1 **UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION III**  **1650 Arch Street Philadelphia, Pennsylvania 19103**  **DATE: SUBJECT:**  Technical Support Document (TSD) for the State of West Virginia State Implementation

Plan for Section 110(a)(2) Infrastructure Requirements for the 2008 8 - hour Ozone National Ambient Air Quality Standards **FROM:** Ellen Schmitt , Environmental Scientist /s/ 5/16/2013

Office of Air Program Planning **TO:** File **THRU:** Cristina Fernandez, /s/ 5/16/2013

Associate Director, Office of Air Program Planning **A. INTRODUCTION**  The Environmental Protection Agency (EPA) is taking action on the State of West Virginia State Implementation Plan (SIP) revisions submitted by the West Virginia Department of Environmental Protection (WVDEP) to meet the Clean Air Act (CAA) section 110(a)(2) requirements for the revised 2008 8 - hour ozone national ambient air qualit y standards (NAAQS) . **B. BACKGROUND** On March 27, 2008, EPA promulgated a revised NAAQS for ozone based on 8 - hour average concentrations. EPA revised the level of the 8 - hour ozone NAAQS to 0.075 parts per million (ppm). Pursuant to section 110(a) of the CAA, states are required to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three y ears following the promulgation of such NAAQS, or within a shorter period as EPA may prescribe. More specifically , section 110(a)(1) provides the procedural and timing requirements for SI Ps. Section 110(a)(2) lists specific elements that states must meet for ‘‘infrastructure’’ SIP requirements related to a newly established or revis ed NAAQS. T hese requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and anal yt ical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such2

SIP submissions may

also vary depending upon what provisions the state’s existing SI P alread y contains. In the case of the 2008 8 - hour ozone NAAQS, states ty pically have met the basic program elements requ ired in section 110(a)(2) through earlier SIP submissions in connection with the 1997 8 - hour ozone NAAQS. **C. EPA REQUIREMENTS** As discussed above, for the 2008 ozone NAAQS, states must provide SI P submissions, or provide certification that the existing SIP contains provisions addressing relevant infrastructure SI P elements from sections 110(a)(2)(A) through (M) of the CAA. **D. STATE’S SUBMITTAL** On February

17, 2012, West Virginia provided a submittal to satisfy the requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS. This submittal addressed the following infrastructure elements , or portions thereof , that EPA is proposing to approve: section 110(a)(2)(A), (B), (C), (D ) , (E ), (F), (G), (H), (J), (K), (L), and (M) of the CAA. EPA ha s tak en separate action on the portions of CAA section 110(a)(2) infrastructure elements for the 2008 ozone NAAQS as they relate to the West Virginia’s Prevention of Significant Deterioration ( PSD ) program, as required b y part C of Title Iof the CAA, inclu ding portions of CAA section 110(a)(2)(C), (D) and (J). EPA will take later separate action on CAA section 110(a)(2)(E)(ii) for the 2008 ozone NAAQS as it relates to CAA section 128, “State Boards.” **E. EVALUATION OF STATE SUBMITTAL 1.**  **Section 110(a)(2 )(A)**  West Virginia has established laws and regulations applicable to the 2008 ozone NAAQS that include enforceable emissions limitations and other control measures, means or techniques, as well as schedules and timetables for compliance to meet the applicable requirements of the CAA. The Secretary of WVDEP (hereafter the Secretary) hold s the legislative authority to promulgate regulations concerning air pollution control in accordance with the Administrative Procedures Act (W.Va. Code section 29A3 - 1 et seq.) and W.Va. Code sections 22 - 1 - 3(a), 22 - 5 - 4(a)(4) and 22 - 5 - 4(a)(17). Enforceable emission limitations and other control measures for nitrogen oxides (NOx ) and volatile organic compounds ( VOC ) to meet the applicable requirements of the CAA include the following SIP - approved regulations :

 45CSR13 - “ Permits for Construction, Modification, Relocation and Operation of Stationary

Sources of Air Pollutants, Notification Requirements, Temporary Permits, General Permits, and Procedures for Evaluation”  45CSR14 - “ Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration”  45CSR19 - “ Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution Which Cause or Contribute to Nonattainment” Additionally , the following st ate rules are applicable to NOx and VOC emission limitations and control measures: 45CSR30 (“Requirements for Operating Permits”), EPA - approved operating program3

(66 FR 50325) pursuant to Title V of the CAA, which includes all the enforceable emission limi tations or control measures pursuant to 45CSR13, 45CSR14, and 45CSR19 , as well as 45CSR21 “Regulation to Prevent and Control Air Pollution from the Emission of Volatile Organic Compounds , ” 45CSR 29 “Rule Requiring the Submission of Emission Statements for Volatile Organic Compound Emissions and Oxides of Nitrogen Emissions , ” and 45CSR33 “Acid Rain Provisions and Permits . ” On May 9 , 2013, EPA finalized a narrow disapproval of West Virginia SIP submittals for the PSD and Clean Air Act section 110 infrastru cture elements related to PSD . The West Virginia PSD submittal did not properly

address condensable emissions of particulate matter within the definition of “regulated NSR pollutant.” There are no sanctions associated with this disapproval ; however , EPA is required to promulgate a Federal Implementation Plan within two y ears of final disapproval if the definition of “regulated NSR pollutant” is not corrected. In this action, EPA is not proposing to approve or disapprove an y existing State provision s with regard to excess emissions during Startup, Shutdown, and Malfunction (SSM) of operations at a facility . EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance (August 11, 1999 Steven Herman and Robert Perciasepe Guidance Memorandum, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown”), and the Agency is address ing such state regulations in a separate rulemaking . In the meantime, EPA encourages any State having a deficient SSM provision to take steps to correct it as soon as possible. Also in this action, EPA is not proposing to approve or disapprove an y existing West Virginia rules with regard to director’s discretion or variance provisio ns. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (see 52 FR 45109, November 1987), and the Agency is taking separate action to address such state regulations. In the meantime, EPA encourages any s tate having director’s discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible. EPA is proposing to determine that the S tate of West Virginia has met its obligations pursuant to section 110(a)(2)(A) of the CAA . **2. Section 110(a)(2)(B)**  The Secretary of WVDEP has the authority under W.Va. Code sections 22 - 5 - 4(a)(1) & (3) “to develop way s and means for the regulation and control of pollution of the air of the state” and “conduct such studies and research relating to air pollution and its control and abatement.” The Division of Air Quality (DAQ) of WVDEP currentl y oper ates and maintains an established network of ambient air monitors in West Virginia for the purpose of assessing compliance with the 2008 ozone NAAQS. All ambient air monitors within West Virginia’s network are a) subject to the Quality Assurance requireme nts of 40 CFR Part 58, Appendix A and b) have met the minimum siting requirements of 40 CFR part 58, appendix E.4

WVDEP informs EPA of planned changes to the monitoring site by providing adequate prior notification. Pursuant to 40 CFR 58.10, WVDEP submits to EPA , on an annual basis , a monitoring network plan , which describes how West Virginia is complying with monitoring requirements and explains any

changes to the monitorin g network. West Virginia’s 2011 Annual Air Quality Monitoring Network Design Plan was submitted to EPA on June 22, 2011 , and was consequentl y approved b y EPA on December 6, 2011 . EPA approved West Virginia’s 2012 Annual Air Quality Monitoring Network Design Plan on February

21, 2013. As provided in W.Va. Code sections 22 - 5 - 4 (a)(2) , 22 - 5 - 10 and CAA section 110(a)(2)(B), WVDEP collects and reports to EPA ambient air quality data for ozone . West Virginia submits to EPA quarterl y reports of air quality data to comply with the requirements of 40 CFR 58.16. The air qua lity data f or ozone is reviewed, edited, validated, and entered into the EPA air quality s ys tem (AQS) for updating pursuant to prescribed AQS procedures, and is certified annuall y as required under 40 CFR 58.15. EPA concludes that West Virginia’s monitoring networ k and data s ys tem for ozone satisfy the requirements of CAA section 110(a)(2)(B) for the 2008 ozone NAAQS. **3. Section 110(a)(2)(C)**  The Secretary

has the statutory

authorit y to enforce an y control measures for the 2008 ozone NAAQS, pursuant to W.Va. Code sections 22 - 1 - 3(a), 22 - 5 - 4(a)(4), 22 - 5 - 4(a)(5), 22 - 5 - 4(a)(9), 22 - 5 - 4(a)(16) and 22 - 5 - 4(a)(17), 22 - 5 - 5, and 22 - 5 - 6. West Virginia has an established legal framework and ability to provide for the enforcement of the measures described in the CAA section 110(a)(2)(A) infrastructure element, contained in the SIP - approved regulations: 45CSR13, 45CSR14, and 45CSR19, as well as in the EPA - app roved Title V program codified in 45CSR30. The provisions described meet the requirements for enforcement of the measures described in section 110(a)(2)(C) of the CAA, which EPA is proposing to approve. EPA has taken separate action on the portion of sec tion 110(a)(2)(C) of the CAA for the 2008 ozone NAAQS as it relates to West Virginia’s PSD program as required b y part C of Title I of the CAA. EPA has approved West Virginia’s PSD program with the narrow exception of the definition of regulated new sourc e review pollutant for its failure to include condensables. See ( 77 FR 63736 , October 17, 2012) and ( 78 FR 27062 , May 9 , 2013). EPA is proposing to determine that the state of West Virginia has met its obligations pursuant to section 110(a)(2)( C ) of the CAA . **4. Section 110(a)(2)(D)(i)(I)**  In accordance with the Homer City decision from the U.S. Court of Appeals for the D.C. Circuit, a state is not required to submit a SIP pursuant to Section 110(a) which addresses section 110(a)(2)(D)(i)(I) until EPA has defined a state’s contribution to nonattainment or interference with maintenance in another state. See EME Homer City Generation, LP v. EPA , 696 F.3d 7 (D.C. Cir. 2012), reh’g denied 2013 U.S. App. L EXI S 1623 (Jan. 24., 2013). Unless the EME Homer City decision is5

reversed or otherwise modified by the Supreme Court, states such as West Virginia are not required to submit 110(a)(2)(D)(i)(I) SI Ps until the EPA has quantified their obligations under that section. West Virginia’s February

17, 2012 infrastructure SIP submission for the 2008 ozone NAA QS did not include a component to address 110(a)(2)(D)(i)(I). Therefore, in this notice, EPA is not proposing to act on 110(a)(2)(D)(i)(I) for West Virginia’s February 17 , 2012 infrastructure SI P submission for the 2008 ozone NAAQS. **5 .**  **Section 110(a)( 2)(D)(i)(II)**  As mentioned previously for 110(a)(2)(C) , EPA has taken separate action on the portion of section 110(a)(2)( D ) (i)(II) of the CAA for the 2008 ozone NAAQS as it relates to West Virginia’s PSD program as required b y part C of Title Iof the CAA. Prong 4 of section 110(a)(2)(D)(i) requires that SIPs include provisions prohibiting any source or other ty pe of emissions acti vity

in one state from interfering with measures to protect visibility required to be included in another state’s SI P. In describing how its submission meets this requirement, West Virginia referred to its June 1 8, 2008 Regional Haze SIP submittal which i ncluded reliance on the Clean Air Interstate Rule (CAIR) for electrical generating units (EGUs). 1 EPA granted limited approval and limited disapproval of West Virginia’s regional haze SIP. See ( 77 FR 16932 , March 23, 2012). Although West Virginia’s regional haze SIP has not been fully approved, EPA believes that the infrastructure SIP submission together with previously approved SIP provisions , specificall y those provisions that require EGUs to comply

with CAIR and the additional measures in the regional haze SI P addressing best available retrofit technology (BART) and reasonable progress requirements for other sources or pollutants , are adequate to demonstrate compliance with prong 4, thus , EPA is proposing to full y approve this aspect of the submission. West Virginia’s regional haze SIP relied on West Virginia’s previous incorporation of the CAIR into the EPA - approved SIP for West Virginia as an alternative to the requirement that the regional haze SIPs p rovide for source - specific BART emission limits for SO 2 and NOx emissions from EGUs. At the time the West Virginia regional haze SIP was being developed, the State’s reliance on CAIR was fully consistent with EPA’s regulations. CAIR, as originally promul gated, requires significant reductions in emissions of SO 2 and NOx to limit the interstate transport of these pollutants, and EPA’s determination that states could rel y on CAIR as an alternative to requiring BART for CAIR - subject EGUs had specificall y been upheld in Utility Air Regulatory Group v. EPA , 471 F.3d 1333 (D.C. Cir. 2006). Moreover, the states with Class Iareas affected b y emissions from sources in West Virginia had adopted reasonable progress goals for visibility protection that were consistent with the EGU emission limits resulting from CAIR.

1 On May 12, 2005, EPA published CAIR, which requires significant reductions in emissions of sulfur dioxide ( SO 2 ) and nitrogen oxides (NOx ) from EGUs to limit the interstate transport of these pollutants and the ozone and fine particulate matter they form in the atmosphere. 70 FR 25162.6

In 2008, however, the D.C. Circuit remanded CAIR back to EPA. See North Carolina v. EPA , 550 F.3d 1176 (D.C. Cir. 2008). The court found CAI R to be inconsistent with the requirements of the CAA, see North Carolina v. EPA , 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA without vacatur because it found that “allowing CAIR to remain in effect until it is replaced by a rule consistent with [the court’s] opinion would at least tempo raril y preserve the environmental values covered by CAIR.” North Carolina , 550 F.3d at 1178. After the remand of CAIR by the D.C. Circuit and the promulgation b y EPA of a new rule

– the Cross State Air Pollution Rule (CSAPR)

– to replace CAIR, EPA issued a limited disapproval of West Virginia’s regional haze SIP (and other states’ regional haze SI Ps that relied similarly on CAI R) because EPA believed that full approval of the SIP was not appropriate in light of the court’s remand of CAIR and the uncertain but limited remaining period of operation of CAIR. EPA finalized a limited approval of the West Virginia regional haze SIP, indicating that except for its reliance on CAIR, the SIP met CAA requirements for the first planning period of the regional haze p rogram. See 77 FR 16932 (March23, 2012). 2 EPA also finalized a limited FIP for West Virginia, which merely substituted reliance on EPA’s more recent CSAPR NOx and SO 2 trading programs for EGUs for the SIP’s reliance on CAIR. See ( 77 FR 33642 , June 7, 20 12). Since the above - described developments with regard to West Virginia’s regional haze SIP, the situation has changed. In August 2012, the D.C. Circuit issued a decision to vacate CSAPR. EME Homer City Generation, LP v. EPA , 696 F.3d 7 (D.C. Cir. 2012), reh’g denied 2013 U.S. App. L EXI S 1623 (Jan. 24., 2013). Inthis decision, the court ordered EPA to “continue administering CAIR pending the promulgation of a valid replacement.” Thus, EPA has been ordered by the court to de velop a new rule, and to continue implementing CAIR in the meantime, and the opinion makes clear that after promulgating that new rule EPA must provide states an opportunity to draft and submit SIPs to implement that rule. Implementation of CAIR thus cann ot be replaced until EPA has promulgated a final rule through a notice and - comment rulemaking process; states have had an opportunity to draft and submit SIPs; EPA has reviewed the SIPs to determine if they can be approved; and EPA has taken action on the SIPs, including promulgating a FIP, if appropriate. Based on the current direction from the court to continue administering CAIR, EPA believes that it is appropriate to rel y on CAIR emission reductions as permanent and enforceable for purposes of assessi ng the adequacy

of West Virginia’s infrastructure SI P with respect to prong 4 while a valid replacement rule is developed and until implementation plans complying with any new rule are submitted by the states and acted upon by EPA or until an y subsequent l itigation provides different direction regarding CAIR and CSAPR . In addition, EPA believes that based on the court’s decision on CSAPR it would be appropriate to propose to rescind its limited disapproval of West Virginia’s regional haze SI P and propose a full approval, but EPA will proceed to do so in a separate action.

2 Under CAA sections 301(a) and 110(k)(6) and EPA’s long - standing guidance, a limited approval results in approval of the entire SIP submittal, even of those parts that are deficient and prevent EPA from granting a full ap proval of the SIP revision. Processing of State Implementation Plan (SIP) Revisions , EPA Memorandum from John Calcagni, Director, Air Quality Management Division, OAQPS, to Air Division Directors, EPA Regional Offices I - X, September 7, 1992, (1992 Calcagn i Mem orandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf .7

As neither West Virginia nor EPA has taken any action to remove CAIR from the West Virginia SIP, CAI R remains part of the EPA - approved SI P and can be considered in determining whether the SIP as a whole meets the requirement of prong 4 of 110(a)(2)(D)(i). EPA is proposing to approve the infrastructure SIP submission with respect to prong 4 because West Virginia’s regional haze SIP which EPA has given a limited approval in combination wi th its SIP provisions to implement CAI R adequately prevent sources in West Virginia from interfering with measures adopted by other states to protect visibility during the first planning period. While EPA is not at this time proposing to change the Marc h 23, 2012, limited approval and limited disapproval of West Virginia’s regional haze SI P, EPA expects to propose an appropriate action regarding West Virginia’s regional haze SIP in a separate action . **6 .**  **Section 110(a)(2)(D)(ii)** West Virginia has met its obligations pursuant to CAA section 126 and it has no currently pending obligations pursuant to CAA Section 126(b) related to the 2008 ozone NAAQS. According to the submittals, the state has adequate provisions insuring future compliance with the requirements of sections 126 and 115 of the CAA as may be necessary . EPA is proposing to determine that the state has met its obligations pursuant to 110(a)(2)(D)(ii). **7 .**  **Section 110(a)(2)(E) (i) and (iii)**  As required under W.Va. Code section 22 - 5 - 4(a)(8), WVDEP has demonstrated to have adequate personnel to carry

out the implementation plan with respect to the 2008 ozone NAAQS requirements. At present, a staff of approximately 90 full time employ ees is employ ed at WVDEP’s D ivision of Air Quality (D AQ ) . West Virginia’s Air Director supervises the air monitoring, compliance and enforcement, hazardous waste, permitting and planning sections, as well as three regional DAQ offices, and answers to the Secretary . DAQ believes its funding source s are sufficient to provide adequate personnel for those purposes and does not anticipate an y changes in resources considered necessary during 5 ye ars following SIP submittal. The Air Pollution Control Act of West Virginia (APCA) provides adequate fundin g under W.Va. Code sections 22 - 1 - 10(a) and 22 - 5 - 4(a)(17) to carry out West Virginia SIP. W.Va. Code section 22 - 5 - 12 sets forth the statutory

operating permit requirements for stationary sources under Title V of the CAA. EPA - approved rule 45CSR30 establis hes fees sufficient to cover the direct and indirect costs of administering the air pollution control planning process, Title V operating permit program, and support the air pollution control program authorized b y statute. The APCA also authorizes the est ablishment of fees to cover non - Title V permitting costs under 45CSR22 “Air Quality Management Fee Program.” Additionally , the air quality program receives revenue from fines and penalties (Air Pollution Control Fund) and federal funds under sections 105 and 103 of the CAA, and state general appropriations. The APCA, under W.Va. Code section 22 - 5 - 1, declares the state's policy "to fulfill its primary responsibility

for assuring air quality " pursuant to the CAA. The Secretary is authorized under W.Va.8

Co de sections 22 - 1 - 6(c)(1) and 22 - 5 - 4(a)(12) to carry out and represent the state in any and all matters pertaining to the implementation plan. The Secretary has the authorit y under W.Va. Code section 22 - 5 - 4(a)(16) “to do all things necessary and convenient to prepare and submit a plan or plans for the implementation, maintenance and enforcement of the Federal Clean Air Act.” The Secretary is not prohibited by

an y provision of federal or state law from carrying out the implementation plan or portion thereof . The Secretary

has the authority

under W.Va. Code sections 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 section 29A3 - 1 et seq.). Approximately forty rules revised under the auspices of the APCA are currently in effect and codified at Title 45 of the Code of State Rules, including the ambient air quality standards for ozone and other criteria pollutants contained in 45 CSR 8. West Virginia has an EPA - approved air permitti ng program for both major and minor facilities, under state rules 45CSR13, 45CSR14, 45CSR19 and 45CSR30 (as applicable). EPA finds that West Virginia satisfies the requirements described in CAA section 110(a)(2)(E) (i) and (iii) . As to CAA section 110(a)(2)(E)(ii), EPA will take later separate action on this portion of section 110(a)(2)(E) for the 2008 ozone NAAQS as it relates to CAA section 128, “State Boards.” **8 .**  **Section 110(a)(2)(F)** W.Va. Code section 22 - 5 - 4(a)(15) authorizes the Secretary to require the installation, maintenance and replacement of equipment, and the implementation of other necessary steps by owners or operators of stationary sources to monitor and report emissions of NOx or VOC from such sources as the Secretary may prescribe, through permits issued under 45CSR13, 45CSR14, 45CSR19, 45CSR30, and via compliance orders. Pursuant to the 40 CFR part 51, subpart A, “Air Emission Reporting Rule” (AERR), DAQ’s emissions inve ntory program provides source - specific emissions data to EPA. These sources monitor their annual and ozone season NOx emissions in accordance with 40 CFR Part 75. In accordance with the emission reports and recordkeeping requirements set forth in 40 CFR part 51, subpart K, W.Va. Code section 22 - 5 - 4(a)(15) authorizes the Secretary to require periodic reports on the nature and amounts of emissions and emissions - related data from owners or operators of stationary sources (monitoring data) of NOx or VOC emis sions through permits issued under 45CSR13, 45CSR14, 45CSR19, 45CSR39, 45CSR40, and via compliance orders. Pursuant to W.Va. Code section 22 - 5 - 4(a)(14), the Secretary

is authorized to require such information as the Secretary may require in a form or mann er prescribed b y the Secretary (emissions inventory

program). DAQ periodicall y reports emission inventory information to EPA as required b y 40 CFR part 51, subparts A and K. W.Va. Code section 22 - 1 - 6(d)(3) authorizes the Secretary to “investigate for vio lations of statutes or rules which the department is charged with enforcing.” W.Va. Code section 22 - 5 - 4(a)(3) authorizes the Secretary

to correlate periodic emissions reports with any NOx or VOC emission limitations or9

standards established pursuant to 45 CSR13, 45CSR14, 45CSR19, 45CSR30 , via compliance orders or the CAA. As set forth in W.Va. Code section 22 - 5 - 10, the Secretary makes available at reasonable times for public inspection the periodic emissions reported under W.Va. Code sections 22 - 5 - 4(a)(14) & (15). The Secretary has the responsibility

of making all records, reports or information obtained by the WVDEP or referred to at public hearings under the provisions of the APCA, available to the public, except to the extent the records, reports or inf ormation are protected b y confidentialit y. The types of records WVDEP routinely provides access to include notifications, inspection reports, notices of violation, enforcement orders, applications, permit review letters, sample results, monitoring reports , permits, approvals and denials that would relate to section110(a)(2)(F) of the CAA. WVDEP generally makes information available for public access through its website, but also makes hard cop y reports available upon written request. Based upon EPA’s re view of the above referenced provisions , EPA finds West Virginia’s SIP revision me e t s the obligations of CAA section 110(a)(2)(F). **9 .**  **Section 110(a)(2)(G)** West Virginia has authority comparable to that in section 303 of the CAA and adequate contingency

plans to implement such authorit y. Section 303 of the CAA provides authority to the EPA’s Administrator to restrain any source from causing or contributing t o emissions which present an “imminent and substantial endangerment to public health or welfare, or the environment.” W.Va. Code section 22 - 5 - 5 authorizes the Secretary to issue an order to cease and desist any activity that violates the APCA. The Secret ary m ay also suspend, modify

or revoke a source’s permit. Under W.Va. Code section 22 - 5 - 6, the Secretary

may also institute lawsuits for civil penalties. W.Va. Code section 22 - 5 - 7 authorizes the Secretary

to seek applications for injunctive relief. W.Va . Code section 22 - 5 - 8 authorizes the Secretary , with the written authorization of the Governor, to shut down a source of NOx or VOC emissions, thereby

preventing the emission of air pollutants which substantially contributes to an emergency

that requires i mmediate action to protect public health. As provided in W.Va. Code sections 22 - 5 - 4(a)(2) and 22 - 5 - 10, the Secretary may consult with EPA to affirm accuracy of any information considered while executing authorit y under W.Va. Code sections 22 - 5 - 5, 22 - 5 - 6, 22 - 5 - 7 or 22 - 5 - 8. West Virginia’s SIP approved rule 45 CSR 11 provides a mechanism to prevent the buildup of ozone concentrations during periods of adverse meteorological conditions in which air pollutants may accumulate, thereb y preventing the occurrence of an emergency due to the effects of these pollutants on h ealth. West Virginia initiates the use of specific emission reduction plans for three stages of pollutant concentration levels to prevent further deterioration of the air qualit y in the state. P ursuant to 40 CFR 51.152(c), West Virginia does not need t o develop episode contingency plans as it is classified as a Priority III Region for ozone . EPA finds that West Virginia has met the requirements of section 110(a)(2)(G) of the CAA.10

**10 .**  **Section 110(a)(2)(H)** EPA finds that West Virginia has demonstrated that it has adequate authority to satisfy CAA Section 110(a)(2)(H). West Virginia has adequate authority to address revisions to SIP s , as set forth in 40 CFR 51.104. Specifically , W.Va. Code section 22 - 5 - 4(a)(16) authorizes the Secretary to do all things necessary and convenient to prepare and submit a plan for the implementation, maintenance and enforcement of the CAA. WVDEP has historically revised, and will continue to revise its NAAQS rules as necessary

to take account of revisions of th e national primary or secondary

ambient air quality standards or improved or more expeditious methods of attaining the standards. West Virginia has promulgated various versions of the rule 45CSR8 “Ambient Air Qualit y Standards” to take account of revision s of, and maintain, the primary and secondary

NAAQS. Based upon EPA’s review of the above referenced submittals, EPA is proposing to determine that West Virginia has met its obligations pursuant to 110(a)(2)(H). **1 1**  **. Section 110(a)(2)(I):**  EPA does not expect infrastructure SIP submissions to address this element. Nonattainment area plans required under part D of Title I of the CAA are required on a different schedule from the CAA section 110(a)(2) infrastructure elements and, thus, will be reviewed and acted upon through a separate process. **1 2**  **. Section 110(a)(2)(J)**  As mentioned previously for 110(a)(2)(C), EPA has taken separate action on the portion of section 110(a)(2)( J ) of the CAA for the 2008 ozone NAAQS as it relates to West Virginia’s PSD program as required b y part C of Title I of the CAA. West Virginia satisfies the applicable requirements of section 121 of the CAA. The APCA provides adequate authority under W.Va. Code section 22 - 5 - 4(a)(2) for West Virginia’s practices of consultation with local governments, organizations and Land Managers for purposes of air pollution control. WVDEP also consults with such entities regarding implementation plans for air quality maintenance requirements, preconstruction review of direct sources, nonattainment requirements, and prevention of significant det erioration. For the 2008 ozone NAAQS, West Virginia’s permitting program includes three SIP - approved rules: minor NSR rule 45CSR13 (68 FR 9559), PSD rule 45CSR14 (76 FR 30832), and major NSR rule 45CSR19 (71 FR 64468). West Virginia also has an approved Title V operating permit program (66 FR 50325). W.Va. Code section 22 - 4 - (a)(10) authorizes the WVDEP’s DAQ to notify the public of imminent and serious hazards to public health. W.Va. Code section 22 - 1 - 12 provides authority for the public notification of NAAQS violations and education efforts as required b y CAA section 127. Each ye ar, WVDEP issues a comprehensive Air Qualit y Annual Report, which compares monitored air quality data with the NAAQS and tracks the Air Qualit y Index. The Air Qualit y Annual Report contains emissions11

information and air quality highlights from the previous y ear, provides public awareness of criteria pollutants and their effects on health, and provides educational website links to tips that improve air quality , links to techni cal websites and outreach efforts. With regard to the visibility protection aspect of 110(a)(2)(J) , EPA recognizes that states are subject to visibility

and regional haze program requirements under part C of the Act (which includes sections 169A and 169B) . In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, EPA finds that there are no applicable visibility

obligation s under part C “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. West Virginia has submitted SIP revisions to satisfy the requirements of the CAA Section 169A and 169B, and the regional haze and BART rules contained in 40 CFR 51.308. On March 23 , 2012, EPA published a final rulemaking regarding West Virginia ’s regional haze program, consisting of a limited approval and a limited disapproval. See 77 FR 16932 . In EPA’s view, the current status of West Virginia ’s regional haze SI P as having not been full y approved is not a bar to full approval of the infrastructure SIP submission with respect to the visibility protection aspect of 110(a)(2)(J), and EPA is proposing to full y approve the infrastructure SIP for this aspect. While EPA is not at this time proposing to change the March 23 , 2012 limited approval and limited disapproval of West Virginia ’s Regional haze SIP itself, EPA expects to address the approval status of the regional haze SI P in a separate action . EPA is proposing to determine that the state has met its obligations pursuant to CAA Section 110(a)(2)(J) (except for the portion of this element related to PSD upon which EPA has taken separate action) . **1 3**  **. Section 110(a)(2)(K)**  EPA proposes to find that West Virginia has the authority and technical capability

to conduct air quality modeling in order to assess the effect on ambient air quality relevant pollutant emissions. W.Va. Code sections 2 - 5 - 4(a)(1) & (3) authorize the Secre tary to “develop way s and means for the regulation and control of pollution of the air of the state” and “conduct such studies and research relating to air pollution and its control and abatement.” Inherent in West Virginia's authority to meet the NAAQS and to conduct studies and research is the obligation for WVDEP to perform modeling as required under the CAA to demonstrate attainment of the NAAQS, as prescribed b y the EPA’s Administrator. WVDEP’s DAQ emplo ys one full time technical emplo ye e who is resp onsible for air quality modeling. West Virginia will perform modeling, as required under the CAA to demonstrate attainment of the 2008 8 - hour ozone NAAQS. Air quality modeling to be conducted with respect to the 2008 ozone NAAQS may utilize regional scal e photochemical models such as Community Multiscale Air Qualit y Modeling System ( CMAQ ) and Comprehensive Air Quality Model with Extensions ( CAMx ) . Also, West Virginia can provide relevant ambient air quality data as part of the permitting and NAAQS interp retation process. W.Va. Code sections 22 - 5 - 10, 22 - 5 - 4(a)(2) and 22 - 5 - 4(a)(16) authorize the Secretary

to submit, upon request by the EPA’s Administrator, modeling data predicting the effect on ambient air quality

of any emissions of any

air pollutant for which the Administrator has established a12

NAAQS. West Virginia will submit to EPA current and future air quality modeling data as part of its relevant SIP submissions and through Federal grant commitments or in other way s that EPA may request. Based upon EPA’s review of the above referenced submittals, EPA is proposing to determine that West Virginia has met its obligations pursuant to CAA section 110(a)(2)(K). **1 4**  **. Section 110(a**  **)( 2**  **)( L)**  West Virginia’s program permit fees are contained in the SI P - approved major NSR rule 45CSR19 (71 FR 64468). Program permit fees are also contained in West Virginia’s PSD rule, on which, as mentioned previously , EPA has taken separate action . West Virgini a also has an approved Title V operating permit program under 45CSR30 (66 FR 50325). Title V program’s permit fees, which satisfy the fee determination and certification requirements set forth in 40 CFR 70.9, are contained in 45CSR30. The collected fees in West Virginia have been sufficient to cover the costs of permit review and implementation and enforcement of permit terms and conditions. Based upon EPA’s review of the above referenced submittals, EPA is proposing to determine that the S tate has met its obligations pursuant to 110(a)(2)(L). **1 5**  **. Section 110(a)(2)(M)**  The Secretary

has the authority

under W.Va. Code section 22 - 5 - 4(a)(16) “to do all things necessary and convenient to prepare and submit a plan or plans for the implementation, 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 WVDEP’s DAQ is the organization authorized to develop, implement and enforce West Virginia SIP. W.Va. Code section 22 - 5 - 4(a)(2) authorizes the Secretary to advise, consult, and cooperate with local political subdivisions affected b y the implementation plan. West Virginia consults with local governments, organizations and Land Managers with respect to SIP development. DAQ also consults with such entities regarding implementation plans for air quality maintenance requirements, preconstruction review of direct sources, nonattainment requirements, and PSD . In accordance with the federal procedural requirements at 40 CFR 51.102, any plan or plan revision, or individual compliance sc hedule, prepared by DAQ is subject to a 30 day public notice period with public hearing, or in cases where there is little anticipated public interest, the opportunity for a public hearing. State rules which contain such public notice procedures include p ermitting rules 45CSR13, 45CSR14, 45CSR19 and 45CSR30. The public notice and hearing processes fulfill the requirements for consultation with local political subdivisions affected b y the SIP. Based upon EPA’s review of the above referenced submittals, E PA is proposing to determine that the S tate has met its obligations pursuant to 110(a)(2)( M ).13

**F. CONCLUSIONS AND RECOMMENDED AGENCY ACTION** EPA has anal yz ed West Virginia’s infrastructure submittal for the 2008 ozone NAAQS and the Agency proposes to conclude that West Virginia’s submittal meet s the requirements of section 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, of the CAA. EPA has tak en separate action on the portions of CAA section 110(a)(2) infr astructure elements for the 2008 ozone NAAQS as they relate to the West Virginia’s PSD program, as required by part C of Title Iof the CAA, including portions of CAA section 110(a)(2)(C), (D) and (J). It is recommended that a notice of proposed rulemak ing be prepared approving West Virginia’s infrastructure submittal for the 2008 8 - hour ozone NAAQS.