# - dep

west virginia department of environmental protection

Executive Office

60 I 57 th S tre et SE

Cha rl esto n

, WV 25304



# Mr. Shawn M

. Garvin

Regional Administrator

U.S

. EPA, Region III (3RAOO)

1650 Arch Street

Philadelphia, PA 19103

- 2029 June 25, 2013 Ea rl Ray Tomblin

, Governor

Randy C

. Huffman

, Ca binet Secre tary

www.de p.wv .go v



# Re: Revision to the West Virginia State Implementation Plan Pursuant to Clean Air Act

§110(a)(2)(A)-(M) Requirements for the 2010 1-hour S0

2 

# NAAQS- Request For

Approval

Dear Administrator Garvin:

On behalf of the State of West Virginia, I am herein submitting a revision to the State

Implementation Plan (SIP) to satisfy state obligations under the Clean Air Act Section

110(a)(2)(A)-(M) requirements for the 2010 1-hour sulfur dioxide National Ambient Air Quality

Standards (NAAQS). In this revision to the SIP, West Virginia is demonstrating that it has adequate

resources and authority to implement the 2010 1

- hour sulfur diox i de NAAQS.

The SIP revision includes appropriate documentation which demonstrates that state and federal

administrative procedural requirements have been fulfilled, including public participation. The

public comment period ended on May 20, 2013

. Included with th i s submittal is an electronic copy

on compact disk in searchable PDF format. We certify that the enc l osed electronic copy contains

an exact duplicate of information contained in the hardcopy submission.

If you have any questions regarding this submittal or require additional information

, please

contact John A. Benedict, Director of the Division of Air Quality a t (304) 926 -04 62.

RCH/jlm

Enclosure

cc: Diana Esher (3APOO)

John A. 

# Benedict, Director, WVD EP Sincerely,

Randy C. Huffm an

Cabinet Secretary

P romo t in g a h ea lthy e n v i r onm e nt.west virginiadepartment of environmentalprotectionFinal West VirginiaState Implementation Plan Revision forClean Air Act §110(a)(2)(A)-(M)Requirements for Sulfur DioxideJune 25, 2013West Virginia Division of Air Quality601 57thStreet, SECharleston, W.Va. 25304Promoting a healthy environmentThis page intentionally left blank.1Final West Virginia State Implementation Plan Revision forClean Air Act§110(a)(2)(A)-(M) Requirements for Sulfur DioxideA State Implementation Plan (SIP) is a plan for each state thatidentifies how that state will attain and/or maintain the primary and secondaryNational Ambient Air Quality Standards (NAAQS). The SIP is a series of complex, fluid documentscontaining regulations, source-specificrequirements, non-regulatory items such as plans and inventories,and in some cases additional requirements promulgated by theU.S.Environmental Protection Agency (EPA). The initial SIPs for states were approvedby EPA on May 31, 1972. SIPs can be revised bythe statewith EPA approval as necessary. The federally enforceable SIP forWest Virginia is compiled in 40CFR Part 52, Subpart XX. In this revisionto the SIP, West Virginia is demonstrating that it has adequate resources and authority to implement the 2010 1-hour sulfur dioxide (SO2)NAAQS. The 2010 1-hour SO2NAAQS are incorporated by reference inWest Virginia legislative Rule 45CSR8.This SIP revision addresses requirements of §(a)(2)(A)-(M) of the Clean Air Act (CAA), many of which have been addressed in other SIPrevisions. It is a compilation of elements that demonstrate how the primary or secondary 2010 1-hour SO2NAAQS is being implemented,maintained and enforced in West Virginia. The elements of this SIP revision, once approved by EPA, will provide a federally enforceablecompilation of how West Virginia will continue to comply with the§110(a)(2) requirements of the CAA.In 1961, the State Legislature passed the AirPollution Control Law of WestVirginia, making West Virginia the sixteenth stateto have astatewide air pollution control law. The lawprovided for a separate state agency composed of a seven member Commission, a Director andstaff. The powers, authorities and funding of the original Commission were subsequently conveyed to the Office of Air Quality and then tothe Division of Air Quality (WVDAQ) withinthe West Virginia Department of Environmental Protection (WVDEP). Staffing, fundingandlegal authorities now incorporate over 90 full time staff, with a multi-million dollar annual budget and approximately 40 legislative rules.DAQ has a variety of substantial funding sources, including construction/modification permit fees, Title V operating permit fees, non-Title Voperating fees, general State revenue and federal grant monies.The agency has demonstrated the ability toimplement state and federal requirements for over fifty years as most recently evidenced by afederally approved revision to the West Virginia hospital/medical/infectious waste incinerator §111(d)/129 plan, limited approval of WestVirginia’s Regional Haze SIP revision, andapproval of revisions to West Virginia’sPrevention of Significant Deterioration ofAir QualitySIP. Additionally, the entire state of West Virginia has been designated attainment/unclassifiable for the 2008 ozone standard. Legislativeauthority for the West Virginia air quality program relating to the responsibilities in the Clean Air Act is codified in the West Virginia AirPollution Control Act, W.Va. Code §22-5, more specifically §22-5-1, which gives West Virginia the primary responsibility for assuring airquality pursuant to the CAA. Many elementsof §110(a)(2)(A)-(M) already exist in the approved SIP or recently submitted SIP revisions forother NAAQS. This SIP revision may reiterate and/or reinforce some of these previouslysubmitted and/or approved elements. Somerequirements, such as those for intergovernmental consultation, air qualitymodeling and compliance with Part D of the CAA, arefulfilledduring the development and submission to EPA, as a SIP revision, of attainment plans and related requirements due under Subpart1andSubpart 5 of the CAA. Based on 2010-2012 monitoring data, West Virginia has recommended that only two partial counties (Brooke&Marshall) be designated as 2010 1-hour SO2non-attainment areas. The remainder ofWest Virginia is identified asattainment/unclassifiable for the 2010 1-hour SO2NAAQS.2Section110(a) elementThe implementation plan shall:West VirginiaImplementation§110(a)(2)(A)include enforceable emissionlimitations and other controlmeasures, means, or techniques(including economic incentivessuch as fees, marketable permits,and auctions of emissions rights),as well as schedules andtimetables for compliance as maybe necessary or appropriate tomeet the applicable requirementsof this Act.Enforceable Emission Limitations and Other Control Measures:Pursuant to theW.Va. Code, §22-5-1 declares the state’s public policy “to fulfill its primaryresponsibility for assuring air quality pursuant to the ‘Federal Clean Air Act’, asamended.” The West Virginia Departmentof Environmental Protection CabinetSecretary (Secretary) has the authority under §§22-5-4(a)(1) & (3) “to develop waysand means for the regulation and control of pollution of the air of the state”. TheSecretary has the authority under §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) topromulgate rules in accordance with the Administrative Procedures Act set forth inW.Va. Code §§29A3-1 et seq. Approximately forty air quality rules implemented underthe auspices of the APCA are currently in effect and codified at Title 45 of the WestVirginia Code of State Rules (CSR), including the ambient air quality standards forcriteria pollutants (including the 2010 1-hour SO2NAAQS) contained in legislative rule45CSR8.Existing, enforceable SIP provisions whichWVDAQ has adopted that limit emissionsof SO2and other control measures for SO2may be found in the CSR as necessary orappropriate to meet the applicable requirements of the CAA:45CSR10 - The purpose of this SIP approved rule (68FR33002) is to control airpollution from the emission of sulfur oxides. 45CSR10 contains emission standards forsources of SO2emissions in West Virginia.45CSR10A - This rule provides guidance and clarification for complying with thetesting, monitoring, recordkeepingand reporting requirements of 45CSR10.45CSR11 - The purpose of this SIP approved rule (58FR34526) is to provide amechanism to prevent the buildup of air pollutant concentrations during periods ofadverse meteorological conditions in which air pollutants may accumulate, therebypreventing the occurrence of an emergencydue to the effects of these pollutants onhealth. To achieve this purpose, three (3) stages of criteria (pollutant concentrationlevels) have been established and specific emission reduction plans will be developedwhich will be initiated at each criteria stageto prevent further deterioration of the airsupply to any air quality region or substantial portion thereof. 45CSR11 containsepisode criteria, methods of measurement, preplanned reduction strategies andemission reduction plan requirements for sources of SO2emissions in West Virginia.45CSR13 - The purpose of this SIP approvedrule (72FR5932) is to set forth theprocedures for stationary source reporting,and the criteria for obtaining a permit to3§110(a)(2)(A)(continued)construct and operate a new stationary sourcewhich is not a major stationary source,to modify a non-major stationary source, to make modifications which are not majormodifications to an existing major stationary source, to relocate non-major stationarysources within the state of West Virginia. Such a permit may contain a federallyenforceable SO2emission limit. SO2is a “regulated pollutant’” as defined under45CSR§13-2.20.b. An emissions increase of six (6) pounds per hour and ten (10) tonsper year or more, or more than 144 pounds per calendar day of SO2triggers amodification under 45CSR13.45CSR14 - The purpose of this SIP approved rule (77FR63736) is to satisfy theprevention of significant deterioration permitprogram requirements in Part C of theCAA. 45CSR14 contains a significance level for SO2of 40 tpy and significant impactlevels of 1.0, 5.0 and 25.0μg/m3for annual, 24 and 3-hour averaging times,respectively. 45CSR14 also contains a de minimis air quality impact concentration of13μg/m3over a 24 hour averaging time and a maximum allowable pollutantconcentration increase over baseline concentration of 20, 91 and 512μg/m3for annualarithmetic mean, 24-hour maximumand 3-hour maximum averaging times,respectively, in Class II areas. A PSD source in an attainment area may have a SO2emission limitation in a permit under 45CSR14 based upon a BACT analysis inaccordance with CAA §§165(a)(3) and (4).45CSR16 - The purpose of this rule is to incorporate the federal New SourcePerformance Standards under Part A of theCAA and 40 CFR Part 60. West Virginiareceived NSPS program delegation for Part 60 NSPS authority under 45CSR16 onDecember 14, 1984 at FR48692. West Virginia has received automatic delegation ofauthority to enforce Part 60 NSPS in accordance with EPA lettersof 03/19/01, and01/08/02 as well as EPA’s Notice at 67FR15486. All current emission limitations orstandards of performance for SO2promulgated under 40 CFR Part 60 areincorporated by reference under 45CSR16, except any limitation or standard that maybe included in Subparts B, C, Ca, Cb, Cc, Cd, Ce, Ea, Eb, Ec, WWW, AAAA, BBBB,CCCC, DDDD, EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule is to adopt standards of performance, andestablish emission guidelines and compliance times pursuant to §§111(d) and 129 ofthe CAA for solid waste combustion sources in West Virginia. EPA recently approvedWest Virginia’s §111(d)/129 Plan for hospital/medical/infectious waste incinerators at77FR3389. §111(d)/129 solid waste combustionsources in West Virginia are subjectto any applicable SO2standard of performance or emission guideline promulgatedunder 40 CFR 60, Subparts Eb, AAAA,Ec, Ce, CCCC, DDDD, EEEE and LLLL.45CSR19 - The purpose of this SIP approved rule (71FR64468) is to satisfy thenonattainment area new source review permit program requirements in Part D of theCAA. 45CSR19 contains a significance level for SO2of 40 tpy and significant impactlevels (ambient air concentration increase) of 1.0, 5.0 and 25.0μg/m3for annual, 244§110(a)(2)(A)(continued)and 3-hour averaging times, respectively. A NSR source in a SO2non-attainmentarea may have a SO2emission limitation in a permit under 45CSR19 based upon aLAER analysis. West Virginia has two partial counties (Brooke & Marshall) identifiedas potential 1-hour SO2non-attainment areas.45CSR30 - This rule establishes a permitting program pursuant to Title V of the CAA.Any major stationary source subject to federally enforceable SO2emission limitationsor control measures pursuant to 45CSR10, 45CSR11, 45CSR13, 45CSR14,45CSR16, 45CSR18, 45CSR19, 45CSR33 or45CSR41 will be contained in a permitissued by the Secretary under its established Title V permit program. The effectivedate of interim approval of West Virginia’s Title V Program and 45CSR30 was12/15/95. EPA fully approved the West Virginia Title V program via DFR published on10/03/01 (66FR50325). EPA approved revisions to 45CSR30 contained in WVDAQ’s07/01/01 rule via a separate DFR published on 10/09/01 (66FR51318). Theserevisions became federally effective 11/23/01.West Virginia submitted a revision of itsapproved Operating Permit Programto EPA Region III on June 6, 2012.45CSR33 - This rule establishes and adopts general provisions and the operatingpermit program requirements for affectedsources and affected units under the AcidRain Program promulgated by the EPA underTitle IV of the CAA. This ruleincorporates by reference the following provisions: 40 CFR Part 72, “PermitsRegulation”; 40 CFR Part 74, “Sulfur Dioxide Opt-Ins”; 40 CFR Part 75, “ContinuousEmissions Monitoring”; 40 CFR Part 76, “Nitrogen Oxides Reduction Program”; and 40CFR Part 77, “Excess Emissions”. Therule was submitted to USEPA on June 23,1995 as part of the state’s Title V requirements and approved effectively on 12/15/95with interim approval of the West Virginia Title V program.45CSR41 – This SIP approved rule (74FR38536) establishes general provisions andthe designated representative, permitting, allowance and monitoring provisions for thestate CAIR SO2Trading Program pursuant to the federal Clean Air Interstate Ruleunder §110 of the CAA, 40CFR Part 96, Subparts AAAthrough HHH, and 40 CFR§51.124 for state implementation plans as a means of mitigating interstate transport offine particulates and SO2.West Virginia has two partial counties (Brooke & Marshall) identified as potential 1-hour SO2non-attainment areas. Emissions limitations and other control measuresneeded to attain the NAAQS in areas designated nonattainment for that NAAQS willbe due on a different schedule from the §110 infrastructure elements and will bereviewed and acted upon with regard to approvability for the specific purposes of suchan attainment plan under CAA Title I part D through a separate process at a later time.West Virginia has two existing SO2maintenance plans that have been approved byEPA; one for the Weirton area (70FR1664)and one for the NewManchester area(70FR33364).5§110(a)(2)(B)provide for establishment andoperation of appropriate devices,methods, systems, andprocedures necessary tomonitor, compile, and analyzedata on ambient air quality, andupon request, make such dataavailable to the Administrator;Establishment of Ambient Air Quality Monitoring System:Pursuant to W.Va.Code, §22-1-1(a)(1), “protecting the environment is fundamental to the health andwelfare of individual citizens,” and, thestate “has a duty to provide and maintain ahealthful environment for our citizens.” Under§22-1-1(a)(2), “the state has the primaryresponsibility for protecting the environment.” §22-1-1(b) “declares that theestablishment of a department of environmentalprotection is in the public interest” andthat “It is the policy of the state .....to useall practical means and measures to preventor eliminate harm to the environment and biosphere, to create and maintain conditionsunder which man and nature can exist in productive harmony, .....”Additionally, §22-5-1 declares thestate’s public policy “to fulfill its primary responsibilityfor assuring air quality pursuant to the‘Federal Clean Air Act’, as amended.”As set forth in §22-1-1(b)(5), the WVDEP,“insofar as federal environmental programsrequire state participation” must “endeavor toobtain and continue state primacy in theadministration of such federally-mandated programs,.....and to cooperate withappropriate federal agencies tomeet environmental goals.”Under §22-1-6(a), the Secretary “is the chiefofficer of the department” with the powers,duties and authority pursuant to §§22-5-2(3) and 22-5-4.The Secretary has the authority under W.Va. Code §§22-5-4(a)(1) & (3) “to developways and means for the regulation and control ofpollution of the air of the state” and“conduct such studies and research relating to air pollution and its control andabatement”.Therefore, under manifold statute authority, West Virginia operates and maintains anestablished network of fourteen ambient SO2monitors in West Virginia for the purposeof assessing compliance with the 2010 1-hour SO2NAAQS, which Congress providedfor in the CAA.Monitoring System Operation:To assess 2010 1-hour SO2NAAQS compliance,WVDAQ operates a network of SO2monitors in West Virginia that have beendesignated by EPA as either Federal Reference or Federal Equivalent monitors. Thisnetwork monitors air quality for the 2010 SO2NAAQS at appropriate locations inaccordance with the Ambient Air Monitoring Reference and Equivalent Methods under40 CFR Part 53 and the Ambient Air QualitySurveillance requirements of 40 CFR Part58. Ambient air monitors are subjected to the Quality Assurance requirements of 40CFR Part 58 Appendix A. Additionally all monitors have met the minimum sitingrequirements of Part 58, Appendix E. WVDAQ analyzes collected air quality data todetermine attainment status under the 2010 1-hour SO2NAAQS.On June 22, 2010, EPA revised the SO2NAAQS Amendments to Ambient Monitoring6§110(a)(2)(B)(continued)and Reporting Requirements. As a result, the WVDAQ now collects and reports SO25-minute average data from all fourteen SO2monitoring sites.Availability of Data:In order to keep EPA informed of planned modifications tomonitoring sites, WVDAQ provides EPA Region III with adequate prior notification.Details of these modifications and anticipated approvals of the modifications arecommunicated to EPA. On an annual basis, WVDAQ submits to EPA a monitoring sitedesign plan and periodic network assessment required under 40 CFR §58.10 thatdescribes how West Virginia is complyingwith monitoring requirements and explainsany modifications to the monitoring network. This plan also provides for a description ofeach system modification, the reason for eachmodification, and any other informationrelevant to the modification pursuant to40 CFR §58.14. To demonstrate and assurethat West Virginia meets changes in monitoring requirements related to new or revisedNAAQS, on June 27, 2012 West Virginia submitted a 2012 Annual Air QualityMonitoring Network Design Plan to EPA.The plan was consequently approved by EPAvia letter received by West Virginia on March 4, 2013.As provided in W.Va. Code §§22-5-4(a)(2), 22-5-10 and §110(a)(2)(B) of the CAA,WVDAQ collects and reports in a timelymanner to EPA ambient air quality data forSO2. The reports comply with the Data Submittal and Archiving Requirements set forthin CFR §58.16. The data is reviewed, edited, validated, and entered into the EPA airquality system (AQS) for updating pursuantto prescribed AQS procedures. The EPAAQS receives each report within 90 days after the end of the quarterly reporting period.Data is certified annually as required under 40 CFR §58.15.§110(a)(2)(C)include a program to provide forthe enforcement of the measuresdescribed in subparagraph (A)and regulation of the modificationand construction of any stationarysource within the areas coveredby the plan as necessary toassure that national ambient airquality standards are achieved,including a permit program asrequired in parts C and D;Enforcement of Control Measures for the 2010 1-Hour SO2NAAQS:Pursuant toW.Va. Code §22-1-6(a), the WVDEP Cabinet Secretary “is the chief officer of thedepartment” with the powers, duties and authority pursuant to §§22-5-2(3) and 22-5-4.The Secretary has the authority under W.Va. Code §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) to promulgate rules in accordance with the Administrative Procedures Act(W.Va. Code §§ 29A3-1 et seq.)The Secretary has the authority under W.Va. Code §22-5-4(a)(5) “to enter ordersrequiring compliance withthe provisions of this article andthe rules lawfullypromulgated hereunder.”The Secretary has the authority under W.Va.Code §22-5-4(a)(9) “to enter and inspectany property, premise or place ....for the purpose of ascertaining the state ofcompliance with this article and the rules promulgated under the provisions of thisarticle.”The Secretary has the authority under W.Va. Code §22-5-4(a)(16) “to do all things7§110(a)(2)(C)(continued)necessary and convenient to prepare and submit a plan or plans for theimplementation, maintenance andenforcementof the Federal Clean Air Act .....”The Secretary also has the authority under W.Va. Code §22-5-5 to enter an orderdirecting a person tocease and desist activity which violates theprovisions of §22-5-1et seq. and therules promulgated pursuant thereto.Pursuant to W.Va. Code §22-5-6,violators of theprovisions of §22-5-1 et seq. and therules promulgated pursuant thereto are subject to civil penalty.West Virginia therefore has an establishedlegal framework and inherent ability toprovide for the enforcement of the emissionlimitations and other measures describedthe §110(a)(2)(A) element of this document, and contained in a permit issued under45CSR10, 45CSR13, 45CSR14, 45CSR18,45CSR19, 45CSR30, 45CSR33 or45CSR41.Preconstruction NSR Permitting of Minor Sources:West Virginia’s SIP-approvedrule 45CSR13 (72FR5932) governs the minor NSR program for sources of emissionsof SO2and provides for pre-construction permitting regarding the modification andconstruction of minor stationary sources and the minor modification of major stationarysources pursuant to 40 CFR §§51.160-164.45CSR13 addresses the impact of permitted sources on the 2010 1-hour SO2NAAQSthrough permits which contains the emissionstandards, registration, permit, testing,monitoring, recordkeeping and reporting requirements for sources of SO2emissionscontained in 45CSR10, and the New Source Performance Standards for SO2promulgated under 40 CFR Part 60 and incorporated by reference in 45CSR16.The EPA issued a general policy statement onthe topic of “prominent advertisement”of minor source programs and permits, in a memorandum dated April 17, 2012 fromJanet McCabe, Principal Deputy Assistant Administrator, Office of Air and Radiation,entitled “Minor New Source Review Program Public Notice Requirements under 40CFR §51.161(b)(3)”. West Virginia follows this general policy with respect toadvertisement of minor source permitting actions under 45CSR13.Preconstruction PSD Permitting of Major Sources:The Prevention of SignificantDeterioration (PSD) program contained inPart C of Title I of the CAA governpreconstruction review and permitting of any new or modified major stationary sourcesof air pollutants regulated under the CAA as well as any precursors to the formation ofthat pollutant when identified for regulation by EPA. The PSD program will regulatefuture growth and provide for continued maintenance of the 2010 1-hour SO2NAAQS.West Virginia’s PSD program is set forth in SIP approved rule 45CSR14 (77FR63736).45CSR14 implements a comprehensive PSD permit program as required under Part C8§110(a)(2)(C)(continued)of Title I of the CAA for all regulated NSR pollutants (or precursors) that are subject toregulation under the CAA. 45CSR14 limits PSD applicability with respect togreenhouse gas-emitting sources by adoptingthe applicability thresholds included inEPA’s Tailoring Rule.Pursuant to CAA §165(a)(3), the WVDAQ isauthorized to implement the existing PSDpermit program in order to ensure that the construction and modification of majorstationary sources will not cause or contribute to a violation of the 2010 1-hour SO2NAAQS (or any NAAQS or increment) in West Virginia or another state, as set forth inthe source impact analysis requirements of 45CSR§14-9.1 and 40 CFR §51.166(k).Pursuant to CAA §165(a)(4), a new or modified PSD source in an attainment areamay have a SO2emission limitation in a permit under 45CSR14 based upon a bestavailable control technology (BACT) analysis, and application of BACT for eachregulated NSR pollutant that has the potential to emit in significant amounts inaccordance with the control technology review requirements in 40 CFR §51.166(j),and as set forth in 45CSR14-8.45CSR14 contains a significance level for SO2of 40 tpy and significant impact levelsof 1.0, 5.0 and 25.0μg/m3for annual, 24 and 3-hour averaging times, respectively.45CSR14 also contains a de minimis air quality impact concentration of 13μg/m3overa 24 hour averaging time and a maximum allowable pollutant concentration increaseover baseline concentration of 20, 91 and 512μg/m3for annual arithmetic mean, 24-hour maximum and 3-hour maximum averaging times, respectively, in Class II areas.West Virginia has timely submitted all structural PSD program provisions for which aSIP submission deadline has passed, with the exception of the requirement for theinclusion of condensable emissions of particulate matter within the definition of‘‘regulated new source review pollutant.’’ WestVirginia will correct this omission whenit submits 45CSR14 as a SIP revision in June 2014.EPA has not proposed to amendthe PSD regulations with regard to the 2010 1-hourSO2NAAQS. However, West Virginia willrevise its PSD program to address anyapplicable EPA amendments of the SO2PSD rules within three years from the date ofsuch amendments.§110(a)(2)(D)contain adequate provisions -(i) prohibiting, consistent with theprovisions of this title, any sourceor other type of emissions activitywithin the state from emitting anyair pollutant in amounts whichInterference With Required Measures Under Part C:West Virginia confirms thatnew major sources and major modifications in the state are subject to a comprehensivePrevention of Significant Deterioration (PSD) permit program as set forth in SIPapproved rule 45CSR14 (77FR63736). This PSDprogram required by Part C of Title Iof the CAA governs the preconstruction review and permitting of any new majorstationary sources or major modificationwith respect to regulated NSR pollutantsunder the CAA, as well as any precursors tothe formation of such pollutants when9§110(a)(2)(D)(continued)will-(I) contribute significantly tononattainment in, or interfere withmaintenance by, any other statewith respect to any such nationalprimary or secondary ambient airquality standard, or(II) interfere with measuresrequired to be included in theapplicable implementation planfor any other State under part Cto prevent significantdeterioration of air quality or toprotect visibility,(ii) ensuring compliance with theapplicable requirements ofsections 126 and 115 (relating tointerstate and internationalpollution abatement);identified for regulation byEPA. 45CSR14 also limits PSD applicability with respect togreenhouse gas-emitting sources by adoptingthe applicability thresholds included inEPA’s Tailoring Rule.45CSR14 regulates future growth and provide for continued maintenance of the 20101-hour SO2NAAQS. This rule includes specific federal requirements which ensurethat new or modified sources do not interfere with measures to prevent significantdeterioration of air quality by providinga mechanism to prevent the development ofany new non-attainment problems. 45CSR14 requires the evaluation of sources of airpollutants and to preclude the construction or relocation of any major stationary sourceor major modification in any area classified as attaining NAAQS or unclassifiable inwhich the establishment of such source or modification may interfere with the goals ofthe prevention of significant deterioration of air quality levels.Pursuant to CAA §165(a)(3), the WVDAQ isauthorized to implement the existing PSDpermit program in order to ensure that the construction and modification of majorstationary sources will not cause or contribute to a violation of the 2010 1-hour SO2NAAQS (or any NAAQS or increment) in West Virginia or another state, as set forth inthe source impact analysis requirements of 45CSR§14-9.1 and 40 CFR §51.166(k).Pursuant to CAA §165(a)(4), a new or modified PSD source in an attainment areamay have a SO2emission limitation in a permit under 45CSR14 based upon a bestavailable control technology (BACT) analysis, and application of BACT for eachregulated NSR pollutant that has the potential to emit in significant amounts inaccordance with the control technologyreview requirements of 45CSR§14-8 and 40CFR §51.166(j).West Virginia has timely submitted all structural PSD program provisions for which aSIP submission deadline has passed, with the exception of the requirement for theinclusion of condensable emissions of particulate matter within the definition of‘‘regulated NSR pollutant.’’ West Virginia willcorrect this omission when it submits45CSR14 as a SIP revision in June 2014.EPA has not proposed to amendthe PSD regulations with regard to the 2010 1-hourSO2NAAQS. However, West Virginia willrevise its PSD program to address anyapplicable EPA amendments of the SO2PSD rules within three years from the date ofsuch amendments.In-state sources not subject to PSD for all NAAQS because they are in anonattainment area also may have the potential to interfere with PSD in an attainmentor unclassifiable area of another state. West Virginia confirms that new major sourcesand major modifications in non-attainment areas of the state are subject to thenonattainment area new source review (NNSR)permit program under legislative rule45CSR19. The purpose of this SIP-approved rule (71FR64468) is to satisfy the10§110(a)(2)(D)(continued)nonattainment area NNSR requirements in Part D of the CAA. 45CSR19 contains asignificance level for SO2of 40 tpy and significant impact levels (ambient airconcentration increase) of 1.0, 5.0 and 25.0μg/m3for annual, 24 and 3-houraveraging times, respectively. A NNSR source in a SO2non-attainment area mayhave a SO2emission limitation in a permit under 45CSR19 based upon a LAERanalysis. West Virginia has two partial counties (Brooke & Marshall) identified as SO2non-attainment areas.Interference With Measures Required to Protect Visibility:West Virginia is subjectto a RAVI FIP (*45132, [AD-FRL-3282-3], November 24, 1987).West Virginia confirms that new major sources and major modifications in the state aresubject to a comprehensive PSD permit program as set forth in SIP approved rule45CSR14 (77FR63736).West Virginia confirms that new major sources and major modifications in nonattainment areas of the state are subject tothe nonattainment area new source review(NNSR) permit program as set forth inSIP-approved rule 45CSR19 (71FR64468).West Virginia received partial approval of its Regional Haze SIP on March 23, 2012 at77FR16973. The SIP revision did not receive full approval solely because of itsreliance on the Clean Air Interstate Rule.Interstate and International Pollution Abatement:West Virginia has demonstratedthat it has met its obligations pursuant to CAA §126(a) through the adoption of45CSR§14-7, Public Review Procedures (77FR63736) which requires a new ormodified source to notify other states of potential impacts from a source in accordancewith 40 CFR §51.166(q)(2)(iv). No source orsources within West Virginia are thesubject of an active finding under §126 of the CAA with respect to any air pollutant.There are no final findings under §115 of the CAA against West Virginia with respect toany air pollutant.§110(a)(2)(E)(i)provide(i) necessary assurances thatthe state (or, except where theAdministrator deemsinappropriate, the generalpurpose local government orgovernments, or a regionalagency designated by the stateor general purpose localgovernments for such purpose)Personnel:WVDAQ has demonstrated adequate personnel to carry out theimplementation plan with respect to the 2010 1-hour SO2NAAQS. There are no otherorganizations in West Virginia that participate in developing, implementing andenforcing the SIP (40 CFR §51.240). TheSecretary employs adequate personnel andretains specialists under W.Va. Code §22-5-4(a)(8) that are "necessary, incident orconvenient" to accomplish the statutory mandate to carry out the implementation plan.WVDAQ has a staff of approximately 90 fulltime employees. The West Virginia AirDirector supervises the air monitoring, compliance and enforcement, hazardous waste,permitting and planning sections, as well as three regional WVDAQ offices, andanswers to the WVDEP Cabinet Secretary.Because of the nature of the national andstate economy, WVDAQ does not anticipateany changes in resources considered11§110(a)(2)(E)(i)(continued)will have adequate personnel,funding, and authority understate (and, as appropriate, local)law to carry out suchimplementation plan (and is notprohibited by any provision offederal or state law from carryingout such implementation plan orportion thereof);necessary during the 5 years following SIP submittal; and projects a similar resourceneed at 1, 3, and five year intervals (40 CFR §51.280).Funding:The APCA provides adequate funding under W.Va. Code §§22-1-10(a) and22-5-4(a)(17) to carry out the implementation plan. W.Va. Code §22-5-12 sets forth thestatutory operating permit requirements for stationary sources under Title V of theCAA. 45CSR30 establishes fees sufficient tocover the direct and indirect costs ofadministering the Title V operating permit program. The APCA also authorizes theestablishment of fees to cover non-Title V permitting costs under 45CSR22. WestVirginia’s air quality program also receives revenue from fines and enforcementsettlements (Air Pollution Control Fund) and federal funds under §§105 and 103 of theCAA, and state general fund appropriations.Legal Authority:W.Va. Code §22-5-1,declares the state's policy "to fulfill its primaryresponsibility for assuring air quality" pursuantto the CAA. The Secretary is authorizedunder W.Va. Code §§22-1-6(c)(1) and 22-5-4(a)(12) to carry out and represent thestate in any and all matters pertaining to the implementation plan, including revising theSIP as necessary. The Secretary has theauthority under W.Va. Code §22-5-4(a)(16)“to do all things necessary and convenient toprepare and submit a plan or plans forthe implementation, maintenance and enforcement of the Federal Clean Air Act ....”The Secretary is not prohibited by any provision of federal or state law from carryingout the implementation plan or portion thereof. The legal authorities specified areavailable to the Secretary at the time of submission of this SIP revision.West Virginia has adopted emission standards and limitations and other measuresnecessary for attainment and maintenanceof the NAAQS. The Secretary has theauthority under W.Va. Code §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) to promulgaterules in accordance with the Administrative Procedures Act (W.Va. Code §§29A3-1 etseq.). Approximately forty legislative rules promulgated underthe auspices of theAPCA are currently in effect and codified atTitle 45 of the CSR, including the 2010 1-hour SO2NAAQS and NAAQS for other criteria pollutants contained in SIP approvedrule 45CSR8 (77FR65493). Statutory permitting requirements are set forth in W.Va.Code §§22-5-11 & 12.West Virginia has an EPA-approved air permitting program forboth major and minor facilities, under legislative rules 45CSR13, 45CSR14, 45CSR19and 45CSR30 (as applicable).The Secretary is authorized to enforce applicable laws, regulations, and standardsunder W.Va. Code §§22-1-6(d)(3), 22-05-4(a)(5) and 22-05-4(a)(6), and seek injunctiverelief under §22-5-7.The Secretary is authorized to abate pollutant emissions on an emergency basis toprevent substantial endangerment to thehealth of persons. W.Va. Code §22-5-5authorizes the Secretary to issue an order tocease and desist any activity that violatesthe APCA. The Secretary may also suspend, modify or revoke a source’s permit.12§110(a)(2)(E)(i)(continued)Under §22-5-6, the Secretary may also institute lawsuits for civil penalties. §22-5-7authorizes the Secretary to seek applications for injunctive relief. §22-5-8 authorizesthe Secretary, with the written authorizationof the Governor, to shut down a source ofSO2emissions, thereby preventing the emissionof air pollutants which substantiallycontributes to an emergency that requires immediate action to protect public health. Asprovided in §§22-5-4(a)(2) and22-5-10, the Secretary mayconsult with EPA to affirmaccuracy of any information considered while executing authority under §§22-5-5, -6, -7 or -8.The Secretary is authorized to prevent construction, modification, or operation of afacility, building, structure,or installation, or combination thereof, which directly orindirectly results or may result in emissions of any air pollutant at any location whichwill prevent the attainment or maintenance of a national standard. New major sourcesand major modifications in West Virginia are subject to PSD under legislative rule45CSR14. The purpose of this West Virginia SIP approved rule (77FR63736) is tosatisfy the prevention of significant deterioration permit program requirements in Part Cof the CAA. Under 45CSR14, “.....all applications filed by any person to constructmajor new or modified stationary air pollution sources, intending to locate in areas withair quality better than the levels set to protect the public health and welfare, or thatmight impact those areas, must adequately meet the pre-construction reviewprocedures and conditions of the Clean Air Act as amended ....”. This rule includesspecific federal requirements which ensure that new or modified sources do notinterfere with measures to prevent significant deteriorationof air quality by providing amechanism to prevent the developmentof any new non-attainment problems.45CSR14 requires the evaluation of sources of air pollutants and to preclude theconstruction or relocation of any major stationary source or major modification in anyarea classified as attaining NAAQS or unclassifiable in which the establishment of suchsource or modification may interfere with the goals of the prevention of significantdeterioration of air quality levels.Pursuant to W.Va. Code §22-5-4(a)(14), the Secretary is authorized to obtaininformation necessary to determine whether air pollution sources are in compliancewith applicable laws, regulations, and standards. Under §§22-5-4(a)(14) and 22-5-4(a)(15), the Secretary is authorized to require recordkeeping. Under §22-5-44(a)(9),the Secretary is authorized to and to make inspections and conduct tests of airpollution sources.Under W.Va. Code §22-5-4(a)(15), the Secretary is authorized to require owners oroperators of stationarysources to install, maintain, and use emission monitoringdevices and to make periodic reports tothe State on the nature and amounts ofemissions from such stationary sources. Under §22-5-10, the Secretary is authorizedto make such data available to the public as reported and as correlated with anyapplicable emission standards or limitations.13§110(a)(2)(E)(ii)(ii) requirements that the statecomply with the requirementsrespecting state boards undersection 128, andState Boards Under Section 128:Section 128(a)(1): Because West Virginia does nothave a board which approves permits or enforcement orders, this element is notapplicable.§110(a)(2)(E)(iii)(iii) necessary assurances that,where the state has relied on alocal or regional government,agency, or instrumentality for theimplementation of any planprovision, the state hasresponsibility for ensuringadequate implementation of suchplan provision;Responsibility for Implementation ofAssured Local Plan Provision:West Virginiahas not relied onany local or regional government, agency, or instrumentality for theimplementation of any SIP provision for the 2010 1-hour SO2NAAQS. West Virginiawill retain primacy with respect to any future plan thatrelies on local or regionalgovernments, agencies or instrumentalities.By statute, West Virginia has primeresponsibility for ensuring adequate implementation of such a plan provision. TheSecretary has the authority under W.Va. Code §22-5-4(a)(16) “to do all thingsnecessary and convenient to prepare and submit a plan or plans for theimplementation, maintenance and enforcement of the Federal Clean Air Act .....”As set forth in W.Va. Code §22-1-1(b)(5), the WVDEP, “insofar as federalenvironmental programs require state participation” must “endeavor to obtain andcontinue state primacy in the administration of such federally-mandatedprograms,.....and to cooperate with appropriate federal agencies to meetenvironmental goals.”§110(a)(2)(F)require, as may be prescribed bythe Administrator -(i) the installation,maintenance, and replacementof equipment, and theimplementation of othernecessary steps by owners oroperators of stationary sourcesto monitor emissions from suchsources,(ii) periodic reports on thenature and amounts ofemissions and emissions-relateddata from such sources, and(iii) correlation of such reportsby the state agency with anyemission limitations or standardsSource Monitoring:W.Va. Code §22-5-4(a)(15) authorizes the Secretary to requirethe installation, maintenance and replacement of equipment, and the implementation ofother necessary steps by owners or operators of stationary sources to monitor andreport emissions of SO2from such sources as the Secretary may prescribe. Under thisauthority, West Virginia requires the installation, maintenance, periodic testing andreplacement of monitoring equipment at stationary sources through permits issuedunder 45CSR13, 45CSR14, 45CSR19, 45CSR30, and via compliance orders, inaccordance with 40 CFR §51.212(a). The Secretary therefore has statute authority andpromulgated rules to periodically test stationary sources, in accordance with 40 CFR§51.212(a).W.Va. Code §22-5-4(a)(9) authorizes the Secretary to “enter and inspectany property,premise or place on or at which a source of air pollutants is located or is beingconstructed, installed or established at any reasonable time for thepurpose ofascertaining the state of compliancewith this article and rules promulgated under ....”The Secretary therefore has statute authority to inspect stationary sources, inaccordance with 40 CFR §51.212(a).W.Va. Code §22-5-4(a)(9) authorizes the Secretary to “enter and inspectany property,premise or place on or at which a source of air pollutants is located or is being14§110(a)(2)(F)(continued)established pursuant to this Act,which reports shall be availableat reasonable times for publicinspection;constructed, installed or established at any reasonable time for thepurpose ofascertaining the state of compliancewith this article and rules promulgated under ....”The Secretary has the authority under §§22-5-4(a)(1) & (3) “to develop ways andmeans for the regulation and control of pollution of the air of the state” and “conductsuch studies and research relating to airpollution and its control and abatement”. TheSecretary has the authority under §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) topromulgate rules in accordance with the Administrative Procedures Act (W.Va. Code§§ 29A3-1 et seq.) Visible emission limitations for particulate matter are established inSIP-approved rules 45CSR2 (68FR47473) and 45CSR7 (68FR33010). WVDAQenforcement personnel are certified in the visible emission testing procedures set forthin Method 9 of 40 CFR Part 60. The Secretary therefore has statute authority andvisible emission limitations by promulgatedrule along with trained enforcement, whichestablishes a system to detect violationsof promulgated rules and regulations throughthe enforcement of appropriate visible emission limitations, in accordance with 40 CFR§51.212(b).W.Va. Code §22-5-4(a)(6) authorizes the Secretary to “consider complaints, subpoenawitnesses, administer oaths,make investigationsand hold hearings ....” The Secretarytherefore has statute authority to investigate complaints, in accordance with 40 CFR§51.212(b).West Virginia’s SIP contains enforceable test methods for each emission limit specifiedin the SIP. As an enforceable test method,West Virginia uses appropriate methods in40 CFR Part 51, Appendix M,Recommended Test Methods for State ImplementationPlans; or an alternative method following reviewand approval of that method by theAdministrator, or an appropriate method in Appendix A to 40 CFR Part 60. Suchenforceable test methods are contained inpermits issued under 45CSR13, 45CSR14,45CSR30, and promulgated legislative rules as follows:45CSR10 - The purpose of this SIP approved rule (68FR33002) is to control airpollution from the emission of sulfur oxides. 45CSR10 contains test methods forsources of SO2emissions in West Virginia.45CSR10A - This rule provides guidance and clarification for complying with thetesting, monitoring, recordkeepingand reporting requirements of 45CSR10.45CSR16 - The purpose of this rule isto incorporate thefederal New SourcePerformance Standards under Part A of the Clean Air Act and 40 CFR Part 60. Allcurrent test methods for SO2promulgated under 40 CFR Part 60 are incorporated byreference under 45CSR16 except any limitation or standard that may be included inSubparts B, C, Ca, Cb, Cc, Cd, Ce, Ea, Eb, Ec, WWW, AAAA, BBBB, CCCC, DDDD,EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule isto adopt standards of performance, and15§110(a)(2)(F)(continued)establish emission guidelines and compliance times pursuant to §§111(d) and 129 ofthe CAA for solid waste combustion sources in West Virginia. §111(d)/129 solid wastecombustion sources in West Virginia are subject to any applicable SO2test methodspromulgated under 40 CFR60, Subparts Eb, AAAA, Ec,Ce, CCCC, DDDD, EEEE andLLLL.45CSR30 - This rule establishes a permitting program pursuant to Title V of the CAA.Any major stationary source subject to testmethods pursuant to 45CSR10, 45CSR11,45CSR13, 45CSR14, 45CSR16, 45CSR18, 45CSR19, 45CSR33 or 45CSR41 will becontained in a permit issued by West Virginia under its established Title V permitprogram.45CSR33 - The Acid Rain Program under 45CSR33 requires monitoring of SO2forelectric generating units. This rule establishes and adopts general provisions and theoperating permit program requirements for affected sources and affected units subjectto the Acid Rain Program under Title IV of the CAA. This rule incorporates by referencethe test methods set forth in 40 CFR §75.22.45CSR41 - This SIP approved rule (74FR38536) establishes test methods for theCAIR SO2Trading Program pursuant to the federal Clean Air Interstate Rule under§110 of the CAA, 40 CFR Part 96, and 40CFR §51.124 for state implementationplans as a means of mitigating interstate transport of SO2.For the purpose of submitting compliance certifications or establishing whether or not aperson has violated or is in violation of anystandard in the SIP, West Virginia certifiesthat the SIP does not preclude the use, including the exclusive use, of any credibleevidence or information, relevant to whether a source would have been in compliancewith applicable requirements if the appropriate performance or compliance test orprocedure had been performed.Periodic Reporting and Recordkeeping:W.Va. Code §§22-5-4(a)(15) authorizes theSecretary to require periodic reportson the nature and amounts of emissions andemissions-related data from owners or operators of stationarysources (monitoringdata) of SO2. Under this authority, the Secretaryrequires periodic reports on emissionsand emissions-related data from stationary sources through permits issued under45CSR13, 45CSR14, 45CSR19, 45CSR30,45CSR33, 45CSR41 and via complianceorders. Therefore, the Secretary thereforehas statute authority to require periodicreports on the nature and amounts ofemissions and emissions-related data.West Virginia’s SIP providesfor legally enforceable procedures for requiring owners oroperators of stationarysources to maintain records of and periodically report to theSecretary, in accordance with 40 CFR§51.211. Such enforceable procedures arecontained in permits issued under 45CSR13, 45CSR14, 45CSR30, and promulgatedlegislative rules as follows:16§110(a)(2)(F)(continued)45CSR10 - The purpose of this SIP approved rule (68FR33002) is to control airpollution from the emission of sulfur oxides. 45CSR10 contains recordkeeping andreporting requirements for sources of SO2emissions in West Virginia.45CSR10A - This rule provides guidance and clarification for complying with thetesting, monitoring, recordkeepingand reporting requirements of 45CSR10.45CSR16 - The purpose of this rule isto incorporate thefederal New SourcePerformance Standards under Part A of the Clean Air Act and 40 CFR Part 60. Allcurrent reporting and recordkeeping requirements for SO2promulgated under 40 CFRPart 60 are incorporated by referenceunder 45CSR16 exceptany limitation orstandard that may be included in SubpartsB, C, Ca, Cb, Cc, Cd, Ce, Ea, Eb, Ec,WWW, AAAA, BBBB, CCCC, DDDD, EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule isto adopt standards of performance, andestablish emission guidelines and compliance times pursuant to §§111(d) and 129 ofthe CAA for solid waste combustion sources in West Virginia. §111(d)/129 solid wastecombustion sources are subject to any applicable SO2reporting and recordkeepingrequirement promulgated under 40 CFR 60, Subparts Eb, AAAA, Ec, Ce, CCCC,DDDD, EEEE and LLLL.45CSR30 – This rule establishes a permitting program pursuant to Title V of the CAA.Any major stationary source subject to enforceable SO2reporting and recordkeepingrequirement pursuant to 45CSR10, 45CSR11, 45CSR13, 45CSR14, 45CSR16,45CSR18, 45CSR19, 45CSR33 or 45CSR41 will be contained in a permit issued byWest Virginia under its established Title V permit program.45CSR33 - The Acid Rain Program under 45CSR33 requires reporting andrecordkeeping of SO2for electric generating units. This rule establishes and adoptsgeneral provisions and the operating permitprogram requirements for affected sourcesand affected units subject to the Acid Rain Program under Title IV of the CAA. This ruleincorporates by reference the recordkeepingrequirements of 40 CFR Part 75, SubpartF, and the reporting requirements under Subpart G.45CSR41 - This SIP approved rule (74FR38536) establishes SO2reporting andrecordkeeping requirements for the CAIR SO2Trading Program pursuant to thefederal Clean Air Interstate Rule under §110 of the CAA, 40 CFR Part 96, and 40 CFR§51.124 for state implementation plans as a means of mitigating interstate transport ofSO2.Pursuant to W.Va. Code §§22-5-4(a)(14), the Secretary is authorized to require suchinformation as the Secretary may requirein a form or manner prescribed by theSecretary (emissions inventory program). WestVirginia is subject to the Air Emission17§110(a)(2)(F)(continued)Reporting Rule (AERR) set forth in 40 CFRPart 51, Subpart A. WVDAQ’s emissionsinventory program provides source-specific emissions data to EPA pursuant to theAERR reporting requirements and the sourceemissions and state action reportingrequirements set forth in 40 CFR §§51.321-323.West Virginia assures that it will meetchanges in reporting and inventory requirements associated with a new or revisedNAAQS.Correlation of Reports:As set forth in W.Va. Code §22-5-10, the Secretary makesavailable at reasonable times for public inspection the periodic emissions reportedunder §§22-5-4(a)(14) & (15). The Secretary has the responsibility of making allrecords, reports or information obtainedby the WVDEP or referred to at publichearings under the provisions of the APCA available to the public, except to the extentthe records, reports or information areprotected by confidentiality pursuant to45CSR31. The types of records, reportsor information that would relate to§110(a)(2)(F) which WVDAQ routinely provides access to include notifications,inspection reports, notices of violation, enforcement orders, applications, permit reviewletters, sample results, monitoring reports,permits, approvals and denials, and detaileddata and calculations for SIP revisions. Thedetailed data and calculations used in thepreparation of SIP revisions are not considered part of the SIP. WVDAQ generallymakes information available for public accessthrough its website, but also makes hardcopy reports available upon written request. CEMS emissions data are uploaded toAIRS and CAMD, and EPA may make such data available to the public.W.Va. Code §22-1-6(d)(3) authorizes the Secretary to “investigate for violations ofstatutes or rules which the department is charged with enforcing.” §22-5-4(a)(3)authorizes the Secretary to correlateperiodic emissions reports with any SO2emissionlimitation or standard established pursuant to 45CSR10, 45CSR13, 45CSR14,45CSR18, 45CSR19, 45CSR30, 45CSR33, 45CSR41 or the CAA in such a manneras to show the relationship between measured or estimated amounts and the amountsof such emissions allowable under theapplicable emission limitations or othermeasures, in accordance with 40 CFR §51.116. Correlation with applicable emissionslimitations or standards is relevant only for those reports of source emissions thatreflect the test methods and averaging periods specified in applicable emissionlimitations or standards. Thus, source reportsof annual, ozone season, or summer dayemissions used by WVDAQ to create theannual and triennial emission inventorysubmission to the EPA under 40 CFR Part 51,Subpart A, in general would not need tobe correlated with specific emission limitations or standards, as many sources do nothave applicable emission limitations defined for those averaging periods.§110(a)(2)(G)provide for authority comparableto that in section 303 andadequate contingency plans toimplement such authority;Comparable Authority to CAA §303:W.Va. Code §22-5-5 authorizes the Secretaryto issue an order to cease and desist any activity that violates the Air Pollution ControlAct. The Secretary may also suspend, modify or revoke a source’s permit. Under §22-5-6, the Secretary may also institute lawsuits for civil penalties. §22-5-7 authorizes the18§110(a)(2)(G)(continued)Secretary to seek applications for injunctive relief. §22-5-8 authorizes the Secretary,with the written authorization of the Governor, to shut down a source of SO2emissions,thereby preventing the emission of air pollutants which substantially contributes to anemergency that requires immediate action to protect public health. As provided in§§22-5-4(a)(2) and 22-5-10, the Secretary may consult with EPA to affirm accuracy ofany information considered while executing authority under §§22-5-5, -6, -7 or -8.Contingency Plans for Emergency Episodes:West Virginia satisfies the criteria tobe classified a Priority III Region under 40 CFR §51.150(f) for SO2, as it does not meetthe criteria set forth in 40 CFR §§51.150(a)-(e). Pursuant to 40 CFR §51.152(c), areasclassified as Priority III do not need todevelop emergency episode (contingency)plans.However, the purpose of West Virginia SIP approved rule 45CSR11 (58FR34526) is toprevent air pollution emergency episodes inaccordance with 40 CFR Part 51, SubpartH by providing a mechanism to prevent the buildup of air pollutant concentrationsduring periods of adverse meteorologicalconditions in which air pollutants mayaccumulate, thereby preventing the occurrence of an emergency due to the effects ofthese pollutants on health. To achieve thispurpose, three (3) stages of criteria(pollutant concentration levels) have beenestablished and specific emission reductionplans will be developed which will be initiatedat each criteria stage to prevent furtherdeterioration of the air supply to any air quality region or substantial portion thereof.45CSR11 contains episode criteria, methods of measurement, preplanned reductionstrategies and emission reductionplan requirements for sources of SO2emissions inWest Virginia.§110(a)(2)(H)provide for revision of such plan-(i) from time to time as may benecessary to take account ofrevisions of such nationalprimary or secondary ambientair quality standard or theavailability of improved or moreexpeditious methods of attainingsuch standard, and(ii) except as provided inparagraph (3)(C), whenever theAdministrator finds on the basisof information available to theAdministrator that the plan issubstantially inadequate to attainRevision of the NAAQS:To satisfy the SIP revision provisions set forth in 40 CFR§51.104, W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all thingsnecessary and convenient to prepare andsubmit a plan for the implementation,maintenance and enforcement of the CAA. WVDAQ has historically revised, and willcontinue to revise its NAAQS rules as necessary to take account of revisions of thenational primary or secondary ambient air quality standards or improved or moreexpeditious methods of attaining the standards. Below are brief recent historyexamples of how West Virginia has promulgated various versions of NAAQS rule45CSR8 to incorporate revisions to the primary and secondary NAAQS:On February 10, 2009, West Virginia received full SIP approval of its 2008 NAAQS rule45CSR8 (74FR6552). This rule contains ambient air quality standards for all criteriapollutants, including the 2006 PM2.5NAAQS, equivalent to the national primary andsecondary ambient air quality standardsestablished under §109 of the CAA, andpromulgated by EPA under 40 CFR Part 50 through June 1, 2007.The 2009 version of 45CSR8 includes the revised the 8-hour primary and secondary19§110(a)(2)(H)(continued)the national ambient air qualitystandard which it implements, orto otherwise comply with anyadditional requirementsestablished under this Act;ozone NAAQS. Revisions to the rule also include deletion of references to the obsoleteone-hour ozone NAAQS. EPAannounced reconsiderationof the 2008 primary andsecondary ozone standards on September 16, 2009. Subsequently, EPA Region IIIadvised the WV DAQ that 45CSR8 may notbe approvable into the SIP because theozone standard was under reconsideration. At the request of EPA Region III, 45CSR8was withdrawn as a revision to the SIP on November 16, 2009.The 2010 version of 45CSR8 included the revised national primary and secondary leadNAAQS and deletion of redundant methods of measurement language in 45CSR§8-4.EPA Region III advised the WV DAQ that the2010 version of 45CSR8 may not beapprovable into the SIP because the ozone standard was under reconsideration. At therequest of EPA Region III, 45CSR8 was not submitted as a revision to the SIP.West Virginia submitted a NAAQS SIP revision to EPA on July 8, 2011. Revisions tothe 2011 version of NAAQS rule 45CSR8 provide for incorporation by reference of theNAAQS as promulgated by the EPA as ofJune 1, 2010, rather than reiterating theNAAQS in the rule. EPA has revised theprimary nitrogen dioxide NAAQS, and45CSR8 incorporates by reference the 2010 1-hour NO2NAAQS. On September 12,2012, West Virginia received full SIP approval of 2011 rule 45CSR8 (77FR56125).West Virginia submitted a NAAQS SIP revision to EPA onJune 6, 2012. Revisions tothe 2012 version of the rule incorporate by reference the 2010 1-hour SO2NAAQS.Specifically, EPA established a new 1-hour SO2standard at a level of 75 parts perbillion (ppb), based on the 3-year average ofthe annual 99th percentileof 1-hour dailymaximum concentrations. West Virginia received full SIP approval of 2012 rule45CSR8 (77FR65493).Inadequate Plan:W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all thingsnecessary and convenient to prepare andsubmit a plan for the implementation,maintenanceand enforcement of the CAA. When,if ever, EPA finds the SIP issubstantially inadequate to attain the NAAQS which it implements or otherwise tocomply with the CAA, West Virginia will revise the plan as necessary for adequacy.§110(a)(2)(J)meet the applicable requirementsof section 121 (relating toconsultation) and section 127(relating to public notification)andpart C (relating to prevention ofsignificant deterioration of airquality and visibility protection)Consultation:The Air Pollution Control Act provides adequate authority under W.Va.Code §22-5-4(a)(2) for West Virginia’s practices of consultation with localgovernments, organizations and Land Managers regarding implementation plans for airquality maintenance requirements, preconstruction review of direct sources,nonattainment requirements, prevention of significant deterioration and administrativeassessment of civil penalties,in accordance with §121 of the CAA. For the 2010 1-hourSO2NAAQS, West Virginia’s permitting program includes three SIP approved rules:minor NSR rule 45CSR13 (68FR9559), PSD rule 45CSR14 (77FR63736), and majorNSR rule 45CSR19 (71FR64468). West Virginia also has an approved Title Voperating permit program (66FR50325).WVDEP has previously demonstrated a20§110(a)(2)(J)(continued)commitment to such consultation through encouragement and support for an EarlyAction Compact, and through Federal Land Manager consultation for the West VirginiaHaze SIP.Public Notification:W.Va. Code §22-1-12 provides authority for the public notificationof primary NAAQS exeedances and education efforts as required by 40 CFR §51.285and §127 of the CAA. §22-4-(a)(10) providesauthority for the WVDAQ to advise of thehealth hazards associated with an exceedance of a primary NAAQS, or a violationwhich presents an imminent and serious hazard to public health.Each year, WVDAQ issues a comprehensive West Virginia Air Quality Annual Report.The report provides air quality highlights from the previous year, public awareness ofcriteria pollutants and their effects on health, and tracks the Air Quality Index. Thereport also compares monitored air quality data with the NAAQS and identifies primaryNAAQS exeedances. The report enhances the public’s awareness of measures thatprevent such exceedances, and provides educational website links to tips that improveair quality, links to technical websites, regulatory and outreach efforts, in accordancewith 40 CFR §51.285 and §127 of the CAA.Preconstruction PSD Permitting of Major Sources:The Prevention of SignificantDeterioration program contained in Part C ofTitle I of the CAA govern preconstructionreview and permitting of any new or modified major stationary sources of air pollutantsregulated under the CAA as well as any precursors to the formation of that pollutantwhen identified for regulation by EPA. ThePSD program will regulate future growthand provide for continued maintenance of the 2010 1-hour SO2NAAQS.West Virginia’s PSD program is set forth in SIP approved rule 45CSR14 (77FR63736).45CSR14 implements a comprehensive PSD permit program as required under Part Cof Title I of the CAA for all regulated NSR pollutants (or precursors) that are subject toregulation under the CAA. 45CSR14 limits PSD applicability with respect togreenhouse gas-emitting sources by adoptingthe applicability thresholds included inEPA’s Tailoring Rule.Pursuant to CAA §165(a)(3), the WVDAQ isauthorized to implement the existing PSDpermit program in order to ensure that the construction and modification of majorstationary sources will not cause or contribute to a violation of the 2010 1-hour SO2NAAQS (or any NAAQS or increment) in West Virginia or another state, as set forth inthe source impact analysis requirements of 45CSR§14-9.1 and 40 CFR §51.166(k).Pursuant to CAA §165(a)(4), a new or modified PSD source in an attainment areamay have a SO2emission limitation in a permit under 45CSR14 based upon a bestavailable control technology (BACT) analysis, and application of BACT for eachregulated NSR pollutant that has the potential to emit in significant amounts inaccordance with the control technology review requirements in 40 CFR §51.166(j),21§110(a)(2)(J)(continued)and as set forth in 45CSR§14-8.45CSR14 contains a significance level for SO2of 40 tpy and significant impact levelsof 1.0, 5.0 and 25.0μg/m3for annual, 24 and 3-hour averaging times, respectively.45CSR14 also contains a de minimis air quality impact concentration of 13μg/m3overa 24 hour averaging time and a maximum allowable pollutant concentration increaseover baseline concentration of 20, 91 and 512μg/m3for annual arithmetic mean, 24-hour maximum and 3-hour maximum averaging times, respectively, in Class II areas.West Virginia has timely submitted all structural PSD program provisions for which aSIP submission deadline has passed, with the exception of the requirement for theinclusion of condensable emissions of particulate matter within the definition of‘‘regulated new source review pollutant.’’ WestVirginia will correct this omission whenit submits 45CSR14 as a SIP revision in June 2014.EPA has not proposed to amendthe PSD regulations with regard to the 2010 1-hourSO2NAAQS. However, West Virginia willrevise its PSD program to address anyapplicable EPA amendments of the SO2PSD rules within three years from the date ofsuch amendments.Visibility Protection:There are no new applicable visibility protection obligationsunder §110(a)(2)(J) as a result of the 2010 1-hourSO2NAAQS. According to EPA’sinterpretation of the CAA, the visibilityelement of section Jdoes not need to beaddressed.§110(a)(2)(K)provide for:(i) the performance of such airquality modeling as theAdministrator may prescribe forthe purpose of predicting theeffect on ambient air quality ofany emissions of any air pollutantfor which the Administrator hasestablished a national ambient airquality standard, and(ii) the submission, upon request,of data related to such air qualitymodeling to the Administrator;Air Quality Modeling:W.Va. Code, §§22-5-4(a)(1)&(3), authorizes the Secretary to“develop ways and means for the regulation and control of pollution of the air of thestate” and “conduct such studies and researchrelating to air pollution and its controland abatement”.Inherent in Secretary’s authority is the capability to conduct new source reviewmodeling required under the CAA set forth in the SIP-approved (77FR63736) PSDsource impact and modeling requirements of 45CSR14-§§9 and 10, in accordance with40 CFR §§51.166(k) and (l). All applications of air quality modeling, where appropriate,for PSD purposes shall be based on the applicable air quality models, databases, andother requirements specified in the Appendix W of 40 CFR Part 51 (Guideline on AirQuality Models). Pursuant to 45CSR14-§10.2, where an air quality impact modelspecified in Appendix W of 40 CFR Part 51 is inappropriate, the model may bemodified or another model substituted, provided that the modification or substitution isapproved in writing by the Administrator.Also inherent in The Secretary’s authority is the capability to conduct modeling todemonstrate attainment of the NAAQS, asrequired under the Part D of the CAA, and22§110(a)(2)(K)(continued)as prescribed by the Administrator. Airquality modeling is an inherent aspect ofpreparing the attainment plan required for nonattainment areas under Part D of Title Iof the CAA. Such plans are not required tobe submitted as part of an infrastructureSIP. However, there is an obligation for theinfrastructure SIP from any state containinga designated nonattainment area for a newor revised NAAQS to provide for theperformance of the air quality modeling that will be needed to prepare an attainmentdemonstration plan. A source-oriented dispersion model such as AERMOD will the airquality model that will be used to demonstrate the adequacy of a control strategy toprovide for the timely attainment and maintenance of the NAAQS, pursuant to 40 CFR§§51.112 and 51.115(b).WVDAQ employs one full time technical employee who is responsible for air qualitymodeling. WVDAQ also participates in regional planning organizations such as theSoutheastern Modeling Analysis and Planning project, which performs NAAQSmodeling for member states. West Virginia will perform modeling, as required underthe CAA to demonstrate attainment of the 2010 1-hour SO2NAAQS.Submission of Data:W.Va. Code §§22-5-4(a)(2), 22-5-10 and 22-5-4(a)(16)authorizes the Secretary to submit, upon request by the Administrator, modeling datapredicting the effect on ambient air qualityof any emissions of any air pollutant forwhich the Administrator has established anational ambient air quality standard. WestVirginia will submit to EPA current and future air quality modeling data as part of itsrelevant SIP submissions and through Federalgrant commitments or in other ways thatEPA may request. West Virginia can also provide relevant data as part of the NAAQSimplementation process.§110(a)(2)(L)require the owner or operator ofeach major stationary source topay to the permitting authority,as a condition of any permitrequired under this Act, a feesufficient to cover-(i) the reasonable costs ofreviewing and acting upon anyapplication for such a permit,and(ii) if the owner or operatorreceives a permit for suchsource, the reasonable costs ofimplementing and enforcing theterms and conditions of any suchPermit Fees for Permit Review, Implementation and Enforcement:West Virginiahas an approved Title V operating permitprogram under 45CSR30 (66FR50325). EPAgranted final full approval effective on November 19, 2001. The Title V Program permitfees which satisfy the fee determination andcertification requirements set forth in 40CFR §70.9 are contained in the rule at45CSR§30-8. The collected fees have beensufficient to cover permit review, and implementation and enforcement of permit termsand conditions.Because the fee requirement in §110(a)(2)(L) has been supersededby the EPAapproved fee program under Title V, infrastructure SIP submissions followingpromulgation of a new or revised NAAQSdo not currently need to contain any newprovisions for the fee requirements under this section. Therefore, West Virginia’s EPAapproved Title V operating permits program(and its collection of permitting feespursuant to 40 CFR §70.9) demonstrates that the Element L fees are no longerrequired.23permit (not including any courtcosts or other costs associatedwith any enforcement action),until such fee requirement issuperseded with respect to suchsources by the Administrator'sapproval of a fee program undertitle V;§110(a)(2)(M)provide for consultation andparticipation by local politicalsubdivisions affected by the plan;Consultation:The Secretary has the authority under W.Va. Code §22-5-4(a)(16) “todo all things necessary and convenient to prepare and submit a plan or plans for theimplementation, maintenance and enforcement of the Federal Clean Air Act .....”Under this statute, and pursuant to the General Plan Requirements set forth in 40 CFR§51.240, the WVDAQ is the organization authorized to develop, implement and enforcethe SIP. §22-5-4(a)(2), authorizes the Secretary to advise, consult and cooperate withlocal political subdivisions affected by the implementation plan. WVDAQ consults withlocal governments, organizations and Land Managers with respect to SIPdevelopment.WVDAQ also consults with such entities regarding implementation plans for air qualitymaintenance requirements, preconstruction review of direct sources, nonattainmentrequirements, and prevention of significant deterioration.Notice and Opportunity for Public Hearing:In accordance with the federalprocedural requirements at 40 CFR §51.102, any plan or plan revision, or individualcompliance schedule, prepared by WVDAQ is subject to a 30 day public notice periodwith public hearing, or in cases where there is little anticipated public interest, theopportunity for a public hearing. West Virginia legislative rules which contain suchpublic notice procedures include permitting rules 45CSR13, 45CSR14, 45CSR19 and45CSR30.

# FINAL WEST VIRGINIA STATE IMPLEMENTATION PLAN REVISION

FOR CLEAN AIR ACT SECTION 110(A)(2)(A)-(M) REQUIREMENTS

FOR SULFUR DIOXIDE

RESPONSE TO COMMENTS

On April 19, 2013, the Division of Air Quality (DAQ) commenced a thirty day public

comment period and subsequently held a public hearing on May 20, 2013 to accept oral comments

on to accept written comments and/or a written request for a public hearing on a proposed revision

to the State Implementation Plan which demonstrates that West Virginia has adequate resources and

authority to implement the 2010 1-hour sulfur dioxide National Ambient Air Quality Standards.

Written comments were accepted through 6:00 PM on Monday, May 20, 2013. No one

provided substantive verbal comment at the public hearing concerning the proposed implementation

plan revision. Two commenters submitted writte n comments on the proposed implementation plan

revision. DAQ addresses the comments below.

I. COMMENTER: Environmental Protection Agency

COMMENT A. The commenter states, “EPA has reviewed the proposed revision to the West

Virginia SIP and our comment is below. Please enter the following comment into the public record.

Section 110(a)(2)(E)(ii)

In addition to including W.Va. Code §6B-2.6 and §6B-2.7, this section should also reference

W.Va. Code §6B-1.3 as it defines compensation, thing of value and other important terms

employed in §6B-2.6 and §6B-2.7. West Virginia should include all three provisions (W.Va.

Code §6B-1.3, §6B-2.6, and §6B-2.7), for incorpora tion by reference into the West Virginia

SIP for Clean Air Act sections 128(a)(2) and 110(a)(2)(E)(ii) for all NAAQS.”

RESPONSE A. DAQ acknowledges that certain conflict of interest provisions exist in state

law, including those referenced by EPA. However, West Virginia disagrees that it is necessary to

formally incorporate them into the SIP. West Virg inia assures that the requirements of Clean Air Act

Section 128(a)(2) will be met. Section 128 governs here, and provides adequate safeguard for

potential conflicts of interest.

II. COMMENTER: Sierra Club

COMMENT A. The commenter states, “West Virginia must include enforceable one-hour SO

2 

# emission limits for sources currently permitted to cause exceedances of the NAAQS, including

the Kammer, Kanawha River, Albright, Rivesville , and Willow Island coa1-fired power plants.”

RESPONSE A. Sierra contends that the SO

2 

# I-SIP must have enforceable limits for five EGUs

# to attain the SO

2 

# NAAQS. West Virginia’s SIP does contain limitations for emissions of SO

2 

# . However, limitations needed to attain the NAAQS ar e due on a different schedule than I-SIPs. Such

limitations are to be submitted under Clean Air Act Part D attainment plans, and are not intended

to be addressed in I-SIPs.

COMMENT B. The commenter states, “AERMOD modeling, such as that provided by the

Sierra Club, is the appropriate tool for evaluati ng the adequacy of Infrastructure SIPs and ensuring

attainment and maintenance of the NAAQS.”

RESPONSE B. Sierra contends that Sierra's AERMOD model results are appropriate for

adequacy of I-SIPs and ensuring attainment. DAQ notes that ensuring attainment of the NAAQS

falls under Part D of the Clean Air Act - refer to Response II.A. The adequacy determination of any

attainment SIP will be pursuant to Part D. DAQ also notes that will be responsible for modeling

attainment demonstrations required under Part D. The agency has discretion to perform the modeling

itself, contract consultants, or require affected sources to model.

COMMENT C. The commenter states, “The West Virginia Infrastructure SIP must include

provisions to ensure SO

2 

# emissions will not cause or significantly contribute to nonattainment or

interefere with maintenance of the SO

2 

# NAAQS in another state.”

RESPONSE C. Sierra contends that the Clean Air Act’s "good neighbor" provisions must be

met in West Virginia’s SO

2 

# infrastructure SIP. An Augus t 21, 2012 decision by the U.S. Court of

Appeals (EME Homer City Generation, L.P. v. EPA, No. 11-1302) states that a SIP cannot be

deemed deficient for failing to meet the good neighbor obligation before the EPA quantifies that

obligation. Therefore, West Virginia’s SO

2 

# infrastructure SIP is not deficient because it does not

address the good neighbor provisions of Clean Air Act in Section 110(a)(2)(D)(i)(I). DAQ also

refers the commenter to Response I.A.., . 

# -**~.** 

### --



# BEFORE THE WEST VIRGINIA DEPARTMENT O F

ENVIRONMENTAL PROTECTION

DIVISION OF AI R QUALITY

In re: PROPOSED WEST VIRGINIA STATE I MPLEM ENTATION PLAN

REVISION F OR CLEAN AIR ACT §110(A) (2) (A)

- (M) REQUIREMENTS

F O R SULFUR DIOXIDE

Transcript of proceedings had at a public

hearing in the above-styled mat ter take n at the West

Virginia D epartme nt of Environmental Protection, Division

of Air Quality, Conference Room, 60 1 57th S tr eet, S.E.

Charleston, West Virginia, commencing at 6:05p. m

. , on the

20th day o f Ma y 2013

, pursu an t to n ot i ce

.

MISSY L

. YOUNG

, C.C

. R

.

POST OFFICE BOX 6296

CHARLESTON, WEST V IR GINIA 25362

304-205-4929 or 3 0 4-539-6192 1

# )

1

2

3

4

5

6

7

8

9

10

11

1 2

1 3

14

1 5

1 6

1 7

1 8

19

20

2 1

22

23 

# Proce e dings 2



# P R 0 C E E D I N G S



# MR. MASON: This public hearing will now

come to order on this 20th day of May, 2013, at the West

Virginia Department of Environmental Protection

Headquarters. Comments and testimony will be accepted until

the close of this hearing and will be made part of the

state implementation plan record. Any substantive question

regarding the proposed plan revision will be included with

your comments, and any such question will be answered as

part of the response to comments in the plan record.

The purpose of this public hearing is to satisfy

federal procedural requirements for state implementation

plans by accepting comments on a proposed West Virginia

State Implementation Plan revisi o n for Clean Air

Act§110(a) (2) (A)-(M) Requirements for Sulfur Dioxide with

regard to the 2010 1-hour sulfur dioxide National Ambient

Air Quality Standards. DEP is seeking comments on w hether

the document adequately demonstr a tes West Virginia's

compliance with the pertin e nt fe d eral Clean Air A c t

mandates related to these State Implementation Plan

infrastructure elements

.

Th e floor is now open for comments

. Please stat e

your name and any affiliation.

A1J $$ ?f .1! 

# ?fr:JU/V(j, 

# e.e. t<

. (304} 205-11942 0'1- 

## (304} 539-6192

# Proceedings 3

1 There being nothing further, this public hearing

2 for the proposed State Implementation Plan revision is

3 concluded.

4 (WHEREUPON, the hearing was

5 concluded at 6:07p.m.)

6

7

8

9



# 10

11



# 12

13



## 14

15



## 16



# 17

18



# 19

20



# 21



# 22

23



# A1J$$!fj.f. if!OU/vt} eaR. (304) 205-4942rn (301f) 539-6192

# Pr oceedi ng s 4



# STATE OF WEST VIRGINIA,

COUNTY OF KANAWHA, to-wit :

I, the undersigned, Missy L. Young, a

Certified Court Reporter and Notary Public within and for

the State of West Virginia, duly commissioned and

qualified, do hereby certify that the foregoi n g, was taken

to the best o f my skill and abil i ty, a true and accurate

transcript of all the proceedings had in the aforementioned

matter.

Given under my h a nd and official sea l this

21s t day of May 2013.



# OC R

.

Nota ry Virginia

M

y commission expires April 15, 201 8.

OFFICIAL SEAL

N

otary Public

, State Of W es t VIrginia

MISSY L. YOUNG

, C.C.R.

POBOX6296**~**

# ~ CH ARLESTON, W V 253 1 2

My Com mi ssio n Expi r esAp r i l15, 20 1 8



# MJ$$?f .f. 

# ?frYUIV{j, 

# eel<

. (304} .205-494.2 011- 

## {304} 539

- 619.2

# - dep

west virginia departmen t of enviro n men t al protect i on 

# SIGN-IN SHEET

Pub l ic Hearing on the propo sed West Virginia State Implementation Pl an revi s ion for Clean Air Act § JJO ( a

)(2)(A)

- (M) R equi rem en t s for Sulfur

Dioxide 

# with regard to the 20 1 0 1-hour s u l fur dioxide National Ambient Air Quality Standards

.

May 20

, 2013, 6:00p

. m.

The Department of E nvironmental Protection asks for the i nformation below so that agency staff may provide responses and information about

decision s to you. The i nformation you vo l untar il y prov i de o n t hi s s h eet becomes part of the pub l ic record related to t h is topic and may be re l ease d if

requested under the Freedom oflnformation Act.

Na me (p l ease print) Address Organization Phone E-ma il Comment

Y IN



# I J£P?**/1,-s~** 

# I

@2 /

# $7**j** 

# \

_

tvv P t:t, \__ 

# t

_____ -

_ I 

# AI

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Promoting a healthy environment.

## From:

Sent:

To:

Cc:

Subject: 

# Schmitt, Ellen <Schmitt.Ellen@epa.gov>

Monday, May 13,2013 2:59 

## PM



# Mowrer, Tammy L



# Fernandez, Cristina; Durham, William F; 

# Mason, James L



# Comments on WV's infrastructure SIP for 502



# Hello Ms. Mowrer,

Please accept the following as EPA 

# Region ill's comments for public record on West Virginia State implementation Plan revision for

Clean Air Act section 110(a)(2)(A)-(M) Requirements for Sulfur Dioxide. Thank 

# you.

Dear 

# Mr. Durham:

Thank you for giving the U.S. Environmental Protection Agency (EPA) the opportunity to review the proposed state

implementation plan (SIP) revision addressing the Clean Air Act (CAA) section 1 10(a)(2)(A) through 

# (M) requirements

for the 2010 sulfur dioxide National Ambient Air Quality Standards (NAAQS). EPA has reviewed the proposed revision

to the West Virginia SIP and our comment is below.

Please enter the following comment into the public record.

Section 1 lO(a)Q)(E)(ii)



# In addition to including W.Va. Code 56B-2.6 and 56B-2.7, this section should also reference W.Va.

Code 56B-1.3 as it defines compensation, thing of value and other important terms employed in

56B-2.6 and 56B-2.7. West Virginia should include all three provisions (W.Va. Code 56B-1.3,

56B-2.6, and 56B-2.7), for incorporation by reference into the West Virginia SIP for Clean Air Act

sections 128(a)(2) and 1 lO(a)(2)(E)(ii) for all NAAQS.

We look forward to working with you on this infrastructure SIP revision. Should you have any questions pertaining to

EPA's review of the proposed SIP revision, please do not hesitate to contact Ellen Schmitt at (215) 814-5787 or

schmitt.ellen@,eva.gov.



# Ellen C. Schmitt

Office of Air Program Planning (3AP30)

Air Protection Division



# U. S. Environmental Protection Agency, Region Ill

1650 Arch Street

Philadelphia, PA 19103-2023

Work: (215) 814-5787

# SIERRA

CLUB

fOUNDED 18<>2



# John A. 

# Benedict

Director

DEP Division of Air Quality

601 5ih Street, SE

C harleston

, West Virgini a 25304

May 20, 2013

VIA ELECTRONIC MAIL AND 

# U.S. MAIL



# Re: Comments Concerning West Virginia's Section llO(a) Infrastructure State

Implementation Plan (SIP) Submittal for 2010 Sulfur Dioxide NAAQS

Dear Mr. Benedict:

On behalf of the Sierra Club and the more than 2,100 West Virginia members and others

who are adversely impacted by West Virginia 's sources of sulfur dioxide ( " S0 2 ") 

# pollution, we

submit the following comments on West Virginia ' s proposed infrastructure provisions

addressing the requirements for the 2010 Sulfur Dioxide National Ambient Air Quality

Standards ("NAAQS")

, required by Section 11 O(a)(l) and (2) of the federal Clean Air Act

( " FCAA" or "Act " ). 42 U

. S.C. 

# § 7410(a)(l)

, (2).

The primary N 

# AAQS define the levels of air quality that the EPA Administrator

determines to be necessary to protect public health with an adequate margin of safety. 

# See 42

U.S.C. § 7409(b)(l)

. Indeed, the new one-hour S0 2 

# standard is necessary to protect public health

from the serious threats posed by short-term exposure to sulfur compounds

, including decreas e d

lung function, increased respiratory symptoms such as chest tightness

, whee z ing, and shortness

of breath, and other serious indicators of respiratory illness, especially in asthmatics, children,

and the elderly. 

# See Primary National Ambi e nt Air Quality Standardfor Su(fur Dioxide; Final

Rul e, 75 Fed. Reg. 35

, 520

, 35,550 (June 20

, 201 0) (hereinafter "Final S0 2 Rule " ). The health

data relied upon by EPA in promulgating the new standard overwhelmingly indicated that

increased asthma attacks and hospital v isit s are attributable to short-term concentrations of sulfur

compounds in the air. Due to these and other serious impairments cau s ed by short-term S0 2



# Page 

# 1 o f 

# 12

# exposure, the West Virginia Department of Environmental Protection ("WVDEP") must

properly implement the one-hour S0 2 

# NAAQS to protect public health.

I. 

# THE INFRASTRUCTURE SIP MUST INCLUDE ENFORCEABLE ONEHOUR S0 2 

# EMISSION LIMITATIONS TO ENSURE ATTAINMENT AND

MAINTENANCE OF THE NAAQS.

Section llO(a)(l) ofthe Act, 42 U.S.C. § 7410(a)(l), provides that each state shall "adopt

and submit to the Administrator

... a plan which provides tor implementation, maintenance, and

enforcement of' the NAAQS. Section 110(a)(2)(A) requires that these plans, known as

Infrastructure SIPs. "include enforceable emission limitations

... as well as schedules and

timetables for compliance, as may be necessary or appropriate to meet the applicable

requirements" of the Clean Air Act, including the requirement to maintain the NAAQS. 42

U.S.C. § 741 O(a)(2)(A).

Even though the 2010 NAAQS represents a new and tighter standard for ambient S0 2

, 

# WVDEP has failed to impose restrictions on major S0 2 

# sources to ensure that they will maintain

the NAAQS.

A. 

# West Virginia must include enforceable one-hour 50 2 

# emission limits.for

sources currently permitted to cause exceedances of the NAAQS, including

the Kammer, Kanawha River, Albright, Rivesville, and Willow Island

coal-fired power plants.



# WVDEP fails to include adequate enforceable emission limitations to ensure that sources

of S0 2 

# have emission limits sufficient to prevent causing or contributing to exceedances of the

2010 S0 2 

# NAAQS. Specifically, coal-fired power plants such as the Kammer Plant, located in

Marshall County, the Kanawha River Plant, located in Kanawha County, the Albright Plant,

located in Preston County, the Rivesville Plant, located in Marion County, and the Willow Island

Plant, located in Wood County, currently lack emission limits which prevent violations of the

2010 S0 2 

# NAAQS. In order to comply with Section 110(a)(2)(A), the West Virginia SIP must

be amended to ensure these sources, and other large sources, will not cause violations of the

2010 S0 2 

# NAAQS.

WVDEP has submitted several regulations that it purports to show the SIP's compliance

with 11 O(a)(2)(A). However, none of these regulations actually include enforceable emission

limitations to ensure attainment and maintenance ofthe 2010 S0 2 

# NAAQS. Specifically,

WVDEP 45 CSR 10 as which for sources of

West State

Revision for Clean Air Act§ 11 O(a)(2)(A)-(M) Requirements for Sulfur Dioxide at 2 (April 19,

2013). However, these emission limits have not been revised in face of the significantly more

stringent standard of the 2010 S0 2 

# NAAQS, having been passed thirteen years ago. See 

# 45 W.

Va. CodeR. §45-10-3 (2000). Nor are do the regulations include effective hourly limits, being

instead keyed to the heat output of the facilities. !d. WVDEP must amend these regulations to

include new one-hour enforceable limitations with proper averaging times not based on heat

# Further, and more significantly, Sierra Club has presented West Virginia with modeling

that demonstrates, in fact, that the limits WVDEP now proposes as sufficient to attain and

maintain the NAAQS are severely inadequate. See 

# Steven Klatka, Albright Power Station,

Albright, West Virginia, Sierra Club Evaluation o{Compliance 'vith 1-hour S0 2 NAAQS



# (September 19, 2011) (hereinafter the "Albright Modeling Report"), attached hereto as Exhibit I;

Khanh T. Tran, AERlvfOD Modeling of S0 2 Impacts of the AEP Ohio Pmver Kammer Plant



# (November 16, 2011) (hereinafter the "Kammer Modeling Report''), attached hereto as Exhibit

Steven Klatka, Kanawha River Plant, Glasgow, West Virginia, Sierra Club Evaluation o{

Compliance with 1-hour S02 NAAQS 

# (October 25. 2011) (hereinafter the "Kanawha River

Modeling Report"), attached hereto as Exhibit 3; Khanh T. Tran, AERMOD Modeling ofS0 2

Impacts o{the iUonongahela Rivesville Plant 

# (November 1, 2011) (hereinafter the "Rivesville

Modeling Report"), attached hereto as Exhibit 4; Khanh T. Tran, AERMOD lvfodeling of S0 2

Impacts of the Allegheny Energy Willow Island Plant 

# (October 21, 20 II) (hereinafter the

''Willow Island Modeling Report"), attached hereto as Exhibit 5. 1



# The modelers prepared an air dispersion modeling analysis for each plant to compare

modeled ambient air concentrations from the plant's emissions with the one-hour S0 2 NAAQS.

The modeling reports used EPA's AERMOD program to measure the plant's "allowable" (based

on the plant's current Title V permit) and actual (based on maximum plant-wide hourly

emissions obtained from EPA's Clean Air Markets Data and Maps database) emissions to

determine whether the plants can cause violations of the one-hour S0 2 NAAQS. The modeling

protocol employed is consistent with all available technical !:,'Uidance, including Appendix Wand

EPA's March 2011 guidance for implementing the one-hour S0 2 NAAQS, and additionally used

the most recent version of AERMOD available at the time of the study? Where any assumptions

were made in the running of the model, the modelers employed conservative inputs which favor

the prediction oflower impacts from the plant so that the results actually understate 

# each plant's

S02 emission impacts. Each separate modeling report details these conservative assumptions

and the protocol used.

The modeling reports all demonstrated that S0 2 emissions from the plants allowed under

the existing SIP cause impacts that exceed the new one-hour S0 2 NAAQS. See 

# Albright

Modeling Report at 1-3; Kammer Modeling Report at 7-13; Kanawha River Modeling Report at

1-3; Rivesville Modeling Report at 7-1 0; Willow Island Modeling Report at 7-10. These

violations based on permitted emission limits and actual emissions are impacting 23 counties in

West Virginia, and yet out of these counties, WVDEP has only recommended that one partial



# county-Marshall-be designated as John

at



# http://www.epa.gov/airquality/sulfurdioxide/designations/recletters/R3WVupdate.pdf. While

EPA has disa!:,rreed and instead proposed designating the entire 

# area of Marshall county as

nonattainment, this designation is not final and therefore cannot be relied upon by WVDEP in its

infrastructure SIP submission. See generally Sierra Club v. EPA, 

# 536 F.3d 673, 678 (D.C. Cir.I 

# I

I 

# 2008) (EPA's promises to aet in the future cannot relieve a state agency from current legal

requirements). WVDEP must submit a SIP that "provides for implementation, maintenance, and

enforcement of[the NAAQS] within such State." 42 U.S.C. § 

# llO(a)(l). Therefore, WVDEP

must address the violations from sources located in Marshall County in the Infrastructure SIP

until such time as Marshall County is actually designated nonattainment, if indeed, it ever is

actually designated nonattainment.

The findings from each modeling report are summarized in the table below.

Total 

# I

Impact I



## Power Emission Facility Background Facility 

# so2

Counties \VVDEP

Plant Rates Impact**(~glm3)** 

## Impact plus 

## NAA<?S Impacted Recommended**(~g/m3)** 

## Background**(~glm** 

## )3 Designation**(~g/m3)**



## Allowable 10,680.1 91.6 10,771.7 196.2 Preston,

Albright Monongalia, Attainment Marion, Maximum 9,521.8 91.6 9,613.4 196.2 Taylor**

Kammer

Allowable 91.6 196.2 (based on 324.0 15.6

Partial

600ft. Marshall** nonattainment stack Maximum 225.9 91.6 317.5 196.2 height)

Kammer

(based on Allowable 234.1 91.6 325.7 196.2 Partial

900ft. Marshall**

stack nonattainment

height) Maximum 163.2 91.6 254.8 196.2

Clay,

Nicholas,

Allowable 10,782.4 91.6 10,874.0 196.2 Fayette,

Raleigh,

Wyoming,

Kanawha Boone, Attainment

River Logan,

Kanawha,

Maximum 9,124.1 91.6 9,215.7 196.2 Roane,

Summers,

Lincoln, 

# I Braxton



## I I 

## I 

# I Marion.



# I I 

### l l 

# I I 

# I I

Monommli:1 

## nonattainment Rivesville T 

## Preston, in Marshall only Maximum 12,600.5 91.6 12,692.1 196.2 Tucker,

Marshall**

# emissions also cause cross-state impacts, resulting in S0 2 

# NAAQS violations in

neighboring states; this is discussed further below.

Albright Modeling Report at 3, Figure I; Kammer Modeling Report at 7-14; Kanawha River

Modeling Report at 3, Figure 1; Rivesville Modeling Report at 7-10: Willow Island Modeling

Report at 7-10.

Based on these conservative modeling results, to achieve and maintain the one-hour S0 2 

# NAAQS, WVDEP must promulgate enforceable one-hour averaging time emission limits into its

SIP which are no less stringent than the following limits: 4



## Maximum Total Required Total Facility

Plant Facility Emission Emission Reduction

Rate (lbs/hr) (%)



## Albright I 01.9 99.0%

Kammer 5,588.4 68.0%

Kanawha River 60.5 99.0%

Rivesville 30.8 99.0%

Willow Island 300.2 95.0%



# As demonstrated by the modeling reports, these plants and their governing emission

limits allow exceedances ofthe 1-hour S0 2 

# NAAQS, and therefore WVDEP must impose

additional emission limits on the plants which ensure compliance with the NAAQS at all times.

the infrastructure SIP limitations, and West

current section II 0( 

# a)( 1 )(A).

4 

## Given how conservative the modeling inputs were, these proposed limits are likely not be stringent enough. For

example, Sierra Club did not model for partial load conditions; under such conditions-with lower stack exit

temperatures and velocities-S0

2 

## emitted may not rise as high before it disperses, thus potentially increasing

ground-level ambient concentrations. WVDEP must evaluate each source's emissions and impose limits that will

reduce emissions to a point where the sources are not causing or contributing to violations of the one-hour S0 2 

## NAAQS. WVDEP's analysis must confirm that the new SIP emission limit will ensure compliance with the

# Similarly, while the Albright Rivesville, and Willow Island plants have initiated retirement,

WVDEP cannot torgo ensuring these plants comply with the 1-hour S0

2 

# NAAQS until the SIP is

amended to incorporate appropriate emission limits or to ret1ect their retired status and thus

provide no allowance for their emission at all.

B. 

# AERMOD modeling, such as that provided by the Sierra Club, is the

appropriate toolfor evaluating the adequacy of**h~frastructure** 

# SIPs and

ensuring attainment and maintenance ofthe NAAQS.

As outlined by EPA in the Final S0 2 NAAQS Rule, 75 Fed. Reg. at 35,551, air

dispersion modeling is the best method tor evaluating the short-term impacts of large sources of

S02. This is consistent with the fact that EPA has historically used air dispersion modeling for

attainment designations and SIP revisions. Furthermore, a state agency may not ignore

information put in front of them. See generally Motor Vehicle Mfrs. Ass ·n v. State Farm Mut.

Auto ins. Co., 463 U.S. 29, 43 (1983) (holding that it was arbitrary and capricious for agency to

ignore an important aspect of an issue placed before it); Grand Canyon Trust v. FAA, 290 F.3d

339, 346 (D.C. Cir. 2002).

WVDEP has long been on notice that modeling data is an important input in the NAAQS

attainment and maintenance process. In particular, EPA has historically used modeling in

determining attainment for the S02 standard. See e.g., U.S. EPA implementation of the 1-Hour

S02 NAAQS Draft White Paperfor Discussion at 3, fn. 1, (hereinafter "EPA White Paper"),

available at http://www.epa.gov/airquality/sulfurdioxide/pdfs/20120522whitepaper.pdf; see also

Respondent's Opposition to Motion of the State ofNorth Dakota for a Stay of EPA's 1-Hour

S02 Ambient Standard Rule at 3, National Environmental Development Association's Clean Air

Project v. EPA (D.C. Cir. 2010) (No. 1 0-1252), attached hereto as Exhibit 6 ("the Agency has

historically relied on modeling to make designations for sulfur dioxide"). For example, in EPA's

1994 S02 Guideline Document, EPA noted that "for S0 2 attainment demonstrations, monitoring

data alone will generally not be adequate," and that "[a ]ttainment determinations for so2 will

generally not rely on ambient monitoring data alone, but instead will be supported by an

acceptable modeling analysis which quantifies that the SIP strategy is sound and that enforceable

emission limits are responsible for attainment." U.S. EPA, 1994 S0 2 Guideline Document,

(hereinafter "1994 S0 2 

# Guideline Document"), available at

http://www.epa.gov/ttn/oarpg/tl/memorandalso2_guide_092109.pdf, at 2-1; see also id. at 2-5

("For S0 2 

# attainment demonstrations, monitoring data alone will generally not be adequate.").

The 1994 Guideline Document goes on to note that monitoring alone is likely to be inadequate:

S0 2

, 

# dispersion modeling will generally be necessary to evaluate comprehensively a

to the areas of current

EPA's acceptance of modeling for making attainment designations stretches back

decades, and is equally applicable to determining the adequacy of an infrastructure SIP. In

1983, the Office of Air Quality Planning and Standards ("OAQPS") issued a Section 107

Designation Policy Summary. See Sheldon Meyers Memorandum re Section 107 Designation

Policy Summary (April 21, 1983), attached hereto as Exhibit 7. OAQPS that

# characterize the worst case air quality the area:· 

# !d. at 1. Of course, if there is no monitoring

data for an area, it docs not accurately characterize the worst case air quality in an area. EPA

acknowledged that some nonattainment designations were "based solely on modeling[.]" 

# !d. at

2. In fact, reliance on modeling for nonattainment designations stretches back to the Carter

Administration. In 1978, EPA designated Laurel, Montana as nonattainment "due to measured

and modeled violations of the primary so2 standard.'' 

# Montana Sulphur & 

# Chemical Co. V.



## EPA, 

# 666 F.3d 1174, 1181 (9th Cir. 201 2) (citing 43 Fed. Reg. 8,962 (Mar. 3, 1978)).

As such, EPA's fina12010 S0 2 

# NAAQS rule simply continues and builds upon EPA's

historical practice of using modeling to determine attainment and nonattainment status for S0 2



# NAAQS. In doing so, EPA properly recognized the "strong source-oriented nature of S0 2



# ambient impacts," 75 Fed. Reg. at 35,370, and concluded that the appropriate methodology for

purposes of determining compliance, attainment, and nonattainment with the new NAAQS is

modeling. 

# See 75 Fed. Reg. at 35,551 (describing dispersion modeling as "the most technically

appropriate, efficient and readily available method for assessing short-term ambient S0 2



# concentrations in areas with large point sources."). Accordingly, in promulgating the new S0 2



# NAAQS, EPA explained that, for the one-hour standard, "it is more appropriate and efficient to

principally use modeling to assess compliance for medium to larger sources

.... " 

# !d. at 35,570.

Similarly, EPA then explained in the white paper that using modeling to determine attainment

for the S0 2 

# standard "could better address several potentially problematic issues than would the

narrower monitoring-focused approach discussed in the proposal for the S02 NAAQS, including

the unique source-specific impacts of so2 emissions and the special challenges so2 emissions

have historically presented in terms of monitoring short-term S0 2 

# 1evels for comparison with the

NAAQS in many situations (75 FR 35550)." EPA White Paper at 3-4.

Moreover, EPA's use of modeling has been upheld by the courts. For example, in



# Montana Sulphur, the company challenged a SIP Call, a SIP disapproval and a FIP promulgation

because they were aU premised on a modeling analysis that showed the Billings/Laurel, Montana

area was in nonattainment for S0 2 • 

# 666 F.3d at 1184. The court rejected Montana Sulphur's

argument and held that EPA's reliance on modeling was not arbitrary and capricious or

otherwise unlawful. 

# !d. at 1185; 

# see also Sierra Club v. Castle,

657 F.2d 298, 332 (D.C. Cir. 1981) ("Realistically, computer modeling is a useful and often

essential tool for performing the Herculean labors Congress imposed on EPA in the Clean

Air Act"); 

# Republic Steel Corp. v. Castle, 621 F.2d 797, 805 (6th Cir. 1980) (approving use of

modeling to predict future violations and incorporating "worst-case" assumptions regarding

weather and full-capacity operations of pollutant sources).

aware modeling produces

Regional Meteorologist, has stated

under oath:

# concentrations resulting from emissions from an industrial source. These should

be based on an appropriate modeling analysis.

Declaration of John C. Vimont at 1, 11 (emphasis added), attached hereto as Exhibit 8.

Similarly, Roger Brode is currently a physical scientist in EPA's Air Quality Modeling

Group and co-chairs the AMS/EPA Regulatory Model Improvement Committee (AERMIC) and

the AERMOD Implementation Workt,'Toup. Declaration of Roger W. Brode at 1, 2, attached

hereto as Exhibit 9. Mr. Brode has stated under oath that AERMOD is ''readily capable of

accurately predicting whether the revised primary S0 2 

# NAAQS is attained and whether

individual sources cause or contribute to a violation of the S0 2 

# NAAQS." 

# !d. at 2. Mr. Brode

has explained:

As part of the basis for EPA adopting the AERMOD model as the preferred

model for nearfield applications in the 

# Guideline on Air Quality Models,

Appendix W to 40 CFR Part 51, the performance of the AERMOD model was

extensively evaluated based on a total of 17 field study data bases (AERMOD:

Latest Features and Evaluation Results. EPA-454/R-03-003. U.S. Environmental

Protection Agency, Research Triangle Park (2003), portions ofwhich are attached

to this affidavit) ("EPA 2003"). The scope of the model evaluations conducted for

AERMOD far exceeds the scope of evaluations conducted on any other model

that has been adopted in Appendix W to Part 51. These evaluations demonstrate

the overall good performance of the AERMOD model based on technically sound

model evaluation procedures, and also illustrate the significant advancement in

the science of dispersion modeling represented by the AERMOD model as

compared to other models that have been used in the past. In particular, adoption

of the AERMOD model has significantly reduced the potential for overestimation

of ambient impacts from elevated sources in complex terrain compared to othermodels.



# !d. at 3-4 (emphasis added). The power plants discussed in these comments are clearly elevated

sources.

EPA's practice in a number of other contexts also demonstrates that modeling is a

technically superior approach for ascertaining impacts on NAAQS, and the history of EPA's

preference for modeling to evaluate compliance rather than monitoring. For example, all

N0 2

, 

# PM2 5

, 

# and NAAQS and PSD are

performed with as running AERMOD

on Air Quality Models. 40 C.F.R. 

# § 1 (1)(1 ). 

# Indeed, order to ensure

consistency in how air impacts are determined, both existing sources and newly permitted

sources should be assessed using the same methods. AERMOD modeling performs particularly

well in evaluating emission sources with one or a handful of large emission points. The stacks

are well-characterized in terms of location, dimensions and exhaust parameters, and have high

release heights. In addition many plants have S0 2 

# continuous emission monitoring system

("CEMS") data. AERMOD

# conditions. For example, AERMOD has been tested and performs very well during conditions of

low wind speeds:

AERMOD's evaluation analyses included a number of site-specific

meteorological data sets that incorporate low wind speed conditions. For

example, the Tracy evaluation included meteorological data with wind speeds as

low as 0.39 meter/second (m/s); the Westvaco evaluation included wind speeds as

low as 0.31 m/s; the Kincaid S0 2 evaluation included wind speeds as low as 0.37

m/s; and the Lovett evaluation included wind speeds as low as 0.30 m/s. Concerns

... regarding AERMOD's ability to model low wind speed conditions seem to

neglect the data used in actual AERMOD evaluations.

Comments of Camille Sears, attached hereto as Exhibit 10 (citing AERMOD evaluations and

modeled meteorological data, available at

http://www.epa.gov/ttn/scram/dispersion_prefrec.htm). EPA has noted as much tor years:

"[a]mbient monitoring data and air quality modeling data tor a particular area can sometimes

appear to conflict. This is primarily due to the fact-that modeling results may predict maximum

S02 concentrations at receptors where no monitors are located." 1994 Guideline Document at 2-

6.

In sum, neither the West Virginia SIP, nor permitted emission limits for plants like

Albright, Kammer, Kanawha River, Rivesville, and Willow Island, currently ensure that counties

in West Virginia will achieve and maintain the new one-hour S0 2 NAAQS. To satisfy the Act's

obligations, WVDEP must include adequate emissions limits in the SIP, with one-hour averaging

periods. EPA has acknowledged that, for the one-hour S0 2 NAAQS, modeling is the most

accurate means of determining attainment with the NAAQS. 75 Fed. Reg. at 35,551, 35,570.

Accordingly, WVDEP should include source-specific S0 2 

# emission limits in the SIP that, when

modeled, show no exceedances of the NAAQS.

II. THE WEST VIRGINIA INFRASTRUCTURE SIP MUST INCLUDE

PROVISIONS TO ENSURE S02 EMISSIONS WILL NOT CAUSE OR

SIGNIFICANTLY CONTRIBUTE TO NONATTAINMENT OR INTERFERE

WITH MAINTENANCE OF THE S02 NAAQS IN ANOTHER STATE.

In addition to causing violations of the one-hour S0 2 NAAQS in various counties within

West Virginia, several of the plants modeled by the Sierra Club are also causing cross-state

the NAAQS. WVDEP must ctrlrir"'""



# cross-state

Act Under Section 11 O(a)(2)(D), a SIP must contain ''adequate

prohibiting

... any source

... from emitting any air pollutant in amounts which will-(1)

contribute significantly to nonattainment in, or interfere with maintenance by, any other State

with respect to any such national primary or secondary ambient air quality standard

.... " 42

U.S.C. § 741 O(a)(2)(D)(i)(I). West Virginia's infrastructure SIP, as proposed, fails to address

any cross-state impacts that are due to sources within the state. WVDEP must therefore amend

SIP to 110(a)(2)(D)(i)(I).

# The following West Virginia plants are predicted to cause violations of the one-hour S0 2 

# NAAQS in other states and therefore ''significantly'' contributing to nonattainment in those

states:

See 

# Albright Modeling Report at 3, Figure 1; Kammer Modeling Report at 8, 12; Rivesville

Modeling Report at 8; Willow Island Modeling Report at 8. Based on these modeling results

which find exceedances ofthe NAAQS crossing state lines, not only are West Virginia sources

interfering with the maintenance of the one-hour S0 2 

# NAAQS, they are causing direct violations

of the NAAQS and creating areas ofnonattainment. West Virginia's SIP fails to address these

cross-state impacts, however, and thus violates Section 11 O(a)(2)(D)(i)(I).

Just as EPA has historically used air dispersion modeling in attainment designations and

SIP revisions, so has the agency relied on modeling to assess cross-state impacts under the Act's

Good Neighbor provision, that is Section 110(a)(2)(D)(i)(I). In both the Clean Air Interstate

Rule ("CAIR") and the Cross-State Air Pollution Rule ("CSAPR"), as well as the 2003 NOx SIP

Call, EPA has used modeling to determine pollutants' cross-state impacts. Although CAfR and

CSAPR have subsequently been struck down by the D.C. Circuit, the court never questioned the

agency's use of modeling to assess cross-state impacts. See generally North Carolina v. EPA,



# 531 F.3d 896 (D.C. Cir. 2008) (finding the emission limits and trading program of CAIR

arbitrary and unlawful due to EPA's failure to properly measure each state's "significant

contribution," EPA's failure to ensure that downwind states do not "interfere with maintenance"

ofupwind states with respect to any NAAQS, EPA's failure to impose consistent deadlines,

EPA's arbitrary budgets, and EPA's termination ofthe Acid Rain program); EME Homer City

Generation v. EPA, 

# 696 F.3d 7 (D.C. Cir 2012) (vacating the rule because it required upwind

states to reduce emissions by more than their own significant contributions to downwind states'

nonattainment and did not allow states to implement reductions through SIPs before issuing

Federal Implementation Plans).

In contrast to the court's problems with CAIR and CSAPR, in this situation, the Sierra

Club's air dispersion modeling identifies a single upwind source which by itself is causing a

violation in a single downwind state. such, the Sierra Club's modeling reports demonstrate

not cross-state but fact, actual the one-hour S0 2 

# NAAQS**'~""~'"''Pnt** 

# states are being sources West

WVDEP must address these impacts with proper emission limitations in its SIP for these plants

that ensure that they do not contribute significantly to nonattainment or interfere with

maintenance of the NAAQS in any downwind state. Again, even though Albright, Rivesville,

and Willow Island are scheduled for retirement, until the West Virginia SIP includes enforceable

measures to ensure these closings, WVDEP cannot ensure that its SIP complies with

110(a)(2)(D)(i)(I). Thus, WVDEP must amend the SIP to either contain enforceable provisions

# emission limits are stringent enough to ensure that West Virginia sources do not interfere with

maintenance of the S0 2 

# NAAQS in downwind states.

Nor can WVDEP rely on 

# EME Homer City Generation L.P. 

# v. Environmental Protection

Agency, 696 F.3d 7 (D.C. Cir. 2012), as an excuse to ignore its obligations under Clean Air Act§

11 O(a)(2)(D)(i)(I). Although in dicta 

# Homer City suggests that EPA must quantify upwind

states' emission reduction obligations in order for states to submit SIPs addressing those

obligations, this interpretation conflicts with the plain language of 42 U.S.C. § 741 O(a)(l) which

indisputably requires states to submit Infrastructure SIPs within three years of promulgation or

revision of any primary or secondary NAAQS. 42 U.S.C. § 

# 741 O(a)(2)(D)(i)(I) requires these

Infrastructure SIPs to contain adequate provisions prohibiting sources in upwind states from

contributing significantly to nonattainment or interfering with maintenance of the NAAQS in any

downwind state. 5 

# Moreover, there is no issue with West Virginia being unable to determine

without EPA's help what its S0 2 

# contributions to downwind states may be: here it is very clear

what reductions WVDEP must require, as the violations are coming from a single source.

III. CONCLUSION

The West Virginia SIP is currently inadequate to achieve and maintain compliance with

the one-hour S0 2 

# NAAQS, as described above. WVDEP must adopt new provisions into the SIP

to protect the public health and comply with the Act's requirements. The Sierra Club would be

happy to provide any other information that might assist WVDEP in evaluating the impacts of

these sources and developing a SIP in full compliance with the Act.

Maggie We

Law Office of Maggie Wendler

1843 Toyon Way

Vienna, VA 22182

(703) 772-1433

mwendler.esq@gmail.com



# On behalf of Sierra Club

# (202) 675-7917

Robert Ukeiley

Law Office of Robert Ukeiley

507 Center Street

Berea, KY 40403

(859) 986-5402

rukeiley@igc.org

On beha(f of Sierra Club··NOTICE OF.PVBJ.;fC**COMftli,_E~T;:P,~~~Op** 

# rtte 

# west:-**Vfril~hfa:·** 

# -.oe. part'rnent::Cif.\:EilvlrOmllen-

## ~~~n~~~ti~~~-&~N~~~u~1i~

·**·,ty .tor;_;publj~--cQmi"nent..·on** 



### a ·pre:!'osed ·we_st Nirgfnlo

··state·,_**~** ·· tinPlementofiori

Plan revision-· for--·· Clean· 

### AiT::Aet_§J.l.O{a)**{2HAJ~CMl Re~u**  iremi:mts·

__ .· :foo Sulfi.J r QJox_id.e \YitA:_regar_d't_o the. !



### -. 2010**l~houro:-s_IJ.Iflif-'d!oxlde:-;**

- {502J:_::Natlonai·-JO;rnb_lenf--: A[r·

.. '·Quantv:-. ·_SJo:nt;lards:,-. (NAAQSt

.**The';'stote-·tm~ ~<.ptementdtioll-pl!:m**  

## :cs I Pl 

### :_is



## . -ttw_**--~plqn_:,.-:!:l~vel.oped** ·_ :)Jy-.



### ·wes_t Virginia. lri-order'to

· ';flilfill:-·its; -respOnsibiiJties:

unde'r the-.-CieOn .AiL:-Act-**~JCAA}Jo** ottOin**or:~d** ·main-**.-~** 

### Aill." the ,_-NAAQS

. 

### 1Proniu 

### 1_-

.

•**gat~d-by the:lJ.S'.·Env:irOn_~_!**  ._nien.tal Protection :Agency' ,(U_,_S.,·.:··I;:PA).\ -A-, ,public

.

.**'_hea_rin~·will** tOke-piCce·_bl7

· gin'ning.qt 6-p.m·.-on :Ma"v

':-20; -.2913_ irJAIJe**·PoliY:'~Sods_':** ConferenCe)-"Room·'.at ·tile·,-_

· DEP headquarters. _·:The·

public**:co~ment** :period·

will Peg in 

### o'n April 19, -2013'

(lr)d -end ·aNhe conclusion

of'·'the: publlt:;''he'arfng_,.on

.-

M9Y,20,

___

### ~~1_3::_.<:; 

# ..**·-:;',-~.:.<'** 

## _·

In fhJS-prdPO.\ied rev:ision

to"the SIP; West,Virglnla

is.· den10nstratlng_ that.- 

## if

has''' ·adequate:; r'!'lsource.s

.qnd ·authority.: -to. imple-

· 'i

ment. the· 2010 -i--hour

.. so2

· f\IAAQS:

· Compl(ariCe: wit!l :: sp"fcific·'-;· CAA-·.**\-s~ction** lTO(o) (2) .requirements Is**de~oiled.:Jn -~-**  --**do~;ument** demonstrating 'tiJot. the·

Stote-_meE!ts the.se _express· reqlJire\ _:erits 'throUQh :au-'

thorities" gra_nteCht.lr)der

state

·- lows. arid

· regula- '

tions, ·_as, W:elt .··as:**_.J_n:ijlle~_,** ·_rnentatiO_n ,'of' exlstin9 -'Oi_r·**~**

· progro_mS.**'DEP-is.s~_ekJng:** cOfrui"Jents"'on whethi:!r the·

document..

- · adequately

.:d_emonstrates. -West_ VJr,**ginla~s** - coinPiiance -·with

. the**Pe_'rtihe_nHeder~l:TAA'** manc:lates. i"e[cih!d JC!cfhese S_I.P**infrq~t_ru_cture-** ele-

ments.

·-

## UP~n**co~;~~~~i-orl** -.of

... the

P:ub(ic notice.-.Period, and

offer .addre;sinQ'anYwrit-

tert or verbOI.: comments,

the D'EP will 's"bmit_ the-final _document_ati_on:·to the



## u.s. EPA: 

## as a rE!vision'fo_

the SIP.

. .

Copfe's of the pri:nxised, 

# "

# CHARLESTON NEWSPAPERS

P.O. Box 2993

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### Billing 348-4898

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## TO 

# CHARLESTON WV 25304 USA



# L _j

Please return this portion with your payment.



## Make checks payable to: Charleston Newspapers



# CHARLESTON NEWSPAPERS

P.O. Box 2993

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# THE CHARLESTON GAZETTE,

do solemnly swear that the legal notice of:



# 4/19 REQ. SULFUR DIOXIDE 

# OF PUBLICATION INVOICE DATE

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### ACCOUNT NBR



## 9. 

# 50

of 

# 8.82 83.79

OFFICIAL SI;AL

Notary Public, State of West VIrginia



## MARY T PRILLAMAN

1

,.**-~ s~onphio**  

### )5tr_eet

South Charleston, WV

· 25309

My cQmmission expires April12, 2021 

# 83.79

83.79

was duly published in said newspaper(s)at the stated price for the respective newspaper(s) and during the dates listed below: 

# .()) /_/ rl '}

. .**~nf13-04/19!13**

Subscribed and sworn to before me thwrll__day of

# JJ~n 

# L

. 

# t2 

# /LJJ/It

. · ·

Notary Pub· of Kanawha County, West Virginia

## Volume XXX

Issue 16

April19, 2013



## Pages 618-657



## A Weekly Publication

Administrative Law Division

Judy Cooper, Manager

Natalie E. Tennant

Secretary of State

Administrative Law Division

Bldg. \,Suite 157K

1900 Kanawha Blvd. E.

Charleston, WV 25305-0770

(304) 558-6000 i

W\\ l.V. 

## wvsos.com 

# WEST

VIRGINIA

REGISTER

Published by the Office of the Secretary of State

CONTENTS

!. 

## Chronologicallndex

ll. Open Government Meetings Listing

Ill. Price List

IV. Rule Monitor

V. Notices

a. Legislative Rules

b. Interpretive Rules

c. Procedural Rules

d. Emergency Rules

e. Legislative Rule-Making Review Committee

VI. Legislative Interims

Vll. Orders

Vlll. Ethics Commission Opinions

IX. Office ofT a"< 

## Appeal Decisions

X. Other Documents or Information Filed



# XI. Publication Deadlines and Publication Dates

## AGENCY

28" Judicial Circuit Public Defender Corp.

Accountancy, WV Bd. of

Architects, Bd. of

Auditor's Office, State



### Children's Health Insurance Agency

Chiropractic Board

City Hospital, Inc.

Coal Heritage Highway Authority



### Commerce, Dept. of



### Concord University

Consolidated Public Retirement Board

Deaf and Hard of Hearing, Comm. for the



### Education

Environmental Protection, Dept. of



### Ethics Commission

Executive Order

Fayette Co. Health Dept.

First Judicial Circuit Public Defender Corp.

Forestry, WV Div. of



### Harrison Co. Comm. Corrections Program

Health and Human Resources

Health Care Authority

Higher Education Policy Comm.

Highland Hospital Association

Housing Development Fund, WV



### Human Rights Commission



## Insurance Commission

Investment Management Board



### Justice 

### & Comm. Service

Lottery

Massage Therapy Licensure Bd.

Med. Imaging & Radiation Therapy Tech. Bd. of Exam.



### Medicine

Miners' Health Safety & Training

Monongalia Co. Solid Waste Auth.

National Coal Heritage Area Auth.

Optometry, WV Bd. of

Parkways Auth.

Pierpont Comm. & 

### Tech. College

Public Defender Corporations

Public Defender Services

Public Employees Grievance Board



### Public Service Commission

Quarry Mine Board

Rehabilitation Services, WV Div. of

Treasury Investments, WV Bd. of

WV Health Information Network

WV Investment Management Board

WV Northern Community College

West Virginia State University

West Virginia University Hospitals



### WorkForce West Virginia

WVDOT

WVSU Board of Governors 

## PAGE(Sl

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627:'1/0TICE OF PUBLIC C0:\1;\IEI\'T PERIOD 

### I{IJ3 f,

.. , J -, .,

-·' "' ' I 

### Lill;**~'~ Th~:**  West Virginia**D~pnrlmcm** of Envirunmcma] Protection (DEP) is nnnouncing an

opportunity fOr public comment on a proposed West l'ilxinia State /mplcmt'tllatirm Phm**revi.~ion** jiw Clean Air Act

_ 1 \)//J(a)(:!)(A)-(A/) Retttdremmts_liw Su/ji1r Dioridl! with regard to the 2010 !c:

hour sulfur dioxiJ<.' (SO!)**Nation:~!** Ambient Air Quality StnnJnrds (NAAQS). The stall'

- implcmenl<llion plan (SIP) is the plan developed by West Virginia in ord<.'r to 

### fulfill its

responsibilities under the Ckan Air Act (CAA) to altain anJ maintain the NAAQS promulgated

by tlu: U.S. Environmental Protection Agcncy (U.S. EPA). A public hearing will take place

beginning at 6 p.m. on Mny 20,2013 in the Dolly Sods**Confen:n~e** Room nlthc DEP

headquarters. The public comment period will begin nn April 19, 201 3 and end at the**cnnelu~ion** of the public hearing on May :20, 2013.

In this proposed revision to th.: SIP, Wl·st**Virgmi:~** is demonstrating that it has adcqu:ttt:

resources and authority to impkmentthe 2010 I -hour SO! NAAQS. Compliance with specilic

CAA**~~::ction** II 0{a){2) n:quiremems is detailed in a document demonstrating that the St;l\e meets

these express requirements through authorities granted under state lmvs and regulations, as well

ns implementation of existing nir programs. DEP is seeking comments on whether the donnnent

adequately demonstrates West Virginia's wmpliance with the pL·rtinent federal CAA mimdatcs

related to these SIP infrastructure clements.

Upon completion of the public notice period, and arter addressing any wrilten or vcrhal

comments. the DEP will submit the**lin:~** I documentation to the U.S. EPA as a revision to the SIP.

Copies of the proposed CAA**~** 110{a)(2) SIP**rcvi~ion** may he viewed bctwe.:n fUO a.m.

and 4:30p.m. at the DEP Division of Atr Quality, 601 

### 57'h SE. Charleston, \VV 2530-1,

beginning April I 9, 201 

### J. or ckctronica!ly upon e-mail request to: Tammy.L.Mowrer(a wv.gov.

The proposal may also be accessed via the following web address:

http://www.dcp.wv.gov/daqlpuhlienoticeandeomment/Pagcs/dcfault.aspx.

Send written**comm~::nts** to he included in th.: formal record to John A. Benedict, Director,

Division of Air Quality at the a hove address. Please idcntiry the doct!ment to which the

comments apply, the c:ommenter's name, :tt!Jress, and telephone number. Comments will aho be

accepted by e-mail ifreeeivcd hy 5:00p.m. on May :!0. 2013 to: Tnmmy.L.Mowrcr(/1 wv.gov.

Comments submitted by U.S. Mail must he postmarked by May 20,2013. 

## OTHER

Earl Ray**T<~ml1hn** Go1trnor

### 4"';~

# ~)

sn.TE OF \\'EST \'IJtGI:"IA**DEPARTYIE~TOF** HEALTH A:"D HI:!\**fA;'~;'** RESOl'RCES

fl()REAll FOR PUBLIC HCAL TI-l

OfFICE OF f:."'\'IRO

.... Mt::NTAL 1-lt::ALTIJ SERVICES



# MEMORANDUM

To: lnterestcd i'nnies



### From: Roben \\'.DeCrease, 

### P. E. 

# /2uvD

Drinking Water Trc:nment Revolving fund**D;~te:**

Subject: Apri115, 2013

T ov.n of Capon Bridge

Distribution System !Jpgmdes and Water Line Extensicm

Environmentnl Review (FONST)

DWTRF Project Number: 12DWTRFA015

I lampshire County Rnccn S. Fud!ln**C~binet** S<·cretar>

:-.;

w**[:-:~**



## ,,,

Please lind enclosed the Town of Capon Bridge Dist1·ibution System**Gpgr:~des** nnd Water Line

Extension Project Finding of No Significant Impact (FO:"JSI).

The review process indicated significant environmental impacts would not result from the

proposed action. Consequently, a preliminary decision not to prepare .'In Environmental Impact

Statement has been**m::~de.**

This action is based on :1 careful review of the Em·ironmental Infoml:llion Document and other

supporting data. These documents are on Jile in the \\'est Virginia Bureau for Public Health.

Environment!l! Engineering Division, nnd are**::~vai!ahle** i0r public review upon request.

Comments supponing or disagreeing with this prdiminary decision may be st1bmitted for

consideration to Christopher Thomas. at 350 Capitol Street, Room 

### 313, Charlestllll. West Virginia

25301·3713. You may also FAX your comments to (304) 558-0691. After cv!lluating the comments

received. the Bureau will make a decision no**~ooncr** than thirty (30) calendar days from the d:1te of this

FOXSL No administrati\'e action will he taken with respect to tl1is proposal during this time frame.

R\\'O:C:I\1**Jli~tribution** List:**Tov.~1** of Capon Bridge

Region 8 Regional Council

Division of Culture & Histol)'

U.S. Fish and Wildlife Scn-·icc**We~t** Virginia Development Oflicc

\\'est Virginia Division of!'.:atuml Resources

West Virginia Burenu of Public Health

350 Cnritol Strl"e!, Room 313

Charll•ston, West \'ir>,!ini:1 25301-3713

Tctcrhooc: (304) 558-2981



# "'**~** w

## Mason, James L

From:



## Sent:

To:



## Cc:

Subject:

Attachments:

Ellen, Mason, James L

Tuesday, Aprill6, 2013 2:05 PM

'Schmitt.ellen@Epa.gov'

Durham, William F; 'Spink.marcia@Epa.gov'

West Virginia's Proposed 502 Infrastructure SIP

Proposed5022011WV!nfrastructureSIP110(a)(2)(A)-(M)_l.doc;

502InfrastructureSIPNotice.pdf

Attached you will find West Virginia's proposed S0 2 

## Infrastructure SIP, along with a public notice. The 30 day notice

period begins April19, and ends May 20, 2013. Let me know if you have any questions regarding the proposed

document. My phone number is 304 926 0499 1200.

After response to comment, we plan to submit it as a revision to the SIP on May 31, 2013.

Thanks!

-Jim Mason

WVDAQ

1

# NOTICE OF P UBLIC COMMENT P ERIOD

The West Virg inia Depa

rtment of Environmenta l Protection (DEP) is announc ing a n

opportunity

for public c omment on a proposed W est Virginia Stat e Im

plementation Plan revision

for Clean Air Act §110(

a) ( 2) ( A) -( M) Requireme nts for Sulf ur Dioxide with reg ard to the 2010 1-

2 

# hour sulfur dioxide (SO ) Na tional Ambient Air Quality Standards (N AAQS). The state

implementation plan (SI P) is the plan develope d by West Virginia in or der to fulf ill it s

responsibilities under the Clean A ir Act (CAA ) to attain and ma intain the NAAQS promulg ated

by the U.S. Environmental Protec tion Age ncy (U.S. EPA). A public he aring will take place

beg inning a t 6 p.m. on May 20, 2013 in the Dolly

Sods Conferenc e Room at the DEP

headqua rters. The public comment per iod will begin on Apr il 19, 2013 and end at the c onclusion

of the public he aring on May 20, 2013.

I n this proposed revision to the SI P, W est Virg inia is demonstrating that it has adequa te

2 

# resour ces a

nd authority

to implement the 2010 1-hour SO NAAQS. Compliance w ith specific

CAA section 110(a )(2) require ments is detailed in a docume nt demonstrating that the State meets

these e x press re quirements throug h authorities g rante d under state laws and r eg ulations, as well

as implementation of existi ng air prog rams. DEP is seeking comments on whethe r the doc ument

adequately

demonstrates West Virg inia’s compliance with the pertinent fe dera l CAA mandates

rela ted to these SI P infrastructur e ele ments.

Upon completion of the public notice period, a nd afte r addr essing any

written or ve rbal

comments, the DEP will submit the final doc umentation to the U.S. EPA as a re vision to t he SI P.

Copies of the propose d CAA §110(a) (2) SI P revision may be viewe d betwee n 8:30 a.m.

and 4:30 p.m. at the DEP Division of Air Qua lity , 601 57 SE, Charleston, WV 25304, t h



# beg inning Apr il 19, 2013, or elec tronically upon e-ma il request to: Tammy .L .Mowrer @wv.g ov.

The proposa l may

also be a cce ssed via the f ollowing we b addre ss:

http:// www.de p.wv.g ov/daq/publicnoticeandc omment/Page s/default.aspx.

Send written comments to be include d in the formal r ecor d to J ohn A. B enedic t, Direc tor,

Division of Air Quality

at the above addre ss. Please identify the document to which the

comments apply , the commenter ’s name, a ddress, a nd telephone numbe r. Comments will also be

acc epted by

e-ma il if rece ived by

5:00 p.m. on May

20, 2013 to: Tammy .L .Mowrer @wv.g ov.

Comments subm itted by

U.S. Mail must be postm arke d by May 20, 2013.west virginiadepartment of environmentalprotectionProposed West VirginiaState Implementation Plan Revision forClean Air Act §110(a)(2)(A)-(M)Requirements for Sulfur DioxideApril 19, 2013West Virginia Division of Air Quality601 57thStreet, SECharleston, W.Va. 25304Promoting a healthy environmentThis page intentionally left blank.1Proposed West Virginia State Implementation Plan Revision forClean Air Act§110(a)(2)(A)-(M) Requirements for Sulfur DioxideA State Implementation Plan (SIP) is a plan for each state thatidentifies how that state will attain and/or maintain the primary and secondaryNational Ambient Air Quality Standards (NAAQS). The SIP is a series of complex, fluid documentscontaining regulations, source-specificrequirements, non-regulatory items such as plans and inventories,and in some cases additional requirements promulgated by theU.S.Environmental Protection Agency (EPA). The initial SIPs for states were approvedby EPA on May 31, 1972. SIPs can be revised bythe statewith EPA approval as necessary. The federally enforceable SIP forWest Virginia is compiled in 40CFR Part 52, Subpart XX. In this revisionto the SIP, West Virginia is demonstrating that it has adequate resources and authority to implement the 2010 1-hour sulfur dioxide (SO2)NAAQS. The 2010 1-hour SO2NAAQS are incorporated by reference inWest Virginia legislative Rule 45CSR8.This SIP revision addresses requirements of §(a)(2)(A)-(M) of the Clean Air Act (CAA), many of which have been addressed in other SIPrevisions. It is a compilation of elements that demonstrate how the primary or secondary 2010 1-hour SO2NAAQS is being implemented,maintained and enforced in West Virginia. The elements of this SIP revision, once approved by EPA, will provide a federally enforceablecompilation of how West Virginia will continue to comply with the§110(a)(2) requirements of the CAA.In 1961, the State Legislature passed the AirPollution Control Law of WestVirginia, making West Virginia the sixteenth stateto have astatewide air pollution control law. The lawprovided for a separate state agency composed of a seven member Commission, a Director andstaff. The powers, authorities and funding of the original Commission were subsequently conveyed to the Office of Air Quality and then tothe Division of Air Quality (WVDAQ) withinthe West Virginia Department of Environmental Protection (WVDEP). Staffing, fundingandlegal authorities now incorporate over 90 full time staff, with a multi-million dollar annual budget and approximately 40 legislative rules.DAQ has a variety of substantial funding sources, including construction/modification permit fees, Title V operating permit fees, non-Title Voperating fees, general State revenue and federal grant monies.The agency has demonstrated the ability toimplement state and federal requirements for over fifty years as most recently evidenced by afederally approved revision to the West Virginia hospital/medical/infectious waste incinerator §111(d)/129 plan, limited approval of WestVirginia’s Regional Haze SIP revision, andapproval of revisions to West Virginia’sPrevention of Significant Deterioration ofAir QualitySIP. Additionally, the entire state of West Virginia has been designated attainment/unclassifiable for the 2008 ozone standard. Legislativeauthority for the West Virginia air quality program relating to the responsibilities in the Clean Air Act is codified in the West Virginia AirPollution Control Act, W.Va. Code §22-5, more specifically §22-5-1, which gives West Virginia the primary responsibility for assuring airquality pursuant to the CAA. Many elementsof §110(a)(2)(A)-(M) already exist in the approved SIP or recently submitted SIP revisions forother NAAQS. This SIP revision may reiterate and/or reinforce some of these previouslysubmitted and/or approved elements. Somerequirements, such as those for intergovernmental consultation, air qualitymodeling and compliance with Part D of the CAA, arefulfilledduring the development and submission to EPA, as a SIP revision, of attainment plans and related requirements due under Subpart1andSubpart 5 of the CAA. Based on 2010-2012 monitoring data, West Virginia has recommended that only two partial counties (Brooke&Marshall) be designated as 2010 1-hour SO2non-attainment areas. The remainder ofWest Virginia is identified asattainment/unclassifiable for the 2010 1-hour SO2NAAQS.2Section110(a) elementThe implementation plan shall:West Virginia Implementation§110(a)(2)(A)include enforceable emissionlimitations and other controlmeasures, means, or techniques(including economic incentivessuch as fees, marketable permits,and auctions of emissions rights),as well as schedules andtimetables for compliance as maybe necessary or appropriate tomeet the applicable requirementsof this Act.Enforceable Emission Limitations and Other Control Measures:Pursuant to theW.Va. Code, §22-5-1 declares the state’s public policy “to fulfill its primaryresponsibility for assuring air quality pursuant to the ‘Federal Clean Air Act’, asamended.” The West Virginia Departmentof Environmental Protection CabinetSecretary (Secretary) has the authority under §§22-5-4(a)(1) & (3) “to develop waysand means for the regulation and control of pollution of the air of the state”. TheSecretary has the authority under §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) topromulgate rules in accordance with the Administrative Procedures Act set forth inW.Va. Code §§29A3-1 et seq. Approximately forty air quality rules implemented underthe auspices of the APCA are currently in effect and codified at Title 45 of the WestVirginia Code of State Rules (CSR), including the ambient air quality standards forcriteria pollutants (including the 2010 1-hour SO2NAAQS) contained in legislative rule45CSR8.Existing, enforceable SIP provisions whichWVDAQ has adopted that limit emissionsof SO2and other control measures for SO2may be found in the CSR as necessary orappropriate to meet the applicable requirements of the CAA:45CSR10 - The purpose of this SIP approved rule (68FR33002) is to control airpollution from the emission of sulfur oxides. 45CSR10 contains emission standards forsources of SO2emissions in West Virginia.45CSR10A - This rule provides guidance and clarification for complying with thetesting, monitoring, recordkeepingand reporting requirements of 45CSR10.45CSR11 - The purpose of this SIP approved rule (58FR34526) is to provide amechanism to prevent the buildup of air pollutant concentrations during periods ofadverse meteorological conditions in which air pollutants may accumulate, therebypreventing the occurrence of an emergencydue to the effects of these pollutants onhealth. To achieve this purpose, three (3) stages of criteria (pollutant concentrationlevels) have been established and specific emission reduction plans will be developedwhich will be initiated at each criteria stageto prevent further deterioration of the airsupply to any air quality region or substantial portion thereof. 45CSR11 containsepisode criteria, methods of measurement, preplanned reduction strategies andemission reduction plan requirements for sources of SO2emissions in West Virginia.45CSR13 - The purpose of this SIP approvedrule (72FR5932) is to set forth theprocedures for stationary source reporting,and the criteria for obtaining a permit to3§110(a)(2)(A)(continued)construct and operate a new stationary sourcewhich is not a major stationary source,to modify a non-major stationary source, to make modifications which are not majormodifications to an existing major stationary source, to relocate non-major stationarysources within the state of West Virginia. Such a permit may contain a federallyenforceable SO2emission limit. SO2is a “regulated pollutant’” as defined under45CSR§13-2.20.b. An emissions increase of six (6) pounds per hour and ten (10) tonsper year or more, or more than 144 pounds per calendar day of SO2triggers amodification under 45CSR13.45CSR14 - The purpose of this SIP approved rule (77FR63736) is to satisfy theprevention of significant deterioration permitprogram requirements in Part C of theCAA. 45CSR14 contains a significance level for SO2of 40 tpy and significant impactlevels of 1.0, 5.0 and 25.0μg/m3for annual, 24 and 3-hour averaging times,respectively. 45CSR14 also contains a de minimis air quality impact concentration of13μg/m3over a 24 hour averaging time and a maximum allowable pollutantconcentration increase over baseline concentration of 20, 91 and 512μg/m3for annualarithmetic mean, 24-hour maximumand 3-hour maximum averaging times,respectively, in Class II areas. A PSD source in an attainment area may have a SO2emission limitation in a permit under 45CSR14 based upon a BACT analysis inaccordance with CAA §§165(a)(3) and (4).45CSR16 - The purpose of this rule is to incorporate the federal New SourcePerformance Standards under Part A of theCAA and 40 CFR Part 60. West Virginiareceived NSPS program delegation for Part 60 NSPS authority under 45CSR16 onDecember 14, 1984 at FR48692. West Virginia has received automatic delegation ofauthority to enforce Part 60 NSPS in accordance with EPA lettersof 03/19/01, and01/08/02 as well as EPA’s Notice at 67FR15486. All current emission limitations orstandards of performance for SO2promulgated under 40 CFR Part 60 areincorporated by reference under 45CSR16, except any limitation or standard that maybe included in Subparts B, C, Ca, Cb, Cc, Cd, Ce, Ea, Eb, Ec, WWW, AAAA, BBBB,CCCC, DDDD, EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule is to adopt standards of performance, andestablish emission guidelines and compliance times pursuant to §§111(d) and 129 ofthe CAA for solid waste combustion sources in West Virginia. EPA recently approvedWest Virginia’s §111(d)/129 Plan for hospital/medical/infectious waste incinerators at77FR3389. §111(d)/129 solid waste combustionsources in West Virginia are subjectto any applicable SO2standard of performance or emission guideline promulgatedunder 40 CFR 60, Subparts Eb, AAAA,Ec, Ce, CCCC, DDDD, EEEE and LLLL.45CSR19 - The purpose of this SIP approved rule (71FR64468) is to satisfy thenonattainment area new source review permit program requirements in Part D of theCAA. 45CSR19 contains a significance level for SO2of 40 tpy and significant impactlevels (ambient air concentration increase) of 1.0, 5.0 and 25.0μg/m3for annual, 244§110(a)(2)(A)(continued)and 3-hour averaging times, respectively. A NSR source in a SO2non-attainmentarea may have a SO2emission limitation in a permit under 45CSR19 based upon aLAER analysis. West Virginia has two partial counties (Brooke & Marshall) identifiedas potential 1-hour SO2non-attainment areas.45CSR30 - This rule establishes a permitting program pursuant to Title V of the CAA.Any major stationary source subject to federally enforceable SO2emission limitationsor control measures pursuant to 45CSR10, 45CSR11, 45CSR13, 45CSR14,45CSR16, 45CSR18, 45CSR19, 45CSR33 or45CSR41 will be contained in a permitissued by the Secretary under its established Title V permit program. The effectivedate of interim approval of West Virginia’s Title V Program and 45CSR30 was12/15/95. EPA fully approved the West Virginia Title V program via DFR published on10/03/01 (66FR50325). EPA approved revisions to 45CSR30 contained in WVDAQ’s07/01/01 rule via a separate DFR published on 10/09/01 (66FR51318). Theserevisions became federally effective 11/23/01.West Virginia submitted a revision of itsapproved Operating Permit Programto EPA Region III on June 6, 2012.45CSR33 - This rule establishes and adopts general provisions and the operatingpermit program requirements for affectedsources and affected units under the AcidRain Program promulgated by the EPA underTitle IV of the CAA. This ruleincorporates by reference the following provisions: 40 CFR Part 72, “PermitsRegulation”; 40 CFR Part 74, “Sulfur Dioxide Opt-Ins”; 40 CFR Part 75, “ContinuousEmissions Monitoring”; 40 CFR Part 76, “Nitrogen Oxides Reduction Program”; and 40CFR Part 77, “Excess Emissions”. Therule was submitted to USEPA on June 23,1995 as part of the state’s Title V requirements and approved effectively on 12/15/95with interim approval of the West Virginia Title V program.45CSR41 – This SIP approved rule (74FR38536) establishes general provisions andthe designated representative, permitting, allowance and monitoring provisions for thestate CAIR SO2Trading Program pursuant to the federal Clean Air Interstate Ruleunder §110 of the CAA, 40CFR Part 96, Subparts AAAthrough HHH, and 40 CFR§51.124 for state implementation plans as a means of mitigating interstate transport offine particulates and SO2.West Virginia has two partial counties (Brooke & Marshall) identified as potential 1-hour SO2non-attainment areas. Emissions limitations and other control measuresneeded to attain the NAAQS in areas designated nonattainment for that NAAQS willbe due on a different schedule from the §110 infrastructure elements and will bereviewed and acted upon with regard to approvability for the specific purposes of suchan attainment plan under CAA Title I part D through a separate process at a later time.West Virginia has two existing SO2maintenance plans that have been approved byEPA; one for the Weirton area (70FR1664)and one for the NewManchester area(70FR33364).5§110(a)(2)(B)provide for establishment andoperation of appropriate devices,methods, systems, andprocedures necessary tomonitor, compile, and analyzedata on ambient air quality, andupon request, make such dataavailable to the Administrator;Establishment of Ambient Air Quality Monitoring System:Pursuant to W.Va.Code, §22-1-1(a)(1), “protecting the environment is fundamental to the health andwelfare of individual citizens,” and, thestate “has a duty to provide and maintain ahealthful environment for our citizens.” Under§22-1-1(a)(2), “the state has the primaryresponsibility for protecting the environment.” §22-1-1(b) “declares that theestablishment of a department of environmentalprotection is in the public interest” andthat “It is the policy of the state .....to useall practical means and measures to preventor eliminate harm to the environment and biosphere, to create and maintain conditionsunder which man and nature can exist in productive harmony, .....”Additionally, §22-5-1 declares thestate’s public policy “to fulfill its primary responsibilityfor assuring air quality pursuant to the‘Federal Clean Air Act’, as amended.”As set forth in §22-1-1(b)(5), the WVDEP,“insofar as federal environmental programsrequire state participation” must “endeavor toobtain and continue state primacy in theadministration of such federally-mandated programs,.....and to cooperate withappropriate federal agencies tomeet environmental goals.”Under §22-1-6(a), the Secretary “is the chiefofficer of the department” with the powers,duties and authority pursuant to §§22-5-2(3) and 22-5-4.The Secretary has the authority under W.Va. Code §§22-5-4(a)(1) & (3) “to developways and means for the regulation and control ofpollution of the air of the state” and“conduct such studies and research relating to air pollution and its control andabatement”.Therefore, under manifold statute authority, West Virginia operates and maintains anestablished network of fourteen ambient SO2monitors in West Virginia for the purposeof assessing compliance with the 2010 1-hour SO2NAAQS, which Congress providedfor in the CAA.Monitoring System Operation:To assess 2010 1-hour SO2NAAQS compliance,WVDAQ operates a network of SO2monitors in West Virginia that have beendesignated by EPA as either Federal Reference or Federal Equivalent monitors. Thisnetwork monitors air quality for the 2010 SO2NAAQS at appropriate locations inaccordance with the Ambient Air Monitoring Reference and Equivalent Methods under40 CFR Part 53 and the Ambient Air QualitySurveillance requirements of 40 CFR Part58. Ambient air monitors are subjected to the Quality Assurance requirements of 40CFR Part 58 Appendix A. Additionally all monitors have met the minimum sitingrequirements of Part 58, Appendix E. WVDAQ analyzes collected air quality data todetermine attainment status under the 2010 1-hour SO2NAAQS.On June 22, 2010, EPA revised the SO2NAAQS Amendments to Ambient Monitoring6§110(a)(2)(B)(continued)and Reporting Requirements. As a result, the WVDAQ now collects and reports SO25-minute average data from all fourteen SO2monitoring sites.Availability of Data:In order to keep EPA informed of planned modifications tomonitoring sites, WVDAQ provides EPA Region III with adequate prior notification.Details of these modifications and anticipated approvals of the modifications arecommunicated to EPA. On an annual basis, WVDAQ submits to EPA a monitoring sitedesign plan and periodic network assessment required under 40 CFR §58.10 thatdescribes how West Virginia is complyingwith monitoring requirements and explainsany modifications to the monitoring network. This plan also provides for a description ofeach system modification, the reason for eachmodification, and any other informationrelevant to the modification pursuant to40 CFR §58.14. To demonstrate and assurethat West Virginia meets changes in monitoring requirements related to new or revisedNAAQS, on June 27, 2012 West Virginia submitted a 2012 Annual Air QualityMonitoring Network Design Plan to EPA.The plan was consequently approved by EPAvia letter received by West Virginia on March 4, 2013.As provided in W.Va. Code §§22-5-4(a)(2), 22-5-10 and §110(a)(2)(B) of the CAA,WVDAQ collects and reports in a timelymanner to EPA ambient air quality data forSO2. The reports comply with the Data Submittal and Archiving Requirements set forthin CFR §58.16. The data is reviewed, edited, validated, and entered into the EPA airquality system (AQS) for updating pursuantto prescribed AQS procedures. The EPAAQS receives each report within 90 days after the end of the quarterly reporting period.Data is certified annually as required under 40 CFR §58.15.§110(a)(2)(C)include a program to provide forthe enforcement of the measuresdescribed in subparagraph (A)and regulation of the modificationand construction of any stationarysource within the areas coveredby the plan as necessary toassure that national ambient airquality standards are achieved,including a permit program asrequired in parts C and D;Enforcement of Control Measures for the 2010 1-Hour SO2NAAQS:Pursuant toW.Va. Code §22-1-6(a), the WVDEP Cabinet Secretary “is the chief officer of thedepartment” with the powers, duties and authority pursuant to §§22-5-2(3) and 22-5-4.The Secretary has the authority under W.Va. Code §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) to promulgate rules in accordance with the Administrative Procedures Act(W.Va. Code §§ 29A3-1 et seq.)The Secretary has the authority under W.Va. Code §22-5-4(a)(5) “to enter ordersrequiring compliance withthe provisions of this article andthe rules lawfullypromulgated hereunder.”The Secretary has the authority under W.Va.Code §22-5-4(a)(9) “to enter and inspectany property, premise or place ....for the purpose of ascertaining the state ofcompliance with this article and the rules promulgated under the provisions of thisarticle.”The Secretary has the authority under W.Va. Code §22-5-4(a)(16) “to do all things7§110(a)(2)(C)(continued)necessary and convenient to prepare and submit a plan or plans for theimplementation, maintenance andenforcementof the Federal Clean Air Act .....”The Secretary also has the authority under W.Va. Code §22-5-5 to enter an orderdirecting a person tocease and desist activity which violates theprovisions of §22-5-1et seq. and therules promulgated pursuant thereto.Pursuant to W.Va. Code §22-5-6,violators of theprovisions of §22-5-1 et seq. and therules promulgated pursuant thereto are subject to civil penalty.West Virginia therefore has an establishedlegal framework and inherent ability toprovide for the enforcement of the emissionlimitations and other measures describedthe §110(a)(2)(A) element of this document, and contained in a permit issued under45CSR10, 45CSR13, 45CSR14, 45CSR18,45CSR19, 45CSR30, 45CSR33 or45CSR41.Preconstruction NSR Permitting of Minor Sources:West Virginia’s SIP-approvedrule 45CSR13 (72FR5932) governs the minor NSR program for sources of emissionsof SO2and provides for pre-construction permitting regarding the modification andconstruction of minor stationary sources and the minor modification of major stationarysources pursuant to 40 CFR §§51.160-164.45CSR13 addresses the impact of permitted sources on the 2010 1-hour SO2NAAQSthrough permits which contains the emissionstandards, registration, permit, testing,monitoring, recordkeeping and reporting requirements for sources of SO2emissionscontained in 45CSR10, and the New Source Performance Standards for SO2promulgated under 40 CFR Part 60 and incorporated by reference in 45CSR16.The EPA issued a general policy statement onthe topic of “prominent advertisement”of minor source programs and permits, in a memorandum dated April 17, 2012 fromJanet McCabe, Principal Deputy Assistant Administrator, Office of Air and Radiation,entitled “Minor New Source Review Program Public Notice Requirements under 40CFR §51.161(b)(3)”. West Virginia follows this general policy with respect toadvertisement of minor source permitting actions under 45CSR13.Preconstruction PSD Permitting of Major Sources:The Prevention of SignificantDeterioration (PSD) program contained inPart C of Title I of the CAA governpreconstruction review and permitting of any new or modified major stationary sourcesof air pollutants regulated under the CAA as well as any precursors to the formation ofthat pollutant when identified for regulation by EPA. The PSD program will regulatefuture growth and provide for continued maintenance of the 2010 1-hour SO2NAAQS.West Virginia’s PSD program is set forth in SIP approved rule 45CSR14 (77FR63736).45CSR14 implements a comprehensive PSD permit program as required under Part C8§110(a)(2)(C)(continued)of Title I of the CAA for all regulated NSR pollutants (or precursors) that are subject toregulation under the CAA. 45CSR14 limits PSD applicability with respect togreenhouse gas-emitting sources by adoptingthe applicability thresholds included inEPA’s Tailoring Rule.Pursuant to CAA §165(a)(3), the WVDAQ isauthorizedto implement the existing PSDpermit program in order to ensure that the construction and modification of majorstationary sources will not cause or contribute to a violation of the 2010 1-hour SO2NAAQS (or any NAAQS or increment) in West Virginia or another state, as set forth inthe source impact analysis requirements of 45CSR§14-9.1 and 40 CFR §51.166(k).Pursuant to CAA §165(a)(4), a new or modified PSD source in an attainment areamay have a SO2emission limitation in a permit under 45CSR14 based upon a bestavailable control technology (BACT) analysis, and application of BACT for eachregulated NSR pollutant that has the potential to emit in significant amounts inaccordance with the control technology review requirements in 40 CFR §51.166(j),and as set forth in 45CSR14-8.45CSR14 contains a significance level for SO2of 40 tpy and significant impact levelsof 1.0, 5.0 and 25.0μg/m3for annual, 24 and 3-hour averaging times, respectively.45CSR14 also contains a de minimis air quality impact concentration of 13μg/m3overa 24 hour averaging time and a maximum allowable pollutant concentration increaseover baseline concentration of 20, 91 and 512μg/m3for annual arithmetic mean, 24-hour maximum and 3-hour maximum averaging times, respectively, in Class II areas.West Virginia has timely submitted all structural PSD program provisions for which aSIP submission deadline has passed, with the exception of the requirement for theinclusion of condensable emissions of particulate matter within the definition of‘‘regulated new source review pollutant.’’ WestVirginia will correct this omission whenit submits 45CSR14 as a SIP revision in June 2014.EPA has not proposed to amendthe PSD regulations with regard to the 2010 1-hourSO2NAAQS. However, West Virginia willrevise its PSD program to address anyapplicable EPA amendmentsof the SO2PSD rules within three years from the date ofsuch amendments.§110(a)(2)(D)contain adequate provisions -(i) prohibiting, consistent with theprovisions of this title, any sourceor other type of emissions activitywithin the state from emitting anyair pollutant in amounts whichInterference With Required Measures Under Part C:West Virginia confirms thatnew major sources and major modifications in the state are subject to a comprehensivePrevention of Significant Deterioration (PSD) permit program as set forth in SIPapproved rule 45CSR14 (77FR63736). This PSDprogram required by Part C of Title Iof the CAA governs the preconstruction review and permitting of any new majorstationary sources or major modificationwith respect to regulated NSR pollutantsunderthe CAA, as wellas any precursors tothe formation of such pollutants when9§110(a)(2)(D)(continued)will-(I) contribute significantly tononattainment in, or interfere withmaintenance by, any other statewith respect to any such nationalprimary or secondary ambient airquality standard, or(II) interfere with measuresrequired to be included in theapplicable implementation planfor any other State under part Cto prevent significantdeterioration of air quality or toprotect visibility,(ii) ensuring compliance with theapplicable requirements ofsections 126 and 115 (relating tointerstate and internationalpollution abatement);identified for regulation byEPA. 45CSR14 also limits PSD applicability with respect togreenhouse gas-emitting sources by adoptingthe applicability thresholds included inEPA’s Tailoring Rule.45CSR14 regulates future growth and provide for continued maintenance of the 20101-hour SO2NAAQS. This rule includes specific federal requirements which ensurethat new or modified sources do not interfere with measures to prevent significantdeterioration of air quality by providinga mechanism to prevent the development ofany new non-attainment problems. 45CSR14 requires the evaluation of sources of airpollutants and to preclude the construction or relocation of any major stationary sourceor major modification in any area classified as attaining NAAQS or unclassifiable inwhich the establishment of such source or modification may interfere with the goals ofthe prevention of significant deterioration of air quality levels.Pursuant to CAA §165(a)(3), the WVDAQ isauthorized to implement the existing PSDpermit program in order to ensure that the construction and modification of majorstationary sources will not cause or contribute to a violation of the 2010 1-hour SO2NAAQS (or any NAAQS or increment) in West Virginia or another state, as set forth inthe source impact analysis requirements of 45CSR§14-9.1 and 40 CFR §51.166(k).Pursuant to CAA §165(a)(4), a new or modified PSD source in an attainment areamay have a SO2emission limitation in a permit under 45CSR14 based upon a bestavailable control technology (BACT) analysis, and application of BACT for eachregulated NSR pollutant that has the potential to emit in significant amounts inaccordance with the control technologyreview requirements of 45CSR§14-8 and 40CFR §51.166(j).West Virginia has timely submitted all structural PSD program provisions for which aSIP submission deadline has passed, with the exception of the requirement for theinclusion of condensable emissions of particulate matter within the definition of‘‘regulated NSR pollutant.’’ West Virginia willcorrect this omission when it submits45CSR14 as a SIP revision in June 2014.EPA has not proposed to amendthe PSD regulations with regard to the 2010 1-hourSO2NAAQS. However, West Virginia willrevise its PSD program to address anyapplicable EPA amendments of the SO2PSD rules within three years from the date ofsuch amendments.In-state sources not subject to PSD for all NAAQS because they are in anonattainment area also may have the potential to interfere with PSD in an attainmentor unclassifiable area of another state. West Virginia confirms that new major sourcesand major modifications in non-attainment areas of the state are subject to thenonattainment area new source review (NNSR)permit program under legislative rule45CSR19. The purpose of this SIP-approved rule (71FR64468) is to satisfy the10§110(a)(2)(D)(continued)nonattainment area NNSR requirements in Part D of the CAA. 45CSR19 contains asignificance level for SO2of 40 tpy and significant impact levels (ambient airconcentration increase) of 1.0, 5.0 and 25.0μg/m3for annual, 24 and 3-houraveraging times, respectively. A NNSR source in a SO2non-attainment area mayhave a SO2emission limitation in a permit under 45CSR19 based upon a LAERanalysis. West Virginia has two partial counties (Brooke & Marshall) identified as SO2non-attainment areas.Interference With Measures Required to Protect Visibility:West Virginia is subjectto a RAVI FIP (*45132, [AD-FRL-3282-3], November 24, 1987).West Virginia confirms that new major sources and major modifications in the state aresubject to a comprehensive PSD permit program as set forth in SIP approved rule45CSR14 (77FR63736).West Virginia confirms that new major sources and major modifications in nonattainment areas of the state are subject tothe nonattainment area new source review(NNSR) permit program as set forth inSIP-approved rule 45CSR19 (71FR64468).West Virginia received partial approval of its Regional Haze SIP on March 23, 2012 at77FR16973. The SIP revision did not receive full approval solely because of itsreliance on the Clean Air Interstate Rule.Interstate and International Pollution Abatement:West Virginia has demonstratedthat it has met its obligations pursuant to CAA §126(a) through the adoption of45CSR§14-7, Public Review Procedures (77FR63736) which requires a new ormodified source to notify other states of potential impacts from a source in accordancewith 40 CFR §51.166(q)(2)(iv). No source orsources within West Virginia are thesubject of an active finding under §126 of the CAA with respect to any air pollutant.There are no final findings under §115 of the CAA against West Virginia with respect toany air pollutant.§110(a)(2)(E)(i)provide(i) necessary assurances thatthe state (or, except where theAdministrator deemsinappropriate, the generalpurpose local government orgovernments, or a regionalagency designated by the stateor general purpose localgovernments for such purpose)Personnel:WVDAQ has demonstrated adequate personnel to carry out theimplementation plan with respect to the 2010 1-hour SO2NAAQS. There are no otherorganizations in West Virginia that participate in developing, implementing andenforcing the SIP (40 CFR §51.240). TheSecretary employs adequate personnel andretains specialists under W.Va. Code §22-5-4(a)(8) that are "necessary, incident orconvenient" to accomplish the statutory mandate to carry out the implementation plan.WVDAQ has a staff of approximately 90 fulltime employees. The West Virginia AirDirector supervises the air monitoring, compliance and enforcement, hazardous waste,permitting and planning sections, as well as three regional WVDAQ offices, andanswers to the WVDEP Cabinet Secretary.Because of the nature of the national andstate economy, WVDAQ does not anticipateany changes in resources considered11§110(a)(2)(E)(i)(continued)will have adequate personnel,funding, and authority understate (and, as appropriate, local)law to carry out suchimplementation plan (and is notprohibited by any provision offederal or state law from carryingout such implementation plan orportion thereof);necessary during the 5 years following SIP submittal; and projects a similar resourceneed at 1, 3, and five year intervals (40 CFR §51.280).Funding:The APCA provides adequate funding under W.Va. Code §§22-1-10(a) and22-5-4(a)(17) to carry out the implementation plan. W.Va. Code §22-5-12 sets forth thestatutory operating permit requirements for stationary sources under Title V of theCAA. 45CSR30 establishes fees sufficient tocover the direct and indirect costs ofadministering the Title V operating permit program. The APCA also authorizes theestablishment of fees to cover non-Title V permitting costs under 45CSR22. WestVirginia’s air quality program also receives revenue from fines and enforcementsettlements (Air Pollution Control Fund) and federal funds under §§105 and 103 of theCAA, and state general fund appropriations.Legal Authority:W.Va. Code §22-5-1,declares the state's policy "to fulfill its primaryresponsibility for assuring air quality" pursuantto the CAA. The Secretary is authorizedunder W.Va. Code §§22-1-6(c)(1) and 22-5-4(a)(12) to carry out and represent thestate in any and all matters pertaining to the implementation plan, including revising theSIP as necessary. The Secretary has theauthority under W.Va. Code §22-5-4(a)(16)“to do all things necessary and convenient toprepare and submit a plan or plans forthe implementation, maintenance and enforcement of the Federal Clean Air Act ....”The Secretary is not prohibited by any provision of federal or state law from carryingout the implementation plan or portion thereof. The legal authorities specified areavailable to the Secretary at the time of submission of this SIP revision.West Virginia has adopted emission standards and limitations and other measuresnecessary for attainment and maintenanceof the NAAQS. The Secretary has theauthority under W.Va. Code §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) to promulgaterules in accordance with the Administrative Procedures Act (W.Va. Code §§29A3-1 etseq.). Approximately forty legislative rules promulgated underthe auspices of theAPCA are currently in effect and codified atTitle 45 of the CSR, including the 2010 1-hour SO2NAAQS and NAAQS for other criteria pollutants contained in SIP approvedrule 45CSR8 (77FR65493). Statutory permitting requirements are set forth in W.Va.Code §§22-5-11 & 12.West Virginia has an EPA-approved air permitting program forboth major and minor facilities, under legislative rules 45CSR13, 45CSR14, 45CSR19and 45CSR30 (as applicable).The Secretary is authorized to enforce applicable laws, regulations, and standardsunder W.Va. Code §§22-1-6(d)(3), 22-05-4(a)(5) and 22-05-4(a)(6), and seek injunctiverelief under §22-5-7.The Secretary is authorized to abate pollutant emissions on an emergency basis toprevent substantial endangerment to thehealth of persons. W.Va. Code §22-5-5authorizes the Secretary to issue an order tocease and desist any activity that violatesthe APCA. The Secretary may also suspend, modify or revoke a source’s permit.12§110(a)(2)(E)(i)(continued)Under §22-5-6, the Secretary may also institute lawsuits for civil penalties. §22-5-7authorizes the Secretary to seek applications for injunctive relief. §22-5-8 authorizesthe Secretary, with the written authorizationof the Governor, to shut down a source ofSO2emissions, thereby preventing the emissionof air pollutants which substantiallycontributes to an emergency that requires immediate action to protect public health. Asprovided in §§22-5-4(a)(2) and22-5-10, the Secretary mayconsult with EPA to affirmaccuracy of any information considered while executing authority under §§22-5-5, -6, -7 or -8.The Secretary is authorized to prevent construction, modification, or operation of afacility, building, structure,or installation, or combination thereof, which directly orindirectly results or may result in emissions of any air pollutant at any location whichwill prevent the attainment or maintenance of a national standard. New major sourcesand major modifications in West Virginia are subject to PSD under legislative rule45CSR14. The purpose of this West Virginia SIP approved rule (77FR63736) is tosatisfy the prevention of significant deterioration permit program requirements in Part Cof the CAA. Under 45CSR14, “.....all applications filed by any person to constructmajor new or modified stationary air pollution sources, intending to locate in areas withair quality better than the levels set to protect the public health and welfare, or thatmight impact those areas, must adequately meet the pre-construction reviewprocedures and conditions of the Clean Air Act as amended ....”. This rule includesspecific federal requirements which ensure that new or modified sources do notinterfere with measures to prevent significant deteriorationof air quality by providing amechanism to prevent the developmentof any new non-attainment problems.45CSR14 requires the evaluation of sources of air pollutants and to preclude theconstruction or relocation of any major stationary source or major modification in anyarea classified as attaining NAAQS or unclassifiable in which the establishment of suchsource or modification may interfere with the goals of the prevention of significantdeterioration of air quality levels.Pursuant to W.Va. Code §22-5-4(a)(14), the Secretary is authorized to obtaininformation necessary to determine whether air pollution sources are in compliancewith applicable laws, regulations, and standards. Under §§22-5-4(a)(14) and 22-5-4(a)(15), the Secretary is authorized to require recordkeeping. Under §22-5-44(a)(9),the Secretary is authorized to and to make inspections and conduct tests of airpollution sources.Under W.Va. Code §22-5-4(a)(15), the Secretary is authorized to require owners oroperators of stationarysources to install, maintain, and use emission monitoringdevices and to make periodic reports tothe State on the nature and amounts ofemissions from such stationary sources. Under §22-5-10, the Secretary is authorizedto make such data available to the public as reported and as correlated with anyapplicable emission standards or limitations.13§110(a)(2)(E)(ii)(ii) requirements that the statecomply with the requirementsrespecting state boards undersection 128, andState Boards Under Section 128:Because West Virginia does not have a boardwhich approves permits or enforcementorders, this element is not applicable.§110(a)(2)(E)(iii)(iii) necessary assurances that,where the state has relied on alocal or regional government,agency, or instrumentality for theimplementation of any planprovision, the state hasresponsibility for ensuringadequate implementation of suchplan provision;Responsibility for Implementation ofAssured Local Plan Provision:West Virginiahas not relied onany local or regional government, agency, or instrumentality for theimplementation of any SIP provision for the 2010 1-hour SO2NAAQS. West Virginiawill retain primacy with respect to any future plan thatrelies on local or regionalgovernments, agencies or instrumentalities.By statute, West Virginia has primeresponsibility for ensuring adequate implementation of such a plan provision. TheSecretary has the authority under W.Va. Code §22-5-4(a)(16) “to do all thingsnecessary and convenient to prepare and submit a plan or plans for theimplementation, maintenance and enforcement of the Federal Clean Air Act .....”As set forth in W.Va. Code §22-1-1(b)(5), the WVDEP, “insofar as federalenvironmental programs require state participation” must “endeavor to obtain andcontinue state primacy in the administration of such federally-mandatedprograms,.....and to cooperate with appropriate federal agencies to meetenvironmental goals.”§110(a)(2)(F)require, as may be prescribed bythe Administrator -(i) the installation,maintenance, and replacementof equipment, and theimplementation of othernecessary steps by owners oroperators of stationary sourcesto monitor emissions from suchsources,(ii) periodic reports on thenature and amounts ofemissions and emissions-relateddata from such sources, and(iii) correlation of such reportsby the state agency with anyemission limitations or standardsSource Monitoring:W.Va. Code §22-5-4(a)(15) authorizes the Secretary to requirethe installation, maintenance and replacement of equipment, and the implementation ofother necessary steps by owners or operators of stationary sources to monitor andreport emissions of SO2from such sources as the Secretary may prescribe. Under thisauthority, West Virginia requires the installation, maintenance, periodic testing andreplacement of monitoring equipment at stationary sources through permits issuedunder 45CSR13, 45CSR14, 45CSR19, 45CSR30, and via compliance orders, inaccordance with 40 CFR §51.212(a). The Secretary therefore has statute authority andpromulgated rules to periodically test stationary sources, in accordance with 40 CFR§51.212(a).W.Va. Code §22-5-4(a)(9) authorizes the Secretary to “enter and inspectany property,premise or place on or at which a source of air pollutants is located or is beingconstructed, installed or established at any reasonable time for thepurpose ofascertaining the state of compliancewith this article and rules promulgated under ....”The Secretary therefore has statute authority to inspect stationary sources, inaccordance with 40 CFR §51.212(a).W.Va. Code §22-5-4(a)(9) authorizes the Secretary to “enter and inspectany property,premise or place on or at which a source of air pollutants is located or is being14§110(a)(2)(F)(continued)established pursuant to this Act,which reports shall be availableat reasonable times for publicinspection;constructed, installed or established at any reasonable time for thepurpose ofascertaining the state of compliancewith this article and rules promulgated under ....”The Secretary has the authority under §§22-5-4(a)(1) & (3) “to develop ways andmeans for the regulation and control of pollution of the air of the state” and “conductsuch studies and research relating to airpollution and its control and abatement”. TheSecretary has the authority under §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) topromulgate rules in accordance with the Administrative Procedures Act (W.Va. Code§§ 29A3-1 et seq.) Visible emission limitations for particulate matter are established inSIP-approved rules 45CSR2 (68FR47473) and 45CSR7 (68FR33010). WVDAQenforcement personnel are certified in the visible emission testing procedures set forthin Method 9 of 40 CFR Part 60. The Secretary therefore has statute authority andvisible emission limitations by promulgatedrule along with trained enforcement, whichestablishes a system to detect violationsof promulgated rules and regulations throughthe enforcement of appropriate visible emission limitations, in accordance with 40 CFR§51.212(b).W.Va. Code §22-5-4(a)(6) authorizes the Secretary to “consider complaints, subpoenawitnesses, administer oaths,make investigationsand hold hearings ....” The Secretarytherefore has statute authority to investigate complaints, in accordance with 40 CFR§51.212(b).West Virginia’s SIP contains enforceable test methods for each emission limit specifiedin the SIP. As an enforceable test method,West Virginia uses appropriate methods in40 CFR Part 51, Appendix M,Recommended Test Methods for State ImplementationPlans; or an alternative method following reviewand approval of that method by theAdministrator, or an appropriate method in Appendix A to 40 CFR Part 60. Suchenforceable test methods are contained inpermits issued under 45CSR13, 45CSR14,45CSR30, and promulgated legislative rules as follows:45CSR10 - The purpose of this SIP approved rule (68FR33002) is to control airpollution from the emission of sulfur oxides. 45CSR10 contains test methods forsources of SO2emissions in West Virginia.45CSR10A - This rule provides guidance and clarification for complying with thetesting, monitoring, recordkeepingand reporting requirements of 45CSR10.45CSR16 - The purpose of this rule isto incorporate thefederal New SourcePerformance Standards under Part A of the Clean Air Act and 40 CFR Part 60. Allcurrent test methods for SO2promulgated under 40 CFR Part 60 are incorporated byreference under 45CSR16 except any limitation or standard that may be included inSubparts B, C, Ca, Cb, Cc, Cd, Ce, Ea, Eb, Ec, WWW, AAAA, BBBB, CCCC, DDDD,EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule isto adopt standards of performance, and15§110(a)(2)(F)(continued)establish emission guidelines and compliance times pursuant to §§111(d) and 129 ofthe CAA for solid waste combustion sources in West Virginia. §111(d)/129 solid wastecombustion sources in West Virginia are subject to any applicable SO2test methodspromulgated under 40 CFR60, Subparts Eb, AAAA, Ec,Ce, CCCC, DDDD, EEEE andLLLL.45CSR30 - This rule establishes a permitting program pursuant to Title V of the CAA.Any major stationary source subject to testmethods pursuant to 45CSR10, 45CSR11,45CSR13, 45CSR14, 45CSR16, 45CSR18, 45CSR19, 45CSR33 or 45CSR41 will becontained in a permit issued by West Virginia under its established Title V permitprogram.45CSR33 - The Acid Rain Program under 45CSR33 requires monitoring of SO2forelectric generating units. This rule establishes and adopts general provisions and theoperating permit program requirements for affected sources and affected units subjectto the Acid Rain Program under Title IV of the CAA. This rule incorporates by referencethe test methods set forth in 40 CFR §75.22.45CSR41 - This SIP approved rule (74FR38536) establishes test methods for theCAIR SO2Trading Program pursuant to the federal Clean Air Interstate Rule under§110 of the CAA, 40 CFR Part 96, and 40CFR §51.124 for state implementationplans as a means of mitigating interstate transport of SO2.For the purpose of submitting compliance certifications or establishing whether or not aperson has violated or is in violation of any standard in the SIP, West Virginia certifiesthat the SIP does not preclude the use, including the exclusive use, of any credibleevidence or information, relevant to whether a source would have been in compliancewith applicable requirements if the appropriate performance or compliance test orprocedure had been performed.Periodic Reporting and Recordkeeping:W.Va. Code §§22-5-4(a)(15) authorizes theSecretary to require periodic reportson the nature and amounts of emissions andemissions-related data from owners or operators of stationarysources (monitoringdata) of SO2. Under this authority, the Secretaryrequires periodic reports on emissionsand emissions-related data from stationary sources through permits issued under45CSR13, 45CSR14, 45CSR19, 45CSR30,45CSR33, 45CSR41 and via complianceorders. Therefore, the Secretary thereforehas statute authority to require periodicreports on the nature and amounts ofemissions and emissions-related data.West Virginia’s SIP providesfor legally enforceable procedures for requiring owners oroperators of stationarysources to maintain records of and periodically report to theSecretary, in accordance with 40 CFR§51.211. Such enforceable procedures arecontained in permits issued under 45CSR13, 45CSR14, 45CSR30, and promulgatedlegislative rules as follows:16§110(a)(2)(F)(continued)45CSR10 - The purpose of this SIP approved rule (68FR33002) is to control airpollution from the emission of sulfur oxides. 45CSR10 contains recordkeeping andreporting requirements for sources of SO2emissions in West Virginia.45CSR10A - This rule provides guidance and clarification for complying with thetesting, monitoring, recordkeepingand reporting requirements of 45CSR10.45CSR16 - The purpose of this rule isto incorporate thefederal New SourcePerformance Standards under Part A of the Clean Air Act and 40 CFR Part 60. Allcurrent reporting and recordkeeping requirements for SO2promulgated under 40 CFRPart 60 are incorporated by referenceunder 45CSR16 exceptany limitation orstandard that may be included in SubpartsB, C, Ca, Cb, Cc, Cd, Ce, Ea, Eb, Ec,WWW, AAAA, BBBB, CCCC, DDDD, EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule isto adopt standards of performance, andestablish emission guidelines and compliance times pursuant to §§111(d) and 129 ofthe CAA for solid waste combustion sources in West Virginia. §111(d)/129 solid wastecombustion sources are subject to any applicable SO2reporting and recordkeepingrequirement promulgated under 40 CFR 60, Subparts Eb, AAAA, Ec, Ce, CCCC,DDDD, EEEE and LLLL.45CSR30 – This rule establishes a permitting program pursuant to Title V of the CAA.Any major stationary source subject to enforceable SO2reporting and recordkeepingrequirement pursuant to 45CSR10, 45CSR11, 45CSR13, 45CSR14, 45CSR16,45CSR18, 45CSR19, 45CSR33 or 45CSR41 will be contained in a permit issued byWest Virginia under its established Title V permit program.45CSR33 - The Acid Rain Program under 45CSR33 requires reporting andrecordkeeping of SO2for electric generating units. This rule establishes and adoptsgeneral provisions and the operating permitprogram requirements for affected sourcesand affected units subject to the Acid Rain Program under Title IV of the CAA. This ruleincorporates by reference the recordkeepingrequirements of 40 CFR Part 75, SubpartF, and the reporting requirements under Subpart G.45CSR41 - This SIP approved rule (74FR38536) establishes SO2reporting andrecordkeeping requirements for the CAIR SO2Trading Program pursuant to thefederal Clean Air Interstate Rule under §110 of the CAA, 40 CFR Part 96, and 40 CFR§51.124 for state implementation plans as a means of mitigating interstate transport ofSO2.Pursuant to W.Va. Code §§22-5-4(a)(14), the Secretary is authorized to require suchinformation as the Secretary may requirein a form or manner prescribed by theSecretary (emissions inventory program). West Virginia is subject to the Air Emission17§110(a)(2)(F)(continued)Reporting Rule (AERR) set forth in 40 CFRPart 51, Subpart A. WVDAQ’s emissionsinventory program provides source-specific emissions data to EPA pursuant to theAERR reporting requirements and the sourceemissions and state action reportingrequirements set forth in 40 CFR §§51.321-323.West Virginia assures that it will meetchanges in reporting and inventory requirements associated with a new or revisedNAAQS.Correlation of Reports:As set forth in W.Va. Code §22-5-10, the Secretary makesavailable at reasonable times for public inspection the periodic emissions reportedunder §§22-5-4(a)(14) & (15). The Secretary has the responsibility of making allrecords, reports or information obtainedby the WVDEP or referred to at publichearings under the provisions of the APCA available to the public, except to the extentthe records, reports or information areprotected by confidentiality pursuant to45CSR31. The types of records, reportsor information that would relate to§110(a)(2)(F) which WVDAQ routinely provides access to include notifications,inspection reports, notices of violation, enforcement orders, applications, permit reviewletters, sample results, monitoring reports,permits, approvals and denials, and detaileddata and calculations for SIP revisions. Thedetailed data and calculations used in thepreparation of SIP revisions are not considered part of the SIP. WVDAQ generallymakes information available for public accessthrough its website, but also makes hardcopy reports available upon written request. CEMS emissions data are uploaded toAIRS and CAMD, and EPA may make such data available to the public.W.Va. Code §22-1-6(d)(3) authorizes the Secretary to “investigate for violations ofstatutes or rules which the department is charged with enforcing.” §22-5-4(a)(3)authorizes the Secretary to correlateperiodic emissions reports with any SO2emissionlimitation or standard established pursuant to 45CSR10, 45CSR13, 45CSR14,45CSR18, 45CSR19, 45CSR30, 45CSR33, 45CSR41 or the CAA in such a manneras to show the relationship between measured or estimated amounts and the amountsof such emissions allowable under theapplicable emission limitations or othermeasures, in accordance with 40 CFR §51.116. Correlation with applicable emissionslimitations or standards is relevant only for those reports of source emissions thatreflect the test methods and averaging periods specified in applicable emissionlimitations or standards. Thus, source reportsof annual, ozone season, or summer dayemissions used by WVDAQ to create theannual and triennial emission inventorysubmission to the EPA under 40 CFR Part 51,Subpart A, in general would not need tobe correlated with specific emission limitations or standards, as many sourcesdo nothave applicable emission limitations defined for those averaging periods.§110(a)(2)(G)provide for authority comparableto that in section 303 andadequate contingency plans toimplement such authority;Comparable Authority to CAA §303:W.Va. Code §22-5-5 authorizes the Secretaryto issue an order to cease and desist any activity that violates the Air Pollution ControlAct. The Secretary may also suspend, modify or revoke a source’s permit. Under §22-5-6, the Secretary may also institute lawsuits for civil penalties. §22-5-7 authorizes the18§110(a)(2)(G)(continued)Secretary to seek applications for injunctive relief. §22-5-8 authorizes the Secretary,with the written authorization of the Governor, to shut down a source of SO2emissions,thereby preventing the emission of air pollutants which substantially contributes to anemergency that requires immediate action to protect public health. As provided in§§22-5-4(a)(2) and 22-5-10, the Secretary may consult with EPA to affirm accuracy ofany information considered while executing authority under §§22-5-5, -6, -7 or -8.Contingency Plans for Emergency Episodes:West Virginia satisfies the criteria tobe classified a Priority III Region under 40 CFR §51.150(f) for SO2, as it does not meetthe criteria set forth in 40 CFR §§51.150(a)-(e). Pursuant to 40 CFR §51.152(c), areasclassified as Priority III do not need to develop emergency episode (contingency)plans.However, the purpose of West Virginia SIP approved rule 45CSR11 (58FR34526) is toprevent air pollution emergency episodes inaccordance with 40 CFR Part 51, SubpartH by providing a mechanism to prevent the buildup of air pollutant concentrationsduring periods of adverse meteorological conditions in which air pollutants mayaccumulate, thereby preventing the occurrence of an emergency due to the effects ofthese pollutants on health. To achieve thispurpose, three (3) stages of criteria(pollutant concentration levels) have beenestablished and specific emission reductionplans will be developed which will be initiatedat each criteria stage to prevent furtherdeterioration of the air supply to any air quality region or substantial portion thereof.45CSR11 contains episode criteria, methods of measurement, preplanned reductionstrategies and emission reductionplan requirements for sources of SO2emissions inWest Virginia.§110(a)(2)(H)provide for revision of such plan-(i) from time to time as may benecessary to take account ofrevisions of such nationalprimary or secondary ambientair quality standard or theavailability of improved or moreexpeditious methods of attainingsuch standard, and(ii) except as provided inparagraph (3)(C), whenever theAdministrator finds on the basisof information available to theAdministrator that the plan issubstantially inadequate to attainRevision of the NAAQS:To satisfy the SIP revision provisions set forth in 40 CFR§51.104, W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all thingsnecessary and convenient to prepare andsubmit a plan for the implementation,maintenance and enforcement of the CAA. WVDAQ has historically revised, and willcontinue to revise its NAAQS rules as necessary to take account of revisions of thenational primary or secondary ambient air quality standards or improved or moreexpeditious methods of attaining the standards. Below are brief recent historyexamples of how West Virginia has promulgated various versions of NAAQS rule45CSR8 to incorporate revisions to the primary and secondary NAAQS:On February 10, 2009, West Virginia received full SIP approval of its 2008 NAAQS rule45CSR8 (74FR6552). This rule contains ambient air quality standards for all criteriapollutants, including the 2006 PM2.5NAAQS, equivalent to the national primary andsecondary ambient air quality standardsestablished under §109 of the CAA, andpromulgated by EPA under 40 CFR Part 50 through June 1, 2007.The 2009 version of 45CSR8 includes the revised the 8-hour primary and secondary19§110(a)(2)(H)(continued)the national ambient air qualitystandard which it implements, orto otherwise comply with anyadditional requirementsestablished under this Act;ozone NAAQS. Revisions to the rule also include deletion of references to the obsoleteone-hour ozone NAAQS. EPAannounced reconsiderationof the 2008 primary andsecondary ozone standards on September 16, 2009. Subsequently, EPA Region IIIadvised the WV DAQ that 45CSR8 may notbe approvable into the SIP because theozone standard was under reconsideration. At the request of EPA Region III, 45CSR8was withdrawn as a revision to the SIP on November 16, 2009.The 2010 version of 45CSR8 included the revised national primary and secondary leadNAAQS and deletion of redundant methods of measurement language in 45CSR§8-4.EPA Region III advised the WV DAQ that the2010 version of 45CSR8 may not beapprovable into the SIP because the ozone standard was under reconsideration. At therequest of EPA Region III, 45CSR8 was not submitted as a revision to the SIP.West Virginia submitted a NAAQS SIP revision to EPA on July 8, 2011. Revisions tothe 2011 version of NAAQS rule 45CSR8 provide for incorporation by reference of theNAAQS as promulgated by the EPA as ofJune 1, 2010, rather than reiterating theNAAQS in the rule. EPA has revised theprimary nitrogen dioxide NAAQS, and45CSR8 incorporates by reference the 2010 1-hour NO2NAAQS. On September 12,2012, West Virginia received full SIP approval of 2011 rule 45CSR8 (77FR56125).West Virginia submitted a NAAQS SIP revision to EPA onJune 6, 2012. Revisions tothe 2012 version of the rule incorporate by reference the 2010 1-hour SO2NAAQS.Specifically, EPA established a new 1-hour SO2standard at a level of 75 parts perbillion (ppb), based on the 3-year average ofthe annual 99th percentileof 1-hour dailymaximum concentrations. West Virginia received full SIP approval of 2012 rule45CSR8 (77FR65493).Inadequate Plan:W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all thingsnecessary and convenient to prepare andsubmit a plan for the implementation,maintenanceand enforcement of the CAA. When,if ever, EPA finds the SIP issubstantially inadequate to attain the NAAQS which it implements or otherwise tocomply with the CAA, West Virginia will revise the plan as necessary for adequacy.§110(a)(2)(J)meet the applicable requirementsof section 121 (relating toconsultation) and section 127(relating to public notification)andpart C (relating to prevention ofsignificant deterioration of airquality and visibility protection)Consultation:The Air Pollution Control Act provides adequate authority under W.Va.Code §22-5-4(a)(2) for West Virginia’s practices of consultation with localgovernments, organizations and Land Managers regarding implementation plans for airquality maintenance requirements, preconstruction review of direct sources,nonattainment requirements, prevention of significant deterioration and administrativeassessment of civil penalties, in accordance with §121 of the CAA. For the 2010 1-hourSO2NAAQS, West Virginia’s permitting program includes three SIP approved rules:minor NSR rule 45CSR13 (68FR9559), PSD rule 45CSR14 (77FR63736), and majorNSR rule 45CSR19 (71FR64468). West Virginia also has an approved Title Voperating permit program (66FR50325).WVDEP has previously demonstrated a20§110(a)(2)(J)(continued)commitment to such consultation through encouragement and support foran EarlyAction Compact, and through Federal Land Manager consultation for the West VirginiaHaze SIP.Public Notification:W.Va. Code §22-1-12 provides authority for the public notificationof primary NAAQS exeedances and education efforts as required by 40 CFR §51.285and §127 of the CAA. §22-4-(a)(10) providesauthority for the WVDAQ to advise of thehealth hazards associated with an exceedance of a primary NAAQS, or a violationwhich presents an imminent and serious hazard to public health.Each year, WVDAQ issues a comprehensive West Virginia Air Quality Annual Report.The report provides air quality highlights from the previous year, public awareness ofcriteria pollutants and their effects on health, and tracks the Air Quality Index. Thereport also compares monitored air quality data with the NAAQS and identifies primaryNAAQS exeedances. The report enhances the public’s awareness of measures thatprevent such exceedances, and provides educational website links to tips that improveair quality, links to technical websites, regulatory and outreach efforts, in accordancewith 40 CFR §51.285 and §127 of the CAA.Preconstruction PSD Permitting of Major Sources:The Prevention of SignificantDeterioration program contained in Part C ofTitle I of the CAA govern preconstructionreview and permitting of any new or modified major stationary sources of air pollutantsregulated under the CAA as well as any precursors to the formation of that pollutantwhen identified for regulation by EPA. ThePSD program will regulate future growthand provide for continued maintenance of the 2010 1-hour SO2NAAQS.West Virginia’s PSD program is set forth in SIP approved rule 45CSR14 (77FR63736).45CSR14 implements a comprehensive PSD permit program as required under Part Cof Title I of the CAA for all regulated NSR pollutants (or precursors) that are subject toregulation under the CAA. 45CSR14 limits PSD applicability with respect togreenhouse gas-emitting sources by adoptingthe applicability thresholds included inEPA’s Tailoring Rule.Pursuant to CAA §165(a)(3), the WVDAQ isauthorized to implement the existing PSDpermit program in order to ensure that the construction and modification of majorstationary sources will not cause or contribute to a violation of the 2010 1-hour SO2NAAQS (or any NAAQS or increment) in West Virginia or another state, as set forth inthe source impact analysis requirements of 45CSR§14-9.1 and 40 CFR §51.166(k).Pursuant to CAA §165(a)(4), a new or modified PSD source in an attainment areamay have a SO2emission limitation in a permit under 45CSR14 based upon a bestavailable control technology (BACT) analysis, and application of BACT for eachregulated NSR pollutant that has the potential to emit in significant amounts inaccordance with the control technology review requirements in 40 CFR §51.166(j),21§110(a)(2)(J)(continued)and as set forth in 45CSR§14-8.45CSR14 contains a significance level for SO2of 40 tpy and significant impact levelsof 1.0, 5.0 and 25.0μg/m3for annual, 24 and 3-hour averaging times, respectively.45CSR14 also contains a de minimis air quality impact concentration of 13μg/m3overa 24 hour averaging time and a maximum allowable pollutant concentration increaseover baseline concentration of 20, 91 and 512μg/m3for annual arithmetic mean, 24-hour maximum and 3-hour maximum averaging times, respectively, in Class II areas.West Virginia has timely submitted all structural PSD program provisions for which aSIP submission deadline has passed, with the exception of the requirement for theinclusion of condensable emissions of particulate matter within the definition of‘‘regulated new source review pollutant.’’ WestVirginia will correct this omission whenit submits 45CSR14 as a SIP revision in June 2014.EPA has not proposed to amendthe PSD regulations with regard to the 2010 1-hourSO2NAAQS. However, West Virginia willrevise its PSD program to address anyapplicable EPA amendments of the SO2PSD rules within three years from the date ofsuch amendments.Visibility Protection:There are no new applicable visibility protection obligationsunder §110(a)(2)(J) as a result of the 2010 1-hourSO2NAAQS. According to EPA’sinterpretation of the CAA, the visibilityelement of section Jdoes not need to beaddressed.§110(a)(2)(K)provide for:(i) the performance of such airquality modeling as theAdministrator may prescribe forthe purpose of predicting theeffect on ambient air quality ofany emissions of any air pollutantfor which the Administrator hasestablished a national ambient airquality standard, and(ii) the submission, upon request,of data related to such air qualitymodeling to the Administrator;Air Quality Modeling:W.Va. Code, §§22-5-4(a)(1)&(3), authorizes the Secretary to“develop ways and means for the regulation and control of pollution of the air of thestate” and “conduct such studies and researchrelating to air pollution and its controland abatement”.Inherent in Secretary’s authority is the capability to conduct new source reviewmodeling required under the CAA set forth in the SIP-approved (77FR63736) PSDsource impact and modeling requirements of 45CSR14-§§9 and 10, in accordance with40 CFR §§51.166(k) and (l). All applications of air quality modeling, where appropriate,for PSD purposes shall be based on the applicable air quality models, databases, andother requirements specified in the Appendix W of 40 CFR Part 51 (Guideline on AirQuality Models). Pursuant to 45CSR14-§10.2, where an air quality impact modelspecified in Appendix W of 40 CFR Part 51 is inappropriate, the model may bemodified or another model substituted, provided that the modification or substitution isapproved in writing by the Administrator.Also inherent in The Secretary’s authority is the capability to conduct modeling todemonstrate attainment of the NAAQS, asrequired under the Part D of the CAA, and22§110(a)(2)(K)(continued)as prescribed by the Administrator. Airquality modeling is an inherent aspect ofpreparing the attainment plan required for nonattainment areas under Part D of Title Iof the CAA. Such plans are not required tobe submitted as part of an infrastructureSIP. However, there is an obligation for theinfrastructure SIP from any state containinga designated nonattainment area for a newor revised NAAQS to provide for theperformance of the air quality modeling that will be needed to prepare an attainmentdemonstration plan. A source-oriented dispersion model such as AERMOD will the airquality model that will be used to demonstrate the adequacy of a control strategy toprovide for the timely attainment and maintenance of the NAAQS, pursuant to 40 CFR§§51.112 and 51.115(b).WVDAQ employs one full time technical employee who is responsible for air qualitymodeling. WVDAQ also participates in regional planning organizations such as theSoutheastern Modeling Analysis and Planning project, which performs NAAQSmodeling for member states. West Virginia will perform modeling, as required underthe CAA to demonstrate attainment of the 2010 1-hour SO2NAAQS.Submission of Data:W.Va. Code §§22-5-4(a)(2), 22-5-10 and 22-5-4(a)(16)authorizes the Secretary to submit, upon request by the Administrator, modeling datapredicting the effect on ambient air qualityof any emissions of any air pollutant forwhich the Administrator has established anational ambient air quality standard. WestVirginia will submit to EPA current and future air quality modeling data as part of itsrelevant SIP submissions and through Federalgrant commitments or in other ways thatEPA may request. West Virginia can also provide relevant data as part of the NAAQSimplementation process.§110(a)(2)(L)require the owner or operator ofeach major stationary source topay to the permitting authority,as a condition of any permitrequired under this Act, a feesufficient to cover-(i) the reasonable costs ofreviewing and acting upon anyapplication for such a permit,and(ii) if the owner or operatorreceives a permit for suchsource, the reasonable costs ofimplementing and enforcing theterms and conditions of any suchPermit Fees for Permit Review, Implementation and Enforcement:West Virginiahas an approved Title V operating permitprogram under 45CSR30 (66FR50325). EPAgranted final full approval effective on November 19, 2001. The Title V Program permitfees which satisfy the fee determination and certification requirements set forth in 40CFR §70.9 are contained in the rule at45CSR§30-8. The collected fees have beensufficient to cover permit review, and implementation and enforcement of permit termsand conditions.Because the fee requirement in §110(a)(2)(L) has been supersededby the EPAapproved fee program under Title V, infrastructure SIP submissions followingpromulgation of a new or revised NAAQSdo not currently need to contain any newprovisions for the fee requirements under this section. Therefore, West Virginia’s EPAapproved Title V operating permits program(and its collection of permitting feespursuant to 40 CFR §70.9) demonstrates that the Element L fees are no longerrequired.23permit (not including any courtcosts or other costs associatedwith any enforcement action),until such fee requirement issuperseded with respect to suchsources by the Administrator'sapproval of a fee program undertitle V;§110(a)(2)(M)provide for consultation andparticipation by local politicalsubdivisions affected by the plan;Consultation:The Secretary has the authority under W.Va. Code §22-5-4(a)(16) “todo all things necessary and convenient to prepare and submit a plan or plans for theimplementation, maintenance and enforcement of the Federal Clean Air Act .....”Under this statute, and pursuant to the General Plan Requirements set forth in 40 CFR§51.240, the WVDAQ is the organization authorized to develop, implement and enforcethe SIP. §22-5-4(a)(2), authorizes the Secretary to advise, consult and cooperate withlocal political subdivisions affected by the implementation plan. WVDAQ consults withlocal governments, organizations and Land Managers with respect to SIPdevelopment.WVDAQ also consults with such entities regarding implementation plans for air qualitymaintenance requirements, preconstruction review of direct sources, nonattainmentrequirements, and prevention of significant deterioration.Notice and Opportunity for Public Hearing:In accordance with the federalprocedural requirements at 40 CFR §51.102, any plan or plan revision, or individualcompliance schedule, prepared by WVDAQ is subject to a 30 day public notice periodwith public hearing, or in cases where there is little anticipated public interest, theopportunity for a public hearing. West Virginia legislative rules which contain suchpublic noticeprocedures include permitting rules 45CSR13, 45CSR14, 45CSR19 and45CSR30.