45CSR14

TITLE 45

LEGISLATIVE RULE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

OFFICE OF AIR QUALITY

SERIES 14

PERMITS FOR CONSTRUCTION AND MAJOR MODIFICATION OF

MAJOR STATIONARY SOURCES OF AIR POLLUTION FOR THE 

PREVENTION OF SIGNIFICANT DETERIORATION

§45-14-1. General.

1.1. Scope. -- This rule provides:

1.1.a. A mechanism to ensure that

economic growth will occur in harmony with the

preservation of existing clean air resources; to

prevent the development of any new nonattainment problems; to protect the public health

and welfare from any adverse effects which might

occur even at air quality levels better than the

West Virginia and National Ambient Air Quality

Standards; and to preserve, protect, and enhance

the air quality in areas of special natural,

recreational, scenic, or historic value. It is the

intent of the Secretary to register and evaluate

sources of air pollutants and to preclude the

construction or relocation of any major stationary

source or major modification in any area classified

as attaining National or West Virginia Ambient

Air Quality Standards or unclassifiable in which

the establishment of such source or modification

may interfere with the goals of the prevention of

significant deterioration of air quality levels; and 

1.1.b. A method to quantitatively define

significant deterioration of air quality with respect

to the desired degree of preservation of air quality

for various areas and to set forth procedures for

registration and reporting, and the criteria for

obtaining a permit to construct or relocate a major

stationary source or make a major modification to

a stationary source within a designated attainment

or unclassified area of the State of West Virginia.

Such construction, modification, or relocation

without such a permit is a violation of this rule.

1.2. Authority. -- W. Va. Code §22-5-4.

1.3. Filing Date. -- May 20, 2005.

1.4. Effective Date. -- June 1, 2005.

1.5. Federal Regulation. -- Unless otherwise

indicated, where reference to a federal regulation

or standard appears in this rule, such regulation or

standard will, for the purpose of this rule, be

construed as that version which was in effect as of

July 1, 2004 June 1, 2008.

1.6. Former Rules. -- This legislative rule

amends 45CSR14 - “Permits for Construction and

Major Modification of Major Stationary Sources

of Air Pollution for the Prevention of Significant

Deterioration” which was filed on April 28, 1995

May 20, 2005 and became effective on May 1,

1995 June 1, 2005.

§45-14-2. Definitions.

2.1. “Actual emissions” means the actual rate

of emissions of a pollutant from an emissions unit,

as described below, except that this definition

shall not apply for calculating whether a

significant emissions increase has occurred, or for

establishing a PAL under section 25. Instead,

subsections 2.63 and 2.8 shall apply for those

purposes.

2.1.a. In general, actual emissions as of a

particular date shall equal the average rate, in tons

per year, at which the unit actually emitted the

pollutant during a consecutive 24-month period

which precedes the particular date and which is

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representative of normal source operation. The

Secretary may allow the use of a different time

period upon a determination that it is more

representative of normal source operation. Actual

emissions shall be calculated using the unit's

actual operating hours, production rates, and types

of materials processed, stored, or combusted

during the selected time period.

2.1.b. The Secretary may presume that

source-specific allowable emissions for the unit

are equivalent to the actual emissions of the unit.

2.1.c. For any emissions unit which has not

begun normal operations on the particular date,

actual emissions shall equal the potential to emit

of the unit on that date.

2.1.d. For an electric utility steam

generating unit (other than a new unit or the

replacement of an existing unit) actual emissions

of the unit following the physical or operational

change shall equal the representative actual annual

emissions of the unit following the physical or

operational change, provided the source owner or

operator maintains and submits to the Director, on

an annual basis for a period of five (5) years from

the date the unit resumes regular operation,

information demonstrating that the physical or

operational change did not result in an emissions

increase. A longer period, not to exceed ten (10)

years, may be required by the Director if the

Director determines such a period to be more

representative of normal source operations

following the physical or operational change.

2.2. “Actuals PAL” for a major stationary

source means a PAL based on the baseline actual

emissions (as defined in subsection 2.8) of all

emissions units (as defined in subsection 2.27) at

the source, that emit or have the potential to emit

the PAL pollutant.

2.3. “Admin i st rat o r” means the

Administrator of the United States Environmental

Protection Agency.

2.4. “Adverse impact on visibility” means

visibility impairment which interferes with the

management, protection, preservation or

enjoyment of the visitor's visual experience of the

Federal Class I area. This determination must be

made on a case-by-case basis taking into account

the geographic extent, intensity, duration,

frequency and time of visibility impairment, and

how these factors correlate with (1) times of

visitor use of the Federal Class I area, and (2) the

frequency and timing of natural conditions that

reduce visibility.

2.5. “Air pollutants” means solids, liquids, or

gases which, if discharged into the air, may result

in statutory air pollution.

 2.6. “Air pollution” or “statutory air

pollution” means and is limited to the discharge

into the air by the act of man substances (liquid,

solid, gaseous, organic or inorganic) in a locality,

manner and amount as to be injurious to human

health or welfare, animal or plant life, or property,

or which would interfere with the enjoyment of

life or property.

2.7. “Allowable emissions” means the

emission rate of a stationary source calculated

using the maximum rated capacity of the source

(unless the source is subject to federally

enforceable limits or limits enforceable by the

Secretary which restrict the operating rate, or

hours of operation, or both) and the most stringent

of the following:

2.7.a. The applicable standards as set forth

in 40 CFR Parts 60 and 61;

2.7.b. The applicable State of West Virginia

emissions limitations or permit conditions,

including those with a future compliance date; or

2.7.c. The applicable federally enforceable

emissions limitations or permit conditions,

including those with a future compliance date.

2.8. “Baseline actual emissions” means the

rate of emissions, in tons per year, of a regulated

NSR pollutant, as determined in accordance with

subdivisions 2.8.a through 2.8.d.

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2.8.a. For any existing electric utility steam

generating unit, baseline actual emissions means

the average emission rate, in tons per year, at

which the unit actually emitted the pollutant

during any consecutive 24-month period selected

by the owner or operator within the 5-year period

immediately preceding when the owner or

operator begins actual construction of the project.

The Secretary shall allow the use of a different

time period upon a determination that it is more

representative of normal source operation.

2.8.a.1. The average rate shall include

fugitive emissions to the extent quantifiable, and

emissions associated with startups, shutdowns,

and malfunctions.

2.8.a.2. The average rate shall be

adjusted downward to exclude any noncompliant

emissions that occurred while the source was

operating above any emission limitation that was

legally enforceable during the consecutive 24-

month period.

2.8.a.3. For a regulated NSR pollutant,

when a project involves multiple emissions units,

only one consecutive 24-month period must be

used to determine the baseline actual emissions for

the emissions units being changed. A different

consecutive 24-month period can be used for each

regulated NSR pollutant.

2.8.a.4. The average rate shall not be

based on any consecutive 24-month period for

which there is inadequate information for

determining annual emissions, in tons per year,

and for adjusting this amount if required by

subdivision paragraph 2.8.a.2.

2.8.b. For an existing emissions unit (other

than an electric utility steam generating unit),

baseline actual emissions means the average rate,

in tons per year, at which the emissions unit

actually emitted the pollutant during any

consecutive 24-month period selected by the

owner or operator within the 10-year period

immediately preceding either the date the owner or

operator begins actual construction of the project,

or the date a complete permit application is

received by the Secretary for a permit required

under this rule, whichever is earlier, except that

the 10-year period shall not include any period

earlier than November 15, 1990.

2.8.b.1. The average rate shall include

fugitive emissions to the extent quantifiable, and

emissions associated with startups, shutdowns,

and malfunctions.

2.8.b.2. The average rate shall be

adjusted downward to exclude any noncompliant

emissions that occurred while the source was

operating above an emission limitation that was

legally enforceable during the consecutive 24-

month period.

2.8.b.3. The average rate shall be

adjusted downward to exclude any emissions that

would have exceeded an emission limitation with

which the major stationary source must currently

comply, had such major stationary source been

required to comply with such limitations during

the consecutive 24-month period. However, if an

emission limitation is part of a maximum

achievable control technology standard that the

Administrator proposed or promulgated under 40

CFR Part 63, the baseline actual emissions need

only be adjusted if the State has taken credit for

such emissions reductions in an attainment

demonstration or maintenance plan consistent with

the requirements of 45CSR19-8.6.

2.8.b.4. For a regulated NSR pollutant,

when a project involves multiple emissions units,

only one consecutive 24-month period must be

used to determine the baseline actual emissions for

all the emissions units being changed. A different

consecutive 24-month period can be used for each

regulated NSR pollutant.

2.8.b.5. The average rate shall not be

based on any consecutive 24-month period for

which there is inadequate information for

determining annual emissions, in tons per year,

and for adjusting this amount if required by

paragraphs 2.8.b.2 and 2.8.b.3.

2.8.c. For a new emissions unit, the

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baseline actual emissions for purposes of

determining the emissions increase that will result

from the initial construction and operation of such

unit shall equal zero; and thereafter, for all other

purposes, shall equal the unit's potential to emit.

2.8.d. For a PAL for a stationary source, the

baseline actual emissions shall be calculated for

existing electric utility steam generating units in

accordance with the procedures contained in

subdivision 2.8.a, for other existing emissions

units in accordance with the procedures contained

in subdivision 2.8.b, and for a new emissions unit

in accordance with the procedures contained in

subdivision 2.8.c.

2.9. “Baseline area” means any county of the

State of West Virginia in which a major source or

major modification establishing the minor source

baseline date would construct or would have an air

quality impact equal to or greater than 1 μg/m3

(annual average) of the pollutant for which the

minor source baseline date is established. Any

baseline area established originally for the TSP

increments shall remain in effect and shall apply

for purposes of determining the amount of

available PM10 increments, except that such

baseline area shall not remain in effect if the

Secretary rescinds the corresponding minor source

baseline date in accordance with subdivision

2.42.d.

2.10. “Baseline concentration” means that

ambient concentration level which exists in the

baseline area at the time of the applicable minor

source baseline date. A baseline concentration is

determined for each pollutant for which a minor

source baseline date is established and includes:

2.10.a. The allowable emissions of major

stationary sources which commenced construction

before the major source baseline date, but were not

in operation by the applicable minor source

baseline date.

2.10.b. T h e a c t u a l e m i s s i o n s

representative of sources in existence on the

applicable minor source baseline date. However,

the following will not be included in the baseline

concentration and will affect the applicable

maximum allowable increase(s):

2.10.b.1. actual emissions from any

major stationary source on which construction

commenced after the major source baseline date;

and

2.10.b.2. actual emissions increases and

decreases at any stationary source occurring after

the minor source baseline date.

2.11. “Begin actual construction” means, in

general, initiation of physical on-site construction

activities on an emissions unit which are of a

permanent nature. Such activities include, but are

not limited to, installation of building supports and

foundations, laying of underground pipework, and

construction of permanent storage structures. With

respect to a change in method of operation, this

term refers to those on-site activities, other than

preparatory activities, which mark the initiation of

the change.

2.12. “Best available control technology

(BACT)” means an emissions limitation

(including a visible emissions standard) based on

the maximum degree of reduction for each

regulated NSR pollutant which would be emitted

from any proposed major stationary source or

major modification which the Secretary, on a caseby-case basis, taking into account energy,

environmental and economic impacts and other

costs, determines is achievable for such source or

modification through application of production

processes or available methods, systems, and

techniques, including fuel cleaning or treatment or

innovative fuel combustion techniques for control

of such pollutant. In no event shall application of

best available control technology result in

emissions of any pollutant which would exceed

the emissions allowed by any federally

enforceable emissions limitations or emissions

limitations enforceable by the Secretary. If the

Secretary determines that technological or

economic limitations on the application of

measurement methodology to a particular

emissions unit would make the imposition of an

emissions standard infeasible, a design, equipment

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work practice, operational standard or

combination thereof, may be prescribed instead to

satisfy the requirement for the application of best

available control technology. Such standard shall,

to the degree possible, set forth the emissions

reduction achievable by implementation of such

design, equipment, work practice or operation, and

shall provide for compliance by means which

achieve equivalent results.

2.13. “Building, Structure, Facility, or

Installation” means all of the pollutant-emitting

activities which belong to the same industrial

grouping, are located on one or more contiguous

or adjacent properties, and are under the control of

the same person (or persons under common

control). Pollutant-emitting activities are a part of

the same industrial grouping if they belong to the

same “Major Group” (i.e., which have the same

two (2)-digit code) as described in the Standard

Industrial Classification Manual, 1987 (United

States Government Printing Office stock number

GPO 1987 0-185-718:QL 3).

2.14. “CAA” means the Clean Air Act, 42

U.S.C. 7401, et seq., as amended by Pub. L. No.

101-549 (November 15, 1990).

2.15. “Clean Coal Technology” means any

technology, including technologies applied at the

precombustion, combustion, or post combustion

stage, at a new or existing facility which will

achieve significant reductions in air emissions of

sulfur dioxide or oxides of nitrogen associated

with the utilization of coal in the generation of

electricity, or process steam which was not in

widespread use as of November 15, 1990.

2.16. “Clean coal technology demonstration

project” means a project using funds appropriated

under the heading “Department of Energy -- Clean

Coal Technology”, up to a total amount of

$2,500,000,000 for commercial demonstration of

clean coal technology, or similar projects funded

through appropriations for USEPA. The Federal

contribution for a qualifying project shall be at

least twenty (20) percent of the total cost of the

demonstration project.

2.17. “Clean Unit” means any emissions unit

that has been issued a major NSR permit that

requires compliance with BACT or LAER, is

complying with such BACT/LAER requirements,

and qualifies as a Clean Unit pursuant to section

22; or any emissions unit that has been designated

by the Secretary as a Clean Unit, based on the

criteria in subdivisions 23.3.a through 23.3.d; or

any emissions unit that has been issued a major

NSR permit that requires compliance with BACT

or LAER, is complying with such BACT/LAER

requirements, and qualifies as a Clean Unit

pursuant to regulations approved into the State

Implementation Plan in accordance with 40 CFR

§ 51.165(c) or § 51.166(u); or any emissions unit

that has been designated as a Clean Unit by the

Administrator in accordance with 40 CFR § 52.21

(y)(3)(I) through (iv) [Reserved].

2.18. “Commence” as applied to construction

of a major stationary source or major modification

means that the owner or operator has all necessary

preconstruction approvals or permits and either

has:

2.18.a. begun, or caused to begin, a

continuous program of actual on-site construction

of the source, to be completed within a reasonable

time; or

2.18.b. entered into binding agreements

or contractual obligations, which cannot be

canceled or modified without substantial loss to

the owner or operator, to undertake a program of

actual construction of the source to be completed

within a reasonable time.

2.19. “Complete” means, in reference to an

application for a permit, that the application

contains all of the information necessary for

processing the application. Designating an

application complete for purposes of permit

processing does not preclude the Secretary from

requesting or accepting any additional

information.

2.20. “Construction” means any physical

change or change in the method of operation

(including fabrication, erection, installation,

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demolition, or modification of an emissions unit)

which would result in a change in actual

emissions.

2.21. “Continuous emissions monitoring

system (CEMS)” means all of the equipment that

may be required to meet the data acquisition and

availability requirements, to sample, condition (if

applicable), analyze, and provide a record of

emissions on a continuous basis.

2.22. “Continuous emissions rate monitoring

system (CERMS)” means the total equipment

required for the determination and recording of the

pollutant mass emissions rate (in terms of mass per

unit of time).

2.23. “Continuous parameter monitoring

system (CPMS)” means all of the equipment

necessary to meet the data acquisition and

availability requirements, to monitor process and

control device operational parameters (for

example, control device secondary voltages and

electric currents) and other information (for

example, gas flow rate, O2 or CO2

concentrations), and to record average operational

parameter value(s) on a continuous basis. 

2.24. “Department of Environmental

Protection” or “DEP” means the Department of

Environmental Protection as defined in W. Va.

Code §22-1-4.

2.25. “Electric utility steam generating unit”

means any steam electric generating unit that is

constructed for the purpose of supplying more

than one-third of its potential electric output

capacity and more than twenty-five (25) MW

electrical output to any utility power distribution

system for sale. Any steam supplied to a steam

distribution system for the purpose of providing

steam to a steam-electric generator that would

produce electrical energy for sale is also

considered in determining the electrical energy

output capacity of the affected facility.

2.26. “Emission” means the release, escape or

discharge of air pollutants into the air.

2.27. “Emissions unit” means any part of a

stationary source that emits or would have the

potential to emit any regulated NSR pollutant and

includes an electric utility steam generating unit as

defined in subsection 2.25. For purposes of this

rule, there are two types of emissions units as

described in subdivisions 2.27.a and 2.27.b.

2.27.a. A new emissions unit is any

emissions unit that is (or will be) newly

constructed and that has existed for less than 2

years from the date such emissions unit first

operated.

2.27.b. An existing emissions unit is any

emissions unit that does not meet the requirements

in subdivision 2.27.a. A replacement unit, as

defined in subsection 2.68, is an existing

emissions unit.

2.28. “Federal Land Manager” means, with

respect to any lands in the United States, the

Secretary of the department with authority over

such lands.

2.29. “Federally enforceable” means all

limitations and conditions which are enforceable

by the Administrator including those requirements

developed pursuant to 40 CFR Parts 60, 61 and

63, rules of the approved West Virginia State

Implementation Plan, any permit requirements

established pursuant to 40 CFR §52.21 or this

rule, and any operating permits issued under a

program that is incorporated into the State

Implementation Plan and expressly requires

adherence to any permit issued under such

program.

2.30. [Reserved.]

2.31. “Fugitive emissions” means those

emissions which could not reasonably pass

through a stack, chimney, vent or other

functionally equivalent opening.

2.32. [Reserved.]

2.33. [Reserved.]

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2.34. [Reserved.]

2.35. [Reserved.]

2.36. “Innovative control technology” means

any system of air pollution control that has not

been adequately demonstrated in practice, but

would have a substantial likelihood of achieving

greater continuous emissions reduction than any

control system in current practice or of achieving

at least comparable reductions at lower cost in

terms of energy, economics, or non-air quality

environmental impacts.

2.37. “Lowest achievable emission rate

(LAER)” means, for any source, the more

stringent of the following:

2.37.a. The most stringent emissions

limitation which is contained in the

implementation plan of any State for such class or

category of stationary source, unless the owner or

operator of the proposed stationary source

demonstrates that such limitations are not

achievable; or 

2.37.b. The most stringent emissions

limitation which is achieved in practice by such

class or category of stationary sources. This

limitation, when applied to a modification, means

the lowest achievable emission rate for the new or

modified emissions units within the stationary

source. In no event shall the application of the

term permit a new or proposed new or modified

stationary source to emit any pollutant in excess of

the amount allowable under an applicable new

source standard of performance.

2.38. [Reserved.] 

2.39. Major emissions unit means:

2.39.a. Any emissions unit that emits or

has the potential to emit 100 tons per year or more

of the PAL pollutant in an attainment area; or

2.39.b. Any emissions unit that emits or

has the potential to emit the PAL pollutant in an

amount that is equal to or greater than the major

source threshold for the PAL pollutant as defined

by the CAA for nonattainment areas. For example,

in accordance with the definition of major

stationary source in section §182(c) of the CAA,

an emissions unit would be a major emissions unit

for VOC if the unit is located in a serious ozone

non attainment area and it emits or has the

potential to emit 50 or more tons of VOC per year.

2.40. “Major modification” means any

physical change in or change in the method of

operation of a major stationary source which

results in: a significant emissions increase (as

defined in subsection 2.75) of any regulated NSR

pollutant (as defined in subsection 2.66); and a

significant net emissions increase of that pollutant

from the major stationary source. However, the

following actions do not constitute a physical

change or change in the method of operation:

2.40.a. Routine maintenance, repair, and

replacement.

2.40.b. Use of an alternative fuel or raw

material by reason of any order under sections 2(a)

and (b) of the Energy Supply and Environmental

Coordination Act of 1974 (or any superseding

legislation) or by reason of a natural gas

curtailment plan pursuant to the Federal Power

Act.

2.40.c. Use of an alternative fuel by

reason of an order or rule under section §125 of

the CAA.

2.40.d. Use of fuel generated from

municipal solid waste as an alternative fuel at a

steam generating unit.

2.40.e. Use of an alternative fuel or raw

material by a stationary source, provided that: 

2.40.e.1. Prior to January 6, 1975, the

source was capable of accommodating such

alternative fuel or raw material, unless such

change would be prohibited under any federally

enforceable permit condition which was

established after January 6, 1975 pursuant to 40

CFR §52.21 or under any permit issued or order

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entered pursuant to any rule of the Secretary after

January 6, 1975;

2.40.e.2. The source is approved to use

the alternative fuel or raw material under any

permit issued under 40 CFR §52.21 or under any

permit issued or order entered pursuant to any rule

of the Secretary.

2.40.f. An increase in the hours of

operation unless such increase would be

prohibited by a Federal permit issued pursuant to

40 CFR §52.21 or by any permit issued or order

entered pursuant to any rule of the Secretary.

2.40.g. An increase in the production rate

unless such increase would be prohibited by a

Federal permit issued pursuant to 40 CFR §52.21

or by any permit issued or order entered pursuant

to any rule of the Secretary.

2.40.h. Any change in ownership at a

stationary source.

2.40.i. The addition, replacement or use

of a pollution control project, as defined in

subsection 2.56, at an existing emissions unit

meeting the requirements of section 24. A

replacement control technology must provide

more effective emission control than that of the

replaced control technology to qualify for this

exclusion. [Reserved.]

2.40.j. The installation, operation,

cessation, or removal of a temporary clean coal

technology demonstration project, provided that

the project complies with:

2.40.j.1. The State Implementation

Plan; and

2.40.j.2. Other requirements necessary

to attain and maintain the National Ambient Air

Quality Standards during the project and after it is

terminated.

2.40.k. The installation or operation of a

permanent clean coal technology demonstration

project that constitutes repowering, provided that

the project does not result in an increase in the

potential to emit of any regulated NSR pollutant

emitted by the unit. This exemption shall apply on

a pollutant-by-pollutant basis.

2.40.k.1. 2.40.l. The reactivation of a

very clean coal-fired electric utility steam

generating unit.

2.40.l. 2.40.m. This definition shall not

apply with respect to a particular regulated NSR

pollutant when the major stationary source is

complying with the requirements under section 25

for a PAL for that pollutant. Instead, the definition

at subsection 2.53 shall apply.

2.41. “Major modification for ozone” means

a major modification for volatile organic

compounds and or NOX.

2.42. “Major and minor source baseline date.”

--

2.42.a. “Major source baseline date”

means:

2.42.a.1. in the case of particulate

matter and sulfur dioxide, January 6, 1975; and

2.42.a.2. in the case of nitrogen dioxide,

February 8, 1988.

2.42.b. “Minor source baseline date”

means the earliest date after the trigger date on

which a major stationary source or a major

modification subject to the requirements of 40

CFR §52.21 or to this rule submits a complete

application under this rule. The trigger date is:

2.42.b.1. In the case of particulate

matter and sulfur dioxide, August 7, 1977, and

2.42.b.2. In the case of nitrogen dioxide,

February 8, 1988.

2.42.c. The baseline date is established

for each pollutant for which increments or other

equivalent measures have been established if:

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2.42.c.1. The area in which the

proposed source or modification would construct

is designated as attainment or unclassifiable under

section 107(d)(i)(D) or (E) of the CAA for the

pollutant on the date of its complete application

under 40 CFR §52.21 or this rule; and 

2.42.c.2. In the case of a major

stationary source, the pollutant would be emitted

in significant amounts, or in the case of a major

modification, there would be a significant net

emissions increase of the pollutant.

2.42.d. Any minor source baseline date

established originally for the TSP increments shall

remain in effect and shall apply for purposes of

determining the amount of available PM10

increments, except that the Secretary may rescind

any such minor source baseline date where it can

be demonstrated to the Secretary’s satisfaction that

the emissions increase from the major stationary

source, or the net emissions increase from the

major modification, responsible for triggering that

date did not result in a significant amount of PM10

emissions.

2.43. “Major stationary source” means:

2.43.a. any of the following stationary

sources of air pollutants which emits or has the

potential to emit, one hundred (100) tons per year

or more of any regulated pollutant:

- Fossil Fuel-fired Steam Electric Plants of More

than 250 Million Btu/hr Heat Input, 

- Coal Cleaning Plants (with thermal dryers),

- Kraft Pulp Mills, 

- Portland Cement Plants,

- Primary Zinc Smelters,

- Iron and Steel Mill Plants, 

- Primary Aluminum Ore Reduction Plants,

- Primary Copper Smelters, 

- Municipal Incinerators Capable of Charging

More than 250 Tons of Refuse per Day,

- Hydroflouric, Sulfuric and Nitric Acid Plants,

- Petroleum Refineries, 

- Lime Plants, 

- Phosphate Rock Processing Plants, 

- Coke Oven Batteries, 

- Sulfur Recovery Plants, 

- Carbon Black Plants (furnace process), 

- Primary Lead Smelters, 

- Fuel Conversion Plants, 

- Sintering Plants, 

- Secondary Metal Production Plants, 

- Chemical Process Plants (which does not

include ethanol production facilities that

produce ethanol by natural fermentation

included in NAICS codes 325193 or 312140),

- Fossil Fuel Boilers (or combinations thereof)

Totaling More than 250 Million Btu/hour Heat

Input, 

- Petroleum Storage and Transfer Units with a

Total Storage Capacity Exceeding 300,000

Barrels,

- Taconite Ore Processing Plants, 

- Glass Fiber Processing Plants, and 

- Charcoal Production Plants;

2.43.b. Notwithstanding the stationary

source size specified in subdivision 2.43.a, any

stationary source which emits or has the potential

to emit, two hundred fifty (250) tons per year or

more of any regulated pollutant; or

2.43.c. Any physical change at a

stationary source, not otherwise qualifying under

subdivision 2.43.a as a major stationary source, if

the change itself would constitute a major

stationary source.

2.43.d. The fugitive emissions of a

stationary source shall not be included in

determining whether it is a major stationary

source, unless the source is listed in Table 1.

2.43.e. In addition to those facilities

covered under subdivision 2.43.d, all coal

preparation plants as defined under 40 CFR

§60.251(a) which process more than 200 tons per

day shall count fugitives from all “affected

facilities” at the source, i.e., thermal dryers,

pneumatic coal-cleaning equipment (air tables),

coal processing and conveying equipment

(including breakers and crushers), coal storage

systems, and coal transfer and loading systems.

2.43.f. For the purpose of this subsection,

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45CSR14

the term “affected facilities” means those facilities

which are listed or identified as “affected

facilities” in the applicable standard promulgated

under §§111 or 112 of the CAA.”

Table 1

SOURCE CATEGORIES WHICH MUST

INCLUDE FUGITIVE EMISSIONS

- Fossil-Fuel-Fired Steam Electric Plants Greater

Than 250 Million Btu/Hour Heat Input

- Coal Cleaning Plants (with thermal dryers)

- Kraft Pulp Mills

- Portland Cement Plants

- Primary Zinc Smelters

- Iron and Steel Mill Plants

- Primary Aluminum Ore Reduction Plants

- Primary Copper Smelters

- Municipal Incinerators Capable of Charging

Greater Than 250 Tons of Refuse/Day

- Hydrofluoric, Sulfuric, and Nitric Acid Plants

- Petroleum Refineries

- Lime Plants

- Phosphate Rock Processing Plants

- Coke Oven Batteries

- Sulfur Recovery Plants

- Carbon Black Plants (furnace process)

- Primary Lead Smelters

- Fuel Conversion Plants

- Sintering Plants

- Secondary Metal Production Plants

- Chemical Process Plants - The term chemical

processing plant shall not include ethanol

production facilities that produce ethanol by

natural fermentation included in NAICS codes

325193 or 312140

- Fossil Fuel Boilers (or combinations thereof)

Totaling More Than 250 Million Btu/Hour

Heat Input

- Petroleum Storage and Transfer Units with a

Total Storage Capacity Exceeding 300,000

Barrels

- Taconite Ore Processing Plants

- Glass Fiber Processing Plants

- Charcoal Production Plants

- Any other stationary source category which, as

of August 7, 1980, is being regulated under

§§111 or 112 of the CAA.

2.44. “Major stationary source for ozone”

means a major stationary source of volatile

organic compounds or NOX.

2.45. “Necessary preconstruction approvals or

permits” means those permits or approvals

required under the CAA and rules promulgated

under W.Va. Code §22-5-4.

2.46. “Net emissions increase” means, with

respect to any regulated NSR pollutant emitted by

a major stationary source, the amount of emissions

by which the sum of the following exceeds zero:

2.46.a. The increase in emissions from a

particular physical change or change in the

method of operation at a stationary source as

calculated pursuant to subsection 3.4;

2.46.b. Any other increases and decreases

in actual emissions at the major source that are

contemporaneous with the particular change and

are otherwise creditable. Baseline actual emissions

for calculating increases and decreases under

subdivision 2.46.b shall be determined as provided

in subsection 2.8 of this section, except that

paragraphs 2.8.a.3 and 2.8.b.4 shall not apply;

2.46.c. An increase or decrease in actual

emissions is contemporaneous with the increase

from the particular change only if it occurs not

more than five (5) years prior to the date on which

construction on the particular change commences

nor later than the date on which the increase from

the particular change occurs.

2.46.d. An increase or decrease in actual

emissions is creditable only if:

2.46.d.1. The the increase or decrease in

actual emissions has not been relied upon by the

United States Environmental Protection Agency in

issuing a permit pursuant to 40 CFR §52.21 or by

the Secretary in issuing a permit pursuant to this

rule and such permit is in effect on the date on

which the increase in emissions from the particular

change occurs; and

2.46.d.2. The increase or decrease in

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45CSR14

emissions did not occur at a Clean Unit except as

provided in subsections 22.8 and 23.10;

2.46.e. The increase or decrease in actual

emissions of particulate matter, sulfur dioxide, or

nitrogen oxides which occurred prior to the

applicable minor source baseline date was

required to be considered and calculated in

determining the amount of maximum allowable

increases remaining available. With respect to

particulate matter, only PM10 emissions can be

used to evaluate the net emissions increase for

PM10;

2.46.f. An increase in actual emissions is

creditable only to the extent that the new level of

actual emissions exceeds the old level;

2.46.g. A decrease in actual emissions is

creditable only to the extent that:

2.46.g.1. The old level of actual

emissions or the old level of allowable emissions,

whichever is lower, exceeds the new level of

actual emissions;

2.46.g.2. It is federally enforceable and

is enforceable by the Secretary at and after the

time that the actual construction on the particular

change begins; 

2.46.g.3. The decrease in actual

emissions must have approximately the same

qualitative significance for public health and

welfare as that attributed to the increase from the

particular change;

2.46.g.4. The decrease in actual

emissions did not result from the installation of

add-on control technology or application of

pollution prevention practices that were relied on

in designating an emissions unit as a Clean Unit

under section 26, 40 CFR §52.21(y) or under

regulations approved pursuant to or 40 CFR

§51.165(d). Once an emissions unit has been

designated as a Clean Unit, the owner or operator

cannot later use the emissions reduction from the

air pollution control measures that the designation

is based on in calculating the net emissions

increase for another emissions unit (i.e., must not

use that reduction in a “netting analysis” for

another emissions unit). However, any new

emission reductions that were not relied upon in a

PCP excluded pursuant to section 27 of this

section or for a Clean Unit designation are

creditable to the extent they meet the requirements

in subdivision 24.6.d for the PCP and subsections

22.8 and 23.10 for a Clean Unit. [Reserved.]

2.46.h. An increase that results from a

physical change at a source occurs when the

emissions unit on which construction occurred

becomes operational and begins to emit a

particular pollutant. Any replacement unit that

requires shakedown becomes operational only

after a reasonable shakedown period, not to

exceed one hundred eighty (180) days.

2.47. “PM10" means particulate matter with an

aerodynamic diameter less than or equal to a

nominal 10 micrometers as measured by a

reference method based on Appendix J of 40 CFR

Part 50 and designated in accordance with 40 CFR

Part 53 or by an equivalent method designated in

accordance with 40 CFR Part 53.

2.48. “Particulate matter emissions” means all

finely divided solid or liquid material, other than

uncombined water, emitted to the ambient air as

measured by applicable reference methods, or an

equivalent or alternative method, specified in 40

CFR Part 60, Appendix B, or by a test method

specified in any rule of the Secretary which has

been incorporated as part of the federally

approved State Implementation Plan. All

references to particulate or particulate matter in

this rule shall mean particulate matter emissions.

2.49. “Person” means any and all persons,

natural or artificial, including the State of West

Virginia or any other state and all agencies or

divisions thereof, any state political subdivision,

the United States of America, any municipal,

public, statutory or private corporation or

association organized or existing under the laws of

this or any state or country, and any firm,

partnership, or association of whatever nature.

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45CSR14

2.50. “Plantwide applicability limitation

(PAL)” means an emission limitation expressed in

tons per year, for a pollutant at a major stationary

source, that is enforceable as a practical matter and

established source-wide in accordance with

subsections 25.1 through 25.15.

2.51. “PAL effective date” generally means

the date of issuance of the PAL permit. However,

the PAL effective date for an increased PAL is the

date any emissions unit that is part of the PAL

major modification becomes operational and

begins to emit the PAL pollutant.

2.52. “PAL effective period” means the period

beginning with the PAL effective date and ending

10 years later.

2.53. “PAL major modification” means,

notwithstanding subsections 2.40 and 2.46 (the

definitions for major modification and net

emissions increase), any physical change in or

change in the method of operation of the PAL

source that causes it to emit the PAL pollutant at

a level equal to or greater than the PAL.

2.54. “PAL permit” means the major NSR

permit, the minor NSR permit, or the State

operating permit under a program that is approved

into the State Implementation Plan, or the title V

permit issued by the Secretary that establishes a

PAL for a major stationary source.

2.55. “PAL pollutant” means the pollutant for

which a PAL is established at a major stationary

source.

2.56. “Pollution control project (PCP)” means

any activity, set of work practices or project

(including pollution prevention as defined under

subsection 3.36 undertaken at an existing

emissions unit that reduces emissions of air

pollutants from such unit. Such qualifying

activities or projects can include the replacement

or upgrade of an existing emissions control

technology with a more effective unit. Other

changes that may occur at the source are not

considered part of the PCP if they are not

necessary to reduce emissions through the PCP.

Projects listed in subdivisions 2.56.a through

2.56.f. are presumed to be environmentally

beneficial pursuant to subdivision 24.2.a. Projects

not listed in these paragraphs may qualify for a

case-specific PCP exclusion pursuant to the

requirements of subsections 24.2 and 24.5.

2.56.a. Conventional or advanced flue

gas desulfurization or sorbent injection for control

of SO2;

2.56.b. Electrostatic precipitators,

baghouses, high efficiency multiclones, or

scrubbers for control of particulate matter or other

pollutants;

2.56.c. Flue gas recirculation, low-NOX

burners or combustors, selective non-catalytic

reduction, selective catalytic reduction, low

emission combustion (for internal combustion (IC)

engines), and oxidation/absorption catalyst for

control of NOX;

2.56.d. Regenerative thermal oxidizers,

catalytic oxidizers, condensers, thermal

incinerators, hydrocarbon combustion flares,

biofiltration, absorbers and adsorbers, and floating

roofs for storage vessels for control of volatile

organic compounds or hazardous air pollutants.

For the purpose of this section, “hydrocarbon

combustion flare” means either a flare used to

comply with an applicable NSPS or MACT

standard (including uses of flares during startup,

shutdown, or malfunction permitted under such a

standard), or a flare that serves to control

emissions of waste streams comprised

predominately of hydrocarbons and containing no

more than 230 mg/dscm hydrogen sulfide;

2.56.e. Activities or projects undertaken

to accommodate switching (or partially switching)

to an inherently less polluting fuel, to be limited to

the following fuel switches:

2.56.e.1. Switching from a heavier

grade of fuel oil to a lighter fuel oil, or any grade

of oil to 0.05 percent sulfur diesel (i.e., from a

higher sulfur content #2 fuel or from #6 fuel, to

CA 0.05 percent sulfur #2 diesel);

12
45CSR14

2.56.e.2. Switching from coal, oil, or

any solid fuel to natural gas, propane, or gasified

coal;

2.56.e.3. Switching from coal to wood,

excluding construction or demolition waste,

chemical or pesticide treated wood, and other

forms of “unclean” wood;

2.56.e.4. Switching from coal to number

2 fuel oil (0.5 percent maximum sulfur content);

and

2.56.e.5. Switching from high sulfur

coal to low sulfur coal (maximum 1.2 percent

sulfur content).

2.56.f. Activities or projects undertaken

to accommodate switching from the use of one

ozone depleting substance (ODS) to the use of a

substance with a lower or zero ozone depletion

potential (ODP), including changes to equipment

needed to accommodate the activity or project,

that meet the requirements of paragraphs 2.56.f.1

and 2.56.f.2.

2.56.f.1. The productive capacity of the

equipment is not increased as a result of the

activity or project.

2.56.f.2. The projected usage of the

new substance is lower, on an ODP-weighted

basis, than the baseline usage of the replaced

ODS. To make this determination, follow the

procedure in subparagraph 2.56.f.2.A through

2.56.f.2.D.

2.56.f.2.A. Determine the ODP of

the substances by consulting 40 CFR Part 82,

Subpart A, Appendices A and B.

2.56.f.2.B. Calculate the replaced

ODP-weighted amount by multiplying the

baseline actual usage (using the annualized

average of any 24 consecutive months of usage

within the past 10 years) by the ODP of the

replaced ODS.

2.56.f.2.C. Calculate the projected

ODP-weighted amount by multiplying the

projected actual usage of the new substance by its

ODP.

2.56.f.2.D. If the value calculated

in subparagraph 2.56.f.2.D is more than the value

calculated in subparagraph 2.56.f.2.C, then the

projected use of the new substance is lower, on an

ODP-weighted basis, than the baseline usage of

the replaced ODS. [Reserved.]

2.57. “Pollution prevention” means any

activity that through process changes, product

reformulation or redesign, or substitution of less

polluting raw materials, eliminates or reduces the

release of air pollutants (including fugitive

emissions) and other pollutants to the environment

prior to recycling, treatment, or disposal; it does

not mean recycling (other than certain “in-process

recycling” practices), energy recovery, treatment,

or disposal.

2.58. “Potential to emit” means the maximum

capacity of a stationary source to emit a pollutant

under its physical and operational design. Any

physical or operational limitation on the capacity

of the source to emit a pollutant, including air

pollution control equipment and restrictions on

hours of operation or on the type or amount of

material combusted, stored, or processed, shall be

treated as part of its design only if the limitation or

the effect it would have on emissions is federally

enforceable or is enforceable by the Secretary in

any permit and/or consent order issued by the

United States Environmental Protection Agency or

by the Secretary. Secondary emissions do not

count in determining the potential to emit of a

stationary source.

2.59. “Predictive emissions monitoring system

(PEMS)” means all of the equipment necessary to

monitor process and control device operational

parameters (for example, control device secondary

voltages and electric currents) and other

information (for example, gas flow rate, O2 or CO2

concentrations), and calculate and record the mass

emissions rate (for example, lb/hr) on a continuous

basis.

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45CSR14

2.60. “Prevention of Significant Deterioration

(PSD) program” means a major source

preconstruction permit program that has been

approved by the Administrator and incorporated

into the State Implementation Plan, or the program

in 40 CFR §52.21. Any permit issued under such

a program is a major new source review (NSR)

permit.

2.61. [Reserved.]

2.62. “Project” means a physical change in, or

change in the method of operation of, an existing

major stationary source.

2.63. “Projected actual emissions” means the

maximum annual rate, in tons per year, at which

an existing emissions unit is projected to emit a

regulated NSR pollutant in any one of the 5 years

(12-month period) following the date the unit

resumes regular operation after the project, or in

any one of the 10 years following that date, if the

project involves increasing the emissions unit's

design capacity or its potential to emit that

regulated NSR pollutant and full utilization of the

unit would result in a significant emissions

increase or a significant net emissions increase at

the major stationary source.

2.63.a. In determining the projected

actual emissions under subsection 2.63 (before

beginning actual construction), the owner or

operator of the major stationary source:

2.63.a.1. Shall consider all relevant

information, including but not limited to, historical

operational data, the company's own

representations, the company's expected business

activity and the company's highest projections of

business activity, the company's filings with the

State or Federal regulatory authorities, and

compliance plans under the approved State

Implementation Plan; and

2.63.a.2. Shall include fugitive

emissions to the extent quantifiable and emissions

associated with startups, shutdowns, and

malfunctions; and

2.63.a.3. Shall exclude, in calculating

any increase in emissions that results from he

particular project, that portion of the unit's

emissions following the project that an existing

unit could have accommodated during the

consecutive 24-month period used to establish the

baseline actual emissions under subsection 2.8 and

that are also unrelated to the particular project,

including any increased utilization due to product

demand growth; or

2.63.a.4. In lieu of using the method set

out in paragraphs 2.63.a.1 through 2.63.a.3, may

elect to use the emissions unit's potential to emit,

in tons per year, as defined under subsection 2.58.

2.64. “Reactivation of a very clean coal-fired

electric utility steam generating unit” means any

physical change or change in the method of

operation associated with the commencement of

commercial operations by a coal-fired utility unit

after a period of discontinued operation where the

unit:

2.64.a. Has not been in operation for the

two-year period prior to the enactment of the

Clean Air Act Amendments of 1990, and the

emissions from such unit continue to be carried in

the Secretary’s emissions inventory at the time of

enactment;

2.64.b. Was equipped prior to shutdown

with a continuous system of emissions control that

achieves a removal efficiency for sulfur dioxide of

no less than eighty-five (85) percent and a removal

efficiency for particulates of no less than ninetyeight (98) percent;

2.64.c. Is equipped with low-NOX

burners prior to the time of commencement of

operations following reactivation; and

2.64.d. Is otherwise in compliance with

the requirements of the CAA.

2.65. [Reserved.]

2.66. “Regulated NSR pollutant,” for purposes

of this rule, means the following: 

14
45CSR14

2.66.a. Any pollutant for which a

National Ambient Air Quality Standard has been

promulgated and any constituents or precursors for

such pollutants identified by the Administrator

(e.g., volatile organic compounds or NOX are

precursors for ozone); 

2.66.b. Any pollutant that is subject to

any standard promulgated under section §111 of

the CAA; 

2.66.c. Any Class I or II substance

subject to a standard promulgated under or

established by title VI of the CAA; or 

2.66.d. Any pollutant that otherwise is

subject to regulation under the CAA; except that

any or all hazardous air pollutants either listed in

section §112 of the CAA or added to the list

pursuant to section §112(b)(2) of the CAA, which

have not been delisted pursuant to section

§112(b)(3) of the CAA, are not regulated NSR

pollutants unless the listed hazardous air pollutant

is also regulated as a constituent or precursor of a

general pollutant listed under section §108 of the

CAA.

2.67. “Relocate” or “Relocation” means the

physical movement of a source outside of its

existing plant boundaries.

2.68. [Reserved.] “Replacement unit” means

an emissions unit for which all the criteria listed in

subdivisions 2.68.a through 2.68.d are met. No

creditable emission reductions shall be generated

from shutting down the existing emissions unit

that is replaced.

2.68.a. The emissions unit is a

reconstructed unit within the meaning of 40 CFR

§60.15(b)(1), or the emissions unit completely

takes the place of an existing emissions unit;

2.68.b. The emissions unit is identical to

or functionally equivalent to the replaced

emissions unit;

2.68.c. The replacement does not change

the basic design parameter(s) of the process unit;

and

2.68.d. The replaced emissions unit is

permanently removed from the major stationary

source, otherwise permanently disabled, or

permanently barred from operation by a permit

that is enforceable as a practical matter. If the

replaced emissions unit is brought back into

operation, it shall constitute a new emissions unit.

2.69. “Repowering” means replacement of an

existing coal-fired boiler with one of the following

clean coal technologies: atmospheric or

pressurized fluidized bed combustion, integrated

gasification combined cycle,

magnetohydrodynamics, direct and indirect coalfired turbines, integrated gasification fuel cells, or

as determined by the Administrator, in

consultation with the Secretary of Energy, a

derivative of one or more of these technologies,

and any other technology capable of controlling

multiple combustion emissions simultaneously

with improved boiler or generation efficiency and

with significantly greater waste reduction relative

to the performance of technology in widespread

commercial use as of November 15, 1990.

2.69.a. Repowering shall also include any

oil and/or gas-fired unit which has been awarded

clean coal technology demonstration funding as of

January 1, 1991, by the Department of Energy.

2.69.b. The Secretary shall give

expedited consideration to permit applications for

any source that satisfies the requirements of this

subsection 2.69 and is granted an extension under

section §409 of the CAA.

2.70. [Reserved.]

2.71. “Representative actual annual

emissions” means the average rate, in tons per

year, at which the source is projected to emit a

pollutant for the two-year period after a physical

change or change in the method of operation of a

unit, (or a different consecutive two-year period

within ten (10) years after that change, where the

Secretary determines that such period is more

representative of normal source operations),

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45CSR14

considering the effect any such change will have

on increasing or decreasing the hourly emissions

rate and on projected capacity utilization. In

projecting future emissions the Secretary shall:

2.71.a. Consider all relevant information,

including but not limited to, historical operational

data, the company's own representations, filings

with the State or Federal regulatory authorities,

and compliance plans under Title IV of the CAA;

and

2.71.b. Exclude, in calculating any

increase in emissions that results from the

particular physical change or change in the

method of operation at an electric utility steam

generating unit, that portion of the unit's emissions

following the change that could have been

accommodated during the representative baseline

period and is attributable to an increase in

projected capacity utilization at the unit that is

unrelated to the particular change, including any

increased utilization due to the rate of electricity

demand growth for the utility system as a whole.

2.72. “Secondary emissions” means emissions

which would occur as a result of the construction

or operation of a major stationary source or major

modification, but do not come from the major

stationary source or major modification itself. For

the purpose of this rule, secondary emissions must

be specific, well defined, quantifiable, and impact

the same general area as the stationary source or

modification which causes the secondary

emissions. Secondary emissions include, but are

not limited to emissions from any off-site support

facility which would not otherwise be constructed

or increase its emissions except as a result of the

construction or operation of the major stationary

source or major modification. Secondary

emissions do not include any emissions which

come directly from a mobile source, such as

emissions from the tailpipe of a motor vehicle,

from a train, or from a vessel.

2.73. “Secretary” means the Secretary of the

Department of Environmental Protection as

defined in W. Va. Code §§22-1-6 or 22-1-8.

2.74. “Significant” means:

2.74.a. in reference to a net emission

increase or the potential of a source to emit any of

the following pollutants, a rate of emissions that

would equal or exceed any of the following rates:

Pollutant and Emissions Rate

Carbon monoxide: 100 tons per year (TPY)

Nitrogen oxides: 40 TPY

Sulfur dioxide: 40 TPY

Particulate matter: 25 TPY

PM10: 15 TPY

Ozone: 40 TPY

 of volatile organic compounds

Lead: 0.6 TPY

Fluorides: 3 TPY

Sulfuric acid mist: 7 TPY

Hydrogen sulfide (H2S): 10 TPY

Total reduced sulfur (including H2S): 10 TPY

Reduced sulfur compounds 

(including H2S): 1 0

TPY

Municipal waste combustor organics (as total

tetra- through octachlorinated dibenzo-p-dioxins

and dibenzofurans): 3.5x10-6 TPY

Municipal waste combustor metals 

(as particulate matter): 15 TPY

Municipal waste combustor acid gases 

(as the sum of SO2 and HCl):

40 TPY

Municipal solid waste landfill emissions 

(as nonmethane organic compounds): 50 TPY.

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45CSR14

Pollutant and Emission Rate

(tons per year)

Carbon monoxide: 100

Nitrogen oxides: 40

Sulfur dioxide: 40

Particulate matter: 25

PM10: 15

Ozone: 40

of volatile organic compounds or NOX

Lead: 0.6

Fluorides: 3

Sulfuric acid mist: 7

Hydrogen sulfide (H2S): 10

Total reduced sulfur (including H2S): 10

Reduced sulfur compounds

(including H2S):

10

Municipal waste combustor

organics (as total tetra- through

octachlorinated dibenzo-p-dioxins

and dibenzofurans):

3.5x10-6

Municipal waste combustor metals

(as particulate matter):

15

Municipal waste combustor acid

gases (as the sum of SO2 and

HCl):

40

Municipal solid waste landfill

emissions (as nonmethane organic

compounds):

50

2.74.b. in reference to a net emissions

increase or the potential of a source to emit a

regulated NSR pollutant that is not listed in

subdivision 2.74.a, any emissions rate; and

2.74.c. notwithstanding subdivision

2.74.a, any emissions rate or any net emissions

increase associated with a major stationary source

or major modification, which would construct

within ten (10) kilometers of any Class I area, and

have an impact on such area equal to or greater

than 1 μg/m3

 (twenty-four (24) hour average).

2.75. “Significant emissions increase” means,

for a regulated NSR pollutant, an increase in

emissions that is significant (as defined in

subsection 2.74) for that pollutant.

2.76. Significant emissions unit means an

emissions unit that emits or has the potential to

emit a PAL pollutant in an amount that is equal to

or greater than the significant level (as defined in

subsection 2.74 or in the CAA, whichever is

lower) for that PAL pollutant, but less than the

amount that would qualify the unit as a major

emissions unit as defined in subsection 2.39.

2.77. “Significant impact” means an increase

in the ambient air concentration for a particular

pollutant as follows:

Averaging time (hours)

Annual 24 8 3 1

Pollutant:

SO2 1.0 μg/m3 5.0 μg/m3 25.0 μg/m3

PM10 1.0 μg/m3 5.0 μg/m3 ...............

NO2 1.0 μg/m3 .........................

CO 0.5 mg/m3 2.0 mg/m3

Averaging time (hours)

Annual 24 8 3 1

Ambient Air Concentration Increase (μg/m3)

SO2 1.0 5.0 25.0

PM10 1.0 5.0

NO2 1.0

Ambient Air Concentration Increase (mg/m3)

CO 0.5 2.0

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45CSR14

2.78. “Small emissions unit” means an

emissions unit that emits or has the potential to

emit the PAL pollutant in an amount less than the

significant level for that PAL pollutant, as defined

in subsection 2.74 or in the CAA, whichever is

lower.

2.79. “Source” or “Stationary source” means

any building, structure, facility, or installation

which emits or may emit any regulated air

pollutant.

2.80. “TSP” or “Total suspended particulate

matter” means particulate matter as measured by

the methods described in Appendix B of 40 CFR

Part 50.

2.81. “Temporary clean coal technology

demonstration project” means a clean coal

technology demonstration project that is operated

for a period of five (5) years or less, and which

complies with the State Implementation Plan and

other requirements necessary to attain and

maintain the National Ambient Air Quality

Standards during and after the project is

terminated.

2.82. [Reserved.]

2.83. “US EPA” means the United States

Environmental Protection Agency.

2.84. “Volatile organic compounds (VOC)” is

as defined in 40 CFR §51.100(s).

§45-14-3. Applicability.

 3.1. The requirements of this rule apply to

the construction of any new major stationary

source (as defined in subsection 2.43) or any

proposed project at an existing major stationary

source in an area designated as attainment or

unclassifiable under §§ 107(d)(1)(A)(ii) or (iii) of

the CAA.

3.2. The requirements of sections 7 through

13 and sections 17 through 19 apply to the

construction of any new major stationary source or

the major modification of any existing major

stationary source, except as this rule otherwise

provides.

3.3. No new major stationary source or major

modification to which the requirements of sections

7 through 13 and sections 17 through subsection

19.7 apply shall begin actual construction without

a permit issued by the Secretary that states that the

major stationary source or major modification will

meet those requirements.

3.4. Determination of major modification. --

The determination as to whether a proposed

project is a major modification for a regulated

NSR pollutant shall be determined in accordance

with the specific provisions set forth in

subdivisions 3.4.a through 3.4.f.

3.4.a. Except as otherwise provided in

subsections 3.5 and 3.6, and consistent with the

definition of major modification contained in

subsection 2.40, a project is a major modification

for a regulated NSR pollutant if it causes two

types of emissions increases -- a significant

emissions increase (as defined in subsection 2.75),

and a significant net emissions increase (as

defined in subsections 2.46 and 2.74). The

proposed project is not a major modification if it

does not cause a significant emissions increase. If

the proposed project causes a significant emissions

increase, then the project is a major modification

only if it also results in a significant net emissions

increase.

3.4.b. The procedure for calculating (before

beginning actual construction) whether a

significant emissions increase (i.e., the first step of

the process) will occur depends upon the type of

emissions units being modified, according to

subdivisions 3.4.c through 3.4.f. The procedure for

calculating (before beginning actual construction)

whether a significant net emissions increase will

occur at the major stationary source (i.e., the

second step of the process) is contained in the

definition in subsection 2.46. Regardless of any

such preconstruction projections, a major

modification results if the project causes a

significant emissions increase and a significant net

18
45CSR14

emissions increase.

3.4.c. A c t u a l - t o - p r o j e c t e d - a c t u a l

applicability test for projects that only involve

existing emissions units. -- A significant emissions

increase of a regulated NSR pollutant is projected

to occur if the sum of the difference between the

projected actual emissions (as defined in

subsection 2.63) and the baseline actual emissions

(as defined in subdivisions 2.8.a and 2.8.b), for

each existing emissions unit, equals or exceeds the

significant amount for that pollutant (as defined in

subsection 2.74).

3.4.d. Actual-to-potential test for projects

that only involve construction of a new emissions

unit(s). -- A significant emissions increase of a

regulated NSR pollutant is projected to occur if

the sum of the difference between the potential to

emit (as defined in subsection 2.58 ) from each

new emissions unit following completion of the

project and the baseline actual emissions (as

defined in subdivision 2.8.c) of these units before

the project equals or exceeds the significant

amount for that pollutant (as defined in subsection

2.74).

3.4.e. Emission test for projects that

involve Clean Units. -- For a project that will be

constructed and operated at a Clean Unit without

causing the emissions unit to lose its Clean Unit

designation, no emissions increase is deemed to

occur.

3.4.f. Hybrid test for projects that involve

multiple types of emissions units. -- A significant

emissions increase of a regulated NSR pollutant is

projected to occur if the sum of the emissions

increases for each emissions unit, using the

method specified in subdivisions 3.4.c through

3.4.e 3.4.d as applicable with respect to each

emissions unit, for each type of emissions unit

equals or exceeds the significant amount for that

pollutant (as defined in subsection 2.74 ). For

example, if a project involves both an existing

emissions unit and a Clean Unit, the projected

increase is determined by summing the values

determined using the method specified in

subdivision 3.4.c for the existing unit and using

the method specified in subdivision 3.4.e for the

Clean Unit.

3.5. For any major stationary source subject

to a PAL for a regulated NSR pollutant, the major

stationary source shall comply with the

requirements set forth in section 25.

3.6. An owner or operator undertaking a PCP

(as defined in subsection 2.56) shall comply with

the requirements set forth in section 24.

§45-14-4. Ambient Air Quality Increments

and Ceilings.

4.1. No increases in pollutant concentrations

over the baseline concentrations are allowed in

excess of those listed below:.

Pollutant Maximum Allowable

Increase (μg/m3)

Class I

Particulate matter:

PM10, Annual geometric mean 4

PM10, 24-hour maximum 8

Sulfur dioxide:

Annual arithmetic mean 2

24-hour maximum 5

3-hour maximum 25

Nitrogen dioxide:

Annual arithmetic mean 2.5

Class II

Particulate matter:

PM10, Annual geometric mean 17

PM10, 24-hour maximum 30

Sulfur dioxide:

Annual arithmetic mean 20

24-hour maximum 91

3-hour maximum 512

Nitrogen dioxide:

Annual arithmetic mean 25

Class III

Particulate matter:

PM10, Annual geometric mean 34

PM10, 24-hour maximum 60

Sulfur dioxide:

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45CSR14

Annual arithmetic mean 40

24-hour maximum 182

3-hour maximum 700

Nitrogen dioxide:

Annual arithmetic mean 50

Maximum Allowable Pollutant Concentration

Increase over Baseline Concentration

(μg/m3)

Class I Areas

Particulate matter:

PM10, Annual geometric mean 4

PM10, 24-hour maximum 8

Sulfur dioxide:

Annual arithmetic mean 2

24-hour maximum 5

3-hour maximum 25

Nitrogen dioxide:

Annual arithmetic mean 2.5

Class II Areas

Particulate matter:

PM10, Annual geometric mean 17

PM10, 24-hour maximum 30

Sulfur dioxide:

Annual arithmetic mean 20

24-hour maximum 91

3-hour maximum 512

Nitrogen dioxide:

Annual arithmetic mean 25

Class III

Particulate matter:

PM10, Annual geometric mean 34

PM10, 24-hour maximum 60

Sulfur dioxide:

Annual arithmetic mean 40

24-hour maximum 182

3-hour maximum 700

Nitrogen dioxide:

Annual arithmetic mean 50

4.2. For any period other than an annual

period, the applicable maximum allowable

increase may be exceeded during one (1) such

period per year at any one location.

4.3. No pollutant concentration shall exceed

any air quality standard promulgated:

4.3.a. by the Secretary; or

4.3.b. by the US EPA.

§45-14-5. Area Classification.

5.1. Dolly Sods Wilderness Area and Otter

Creek Wilderness Area are designated as Class I

Areas;

5.2. The Spruce Knob-Seneca Rocks

National Recreational Area, the Cranberry

National Wilderness, and the New River Gorge

National Scenic River are designated as Class II

Areas; and

5.3. The remainder of the State of West

Virginia is designated as a Class II Area.

§45-14-6. Prohibition of Dispersion

Enhancement Techniques.

6.1. The use of stack heights which exceed

good engineering practice or any dispersion

techniques to reduce the concentration of any air

pollutant and thereby, affect the degree of

emission limitation required is prohibited unless a

stack existed or dispersion technique was

implemented before December 31, 1970.

§45-14-7. Registration, Reporting and

Permit Requirements for Major Stationary

Sources and Major Modifications.

7.1. No person shall cause, suffer, allow, or

permit the construction or relocation of any major

stationary source or a major modification to be

commenced after the effective date of this rule in

any area designated as attainment or unclassifiable

under section §107 of the CAA, without notifying

the Secretary of such intent and obtaining prior to

20
45CSR14

beginning actual construction, or modification (as

defined by subsection 2.10) a permit(s) to so

construct, modify, or relocate the major stationary

source or major modification as herein provided.

If the area in which such source would be

constructed or the area in which such modification

would occur is designated as nonattainment under

§107 of the CAA, as amended, for any pollutant

which the source or modification would emit in

significant amounts (as defined by subsection

45CSR19-2.65), the source or modification shall

meet all requirements of 45CSR19 for that

pollutant and shall not be subject to the

requirements of this rule for that pollutant.

7.2. The owner or operator of the source

shall file with the Secretary a timely and complete

permit application containing sufficient

information as, in the judgment of the Secretary,

will enable the Secretary to determine whether

such source construction, modification, or

relocation will be in conformance with the

provisions of any rules promulgated by the

Secretary in general and with the requirements of

this rule. Such information may include, but not be

limited to:

7.2.a. A description of the nature, location,

design capacity, and typical operating schedule of

the source or modification, including

specifications and drawings showing its design

and plant layout;

7.2.b. A detailed schedule for construction

of the source or modification;

7.2.c. A detailed description as to what

system of continuous emission reduction is

planned by the source or modification, emission

estimates, and any other information as necessary

to determine that best available control technology

as applicable would be applied;

7.2.d. The air quality impact of the source

or modification, including meteorological and

topographical data necessary to estimate such

impact; and

7.2.e. The air quality impacts and the

nature and extent of any or all general commercial,

residential, industrial, and other growth which has

occurred since August 7, 1977, in the area the

source or modification would affect.

7.3. Each permit application shall be signed

by the owner or operator of the major stationary

source or major modification, and such signature

shall constitute an agreement that the applicant

will assume responsibility for the construction,

modification, or relocation, and operation of the

major stationary source or major modification in

accordance with applicable rules of the Secretary,

the permit application, and any permit issued

pursuant to this rule.

7.4. Within thirty (30) days of the receipt of

a permit application for construction or relocation

of a major stationary source or for a major

modification, the Secretary shall determine if the

application is complete or if there exists any

deficiency in the application or information

submitted, and shall notify the applicant of all

such deficiencies, if any. In the event of such a

deficiency, the date of receipt of the application

shall be the date on which the Secretary received

all required information.

7.5. Within six (6) months of the receipt of a

complete permit application for construction or

relocation of a major stationary source or for a

major modification, the Secretary shall issue such

a permit unless the Secretary determines that the

proposed major stationary source or major

modification has not satisfied the requirements of

this rule, will violate applicable emission

standards, will interfere with the attainment or

maintenance of applicable ambient air quality

standards, or will be inconsistent with the intent

and purpose of this rule, in which case the

Secretary shall issue an order for the prevention of

such construction, modification, or relocation.

7.6. If the Secretary denies a permit

application for the proposed construction or

relocation of any major stationary source or major

modification, the order shall set forth the

Secretary’s reasons with reasonable specificity.

21
45CSR14

7.7. The Secretary may impose any

reasonable conditions as part of a granted

construction, modification, or relocation permit.

Such conditions may include, but not be limited

to, the submission of periodic progress or

operation reports, the provisions of a suitable

sampling site, the installation of pollutant

monitoring devices, and the operation and

maintenance of ambient air quality monitoring

stations.

§45-14-8. Control Technology Requirements.

8.1. Any person proposing to construct or

relocate a major stationary source or major

modification shall meet each applicable emissions

limitation promulgated by the Secretary and any

applicable emissions standard or standard of

performance under 40 CFR Parts 60, 61 and 63.

8.2. Any person proposing to construct a

new major stationary source shall apply best

available control technology for each regulated

NSR pollutant that it would have the potential to

emit in significant amounts.

8.3. Any person proposing a major

modification of a stationary source shall apply

best available control technology for each

regulated NSR pollutant for which such proposed

major modification would cause a significant net

emissions increase from such source. This

requirement applies to each proposed emissions

unit at which a net emissions increase in the

pollutant would occur as a result of a physical

change or change in the method of operation in the

unit.

8.4. For any proposed construction of a

major stationary source or major modification

which is a phased construction project, the

determination of best available control technology

shall be reviewed and modified as appropriate at

the last reasonable time which occurs no later than

eighteen (18) months prior to commencement of

construction of each independent phase of the

project. At such time, the owner or operator of the

applicable stationary source may be required to

demonstrate the adequacy of any previous

determination of best available control technology

for the source.

§45-14-9. Requirements Relating to the

Source’s Impact on Air Quality.

9.1. Any person proposing to construct or

relocate a major stationary source or to make a

major modification shall demonstrate that

allowable emission increases from the proposed

source or modification, in conjunction with all

other applicable emission increases or reductions

(including secondary emissions) would not cause

or contribute to air pollution in violation of:

9.1.a. Any National or West Virginia

Ambient Air Quality Standard; or

9.1.b. Any applicable maximum allowable

increase over the baseline concentration in any

area.

9.2. A major source or major modification

will be considered to cause or contribute to a

violation of a National Ambient Air Quality

Standards when the ambient impact of the

emissions from such source or modification

would, at a minimum, exceed the significant

impact levels defined in subsection 2.63.

§45-14-10. Modeling Requirements.

10.1. All estimates of ambient concentrations

required under section 9 shall be based on the

applicable air quality models, data bases, and

other requirements specified in the Appendix W of

40 CFR Part 51 (Guideline on Air Quality

Models).

10.2. Where an air quality impact model

specified in Appendix W of 40 CFR Part 51

(Guideline on Air Quality Models) is

inappropriate, the model may be modified or

another model substituted, provided that said

modification or substitution is approved in writing

by the Administrator.

§45-14-11. Air Quality Monitoring

Requirements.

22
45CSR14

11.1. Any person proposing to construct or

relocate a major stationary source shall provide an

analysis of the ambient air quality in the area that

the major stationary source would affect for each

pollutant that it would have the potential to emit in

a significant amount.

11.2. Any person proposing to make a major

modification to a stationary source shall provide

an analysis of the ambient air quality in the area

that the major modification would affect for each

pollutant for which it would result in a significant

net emissions increase.

11.3. For those pollutants for which no

National or West Virginia Ambient Air Quality

Standard exists, the analysis shall contain such air

quality monitoring data as the Secretary

determines is necessary to assess ambient air

quality for that pollutant in any area that the

emissions of that pollutant would affect.

11.4. For those pollutants (other than nonmethane hydrocarbons) for which such an ambient

air quality standard does exist, the analysis shall

contain continuous air quality monitoring data

gathered for purposes of determining whether

emissions of that pollutant would cause or

contribute to a violation of the standard or any

maximum allowable increase.

11.5. All ambient air quality monitoring data

that is required shall have been gathered over a

period of one (1) year and shall represent the year

preceding receipt of the application, except that, if

the Secretary determines that a complete and

adequate analysis can be accomplished with

monitoring data gathered over a period shorter

than one (1) year (but not to be less than four (4)

months), the data that is required shall have been

gathered over at least that shorter period.

11.6. Any person proposing to construct or

relocate a major stationary source or make a major

modification shall, after construction of the

stationary source or modification, conduct such

ambient monitoring as the Secretary determines is

necessary to determine the effect emissions from

the stationary source or modification may have, or

are having, on air quality in any area.

11.7. Operation of monitoring stations

required by section 11 shall meet the requirements

of Appendix B of 40 CFR Part 58 during the

operation of the monitoring stations.

§45-14-12. Additional Impact Analysis

Requirements.

12.1. Any person proposing to construct or

relocate a major stationary source or make a major

modification shall provide:

12.1.a. An analysis of the impairment to

visibility, soils, and vegetation that would occur as

a result of the source or modification and general

commercial, residential, industrial, and other

growth associated with the source or modification.

The owner or operator need not provide an

analysis of the impact on vegetation having no

significant commercial or recreational value; and

12.1.b. An analysis of the air quality

impact projected for the area as a result of general

commercial, residential, industrial and other

growth associated with the source or modification.

§45-14-13. Additional Requirements and

Variances for Sources Impacting Federal Class

I Areas.

13.1. Notice to EPA. -- The Secretary shall

transmit to the Administrator a copy of each

permit application relating to a major stationary

source or major modification impacting a Class I

area and provide notice to the Administrator of

every action related to the consideration of such

permit.

13.2. Notice to Federal land managers. -- The

Secretary shall provide written notice of any

permit application for a proposed major stationary

source or major modification, the emissions from

which may affect a Class I area, to the Federal

land manager or the Federal official, charged with

direct responsibility for management of any lands

within any such area. Such notification shall

include a copy of all information relevant to the

23
45CSR14

permit application and shall be given within 30

days of receipt and at least 60 days prior to any

public hearing on the application for a permit to

construct. Such notification shall include an

analysis of the proposed source's anticipated

impacts on visibility in the Federal Class I area.

13.3. The Secretary shall also provide the

Federal land manager or such Federal officials

with a copy of the preliminary determination

required under subsection 17.2, and shall make

available to them any materials used in making

that determination, promptly after the Secretary

makes such determination. Finally, the Secretary

shall also notify all affected Federal land managers

within 30 days of receipt of any advance

notification of any such permit application.

13.4. Federal Land Manager. -- The Federal

Land Manager or the Federal official, charged

with direct responsibility for management of such

lands has an affirmative responsibility to protect

the air quality related values (including visibility)

of such lands and to consider, in consultation with

the Secretary, whether a proposed source or

modification will have an adverse impact on such

values.

13.5. The Federal Land Manager of the

affected Class I area may present to the Secretary

during the public review process described in

section 17 a demonstration that the emissions from

the proposed major stationary source or major

modification would have an adverse impact on the

air quality-related values (including visibility) of

any Federal mandatory Class I lands,

notwithstanding that the change in air quality

resulting from emissions from such source or

modification would not cause or contribute to

concentrations which would exceed the maximum

allowable increases for a Class I area. If the

Secretary concurs with such demonstration, the

Secretary shall deny the permit to construct.

13.6. Class I variances. -- The owner or

operator of a proposed source or modification may

demonstrate to the Federal Land Manager that the

emissions from such source or modification would

have no adverse impact on the air quality related

values of any such lands (including visibility),

notwithstanding that the change in air quality

resulting from emissions from such source or

modification would cause or contribute to

concentrations which would exceed the maximum

allowable increases for a Class I area. If the

Federal land manager concurs with such

demonstration and he so certifies, the Secretary

may issue the permit: Provided, That the

applicable requirements of this section are

otherwise met, to issue the permit with such

emission limitations as may be necessary to assure

that emissions of sulfur dioxide, particulate matter,

and nitrogen oxides would not exceed the

following maximum allowable increases over

minor source baseline concentration for such

pollutants: 

Pollutant Maximum Allowable

Increase

(micrograms per cubic

meter)

Particulate Matter:

PM-10, annual arithmetic mean 17

PM-10, 24-hr maximum 30

Sulfur dioxide:

Annual arithmetic mean 20

24-hr maximum 91

3-hr maximum 325

Nitrogen dioxide:

Annual arithmetic mean 25

Maximum Allowable Pollutant Concentration

Increase over Minor Source Baseline

Concentration (μg/m3)

Particulate Matter:

PM-10, annual arithmetic mean 17

PM-10, 24-hr maximum 30

Sulfur dioxide:

Annual arithmetic mean 20

24-hr maximum 91

3-hr maximum 325

Nitrogen dioxide:

Annual arithmetic mean 25

13.7. An applicant for a permit pursuant to

24
45CSR14

this rule shall be allowed the Class I variances as

provided in 40 CFR §§51.166 (p) (4), (5), (6), and

(7) as contained in the Code of Federal

Regulations on July 1, 1994, provided, that all

requirements of said 40 CFR §§51.166 (p) (4), (5),

(6), and (7) are met and written notification of

variance in accordance with said section(s) is

provided to the Secretary.

§45-14-14. Procedures for Sources Employing

Innovative Control Technology.

14.1. Any person proposing to construct or

modify a major stationary source or major

modification may petition the Secretary to approve

a system of innovative control technology in lieu

of best available control technology. Any such

proposed innovative control technology shall meet

the following conditions:

14.1.a. The proposed control system

would not cause or contribute to an unreasonable

risk to public health, welfare, or safety in its

operation or function;

14.1.b. The proposed source or

modification must achieve a level of continuous

emissions reduction equivalent to that which

would have been required under section 8 by a

date specified by the Secretary;

14.1.c. The source or modification would

meet requirements equivalent to all requirements

of this rule that a stationary source employing a

system of best available control technology would

be required to meet;

14.1.d. Before the date specified in

subsection 14.4, the source or modification would:

14.1.d.1. Not cause or contribute to any

violation of an applicable National Ambient Air

Quality Standard; 

14.1.d.2. Not impact any area where an

applicable increment is known to be violated;

14.1.d.3. Meet all other applicable

requirements including those for public

participation; and

14.1.e. The provisions of 40 CFR

§51.166(p) (relating to Class I areas) have been

satisfied with respect to all periods during the life

of the source or modification.

14.2. The Secretary shall consult with the

governor(s) of other state(s) and the Federal Land

Manager(s) of areas impacted by the proposed

source or modification.

14.3. The Secretary, with the concurrence of

the governor(s) of other state(s) and the Federal

Land Manager(s), may make a determination that

the source or modification would be employing

innovative control technology.

14.4. The Secretary shall specify a date by

which the source or modification must meet the

requirements and conditions of subsection 14.1.

Such date shall not be later than four (4) years

from the time of start-up or seven (7) years from

permit issuance.

14.5. The Secretary shall withdraw any

approval to employ a system of innovative control

technology made under this section 14 if:

14.5.a. The proposed system fails by the

specified date to achieve the required continuous

emissions reduction rate; or

14.5.b. The proposed system fails before

the specified date so as to contribute to an

unreasonable risk to public health, welfare, or

safety; or

14.5.c. The Secretary decides at any time

that the proposed system is unlikely to achieve the

required level of control or to protect the public

health, welfare, or safety.

14.6. If the source or modification fails to

meet the required level of continuous emissions

reduction within the specified time period, or if

the approval is withdrawn in accordance with

subsection 14.5, the Secretary shall specify a date

by which the source or modification shall meet the

25
45CSR14

requirement for the application of best available

control technology through use of a demonstrated

system of control. This date shall not exceed three

(3) years from the date of the end of the specified

time period or the date that the approval is

withdrawn, whichever is earlier.

§45-14-15. Exclusions From Increment

Consumption.

15.1. The following concentrations shall be

excluded in determining compliance with a

maximum allowable increase:

15.1.a. Concentrations attributable to the

increase in emissions from stationary sources

which have converted from the use of petroleum

products, natural gas, or both by reason of an

order in effect under sections 2(a) and (b) of the

Energy Supply and Environmental Coordination

Act of 1974 (or any superseding legislation as of

the effective date of this rule) over the emissions

from such sources before the effective date of such

an order;

15.1.b. Concentrations attributable to the

increase in emissions from sources which have

converted from using natural gas by reason of

natural gas curtailment plan in effect pursuant to

the Federal Power Act over the emissions from

such sources before the effective date of such

plan;

15.1.c. Concentrations of particulate

matter attributable to the increase in emissions

from construction or other temporary emissionrelated activities of new or modified sources; and

15.1.d. Concentrations attributable to the

temporary increase in emissions of sulfur dioxide,

particulate matter, or nitrogen oxides from

stationary sources so long as such exclusion is

meets the following requirements:

15.1.d.1. The temporary emissions

increase of sulfur dioxide, particulate matter or

nitrogen dioxides does not exceed two (2) years in

duration;

15.1.d.2. The exclusion period for the

temporary emissions increase is not renewable.;

and

15.1.d.3. The exclusion allows no

emissions increases from a stationary source

which would:

15.1.d.3.A. Impact a Class I area or

an area where an applicable increment is known to

be violated; or

15.1.d.3.B. Cause or contribute to

a violation of a National Ambient Air Quality

Standard.

15.1.d.4. The exclusion requires

limitations to be in effect at the end of the

exclusion period specified in paragraph 15.1.d.1,

which ensures that the emissions levels from

stationary sources would not exceed those levels

occurring from such sources before the temporary

increase.

15.2. No exclusion of such concentrations

shall apply more than five (5) years after the

effective date of the order to which subdivision

15.1.a refers or the plan to which subdivision

15.1.b refers, whichever is applicable. If both such

order and plan are applicable, no such exclusion

shall apply more than five (5) years after the later

of such effective dates.

§45-14-16. Specific Exemptions.

16.1. A non-profit health or non-profit

educational institution proposing to construct or

relocate a major stationary source or to make a

major modification may petition the Secretary for

an exemption from the requirements of

subsections 8.2, 8.3 and 8.4 and sections 9, 11 and

12.

16.2. Any person proposing to construct,

modify or relocate a source which does not belong

to any category listed in Table 1 may exclude

fugitive emissions, to the extent quantifiable, in

the calculation of potential to emit.

26
45CSR14

16.3. Any person proposing to relocate a

source or modification that is a portable stationary

source which has previously received a permit

under this rule may petition the Secretary for an

exemption from the requirements of subsections

8.2, 8.3 and 8.4 and sections 9, 11 and 12. The

Secretary shall grant this exemption if the

following conditions are met:

16.3.a. The source proposes to relocate

and emissions of the source at the new location

would not exceed two (2) years;

16.3.b. The emissions from the source

would not exceed its allowable emissions; 

16.3.c. The emissions from the source

would impact no Class I area and no area where an

applicable increment is known to be violated; 

16.3.d. The source identifies the proposed

new location and the probable duration of

operation at the new location; and

16.3.e. Such petition shall be

submitted to the Secretary not less than ten (10)

days in advance of the proposed relocation unless

a different time duration is previously approved by

the Secretary.

16.4. Any person proposing to construct or

relocate a major stationary source or make a major

modification may petition the Secretary for an

exemption from the requirements of sections 9

through 12 with respect to a particular pollutant

and the Secretary shall grant such exemption, if

the allowable emissions of that pollutant from a

new source, or the net emissions increase of that

pollutant from a modification, would not exceed

two (2) years, would not impact any Class I area

and would not impact any area where an

applicable increment is known to be violated.

16.5. Any person proposing to modify a major

stationary source located in a Class II area that

was in existence prior to March 1, 1978 may

petition the Secretary for an exemption from the

requirements of sections 9, 11 and 12 as they

relate to any maximum allowable increase for a

Class II area. The Secretary shall grant such

exemption if the net increase in allowable

emissions of each regulated NSR pollutant from

the modification after the application of best

available control technology would be less than

fifty (50) tons per year.

16.6. Any person proposing to construct or

relocate a major stationary source or make a major

modification may petition the Secretary for an

exemption from the requirements of section 11

with respect to a particular pollutant if:

16.6.a. The applicant demonstrates that

the emissions increase of the pollutant from a new

stationary source or the net emissions increase of

the pollutant from a modification would cause, in

any area, an air quality impact less than that listed

in Table 2; or

16.6.b. The applicant demonstrates that

the existing concentrations of the pollutant in the

area that the source or modification would affect

are less than that listed in Table 2; or

16.6.c. The applicant's request is for any

pollutant which is not listed in Table 2; or

16.6.d. With respect to ozone, the net

increase of volatile organic compounds or NOX

from the proposed source or modification will be

less than one hundred (100) tons per year.

Table 2 - De Minimis Air Quality Impacts

Pollutant Concentration

(μg/m3)

Averaging

Time

Carbon

Monoxide

575 8-hour

Nitrogen

Dioxide

14 annual

PM10 10 24-hour

Sulfur Dioxide 13 24-hour

Ozone None NA

27
45CSR14

Lead 0.1 3-month

Fluorides 0.25 24-hour

Hydrogen

Sulfide

0.2 1-hour

Total Reduced

Sulfur

10 1-hour

Reduced Sulfur

Compounds

10 1-hour

16.7. Any person proposing to construct or

relocate a major stationary source or make a major

modification to a source of volatile organic

compounds may petition the Secretary for an

exemption from the requirements of subsection

11.5 that the continuous air monitoring data be

representative of the year preceding the receipt of

the application. The Secretary shall grant such an

exemption if the proposed major stationary source

or major modification for volatile organic

compounds satisfies all conditions of 40 CFR Part

51, Appendix S, section IV.

Table 2.

DE MINIMIS AIR QUALITY IMPACTS

- Carbon Monoxide - 575 μg/m3, 8-hour average

- Nitrogen Dioxide - 14 μg/m3, annual average

- PM10 - 10 μg/m3, 24-hour average

- Sulfur Dioxide - 13 μg/m3, 24-hour average

- Ozone - no minimum air quality value

- Lead - 0.1 μg/m3, 3-month average

- Fluorides - 0.25 μg/m3, 24-hour average

- Hydrogen Sulfide - 0.2 μg/m3, 1-hour average

- Total Reduced Sulfur - 10 μg/m3, 1-hour

average

- Reduced Sulfur Compounds - 10 μg/m3, 1-hour

average

16.8. Any complete permit application

pending final disposition by the Secretary on the

effective date of this rule shall continue to be

deemed complete with respect to the applicant's

analysis under subdivision 9.1.b concerning the

maximum allowable increase for total suspended

particulate matter which is applicable prior to the

effective date of this rule.

§45-14-17. Public Review Procedures.

17.1. At the time that an application for a

construction, modification or relocation permit is

filed, the applicant shall place a Class I legal

advertisement in a newspaper of general

circulation in the area where the source will be

located. No permit shall be issued to any applicant

until at least thirty (30) days notice has been

provided to the public. The advertisement shall

contain at a minimum, the name of the applicant,

the type and location of the source, the type and

amount of air pollutants proposed to be

discharged, the nature of the permit being sought,

the proposed start-up date for the source and a

contact telephone number for more information.

17.2. After finishing the review of a complete

application, the Secretary shall make a preliminary

determination whether a permit should be

approved, approved with conditions, or

disapproved.

17.3. The Secretary shall make available in at

least one location in the region in which the

proposed source would be constructed a copy of

all materials the applicant submitted (excluding

data entitled to protection as confidential

information under 45CSR31), a copy of the

preliminary determination, and a copy or summary

of other materials, if any, considered in making

the preliminary determination.

17.4. The Secretary shall place a Class I legal

advertisement in a paper of general circulation in

the area where the proposed source would be

constructed, modified, or relocated. The

advertisement shall contain, as a minimum, the

name of the applicant, the type and location of the

source, the proposed start-up date, the preliminary

determination, the degree of increment

consumption that is expected from the source or

modification, notification of the opportunity for

written public comment, provisions for requesting

a public meeting, details concerning the time and

place of such a meeting if one is scheduled, and

28
45CSR14

notification of the opportunity for comment at a

public meeting if such meeting is to be conducted.

A public comment period of thirty (30) days shall

be provided and so stated in the advertisement.

17.5. The Secretary shall send a copy of the

advertisement to the applicant, to the

Administrator, and to officials and agencies

having cognizance over the location where the

proposed construction would occur as follows:

any other State or local air pollution control

agencies, the chief executives of the city and

county where the source would be located; any

comprehensive regional land use planning agency,

any State, and any Federal Land Manager, whose

lands may be affected by emissions from the

source or modification.

17.6. The Secretary shall consider public

comments submitted within thirty (30) days after

the Secretary’s public notification of an

opportunity for comment upon a proposed

construction or relocation of a major stationary

source or major modification, and comments

submitted within a specified period not to exceed

fifteen (15) days after any public meeting to

receive comment on such proposed construction,

modification, or relocation before making a final

decision on the approvability of the application.

The Secretary shall make copies of all comments

available for public inspection in the same

locations where the Secretary made available

preconstruction information relating to the

proposed source or modification.

17.7. The Secretary shall make a final

determination whether construction should be

approved, approved with conditions, or

disapproved.

17.8. The Secretary shall notify the applicant

in writing of the final determination and make a

copy of such notification available for public

inspection at the same location where the

Secretary made available preconstruction

information and public comments relating to the

proposed source or modification.

§45-14-18. Public Meetings.

18.1. Public meetings to receive comments on

permit applications shall be held when the

Secretary deems it appropriate or when substantial

interest is expressed, in writing, by persons who

might reasonably be expected to be affected by the

proposed major source or major modification.

18.2. The Secretary or the Secretary’s

designee shall preside over such meetings and

ensure that all interested parties have ample

opportunity to present comments. Such meetings

shall be held at a convenient place as near as

practicable to the location of the proposed major

source or major modification.

18.3. At a reasonable time prior to such

meetings, the Secretary shall provide appropriate

information to news media in the area where the

proposed source or modification is to be located.

§45-14-19. Permit Transfer, Cancellation and

Responsibility.

19.1. A permittee may petition the Secretary

for a transfer of a permit previously issued in

accordance with this rule. The Secretary shall

approve such permit transfer provided the

following conditions are met:

19.1.a. The permittee, in the petition,

describes the reasons for the requested permit

transfer and certifies that the subject source is in

compliance with all the provisions and

requirements of its permit, and

19.1.b. The transferee provides written

acknowledgment that it accepts and will comply

with all the requirements, terms, and conditions as

contained in the subject permit.

19.2. The Secretary shall suspend or revoke a

permit if, after eighteen (18) months from the date

of issuance the holder of the permit cannot provide

the Secretary, at the Secretary’s request, with

written proof of a good faith effort that such

construction, modification, or relocation has

commenced and remains ongoing. Such proof

shall be provided not later than thirty (30) days

after the Secretary’s request.

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45CSR14

19.3. The Secretary may suspend, modify, or

revoke the permit if the plans and specifications

upon which the approval was based or the

conditions established in the permit are not

adhered to. Upon notice of the Secretary’s intent

to suspend, modify or revoke a permit, the

permittee may request a conference with the

Secretary in accordance with the provisions of

W.Va. Code § 22-5-5 to show cause why the

permit should not be suspended, modified or

revoked.

19.4. Any owner or operator who constructs,

modifies or relocates any stationary source not in

accordance with the application submitted

pursuant to this rule or with the terms of any

permit to construct, modify or relocate, or any

owner or operator of a source subject to this rule

who commences construction after the effective

date of this rule without applying for and

receiving approval hereunder, shall be subject to

appropriate enforcement action.

19.5. Possession of a permit does not relieve

any person of the responsibility of complying with

any and all rules of the Secretary or W.Va. Code

§ 22-1-1 et seq.

19.6. [Reserved.]

19.7. Any person who owns or operates any

particular source or modification which becomes

a major stationary source or major modification

solely by virtue of a relaxation in any limitation,

enforceable by the Administrator or the Secretary,

on the capacity of the source or modification

otherwise to emit a pollutant (such as a restriction

on hours of operation), shall become subject to the

requirements of this rule as though construction

had not yet commenced on the source or

modification.

19.8. The Except as otherwise provided in

subdivision 19.8.f, the following specific 

provisions of this subsection apply to proposed

with respect to any regulated NSR pollutant

emitted from projects at an existing emissions unit

units at a major stationary source (other than

projects at a Clean Unit or at a source with a PAL)

in circumstances where there is a reasonable

possibility, within the meaning of subdivision

19.8.f, that a proposed project that is not a part of

a major modification may result in a significant

emissions increase of such pollutant, and the

owner or operator elects to use the method

specified in paragraphs 2.63.a.1 through 2.63.a.3

for calculating projected actual emissions.

19.8.a. Before beginning actual

construction of the project, the owner or operator

shall document and maintain a record of the

following information:

19.8.a.1. A description of the proposed

project;

19.8.a.2. Identification of the emissions

unit(s) whose emissions of a regulated NSR

pollutant could be affected by the proposed

project; and

19.8.a.3. A description of the

applicability test used to determine that the

proposed project is not a major modification for

any regulated NSR pollutant, including the

baseline actual emissions, the projected actual

emissions, the amount of emissions excluded

under paragraph 2.63.a.2 and an explanation for

why such amount was excluded, and any netting

calculations, if applicable.

19.8.b. If the emissions unit is an existing

electric utility steam generating unit, before

beginning actual construction, the owner or

operator shall provide a copy of the information

required under subdivision 19.8.a to the Secretary.

Nothing in subdivision 19.8.b shall be construed

to require the owner or operator of such a unit to

obtain any determination from the Secretary

before beginning actual construction.

19.8.c. The owner or operator shall

monitor the emissions of any regulated NSR

pollutant that could increase as a result of the

project and that is emitted by any emissions unit

identified in paragraph 19.8.a.1. The owner or

operator shall calculate and maintain a record of

the annual emissions, in tons per year on a

30
45CSR14

calendar year basis, for a period of 5 years

following resumption of regular operations after

the change, or for a period of 10 years following

resumption of regular operations after the change

if the project increases the design capacity of or

potential to emit that regulated NSR pollutant at

such emissions unit.

19.8.d. If the unit is an existing electric

utility steam generating unit, the owner or operator

shall submit a report to the Secretary within 60

days after the end of each year during which

records must be generated under subdivision

19.8.c setting out the unit’s annual emissions

during the calendar year that preceded submission

of the report.

19.8.e. If the unit is an existing unit other

than an electric utility steam generating unit, the

owner or operator shall submit a report to the

Secretary if the annual emissions, in tons per year,

from the project identified in subdivision 19.8.a,

exceed the baseline actual emissions (as

documented and maintained pursuant to paragraph

19.8.a.3), by a significant amount (as defined in

subsection 2.74) for that regulated NSR pollutant,

and if such emissions differ from the

preconstruction projection as documented and

maintained pursuant to paragraph 19.8.a.3. Such

report shall be submitted to the Secretary within

60 days after the end of such year. The report shall

contain the following:

19.8.e.1. The name, address and

telephone number of the major stationary source;

19.8.e.2. The annual emissions as

calculated pursuant to subdivision 19.8.c; and

19.8.e.3. Any other information that the

owner or operator wishes to include in the report

(e.g., an explanation as to why the emissions differ

from the preconstruction projection).

19.8.f. A “reasonable possibility” under

subsection 19.8 occurs when the owner or operator

calculates the project to result in either:

19.8.f. 1. A projected actual emissions

increase of at least 50 percent of the amount that

is a “significant emissions increase,” as defined

under subsection 2.75 (without reference to the

amount that is a significant net emissions

increase), for the regulated NSR pollutant; or

19.8.f. 2. A projected actual emissions

increase that, added to the amount of emissions

excluded under paragraph 2.63.a.3, sums to at

least 50 percent of the amount that is a “significant

emissions increase,” as defined under subsection

2.75 (without reference to the amount that is a

significant net emissions increase), for the

regulated NSR pollutant. For a project for which

a reasonable possibility occurs only within the

meaning of this paragraph, and not also within the

meaning of subdivision 3.4.a, then provisions

under subsections 3.2 through 3.5 do not apply to

the project.

19.9. The owner or operator of the source

shall make available the information required to be

documented and maintained pursuant to

subsection 19.8 for review upon a request for

inspection by the Secretary or the general public

pursuant to the requirements contained in

45CSR30.

§45-14-20. Disposition of Permits.

20.1. In the event that the Secretary

promulgates changes to this rule or in the event of

a redesignation of an attainment or non-attainment

area (in accordance with § 107 of the CAA) prior

to final disposition of a permit, the Secretary shall

make final disposition of the permit application in

accordance with such newly promulgated

standards or redesignation.

§45-14-21. Conflict with Other Permitting

Rules.

21.1. For sources required to obtain a permit

under this rule, the provisions of 45CSR13

requiring a permit do not apply, so that only a

single permit is required; provided, however, that:

21.1.a. The base permit application fee of

$1,000 pursuant to 45CSR22, subdivision 3.4.a

31
45CSR14

shall apply to such sources in addition to other

applicable fees; and

21.1.b. Any permit issued under this rule

includes conditions that ensure compliance with

the provisions of 45CSR13 to the extent

applicable to any regulated air pollutant (as

defined in 45CSR13) not otherwise covered under

this rule.

21.2. For sources that may be subject to

45CSR13, 45CSR14 and/or 45CSR19, the more

stringent provisions of each applicable rule shall

apply.

§45-14-22. Clean Unit Test for Emissions

Units that are subject to BACT or LAER.

[Reserved.]

22.1. Applicability. -- The provisions of this

section apply to any emissions unit for which the

Secretary has issued a major NSR permit within

the last 10 years.

22.2. General provisions for Clean Units. --

The provisions of subdivisions 22.2.a through

22.2.d shall apply to a Clean Unit.

22.2.a. Any project for which the owner

or operator begins actual construction after the

effective date of the Clean Unit designation (as

determined in accordance with subsection 22.4)

and before the expiration date (as determined in

accordance with subsection 22.5) will be

considered to have occurred while the emissions

unit was a Clean Unit.

22.2.b. If a project at a Clean Unit does

not cause the need for a change in the emission

limitations or work practice requirements in the

permit for the unit that were adopted in

conjunction with BACT and the project would not

alter any physical or operational characteristics

that formed the basis for the BACT determination

as specified in subdivision 22.6.d, the emissions

unit shall remain a Clean Unit.

22.2.c. If a project causes the need for a

change in the emission limitations or work

practice requirements in the permit for the unit

that were adopted in conjunction with BACT or

the project would alter any physical or operational

characteristics that formed the basis for the BACT

determination as specified in subdivision 22.6.d,

then the emissions unit shall lose its designation as

a Clean Unit upon issuance of the necessary

permit revisions, unless the unit re-qualifies as a

Clean Unit pursuant to subdivision 22.3.c. If the

owner or operator begins actual construction on

the project without first applying to revise the

emissions unit's permit, the Clean Unit designation

ends immediately prior to the time when actual

construction begins.

22.2.d. A project that causes an emissions

unit to lose its designation as a Clean Unit is

subject to the applicability requirements of

subdivisions 3.4.a through 3.4.d and subdivision

3.4.f as if the emissions unit was never a Clean

Unit.

22.3. Qualifying or re-qualifying to use the

Clean Unit Applicability Test. -- An emissions

unit automatically qualifies as a Clean Unit when

the unit meets the criteria in subdivisions 22.3.a

and 22.3.b. After the original Clean Unit

designation expires in accordance with subsection

22.5 or is lost pursuant to subdivision 22.2.c, such

emissions unit may re-qualify as a Clean Unit

under either subdivision 22.3.c, or under the Clean

Unit provisions in section 23. To re-qualify as a

Clean Unit under subdivision 22.3.c, the emissions

unit must obtain a new major NSR permit issued

through the applicable NSR program and meet all

the criteria in subdivision 22.3.c. The Clean Unit

designation applies individually for each pollutant

emitted by the emissions unit.

22.3.a. Permitting requirement. -- The

emissions unit must have received a major NSR

permit within the last 10 years. The owner or

operator must maintain and be able to provide

information that would demonstrate that this

permitting requirement is met.

22.3.b. Qualifying air pollution control

technologies. -- Air pollutant emissions from the

emissions unit must be reduced through the use of

32
45CSR14

air pollution control technology, which includes

pollution prevention as defined under subsection

2.56 or work practices, that meets both the

following requirements in paragraphs 22.3.b.1 and

22.3.b.2.

22.3.b.1. The control technology

achieves the BACT or LAER level of emissions

reductions as determined through issuance of a

major NSR permit within the past 10 years.

However, the emissions unit is not eligible for the

Clean Unit designation if the BACT determination

resulted in no requirement to reduce emissions

below the level of a standard, uncontrolled, new

emissions unit of the same type.

22.3.b.2. The owner or operator made

an investment to install the control technology.

For the purpose of this determination, an

investment includes expenses to research the

application of a pollution prevention technique to

the emissions unit or expenses to apply a pollution

prevention technique to an emissions unit.

22.3.c. Re-qualifying for the Clean Unit

designation. -- The emissions unit must obtain a

new major NSR permit that requires compliance

with the current-day BACT (or LAER), and the

emissions unit must meet the requirements set

forth in subdivisions 22.3.a and 22.3.b.

22.4. Effective date of the Clean Unit

designation. -- The effective date of an emissions

unit's Clean Unit designation (the date on which

the owner or operator may begin to use the Clean

Unit Test to determine whether a project at the

emissions unit is a major modification) is

determined in accordance with subdivision 22.4.a

or 22.4.b, as applicable.

22.4.a. Original Clean Unit designation,

and emissions units that re-qualify as Clean Units

by implementing new control technology to meet

current-day BACT. -- The effective date is the

date the emissions unit's air pollution control

technology is placed into service, or 3 years after

the issuance date of the major NSR permit,

whichever is earlier, but no sooner than the

effective date of EPA approval and promulgation

of a revision to the WV SIP incorporating this

rule.

22.4.b. Emissions units that re-qualify for

the Clean Unit designation using an existing

control technology. -- The effective date is the

date the new, major NSR permit is issued.

22.5. Clean Unit expiration. -- An emissions

unit's Clean Unit designation expires (that is, the

date on which the owner or operator may no

longer use the Clean Unit Test to determine

whether a project affecting the emissions unit is,

or is part of, a major modification) according to

the applicable subdivision 22.5.a or 22.5.b.

22.5.a. Original Clean Unit designation,

and emissions units that re-qualify by

implementing new control technology to meet

current-day BACT. -- For any emissions unit that

automatically qualifies as a Clean Unit under

subdivision 22.3.a and 22.3.b or re-qualifies by

implementing new control technology to meet

current-day BACT under subdivision 22.3.c, the

Clean Unit designation expires 10 years after the

effective date, or the date the equipment went into

service, whichever is earlier; or, it expires at any

time the owner or operator fails to comply with

the provisions for maintaining the Clean Unit

designation in subsection 22.7.

22.5.b. Emissions units that re-qualify for

the Clean Unit designation using an existing

control technology. -- For any emissions unit that

re-qualifies as a Clean Unit under subdivision

22.3.c using an existing control technology, the

Clean Unit designation expires 10 years after the

effective date; or, it expires any time the owner or

operator fails to comply with the provisions for

maintaining the Clean Unit designation in

subsection 22.7.

22.6. Required title V permit content for a

Clean Unit. -- After the effective date of the Clean

Unit designation, and in accordance with the

provisions of 45CSR30, but no later than when the

45CSR30 permit is renewed, the 45CSR30 permit

for the major stationary source must include the

following terms and conditions in subdivision

33
45CSR14

22.6.a through 22.6.f related to the Clean Unit.

22.6.a. A statement indicating that the

emissions unit qualifies as a Clean Unit and

identifying the pollutant(s) for which this

designation applies.

22.6.b. The effective date of the Clean

Unit designation. -- If this date is not known when

the Clean Unit designation is initially recorded in

the title V permit (e.g., because the air pollution

control technology is not yet in service), the

permit must describe the event that will determine

the effective date (e.g., the date the control

technology is placed into service). Once the

effective date is determined, the owner or operator

must notify the Secretary of the exact date. This

specific effective date must be added to the

source's title V permit at the first opportunity, such

as a modification, revision, reopening, or renewal

of the title V permit for any reason, whichever

comes first, but in no case later than the next

renewal.

22.6.c. The expiration date of the Clean

Unit designation. -- If this date is not known when

the Clean Unit designation is initially recorded

into the title V permit (e.g., because the air

pollution control technology is not yet in service),

then the permit must describe the event that will

determine the expiration date (e.g., the date the

control technology is placed into service). Once

the expiration date is determined, the owner or

operator must notify the Secretary of the exact

date. The expiration date must be added to the

source's title V permit at the first opportunity, such

as a modification, revision, reopening, or renewal

of the title V permit for any reason, whichever

comes first, but in no case later than the next

renewal.

22.6.d. All emission limitations and work

practice requirements adopted in conjunction with

BACT, and any physical or operational

characteristics which formed the basis for the

BACT determination (e.g., possibly the emissions

unit's capacity or throughput).

22.6.e. Monitoring, recordkeeping, and

reporting requirements as necessary to

demonstrate that the emissions unit continues to

meet the criteria for maintaining the Clean Unit

designation. (See subsection 22.7.)

22.6.f. Terms reflecting the owner or

operator's duties to maintain the Clean Unit

designation and the consequences of failing to do

so, as presented in subsection 22.7.

22.7. Maintaining the Clean Unit designation.

-- To maintain the Clean Unit designation, the

owner or operator must conform to all the

restrictions listed in subdivisions 22.7.a through

22.7.c. This subsection 22.7 applies independently

to each pollutant for which the emissions unit has

the Clean Unit designation. That is, failing to

conform to the restrictions for one pollutant

affects the Clean Unit designation only for that

pollutant.

22.7.a. The Clean Unit must comply with

the emission limitation(s) and/or work practice

requirements adopted in conjunction with the

BACT that is recorded in the major NSR permit,

and subsequently reflected in the title V permit.

The owner or operator may not make a physical

change in or change in the method of operation of

the Clean Unit that causes the emissions unit to

function in a manner that is inconsistent with the

physical or operational characteristics that formed

the basis for the BACT determination (e.g.,

possibly the emissions unit's capacity or

throughput).

22.7.b. The Clean Unit must comply with

any terms and conditions in the title V permit

related to the unit's Clean Unit designation.

22.7.c. The Clean Unit must continue to

control emissions using the specific air pollution

control technology that was the basis for its Clean

Unit designation. If the emissions unit or control

technology is replaced, then the Clean Unit

designation ends.

22.8. Netting at Clean Units. -- Emissions

changes that occur at a Clean Unit must not be

included in calculating a significant net emissions

34
45CSR14

increase (that is, must not be used in a “netting

analysis”), unless such use occurs before the

effective date of the Clean Unit designation, or

after the Clean Unit designation expires; or, unless

the emissions unit reduces emissions below the

level that qualified the unit as a Clean Unit.

However, if the Clean Unit reduces emissions

below the level that qualified the unit as a Clean

Unit, then the owner or operator may generate a

credit for the difference between the level that

qualified the unit as a Clean Unit and the new

emissions limit if such reductions are surplus,

quantifiable, and permanent. For purposes of

generating offsets, the reductions must also be

federally enforceable. For purposes of determining

creditable net emissions increases and decreases,

the reductions must also be enforceable as a

practical matter.

22.9. Effect of redesignation on the Clean

Unit designation. -- The Clean Unit designation of

an emissions unit is not affected by re-designation

of the attainment status of the area in which it is

located. If a Clean Unit is located in an attainment

area and the area is redesignated to nonattainment,

its Clean Unit designation is not affected.

Similarly, redesignation from nonattainment to

attainment does not affect the Clean Unit

designation. However, if an existing Clean Unit

designation expires, it must re-qualify under the

requirements that are currently applicable in the

area.

§45-14-23. Clean Unit Provisions for

Emissions Units that Achieve an Emission

Limitation Comparable to BACT. [Reserved.]

23.1. Applicability. -- The provisions of this

section apply to emissions units which do not

qualify as Clean Units under section 22, but which

are achieving a level of emissions control

comparable to BACT, as determined by the

Secretary.

23.2. General provisions for Clean Units. --

The provisions in subdivisions 23.2.a through

23.2.d apply to a Clean Unit designated under

45CSR14.

23.2.a. Any project for which the owner

or operator begins actual construction after the

effective date of the Clean Unit designation, as

determined in accordance with subsection 23.5,

and before the expiration date, as determined in

accordance with subsection 23.6, will be

considered to have occurred while the emissions

unit was a Clean Unit.

23.2.b. If a project at a Clean Unit does

not cause the need for a change in the emission

limitations or work practice requirements in the

permit for the unit that have been determined,

pursuant to subsection 23.4, to be comparable to

BACT, and the project would not alter any

physical or operational characteristics that formed

the basis for determining that the emissions unit's

control technology achieves a level of emissions

control comparable to BACT as specified in

subdivision 23.8.d, the emissions unit remains a

Clean Unit.

23.2.c. If a project causes the need for a

change in the emission limitations or work

practice requirements in the permit for the unit

that have been determined (pursuant to subsection

23.4) to be comparable to BACT, or the project

would alter any physical or operational

characteristics that formed the basis for

determining that the emissions unit's control

technology achieves a level of emissions control

comparable to BACT as specified in subdivision

23.8.d, then the emissions unit loses its

designation as a Clean Unit upon issuance of the

necessary permit revisions (unless the unit requalifies as a Clean Unit pursuant to subdivision

23.3.d. of this section). If the owner or operator

begins actual construction on the project without

first applying to revise the emissions unit's permit,

the Clean Unit designation ends immediately prior

to the time when actual construction begins.

23.2.d. A project that causes an emissions

unit to lose its designation as a Clean Unit is

subject to the applicability requirements of

subdivisions 3.4.a through 3.4.d and subdivision

3.4.f as if the emissions unit is not a Clean Unit.

23.3. Qualifying or re-qualifying to use the

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Clean Unit applicability test. -- An emissions unit

qualifies as a Clean Unit when the unit meets the

criteria in subdivision 23.3.a through 23.3.c. After

the original Clean Unit designation expires in

accordance with subsection 23.6 or is lost pursuant

to subdivision 23.2.c, such emissions unit may requalify as a Clean Unit under either subdivision

23.3.d, or under the Clean Unit provisions in

section 22. To re-qualify as a Clean Unit under

subdivision 23.3.d, the emissions unit must obtain

a new permit issued pursuant to the requirements

in subsections 23.7 and 23.8 and meet all the

criteria in subsection 23.3.d. The Secretary will

make a separate Clean Unit designation for each

pollutant emitted by the emissions unit for which

the emissions unit qualifies as a Clean Unit.

23.3.a. Qualifying air pollution control

technologies. -- Air pollutant emissions from the

emissions unit must be reduced through the use of

air pollution control technology (which includes

pollution prevention as defined under subsection

2.56 or work practices) that meets both the

following requirements in paragraphs 23.3.a.1 and

23.3.a.2.

23.3.a.1. The owner or operator has

demonstrated that the emissions unit's control

technology is comparable to BACT according to

the requirements of subsection 23.4. However, the

emissions unit is not eligible for a Clean Unit

designation if its emissions are not reduced below

the level of a standard, uncontrolled emissions unit

of the same type (e.g., if the BACT determinations

to which it is compared have resulted in a

determination that no control measures are

required).

23.3.a.2. The owner or operator made

an investment to install the control technology.

For the purpose of this determination, an

investment includes expenses to research the

application of a pollution prevention technique to

the emissions unit or to retool the unit to apply a

pollution prevention technique.

23.3.b. Impact of emissions from the unit.

-- The Secretary must determine that the allowable

emissions from the emissions unit will not cause

or contribute to a violation of any National

Ambient Air Quality Standard or PSD increment,

or adversely impact an air quality related value

(such as visibility) that has been identified for a

Federal Class I area by a Federal Land Manager

and for which information is available to the

general public.

23.3.c. Date of installation. -- An

emissions unit may qualify as a Clean Unit even if

the control technology, on which the Clean Unit

designation is based, was installed before the

effective date of EPA approval and promulgation

of a revision to the WV SIP incorporating this

rule. However, for such emissions units, the owner

or operator must apply for the Clean Unit

designation within two (2) years after the effective

date of EPA approval and promulgation of a

revision to the WV SIP incorporating this rule. For

technologies installed on and after the effective

date of EPA approval and promulgation of a

revision to the WV SIP incorporating this rule, the

owner or operator must apply for the Clean Unit

designation at the time the control technology is

installed.

23.3.d. Re-qualifying as a Clean Unit. --

The emissions unit must obtain a new permit

(pursuant to requirements in subsection 23.7 and

23.8) that demonstrates that the emissions unit's

control technology is achieving a level of emission

control comparable to current-day BACT, and the

emissions unit must meet the requirements in

paragraph 23.3.a.1 and subdivision 23.3.b.

23.4. Demonstrating control effectiveness

comparable to BACT. -- The owner or operator

may demonstrate that the emissions unit's control

technology is comparable to BACT for purposes

of subdivision 23.3.a according to either

subdivision 23.4.a or 23.4.b. Subdivision 23.4.c

specifies the time for making this comparison.

23.4.a. Comparison to previous BACT

and LAER determinations. -- The Secretary

maintains an on-line data base of previous

determinations of RACT, BACT, and LAER in

the RACT/BACT/LAER Clearinghouse (RBLC).

The emissions unit's control technology is

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presumed to be comparable to BACT if it achieves

an emission limitation that is equal to or better

than the average of the emission limitations

achieved by all the sources for which a BACT or

LAER determination has been made within the

preceding 5 years and entered into the RBLC, and

for which it is technically feasible to apply the

BACT or LAER control technology to the

emissions unit. The Secretary shall also compare

this presumption to any additional BACT or

LAER determinations of which he or she is aware,

and shall consider any information on achieved-inpractice pollution control technologies provided

during the public comment period, to determine

whether any presumptive determination that the

control technology is comparable to BACT is

correct.

23.4.b. The substantially-as-effective test.

-- The owner or operator may demonstrate that the

emissions unit's control technology is substantially

as effective as BACT. In addition, any other

person may present evidence related to whether

the control technology is substantially as effective

as BACT during the public participation process

required under subsection 23.7. The Secretary

shall consider such evidence on a case-by-case

basis and determine whether the emissions unit's

air pollution control technology is substantially as

effective as BACT.

23.4.c. Time of comparison.

23.4.c.1. Emissions units with control

technologies that are installed before the effective

date of EPA approval and promulgation of a

revision to the WV SIP incorporating this rule. --

The owner or operator of an emissions unit whose

control technology is installed before the effective

date of EPA approval and promulgation of a

revision to the WV SIP incorporating this rule

may, at its option, either demonstrate that the

emission limitation achieved by the emissions

unit's control technology is comparable to the

BACT requirements that applied at the time the

control technology was installed, or demonstrate

that the emission limitation achieved by the

emissions unit's control technology is comparable

to current-day BACT requirements. The expiration

date of the Clean Unit designation will depend on

which option the owner or operator uses, as

specified in subsection 23.6.

23.4.c.2. Emissions units with control

technologies that are installed on and after the

effective date of EPA approval and promulgation

of a revision to the WV SIP incorporating this

rule. -- The owner or operator must demonstrate

that the emission limitation achieved by the

emissions unit's control technology is comparable

to current-day BACT requirements.

23.5. Effective date of the Clean Unit

designation. -- The effective date of an emissions

unit's Clean Unit designation (that is, the date on

which the owner or operator may begin to use the

Clean Unit Test to determine whether a project

involving the emissions unit is a major

modification) is the date that the permit required

by subsection 23.7 is issued or the date that the

emissions unit's air pollution control technology is

placed into service, whichever is later.

23.6. Clean Unit expiration. -- If the owner or

operator demonstrates that the emission limitation

achieved by the emissions unit's control

technology is comparable to the BACT

requirements that applied at the time the control

technology was installed, then the Clean Unit

designation expires 10 years from the date that the

control technology was installed. For all other

emissions units, the Clean Unit designation

expires 10 years from the effective date of the

Clean Unit designation, as determined according

to subsection 23.5. In addition, for all emissions

units, the Clean Unit designation expires any time

the owner or operator fails to comply with the

provisions for maintaining the Clean Unit

designation in subsection 23.9.

23.7. Procedures for designating emissions

units as Clean Units. -- The Secretary shall

designate an emissions unit a Clean Unit by

issuing a permit pursuant to 45CSR13. Such

permit must also meet the requirements in

subsection 23.8.

23.8. Required permit content. -- The permit

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required by subsection 23.7 shall include the terms

and conditions set forth in subdivisions 23.8.a

through 23.8.f. Such terms and conditions shall be

incorporated into the major stationary source's title

V permit in accordance with the provisions

45CSR30, but no later than when the title V

permit is renewed.

23.8.a. A statement indicating that the

emissions unit qualifies as a Clean Unit and

identifying the pollutant(s) for which this

designation applies.

23.8.b. The effective date of the Clean

Unit designation. -- If this date is not known when

the Secretary issues the permit (e.g., because the

air pollution control technology is not yet in

service), then the permit must describe the event

that will determine the effective date (e.g., the date

the control technology is placed into service).

Once the effective date is known, then the owner

or operator must notify the Secretary of the exact

date. This specific effective date must be added to

the source's title V permit at the first opportunity,

such as a modification, revision, reopening, or

renewal of the title V permit for any reason,

whichever comes first, but in no case later than the

next renewal.

23.8.c. The expiration date of the Clean

Unit designation. If this date is not known when

the Secretary issues the permit (e.g., because the

air pollution control technology is not yet in

service), then the permit must describe the event

that will determine the expiration date (e.g., the

date the control technology is placed into service).

Once the expiration date is known, then the owner

or operator must notify the Secretary of the exact

date. The expiration date must be added to the

source's title V permit at the first opportunity, such

as a modification, revision, reopening, or renewal

of the title V permit for any reason, whichever

comes first, but in no case later than the next

renewal.

23.8.d. All emission limitations and work

practice requirements adopted in conjunction with

emission limitations necessary to assure that the

control technology continues to achieve an

emission limitation comparable to BACT, and any

physical or operational characteristics that formed

the basis for determining that the emissions unit's

control technology achieves a level of emissions

control comparable to BACT (e.g., possibly the

emissions unit's capacity or throughput).

23.8.e. Monitoring, recordkeeping, and

reporting requirements as necessary to

demonstrate that the emissions unit continues to

meet the criteria for maintaining its Clean Unit

designation. (See subsection 23.9.) 

23.8.f. Terms reflecting the owner or

operator's duties to maintain the Clean Unit

designation and the consequences of failing to do

so, as presented in subsection 23.9.

23.9. Maintaining a Clean Unit designation. --

To maintain the Clean Unit designation, the owner

or operator must conform to all the restrictions

listed in subdivisions 23.9.a through 23.9.e. This

subsection applies independently to each pollutant

for which the Secretary has designated the

emissions unit a Clean Unit. That is, failing to

conform to the restrictions for one pollutant

affects the Clean Unit designation only for that

pollutant.

23.9.a. The Clean Unit must comply with

the emission limitation(s) and/or work practice

requirements adopted to ensure that the control

technology continues to achieve emission control

comparable to BACT.

23.9.b. The owner or operator may not

make a physical change in or change in the

method of operation of the Clean Unit that causes

the emissions unit to function in a manner that is

inconsistent with the physical or operational

characteristics that formed the basis for the

determination that the control technology is

achieving a level of emission control that is

comparable to BACT (e.g., possibly the emissions

unit's capacity or throughput).

23.9.c. [Reserved] 

23.9.d. The Clean Unit must comply with

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any terms and conditions in the title V permit

related to the unit's Clean Unit designation.

23.9.e. The Clean Unit must continue to

control emissions using the specific air pollution

control technology that was the basis for its Clean

Unit designation. If the emissions unit or control

technology is replaced, then the Clean Unit

designation ends.

23.10. Netting at Clean Units. -- Emissions

changes that occur at a Clean Unit must not be

included in calculating a significant net emissions

increase (that is, must not be used in a “netting

analysis”) unless such use occurs before the

effective date of EPA approval and promulgation

of a revision to the WV SIP incorporating this rule

or after the Clean Unit designation expires; or,

unless the emissions unit reduces emissions below

the level that qualified the unit as a Clean Unit.

However, if the Clean Unit reduces emissions

below the level that qualified the unit as a Clean

Unit, then the owner or operator may generate a

credit for the difference between the level that

qualified the unit as a Clean Unit and the

emissions unit's new emissions limit if such

reductions are surplus, quantifiable, and

permanent. For purposes of generating offsets, the

reductions must also be federally enforceable. For

purposes of determining creditable net emissions

increases and decreases, the reductions must also

be enforceable as a practical matter.

23.11. Effect of redesignation on a Clean

Unit designation. -- The Clean Unit designation of

an emissions unit is not affected by redesignation

of the attainment status of the area in which it is

located. That is, if a Clean Unit is located in an

attainment area and the area is redesignated to

nonattainment, its Clean Unit designation is not

affected. Similarly, redesignation from

nonattainment to attainment does not affect the

Clean Unit designation. However, if a Clean Unit's

designation expires or is lost pursuant to

subdivisions 22.2.c and 23.2.c, it must re-qualify

under the requirements that are currently

applicable.

§45-14-24. PCP Exclusion Procedural

Requirements [Reserved].

24.1. Before an owner or operator begins

actual construction of a PCP, the owner or

operator must either submit a notice to the

Secretary if the project is listed in subdivisions

2.56.a through 2.56.f, or if the project is not listed

in subdivisions 2.56.a through 2.56.f, then the

owner or operator must submit a permit

application and obtain approval to use the PCP

exclusion from the Secretary consistent with the

requirements in subsection 24.5. Regardless of

whether the owner or operator submits a notice or

a permit application, the project must meet the

requirements in subsection 24.2, and the notice or

permit application must contain the information

required in subsection 24.3.

24.2. Any project that relies on the PCP

exclusion must meet the requirements of

subdivision 24.2.a and 24.2.b.

24.2.a. Environmentally beneficial

analysis. -- The environmental benefit from the

emissions reductions of pollutants regulated under

the CAA must outweigh the environmental

detriment of emissions increases in pollutants

regulated under the CAA. A statement that a

technology from subdivisions 2.56.a through

2.56.f is being used shall be presumed to satisfy

this requirement.

24.2.b. Air quality analysis. -- The

emissions increases from the project will not cause

or contribute to a violation of any National

Ambient Air Quality Standard or PSD increment,

or adversely impact an air quality related value

(such as visibility) that has been identified for a

Federal Class I area by a Federal Land Manager

and for which information is available to the

general public.

24.3. Content of notice or permit application.

-- In the notice or permit application sent to the

Secretary, the owner or operator must include, at

a minimum, the information listed in subdivisions

24.3.a through 24.3.e.

24.3.a. A description of the project.

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24.3.b. The potential emissions increases

and decreases of any pollutant regulated under the

CAA and the projected emissions increases and

decreases using the methodology in subsection

3.4, that will result from the project, and a copy of

the environmentally beneficial analysis required

by subdivision 24.2.a.

24.3.c. A description of monitoring and

recordkeeping, and all other methods, to be used

on an ongoing basis to demonstrate that the project

is environmentally beneficial. Methods should be

sufficient to meet the requirements in 45CSR30.

24.3.d. A certification that the project

will be designed and operated in a manner that is

consistent with proper industry and engineering

practices, in a manner that is consistent with the

environmentally beneficial analysis and air quality

analysis required by subdivisions 24.2.a and

24.2.b, with information submitted in the notice or

permit application, and in such a way as to

minimize, within the physical configuration and

operational standards usually associated with the

emissions control device or strategy, emissions of

collateral pollutants.

24.3.e. Demonstration that the PCP will

not have an adverse air quality impact (e.g.,

modeling, screening level modeling results, or a

statement that the collateral emissions increase is

included within the parameters used in the most

recent modeling exercise) as required by

subdivision 24.2.b. An air quality impact analysis

is not required for any pollutant that will not

experience a significant emissions increase as a

result of the project.

24.4. Notice process for listed projects. -- For

projects listed in subdivisions 2.56.a through

2.56.f, the owner or operator may begin actual

construction of the project immediately after

notice is sent to the Secretary (unless otherwise

prohibited under requirements of the State

Implementation Plan). The owner or operator shall

respond to any requests by the Secretary for

additional information that the Secretary

determines is necessary to evaluate the suitability

of the project for the PCP exclusion.

24.5. Permit process for unlisted projects. --

Before an owner or operator may begin actual

construction of a PCP project that is not listed in

subdivisions 2.56.a through 2.56.f, the project

must be approved by the Secretary and recorded in

a permit issued pursuant to 45CSR13, 45CSR19 or

45CSR30. This includes the requirement that the

Secretary provide the public with notice of the

proposed approval, with access to the

environmentally beneficial analysis and the air

quality analysis, and provide at least a 30-day

period for the public and the Administrator to

submit comments. The Secretary must address all

material comments received by the end of the

comment period before taking final action on the

permit.

24.6. Operational requirements. -- Upon

installation of the PCP, the owner or operator must

comply with the requirements of subdivisions

24.6.a through 24.6.d.

24.6.a. General duty. -- The owner or

operator must operate the PCP in a manner

consistent with proper industry and engineering

practices, in a manner that is consistent with the

environmentally beneficial analysis and air quality

analysis required by subdivisions 24.2.a and

24.2.b, with information submitted in the notice or

permit application required by subsection 24.3,

and in such a way as to minimize, within the

physical configuration and operational standards

usually associated with the emissions control

device or strategy, emissions of collateral

pollutants.

24.6.b. Recordkeeping. -- The owner or

operator must maintain copies on site of the

environmentally beneficial analysis, the air quality

impacts analysis, and monitoring and other

emission records to prove that the PCP operated

consistent with the general duty requirements in

subdivision 24.6.a.

24.6.c. Permit requirements. -- The

owner or operator must comply with any

provisions in the State Implementation Planapproved permit or title V permit related to use

and approval of the PCP exclusion.

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24.6.d. Generation of emission reduction

credits. -- Emission reductions created by a PCP

shall not be included in calculating a significant

net emissions increase unless the emissions unit

further reduces emissions after qualifying for the

PCP exclusion (e.g., taking an operational

restriction on the hours of operation). The owner

or operator may generate a credit for the

difference between the level of reduction which

was used to qualify for the PCP exclusion and the

new emissions limit if such reductions are surplus,

quantifiable, and permanent. For purposes of

generating offsets, the reductions must also be

federally enforceable. For purposes of determining

creditable net emissions increases and decreases,

the reductions must also be enforceable as a

practical matter.

§45-14-25. Actuals PALs.

25.1. Applicability.

25.1.a. The Secretary may approve the

use of an actuals PAL for any existing major

stationary source if the PAL meets the

requirements in subsections 25.1 through 25.15.

The term “PAL” shall mean “actuals PAL”

throughout section 25.

25.1.b. Any physical change in or change

in the method of operation of a major stationary

source that maintains its total source-wide

emissions below the PAL level, meets the

requirements in subsections 25.1 through 25.15,

and complies with the PAL permit:

25.1.b.1. Is not a major modification for

the PAL pollutant;

25.1.b.2. Does not have to be approved

through the PSD program; and

25.1.b.3. Is not subject to the provisions

in subsection 19.4 (restrictions on relaxing

enforceable emission limitations that the major

stationary source used to avoid applicability of the

major NSR program).

25.1.c. Except as provided under

paragraph 25.1.b.3, a major stationary source shall

continue to comply with all applicable Federal or

State requirements, emission limitations, and work

practice requirements that were established prior

to the effective date of the PAL.

25.2. Definitions. -- For the purposes of this

section 25, the definition in subdivision 25.2.a

applies. When a term is not defined in these

paragraphs, it shall have the meaning given in

section 2 or in the CAA.

25.2.a. Allowable emissions means

“allowable emissions” as defined in subsection

2.6, except as modified according to paragraph

paragraphs 25.2.a.1 and 25.2.a.2.

25.2.a.1. The allowable emissions for

any emissions unit shall be calculated considering

any emission limitations that are enforceable as a

practical matter on the emissions unit's potential to

emit.

25.2.a.2. An emissions unit's potential

to emit shall be determined using the definition in

subsection 2.58, except that the words “or

enforceable as a practical matter” should be added

after “federally enforceable.”

25.3. Permit application requirements. -- As

part of a permit application requesting a PAL, the

owner or operator of a major stationary source

shall submit the following information to the

Secretary for approval: 

25.3.a. A list of all emissions units at the

source designated as small, significant or major

based on their potential to emit. In addition, the

owner or operator of the source shall indicate

which, if any, Federal or State applicable

requirements, emission limitations, or work

practices apply to each unit.

25.3.b. Calculations of the baseline actual

emissions (with supporting documentation).

Baseline actual emissions are to include emissions

associated not only with operation of the unit, but

also emissions associated with startup, shutdown,

and malfunction.

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25.3.c. The calculation procedures that

the major stationary source owner or operator

proposes to use to convert the monitoring system

data to monthly emissions and annual emissions

based on a 12-month rolling total for each month

as required by subdivision 25.13.a.

25.4. General requirements for establishing

PALs.

25.4.a. The Secretary is allowed to

establish a PAL at a major stationary source,

provided that at a minimum, the requirements in

paragraph paragraphs 25.4.a.1 through 25.4.a.7 are

met.

25.4.a.1. The PAL shall impose an

annual emission limitation in tons per year, that is

enforceable as a practical matter, for the entire

major stationary source. For each month during

the PAL effective period after the first 12 months

of establishing a PAL, the major stationary source

owner or operator shall show that the sum of the

monthly emissions from each emissions unit under

the PAL for the previous 12 consecutive months is

less than the PAL (a 12-month average, rolled

monthly). For each month during the first 11

months from the PAL effective date, the major

stationary source owner or operator shall show

that the sum of the preceding monthly emissions

from the PAL effective date for each emissions

unit under the PAL is less than the PAL.

25.4.a.2. The PAL shall be established

in a PAL permit that meets the public participation

requirements in section 17.

25.4.a.3. The PAL permit shall contain

all the requirements of subsection 25.7.

25.4.a.4. The PAL shall include fugitive

emissions, to the extent quantifiable, from all

emissions units that emit or have the potential to

emit the PAL pollutant at the major stationary

source.

25.4.a.5. Each PAL shall regulate

emissions of only one pollutant.

25.4.a.6. Each PAL shall have a PAL

effective period of 10 years.

25.4.a.7. The owner or operator of the

major stationary source with a PAL shall comply

with the monitoring, recordkeeping, and reporting

requirements provided in subsections 25.12

through 25.14 for each emissions unit under the

PAL through the PAL effective period.

25.4.b. At no time during or after the

PAL effective period are emissions reductions of

a PAL pollutant that occur during the PAL

effective period creditable as decreases for

purposes of offsets pursuant to 45CSR19 unless

the level of the PAL is reduced by the amount of

such emissions reductions and such reductions

would be creditable in the absence of the PAL.

25.5. Public participation requirements for

PALs. -- PALs for existing major stationary

sources shall be established, renewed, or increased

through a procedure that is consistent with

45CSR13. This includes the requirement that the

Secretary provide the public with notice of the

proposed approval of a PAL permit and at least a

30-day period for submittal of public comment.

The Secretary must address all material comments

before taking final action on the permit.

25.6. Setting the 10-year actuals PAL level. --

25.6.a. The Except as provided in

subdivision 25.6.b, actuals PAL level for a major

stationary source shall be established as the sum of

the baseline actual emissions (as defined in

subsection 2.8) of the PAL pollutant for each

emissions unit at the source; plus an amount equal

to the applicable significant level for the PAL

pollutant under subsection 2.74 or under the CAA,

whichever is lower. When establishing the actuals

PAL level, for a PAL pollutant, only one

consecutive 24-month period must be used to

determine the baseline actual emissions for all

existing emissions units. However, a different

consecutive 24-month period may be used for

each different PAL pollutant. Emissions

associated with units that were permanently

shutdown after this 24-month period must be

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subtracted from the PAL level. Emissions from

units on which actual construction began after the

24-month period must be added to the PAL level

in an amount equal to the potential to emit of the

units. The Secretary shall specify a reduced PAL

level(s) (in tons/yr) in the PAL permit to become

effective on the future compliance date(s) of any

applicable Federal or State regulatory

requirement(s) that the Secretary is aware of prior

to issuance of the PAL permit. For instance, if the

source owner or operator will be required to

reduce emissions from industrial boilers in half

from baseline emissions of 60 ppm NOX to a new

rule limit of 30 ppm, then the permit shall contain

a future effective PAL level that is equal to the

current PAL level reduced by half of the original

baseline emissions of such unit(s).

25.6.b. For newly constructed units

(which do not include modifications to existing

units) on which actual construction began after the

24-month period, in lieu of adding the baseline

actual emissions as specified in subdivision 25.6.a,

the emissions must be added to the PAL level in

an amount equal to the potential to emit of the

units.

25.7. Contents of the PAL permit. -- The PAL

permit must contain, at a minimum, the

information in subdivisions 25.7.a through 25.7.j.

25.7.a. The PAL pollutant and the

applicable source-wide emission limitation in tons

per year.

25.7.b. The PAL permit effective date

and the expiration date of the PAL (PAL effective

period).

25.7.c. Specification in the PAL permit

that if a major stationary source owner or operator

applies to renew a PAL in accordance with

subsection 25.10 before the end of the PAL

effective period, then the PAL shall not expire at

the end of the PAL effective period. It shall

remain in effect until a revised PAL permit is

issued by the Secretary.

25.7.d. A requirement that emission

calculations for compliance purposes must include

emissions from startups, shutdowns, and

malfunctions.

25.7.e. A requirement that, once the PAL

expires, the major stationary source is subject to

the requirements of subsection 25.9.

25.7.f. The calculation procedures that

the major stationary source owner or operator

shall use to convert the monitoring system data to

monthly emissions and annual emissions based on

a 12-month rolling total as required by subdivision

25.13.a.

25.7.g. A requirement that the major

stationary source owner or operator monitor all

emissions units in accordance with the provisions

under subsection 25.12.

25.7.h. A requirement to retain the

records required under subsection 25.13 on site.

Such records may be retained in an electronic

format.

25.7.i. A requirement to submit the

reports required under subsection 25.14 by the

required deadlines.

25.7.j. Any other requirements that the

Secretary deems necessary to implement and

enforce the PAL.

25.8. PAL effective period and reopening of

the PAL permit. -- The requirements in

subdivisions 25.8.a and 25.8.b apply to actuals

PALs.

25.8.a. PAL effective period. -- The

Secretary shall specify a PAL effective period of

10 years.

25.8.b. Reopening of the PAL permit.

25.8.b.1. During the PAL effective

period, the Secretary must reopen the PAL permit

to:

25.8.b.1.A. Correct typographical or

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calculation errors made in setting the PAL or

reflect a more accurate determination of emissions

used to establish the PAL;

25.8.b.1.B. Reduce the PAL if the

owner or operator of the major stationary source

creates creditable emissions reductions for use as

offsets pursuant to 45CSR19; and 

25.8.b.1.C. Revise the PAL to

reflect an increase in the PAL as provided under

subsection 25.11.

25.8.b.2. The Secretary shall have

discretion to reopen the PAL permit for the

following: 

25.8.b.2.A. Reduce the PAL to

reflect newly applicable Federal requirements (for

example, NSPS) with compliance dates after the

PAL effective date;

25.8.b.2.B. Reduce the PAL

consistent with any other requirement, that is

enforceable as a practical matter, and that the State

may impose on the major stationary source under

the State Implementation Plan; and 

25.8.b.2.C. Reduce the PAL if the

Secretary determines that a reduction is necessary

to avoid causing or contributing to a National

Ambient Air Quality Standard (NAAQS) or PSD

increment violation, or to an adverse impact on an

air quality related value that has been identified

for a Federal Class I area by a Federal Land

Manager and for which information is available to

the general public.

25.8.b.3. Except for the permit

reopening in subparagraph 25.8.b.1.A for the

correction of typographical/calculation errors that

do not increase the PAL level, all other reopenings

shall be carried out in accordance with the public

participation requirements of subsection 25.5.

25.9. Expiration of a PAL. -- Any PAL that is

not renewed in accordance with the procedures in

subsection 25.10 shall expire at the end of the

PAL effective period, and the requirements in

subdivisions 25.9.a through 25.9.e shall apply.

25.9.a. Each emissions unit (or each

group of emissions units) that existed under the

PAL shall comply with an allowable emission

limitation under a revised permit established

according to the procedures in paragraph

paragraphs 25.9.a.1 and 25.9.a.2.

25.9.a.1. Within the time frame

specified for PAL renewals in subdivision 25.10.b,

the major stationary source shall submit a

proposed allowable emission limitation for each

emissions unit (or each group of emissions units,

if such a distribution is more appropriate as

decided by the Secretary) by distributing the PAL

allowable emissions for the major stationary

source among each of the emissions units that

existed under the PAL. If the PAL had not yet

been adjusted for an applicable requirement that

became effective during the PAL effective period,

as required under subdivision 25.10.e, such

distribution shall be made as if the PAL had been

adjusted.

25.9.a.2. The Secretary shall decide

whether and how the PAL allowable emissions

will be distributed and issue a revised permit

incorporating allowable limits for each emissions

unit, or each group of emissions units, as the

Secretary determines is appropriate.

25.9.b. Each emissions unit(s) shall

comply with the allowable emission limitation on

a 12-month rolling basis. The Secretary may

approve the use of monitoring systems (source

testing, emission factors, etc.) other than CEMS,

CERMS, PEMS, or CPMS to demonstrate

compliance with the allowable emission

limitation.

25.9.c. Until the Secretary issues the

revised permit incorporating allowable limits for

each emissions unit, or each group of emissions

units, as required under paragraph 25.9.a.2, the

source shall continue to comply with a sourcewide, multi-unit emissions cap equivalent to the

level of the PAL emission limitation.

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25.9.d. Any physical change or change in

the method of operation at the major stationary

source will be subject to major NSR requirements

if such change meets the definition of major

modification in subsection 2.40.

25.9.e. The major stationary source

owner or operator shall continue to comply with

any State or Federal applicable requirements

(BACT, RACT, NSPS, etc.) that may have applied

either during the PAL effective period or prior to

the PAL effective period except for those emission

limitations that had been established pursuant to

subsection 19.4, but were eliminated by the PAL

in accordance with the provisions in paragraph

25.1.b.3.

25.10. Renewal of a PAL. -- The Secretary

shall follow the procedures specified in subsection

25.5 in approving any request to renew a PAL for

a major stationary source, and shall provide both

the proposed PAL level and a written rationale for

the proposed PAL level to the public for review

and comment. During such public review, any

person may propose a PAL level for the source for

consideration by the Secretary.

25.10.a. Application deadline. -- A major

stationary source owner or operator shall submit a

timely application to the Secretary to request

renewal of a PAL. A timely application is one that

is submitted at least 6 months prior to, but not

earlier than 18 months from, the date of permit

expiration. This deadline for application submittal

is to ensure that the permit will not expire before

the permit is renewed. If the owner or operator of

a major stationary source submits a complete

application to renew the PAL within this time

period, then the PAL shall continue to be effective

until the revised permit with the renewed PAL is

issued.

25.10.b. Application requirements. -- The

application to renew a PAL permit shall contain

the information required in paragraphs 25.10.c.1

through 25.10.c.4.

25.10.b.1. The information required in

subdivisions 25.3.a through 25.3.c.

25.10.b.2. A proposed PAL level.

25.10.b.3. The sum of the potential to

emit of all emissions units under the PAL (with

supporting documentation).

25.10.b.4. Any other information the

owner or operator wishes the Secretary to consider

in determining the appropriate level for renewing

the PAL.

25.10.c. PAL adjustment. -- In

determining whether and how to adjust the PAL,

the Secretary shall consider the options outlined in

paragraphs 25.10.d.1 and 25.10.d.2. However, in

no case may any such adjustment fail to comply

with paragraph 25.10.d.3.

25.10.c.1. If the emissions level

calculated in accordance with subsection 25.6 is

equal to or greater than 80 percent of the PAL

level, the Secretary may renew the PAL at the

same level without considering the factors set

forth in paragraph 25.10.d.2; or

25.10.c.2. The Secretary may set the

PAL at a level that he or she determines to be

more representative of the source's baseline actual

emissions, or that he or she determines to be more

appropriate considering air quality needs,

advances in control technology, anticipated

economic growth in the area, desire to reward or

encourage the source's voluntary emissions

reductions, or other factors as specifically

identified by the Secretary in his or her written

rationale.

25.10.c.3. N o t w i t h s t a n d i n g

paragraphs 25.10.d.1 and 25.10.d.2:

25.10.c.3.A. If the potential to emit

of the major stationary source is less than the

PAL, the Secretary shall adjust the PAL to a level

no greater than the potential to emit of the source;

and

25.10.c.3.B. The Secretary shall not

approve a renewed PAL level higher than the

current PAL, unless the major stationary source

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has complied with the provisions of subsection

25.11 (increasing a PAL).

25.10.d. If the compliance date for a State

or Federal requirement that applies to the PAL

source occurs during the PAL effective period,

and if the Secretary has not already adjusted for

such requirement, the PAL shall be adjusted at the

time of PAL permit renewal or title V permit

renewal, whichever occurs first.

25.11. Increasing a PAL during the PAL

effective period.

25.11.a. The Secretary may increase a

PAL emission limitation only if the major

stationary source complies with the provisions in

paragraphs 25.11.a.1 and 25.11.a.2.

25.11.a.1. The owner or operator of

the major stationary source shall submit a

complete application to request an increase in the

PAL limit for a PAL major modification. Such

application shall identify the emissions unit(s)

contributing to the increase in emissions so as to

cause the major stationary source's emissions to

equal or exceed its PAL.

25.11.a.2. As part of this application,

the major stationary source owner or operator

shall demonstrate that the sum of the baseline

actual emissions of the small emissions units, plus

the sum of the baseline actual emissions of the

significant and major emissions units assuming

application of BACT equivalent controls, plus the

sum of the allowable emissions of the new or

modified emissions unit(s) exceeds the PAL. The

level of control that would result from BACT

equivalent controls on each significant or major

emissions unit shall be determined by conducting

a new BACT analysis at the time the application is

submitted, unless the emissions unit is currently

required to comply with a BACT or LAER

requirement that was established within the

preceding 10 years. In such a case, the assumed

control level for that emissions unit shall be equal

to the level of BACT or LAER with which that

emissions unit must currently comply.

25.11.a.3. The owner or operator

obtains a major NSR permit for all emissions

unit(s) identified in paragraph 25.11.a.1,

regardless of the magnitude of the emissions

increase resulting from them (that is, no

significant levels apply). These emissions unit(s)

shall comply with any emissions requirements

resulting from the major NSR process (for

example, BACT), even though they have also

become subject to the PAL or continue to be

subject to the PAL.

25.11.a.4. The PAL permit shall

require that the increased PAL level shall be

effective on the day any emissions unit that is part

of the PAL major modification becomes

operational and begins to emit the PAL pollutant.

25.11.b. The Secretary shall calculate the

new PAL as the sum of the allowable emissions

for each modified or new emissions unit, plus the

sum of the baseline actual emissions of the

significant and major emissions units (assuming

application of BACT equivalent controls as

determined in accordance with paragraph

25.11.a.2), plus the sum of the baseline actual

emissions of the small emissions units.

25.11.c. The PAL permit shall be revised

to reflect the increased PAL level pursuant to the

public notice requirements of subsection 25.5.

25.12. Monitoring requirements for PALs.

25.12.a. General requirements.

25.12.a.1. Each PAL permit must

contain enforceable requirements for the

monitoring system that accurately determines

plantwide emissions of the PAL pollutant in terms

of mass per unit of time. Any monitoring system

authorized for use in the PAL permit must be

based on sound science and meet generally

acceptable scientific procedures for data quality

and manipulation. Additionally, the information

generated by such system must meet minimum

legal requirements for admissibility in a judicial

proceeding to enforce the PAL permit.

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25.12.a.2. The PAL monitoring

system must employ one or more of the four

general monitoring approaches meeting the

minimum requirements set forth in paragraphs

25.12.b.1 through 25.12.b.4 and must be approved

by the Secretary.

25.12.a.3. Notwithstanding paragraph

25.12.a.2, you may also employ an alternative

monitoring approach that meets paragraph

25.12.a.1 if approved by the Secretary.

25.12.a.4. Failure to use a monitoring

system that meets the requirements of this rule

renders the PAL invalid.

25.12.b. M i n i m u m p e r f o r m a n c e

requirements for approved monitoring approaches.

The following are acceptable general monitoring

approaches when conducted in accordance with

the minimum requirements in subdivisions 25.12.c

through 25.12.i:

25.12.b.1. Mass balance calculations

for activities using coatings or solvents; 

25.12.b.2. CEMS; 

25.12.b.3. CPMS or PEMS; and 

25.12.b.4. Emission factors.

25.12.c. Mass balance calculations. -- An

owner or operator using mass balance calculations

to monitor PAL pollutant emissions from activities

using coating or solvents shall meet the following

requirements:

25.12.c.1. Provide a demonstrated

means of validating the published content of the

PAL pollutant that is contained in or created by all

materials used in or at the emissions unit; 

25.12.c.2. Assume that the emissions

unit emits all of the PAL pollutant that is

contained in or created by any raw material or fuel

used in or at the emissions unit, if it cannot

otherwise be accounted for in the process; and 

25.12.c.3. Where the vendor of a

material or fuel, which is used in or at the

emissions unit, publishes a range of pollutant

content from such material, the owner or operator

must use the highest value of the range to

calculate the PAL pollutant emissions unless the

Secretary determines there is site-specific data or

a site-specific monitoring program to support

another content within the range.

25.12.d. CEMS. An owner or operator

using CEMS to monitor PAL pollutant emissions

shall meet the following requirements: 

25.12.d.1. CEMS must comply with

applicable Performance Specifications found in 40

CFR part Part 60, appendix B; and 

25.12.d.2. CEMS must sample,

analyze and record data at least every 15 minutes

while the emissions unit is operating.

25.12.e. CPMS or PEMS. An owner or

operator using CPMS or PEMS to monitor PAL

pollutant emissions shall meet the following

requirements:

25.12.e.1. The CPMS or the PEMS

must be based on current site-specific data

demonstrating a correlation between the monitored

parameter(s) and the PAL pollutant emissions

across the range of operation of the emissions unit;

and 

25.12.e.2. Each CPMS or PEMS must

sample, analyze, and record data at least every 15

minutes, or at another less frequent interval

approved by the Secretary, while the emissions

unit is operating.

25.12.f. Emission factors. -- An owner or

operator using emission factors to monitor PAL

pollutant emissions shall meet the following

requirements: 

25.12.f.1. All emission factors shall

be adjusted, if appropriate, to account for the

degree of uncertainty or limitations in the factors'

development; 

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25.12.f.2. The emissions unit shall

operate within the designated range of use for the

emission factor, if applicable; and 

25.12.f.3. If technically practicable,

the owner or operator of a significant emissions

unit that relies on an emission factor to calculate

PAL pollutant emissions shall conduct validation

testing to determine a site-specific emission factor

within 6 months of PAL permit issuance, unless

the Secretary determines that testing is not

required.

25.12.g. A source owner or operator must

record and report maximum potential emissions

without considering enforceable emission

limitations or operational restrictions for an

emissions unit during any period of time that there

is no monitoring data, unless another method for

determining emissions during such periods is

specified in the PAL permit.

25.12.h. Notwithstanding the requirements

in subdivisions 25.12.c through 25.12.g, where an

owner or operator of an emissions unit cannot

demonstrate a correlation between the monitored

parameter(s) and the PAL pollutant emissions rate

at all operating points of the emissions unit, the

Secretary shall, at the time of permit issuance: 

25.12.h.1. Establish default value(s)

for determining compliance with the PAL based

on the highest potential emissions reasonably

estimated at such operating point(s); or 

25.12.h.2. Determine that operation of

the emissions unit during operating conditions

when there is no correlation between monitored

parameter(s) and the PAL pollutant emissions is a

violation of the PAL.

25.12.i. Re-validation. -- All data used to

establish the PAL pollutant must be re-validated

through performance testing or other scientifically

valid means approved by the Secretary. Such

testing must occur at least once every 5 years after

issuance of the PAL.

25.13. Recordkeeping requirements.

25.13.a. The PAL permit shall require an

owner or operator to retain a copy of all records

necessary to determine compliance with any

requirement of section 28 and of the PAL,

including a determination of each emissions unit's

12-month rolling total emissions, for 5 years from

the date of such record.

25.13.b. The PAL permit shall require an

owner or operator to retain a copy of the following

records for the duration of the PAL effective

period plus 5 years:

25.13.b.1. A copy of the PAL permit

application and any applications for revisions to

the PAL; and

25.13.b.2. Each annual certification of

compliance pursuant to title V and the data relied

on in certifying the compliance.

25.14. Reporting and notification

requirements. -- The owner or operator shall

submit semi-annual monitoring reports and prompt

deviation reports to the Secretary in accordance

with the applicable title V operating permit

program. The reports shall meet the requirements

in subdivisions 25.14.a through 25.14.c.

25.14.a. Semi-annual report. -- The semiannual report shall be submitted to the Secretary

within 30 days of the end of each reporting period.

This report shall contain the information required

in paragraphs 25.14.a.1 through 25.14.a.7.

25.14.a.1. The identification of owner

and operator and the permit number.

25.14.a.2. Total annual emissions

(tons/year) based on a 12-month rolling total for

each month in the reporting period recorded

pursuant to subdivision 25.13.a.

25.14.a.3. All data relied upon,

including, but not limited to, any Quality

Assurance or Quality Control data, in calculating

the monthly and annual PAL pollutant emissions.

25.14.a.4. A list of any emissions

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units modified or added to the major stationary

source during the preceding 6-month period.

25.14.a.5. The number, duration, and

cause of any deviations or monitoring

malfunctions (other than the time associated with

zero and span calibration checks), and any

corrective action taken.

25.14.a.6. A notification of a

shutdown of any monitoring system, whether the

shutdown was permanent or temporary, the reason

for the shutdown, the anticipated date that the

monitoring system will be fully operational or

replaced with another monitoring system, and

whether the emissions unit monitored by the

monitoring system continued to operate, and the

calculation of the emissions of the pollutant or the

number determined by method included in the

permit, as provided by subdivision 25.12.g.

25.14.a.7. A signed statement by the

responsible official (as defined by the 45CSR30-

2.38) certifying the truth, accuracy, and

completeness of the information provided in the

report.

25.14.b. Deviation report. -- The major

stationary source owner or operator shall promptly

submit reports of any deviations or exceedance of

the PAL requirements, including periods where no

monitoring is available. A report submitted

pursuant to 45CSR30-5.1.c.3 shall satisfy this

reporting requirement. The deviation reports shall

be submitted within the time limits prescribed by

the applicable program implementing 45CSR30-

5.1.c.3. The reports shall contain the following

information: 

25.14.b.1. The identification of owner

and operator and the permit number; 

25.14.b.2. The PAL requirement that

experienced the deviation or that was exceeded; 

25.14.b.3. Emissions resulting from

the deviation or the exceedance; and 

25.14.b.4. A signed statement by the

responsible official (as defined by the applicable

title V operating permit program) certifying the

truth, accuracy, and completeness of the

information provided in the report.

25.14.c. Re-validation results. -- The

owner or operator shall submit to the Secretary the

results of any re-validation test or method within

3 months after completion of such test or method.

25.15. Transition requirements.

25.15.a. The Secretary may not issue a

PAL that does not comply with the requirements

in subsections 25.1 through 25.15 after the

effective date of EPA approval and promulgation

of a revision to the WV SIP incorporating this

rule.

25.15.b. The Secretary may supersede any

PAL that was established prior to the effective

date of EPA approval and promulgation of a

revision to the WV SIP incorporating this rule

with a PAL that complies with the requirements of

subsections 25.1 through 25.15.

§45-14-26. Inconsistency Between Rules.

26.1. In the event of any inconsistency

between this rule and any other rule of the West

Virginia Department of Environmental Protection,

such inconsistency shall be resolved by the

determination of the Secretary and such

determination shall be based upon the application

of the more stringent provision, term, condition,

method or rule.

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