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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 quality 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 years 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 SIPs. Section 110(a)(2) lists 

specific elements that states must meet for ‘‘infrastructure’’ SIP requirements related to a newly

established or revised NAAQS. These 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 analytical 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 such 
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SIP submissions may also vary depending upon what provisions the state’s existing SIP already contains. 

In the case of the 2008 8-hour ozone NAAQS, states typically have met the basic program elements 

required 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 SIP submissions, or provide 

certification that the existing SIP contains provisions addressing relevant infrastructure SIP 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 has taken 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 by part C of Title I of the CAA, 

including 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) holds 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 state rules are applicable to NOx and VOC emission limitations and 

control measures: 45CSR30 (“Requirements for Operating Permits”), EPA-approved operating program 
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(66 FR 50325) pursuant to Title V of the CAA, which includes all the enforceable emission limitations 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 infrastructure 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 years of final disapproval if the definition of 

“regulated NSR pollutant” is not corrected. 

In this action, EPA is not proposing to approve or disapprove any existing State provisions 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 addressing 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 any existing West Virginia

rules with regard to director’s discretion or variance provisions. 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 state 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 State 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 ways 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 currently operates 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 requirements 

of 40 CFR Part 58, Appendix A and b) have met the minimum siting requirements of 40 CFR part 58, 

appendix E. 
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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 monitoring network. West Virginia’s 2011 Annual Air Quality Monitoring 

Network Design Plan was submitted to EPA on June 22, 2011, and was consequently approved by 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 

quarterly reports of air quality data to comply with the requirements of 40 CFR 58.16. The air quality

data for ozone is reviewed, edited, validated, and entered into the EPA air quality system (AQS) for 

updating pursuant to prescribed AQS procedures, and is certified annually as required under 40 CFR 

58.15. 

EPA concludes that West Virginia’s monitoring network and data system 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 authority to enforce any 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-approved 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 section 110(a)(2)(C) of the CAA 

for the 2008 ozone NAAQS as it relates to West Virginia’s PSD program as required by 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 source 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. LEXIS 1623 (Jan. 24., 2013). Unless the EME Homer City decision is 
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reversed or otherwise modified by the Supreme Court, states such as West Virginia are not required to 

submit 110(a)(2)(D)(i)(I) SIPs until the EPA has quantified their obligations under that section. West 

Virginia’s February 17, 2012 infrastructure SIP submission for the 2008 ozone NAAQS 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 SIP 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 by part C of Title I of the CAA.

Prong 4 of section 110(a)(2)(D)(i) requires that SIPs include provisions prohibiting any source or 

other type of emissions activity in one state from interfering with measures to protect visibility required to 

be included in another state’s SIP. In describing how its submission meets this requirement, West 

Virginia referred to its June 18, 2008 Regional Haze SIP submittal which included 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, specifically those provisions that require 

EGUs to comply with CAIR and the additional measures in the regional haze SIP 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 fully 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 provide for source-specific BART emission limits for SO2 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 promulgated, requires significant reductions in 

emissions of SO2 and NOx to limit the interstate transport of these pollutants, and EPA’s determination 

that states could rely on CAIR as an alternative to requiring BART for CAIR-subject EGUs had 

specifically been upheld in Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006). 

Moreover, the states with Class I areas affected by 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 

(SO2) 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.
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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 CAIR 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 temporarily 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 by 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 SIPs that relied similarly on CAIR) 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 program. See 77 FR 16932 (March23, 

2012).2EPA also finalized a limited FIP for West Virginia, which merely substituted reliance on EPA’s 

more recent CSAPR NOx and SO2 trading programs for EGUs for the SIP’s reliance on CAIR. See (77 

FR 33642, June 7, 2012).

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. LEXIS 1623 

(Jan. 24., 2013). In this 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 develop 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 cannot be replaced until EPA has promulgated a final rule through a noticeand-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 rely on CAIR emission reductions as permanent and enforceable for purposes of 

assessing the adequacy of West Virginia’s infrastructure SIP 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 any subsequent litigation 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 SIP 

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 approval 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 Calcagni 

Memorandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.
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As neither West Virginia nor EPA has taken any action to remove CAIR from the West Virginia 

SIP, CAIR remains part of the EPA-approved SIP 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 with its SIP provisions to implement CAIR 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 March

23, 2012, limited approval and limited disapproval of West Virginia’s regional haze SIP, 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 employees is employed at WVDEP’s Division of Air 

Quality (DAQ). 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 sources are sufficient to provide adequate personnel for those 

purposes and does not anticipate any changes in resources considered necessary during 5 years following 

SIP submittal. 

The Air Pollution Control Act of West Virginia (APCA) provides adequate funding 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 establishes 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 by statute. The APCA also authorizes the establishment 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. 
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Code 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 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.” The Secretary is not 

prohibited by any 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 permitting 

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 inventory 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 emissions 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 

manner prescribed by the Secretary (emissions inventory program). DAQ periodically reports emission 

inventory information to EPA as required by 40 CFR part 51, subparts A and K.

W.Va. Code section 22-1-6(d)(3) authorizes the Secretary to “investigate for violations 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 or 
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standards established pursuant to 45CSR13, 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 information are protected by confidentiality. 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 copy reports available upon written 

request. 

Based upon EPA’s review of the above referenced provisions, EPA finds West Virginia’s SIP 

revision meets 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 authority. Section 303 of the CAA provides authority to the EPA’s 

Administrator to restrain any source from causing or contributing to 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 Secretary may 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 immediate 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 authority 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, thereby preventing the occurrence of an emergency due to the effects of these pollutants on 

health. West Virginia initiates the use of specific emission reduction plans for three stages of pollutant 

concentration levels to prevent further deterioration of the air quality in the state. 

Pursuant to 40 CFR 51.152(c), West Virginia does not need to 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. 
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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 SIPs, 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 the 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 Quality Standards” to take account of 

revisions 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).

11. 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. 

12. 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 by 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 deterioration. 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 by CAA section 127. Each year, 

WVDEP issues a comprehensive Air Quality Annual Report, which compares monitored air quality data 

with the NAAQS and tracks the Air Quality Index. The Air Quality Annual Report contains emissions 
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information and air quality highlights from the previous year, provides public awareness of criteria 

pollutants and their effects on health, and provides educational website links to tips that improve air 

quality, links to technical 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 obligations 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 SIP as having not been fully 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 fully 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 SIP 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). 

13. 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 Secretary to “develop ways 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 by the EPA’s Administrator. WVDEP’s 

DAQ employs one full time technical employee who is responsible 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 scale photochemical models such as Community Multiscale Air Quality 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 interpretation 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 a 
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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 ways 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). 

14. Section 110(a)(2)(L) 

West Virginia’s program permit fees are contained in the SIP-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 Virginia 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 State has met its obligations pursuant to 110(a)(2)(L). 

15. 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 by 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 schedule, 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 permitting rules 45CSR13, 

45CSR14, 45CSR19 and 45CSR30. The public notice and hearing processes fulfill the requirements for 

consultation with local political subdivisions affected by the SIP. 

Based upon EPA’s review of the above referenced submittals, EPA is proposing to determine that 

the State has met its obligations pursuant to 110(a)(2)(M). 
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F. CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA has analyzed West Virginia’s infrastructure submittal for the 2008 ozone NAAQS and the 

Agency proposes to conclude that West Virginia’s submittal meets 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 taken 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 PSD program, as required by part C of Title I of 

the CAA, including portions of CAA section 110(a)(2)(C), (D) and (J). 

It is recommended that a notice of proposed rulemaking be prepared approving West Virginia’s 

infrastructure submittal for the 2008 8-hour ozone NAAQS.