments that industry had sought.