west virginiadepartment of environmentalprotectionFinal West VirginiaState Implementation Plan Revision forClean Air Act Section 110(a)(2)(A)-(M)Requirements for the 2008 8-Hour OzoneNational Ambient Air Quality StandardsFebruary 17, 2012West Virginia Division of Air Quality601 57thStreet, SEPromoting a healthy environmentThis page intentionally left blank.1Final West Virginia State Implementation Plan Revision for Clean Air ActSection 110(a)(2)(A)-(M) Requirements for the 2008 8-Hour Ozone National Ambient Air Quality StandardsA 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 federallyenforceable SIP for West Virginia is compiled in 40 CFR Part 52, Subpart XX. In this revisionto the SIP, West Virginia is demonstrating that it has adequate resources and authority to implement the 2008 8-hour ozone NAAQS.This SIP revision addresses requirements of Section 110(a)(2)(A)-(M) of the Clean Air Act (CAA) many of which have been addressed inother SIP revisions. It is a compilation of elements that demonstrate how the2008 8-hour ozone NAAQS is being implemented, maintainedand enforced in West Virginia. The elements of this SIP revision, once approved by EPA, will provide a federally enforceable compilation ofhow West Virginia will continueto comply with the Section 110(a)(2) requirements of the CAA for the 2008 8-hour ozone NAAQS.In 1961, the West Virginia Legislature passed the Air Pollution Control Act (APCA), making West Virginia the sixteenth state tohave 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 to implement state andfederalrequirements for fifty years as most recently evidenced by federally approved Revised Motor Vehicle Emission Budgets for the Charleston,Huntington, Parkersburg, Weirton, and Wheeling 8-Hour Ozone Maintenance Areas, and Section 110(a)(2) Infrastructure Requirements forthe 1997 8-Hour Ozone National Ambient Air Quality Standards. Legislative authority for the WestVirginia air quality programrelating tothe responsibilities inthe Clean Air Act is codified in the West VirginiaAir Pollution Control Act,W.Va. Code §22-5, more specifically §22-5-1, which gives West Virginia the primary responsibility for assuring air quality pursuant to the CAA.Many elements of Section 110(a)(2)(A)-(M) are already addressed in the approved SIP orrecently submitted SIP revisions for other NAAQS.This SIP revision may reiterate and/or reinforce some of thesepreviously submitted and/or approved elements. Some requirements, such asthose for intergovernmental consultation, air quality modeling andcompliance with Part D of theCAA, are fulfilled during thedevelopmentand submission to EPA, as a SIP revision, of attainment plans and related requirements due under Subpart 1and, in the case of the 2008 8-hour ozone NAAQS, Subpart 2 of the CAA.West Virginia has no designated 2008 8-hourozone NAAQS non-attainment areas, and iscurrently monitoring attainment of the standardat all ozone sampling sites within the state.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:The WVDEPCabinet Secretary (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 AdministrativeProcedures Act (W.Va. Code §§ 29A3-1 et seq.). Approximately forty fully-adoptedlegislative rules implemented under the auspices of the APCA are currently in effectand codified at Title 45 of the West VirginiaCode of State Rules, including the ambientair quality standards for criteria pollutants (including the 2008 8-hour ozone NAAQS)contained in 45CSR8. Enforceable emission limitations and other control measures forozone may be found in the West Virginia Code of State Rules as necessary orappropriate to meet the applicable requirements of the CAA:45CSR13 - The purpose of this SIP approved rule (68 FR 9559) is to set forth theprocedures for stationary source reporting,and the criteria for obtaining a permit toconstruct 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.Ozone is a “regulated pollutant’” as definedunder 45CSR13-2.20. An emissions increase ofsix (6) pounds per hour and ten (10)tons per year or more, or more than 144 pounds per calendar day of NOx or VOC at asource triggers a modification under 45CSR13.45CSR14 - The purpose of this SIP approved rule is to satisfy the prevention ofsignificant deterioration permit program requirements in Part C of the CAA. SIPapproved revisions to the rule include references to NOx as a precursor of ozone (76FR 30832). 45CSR14 contains a significance level for ozone of 40 tpy of VOC or NOx.No de minimis air quality level is provided for ozone. However, any net emissionsincrease of 100 tons per year or more of VOC or NOx subject to PSD would berequired to perform an ambient impact analysis, including the gathering of air qualitydata. A PSD source in an attainment area may have NOx or VOC emission limitation ina permit under 45CSR14 based upon a BACT analysis. On August 31, 2011, WestVirginia submitted a revision to the SIP which includes provisions for 8-hour ozoneNAAQS implementation under 45CSR14.45CSR19 - The purpose of this SIP approvedrule (71 FR 64468) is to satisfy thenonattainment area new source review permit program requirements in Part D of theCAA. 45CSR19 contains a significance level for ozone of 40 tpy of VOC or NOx. A3§110(a)(2)(A)(continued)NSR source in an ozone non-attainment area may have a NOx or VOC emissionlimitation in a permit under 45CSR19 based upon a LAER analysis. On June 29, 2010,West Virginia submitted a revision to theSIP which includes provisions for 8-hourozone NAAQS implementation under 45CSR19. West Virginia submitted a subsequentrevision to the SIP which includes minor revisions to 45CSR19 that ensure consistencywith federal counterpart. West Virginiahas no designated ozone non-attainment areasunder the 2008 8-hour Ozone NAAQS.45CSR21 - The purpose of this SIP approved rule (60 FR 6022) is to apply reasonablyavailable control technology for VOC sources located in Putnam County, KanawhaCounty, Cabell County, Wayne County, and Wood County West Virginia.45CSR29 - This SIP approved rule (60 FR39855) requires the submission of VOC andNOXemissions statements for sources inPutnam, Kanawha, Cabell, Wayne, Wood,and Greenbrier counties.45CSR30 - This legislative rule establishesa permitting program pursuant to Title V ofthe CAA. Any major stationary source subject to enforceable NOx or VOC emissionlimitations or control measures pursuant to 45CSR13, 45CSR14, 45CSR19, 45CSR21or 45CSR29 will be contained in a permit issuedby West Virginia under its establishedTitle V permit program. The effective date ofinterim approval of West Virginia’s Title VProgram and 45CSR30was 12/15/95. EPA fully approvedthe West Virginia Title Vprogram via DFR published on 10/03/01 (66 FR 50325). EPA approved revisions to45CSR30 contained in DAQ’s 07/01/01 rule via a separate DFR published on 10/09/01(66 FR 51318). These revisions became federally effective 11/23/01.45CSR33 - This rule establishes the Acid Rain Program pursuant to Title IV of the CAAin West Virginia. This federal program approval rule incorporates by reference theNitrogen Oxides Reduction Program set forth in 40 CFR Part 76.Clean Air Interstate Rule (CAIR) - West Virginia received approval of its CAIR SIPrevision on August 4, 2009 (74 FR 38536)which contained three state rules; 45CSR39,45CSR40 and 45CSR41. 45CSR39 and 45CSR40 are the annual and ozone seasonCAIR NOx trading programs which set NOx budgets for the purpose of reducinginterstate transport of PM and ozone.Pursuant to West Virginia Code, §22-5-1 declares the state’s public policy “to fulfill itsprimary responsibility forassuring air quality pursuant to the ‘Federal Clean Air Act’, asamended.”The Secretary has the authority under W.Va. Code §§22-5-4(a)(1) & (3) “to developways and means for theregulation and controlof pollution of the air of the state” and“conduct such studies and research relating to air pollution and its control andabatement”.4§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 Monitoring System:Pursuant to West Virginia Code, §22-1-1(a)(1),“protecting the environment is fundamental to the health and welfare of individualcitizens,” and, the state “has a duty to provide and maintain a healthful environment forour citizens.” Under §22-1-1(a)(2), “thestate has the primary responsibility forprotecting the environment.” §22-1-1(b) “declares that the establishment of adepartment of environmental protection is in the public interest” and that “It is the policyof the state .....to use all practical means and measures to preventor eliminate harm tothe environment and biosphere, to createand maintain conditions under which manand nature can exist in productive harmony, .....”Additionally, §22-5-1 declares the state’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 “endeavorto obtain 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 controlof pollution 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 ambient air monitorsin West Virginia for the purpose ofassessing compliance with the National Ambient Air Quality Standards, whichCongress provided for in the CAA, and suchstandards promulgated by EPA to protectthe health and welfare of individual citizens.Monitoring System Operation:To assess compliance with the 2008 8-hour ozoneNAAQS, DAQ operates a network of air quality monitors at appropriate locations inWest Virginia that have been designatedby EPA as either Federal Reference orFederal Equivalent monitors, in accordance with recent revisions to the ozonemonitoring network requirements. All ambientair monitors are subject to the QualityAssurance requirements of 40 CFR Part 58, Appendix A. Additionally all monitors havemet the minimum siting requirements ofPart 58, Appendix E. WVDAQ analyzescollected air quality data to determine attainment status under the NAAQS.On March 27, 2008, EPA revised the 8-hour ozone NAAQS (73 FR 16436). In this finalrule, EPA noted that the agency intends toissue a consequentfinal rule regarding5§110(a)(2)(B)(continued)revised monitoring requirements under the new NAAQS. The agency proposed the 8-hour ozone monitoring rule on July 9, 2009, but has yet to issue a final rule. Theexisting network and procedures for the1997 ozone NAAQS are considered adequatefor the 2008 8-hour ozone NAAQS, as the pollutant is unchanged; only the standard (orlevel) is different.Availability of Data:In order to keep EPA informed of planned changes to monitoringsites, WVDAQ provides EPA Region III with adequate prior notification. Details of thesechanges and anticipated approvals of the changes are communicated to EPA. On anannual basis, WVDAQ submits to EPA a monitoring site design plan required under 40CFR §58.10, that describes how West Virginia is complying with monitoringrequirements and explains any changes to the monitoring network. This plan alsoprovides for a description ofeach change, the reason for each change, and any otherinformation relevant to the change. As required under 40 CFR Part 58, Subpart B at§58.10, West Virginia’s 2011 Annual Air Quality Monitoring Network Design Plan wassubmitted to EPA on June 22, 2011, andconsequently approvedby EPA on December6, 2011.As provided in West Virginia Code, §§22-5-4(a)(2), 22-5-10 and §110(a)(2)(B) of theCAA, WVDAQ will collect and report in a timely manner to EPA ambient air quality datafor ozone. West Virginia has also committed within the 105 grant document tomonitoring and reporting data for ozone. The reports will comply with the federalrequirements of 40 CFR §58.16. The data isreviewed, edited, validated, and enteredinto the EPA Air Quality System (AQS)for updating pursuant to prescribed AQSprocedures set forth in 40 CFR §51.320. The EPA AQS receives each report within 90days after the end of the quarterly reporting period. Data is certified annually asrequired 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 2008 8-Hour Ozone NAAQS:Pursuant to§22-1-6(a), the Secretary “is the chief officerof the department” with the powers, dutiesand 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 of6§110(a)(2)(C)(continued)compliance with this article and the rulespromulgated under the provisions of thisarticle.”The Secretary 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 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 established legal framework and inherent ability toprovide for the enforcement of the measures described the §110(a)(2)(A) element ofthis document, and contained in a permit issued under 45CSR13, 45CSR14, 45CSR19or 45CSR30 (see below).Regulation of the Modification and Construction of Stationary Sources:ThePrevention of Significant Deterioration(PSD) and nonattainment area New SourceReview (NNSR) programs contained in Parts C and D of Title I of the CAA, andcollectively referred to as the major New Source Review (NSR) program, governpreconstruction review and permitting of anynew 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. For the 2008 8-hour ozoneNAAQS, West Virginia's permitting program includes the following three SIP approvedrules: PSD rule 45CSR14, NNSR rule 45CSR19, and minor NSR rule 45CSR13. WestVirginia also has an approved Title V operating permit program (66 FR 50325).PSD - PSD rule 45CSR14 (76 FR 30832) satisfies the prevention of significantdeterioration permit program requirements in Part C of the CAA. West Virginia isauthorized to implement its existing PSD permit program in order to ensure that theconstruction and modification of major stationary sources does not cause or contributeto a violation of the 2008 8-hour ozone NAAQS through SIP-approved rule 45CSR14.45CSR14 ensures that new or modified sources will apply BestAvailable ControlTechnology (BACT) to reduce emissions ofVOC or NOx in accordance with CAAsections 165 (a)(3) and (4). This fully-adopted and SIP-approved rule applies to allregulated NSR pollutants, and includes NOx as a precursor to ozone.West Virginia’s 2011 rule 45CSR14 became effective on June 16, 2011. The fullyadopted rule included provisions for 2008 8-hour ozone NAAQS implementation, andlimits PSD applicability with respect to greenhouse gas-emitting sources by adoptingthe applicability thresholds included in EPA’s Tailoring Rule. West Virginia’s 20117legislative rule 45CSR14 wassubmitted to EPA as a SIP revision on August 31, 2011.West Virginia will revise its PSD program to address any applicable EPA amendmentsof the ozone PSD rules within three years from the date of such amendments.NNSR - West Virginia NNSR rule 45CSR19 (71 FR 64468) satisfies the nonattainmentarea new source review permit program requirements in Part D of the CAA. On June29, 2010, West Virginia submitted a revision tothe SIP which includes provisions for 8-hour ozone NAAQS implementation under 45CSR19. On July 8, 2011, West Virginiasubmitted a subsequent revision to the SIPwhich includes minor revisions to 45CSR19that ensure consistency with federal counterpart. West Virginia will revise its NNSRprogram to address any applicable EPA amendments of the ozone NNSR rules withinthree years from the date of such amendments. West Virginia has no designated ozonenon-attainment areas under the 2008 8-hour ozone NAAQS.Minor NSR - West Virginia’s SIP-approved minor NSR permitting program under45CSR13 (68 FR 9559) provides regulation of the modification and construction ofstationary sources as necessary to assure that the 2008 8-hour ozone NAAQS areachieved in accordancewith CAA section 110(a)(2)(C).West Virginia will revise itsminor NSR program to address any applicable EPA amendments of the ozone PSDrules within three years from the date of such 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 whichwill-(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 toProngs I & II - Prohibiting Significant Contribution or Interference WithMaintenance of the NAAQS:DAQ will not address Prongs I & II at this time, and willwait for guidance from EPA with respect tostates complying with CAA §110(a)(2)(D) asit relates to the 2008 8-hour ozone standard.Prong III – Prohibiting InterferenceWith Required PSD Measures:West Virginiaconfirms that new major sources and major modifications in the state are subject toPSD under legislative rule 45CSR14. The purpose of this West Virginia SIP approvedrule is to satisfy the prevention of significant deterioration permit program requirementsin Part C of the CAA. SIP-approved revisionsto the rule include references to NOx as aprecursor of ozone (76 FR 30832). Under 45CSR14, “.....all applications filed by anyperson to construct major new or modified stationary air pollution sources, intending tolocate in areas with air quality better than the levels set to protect the public health andwelfare, or that might impact those areas,must adequately meet the pre-constructionreview procedures and conditions of the Clean Air Act as amended ....”. This ruleincludes specific federal requirements which ensure that new or modified sources donot interfere with measures to prevent significant deterioration of air quality byproviding a mechanism to prevent thedevelopment of any new non-attainmentproblems. 45CSR14 requires the evaluation ofsources of air pollutants and to precludethe construction or relocation of any major stationary source or major modification inany area classified as attaining National Ambient Air Quality Standards orunclassifiable in which the establishment of such source or modification may interfere8§110(a)(2)(D)(continued)protect visibility,(ii) ensuring compliance with theapplicable requirements ofsections 126 and 115 (relating tointerstate and internationalpollution abatement);with the goals of the prevention of significantdeterioration of air quality levels. OnAugust 31, 2011, West Virginia submitted a revision to the SIP which includesprovisions for 2008 8-hour ozone NAAQS implementation under 45CSR14.Prong IV - Measures Required to Protect Visibility:West Virginia’s Regional HazeSIP was submitted to EPA on June 8, 2008. Byoperation of law, it became technicallyand administratively complete on or about December 18, 2008. On July 13, 2011 at 76FR 41158, EPA proposed a limited approval and limited disapproval of West Virginia’sRegional Haze SIP revision. The agency proposed to approve the revision as meetingthe requirements of CAA sections 110(a)(2)(D)(i)(II) and 110(a)(2)(J). The deficiency inthe SIP revision arises from the remand by the U.S. Court of Appeals for the District ofColumbia to EPA of the Clean Air Interstate Rule (CAIR).Ensuring Compliance with Sections 126 and 115: West Virginia has demonstratedthat it has met its obligations pursuantto CAA Section 126(a) through the adoption of45CSR14-17,Public Review Procedureswhich requires notification to other states ofpotential impacts from a source.West Virginia has no current pending obligations pursuant to CAA sections 126(b),126(c) or 115.West Virginia has submitted to EPA (August 31, 2011) a fully-adopted PSD programunder 45CSR14 that applies to all regulatedNSR pollutants, including GHG. WestVirginia has made the necessary submittals to demonstrate that West Virginia hasadequate provisions ensuring future compliance with the requirements of sections 126and 115 of the CAA as may be necessary.§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)will have adequate personnel,funding, and authority understate (and, as appropriate, local)law to carry out suchPersonnel:WVDEP has adequate personnel to carry out the implementation plan withrespect to the 2008 8-hour ozone NAAQS. The Secretary employs adequatepersonnel and retains specialists under W.Va. Code §22-5-4(a)(8) that are "necessary,incident or convenient" to accomplish the statutory mandate to carry out theimplementation plan. A staff of approximately 90 full time employees is employed atWVDAQ. The West Virginia Air Director supervises the air monitoring, compliance andenforcement, hazardous waste, permitting and planning sections, as well as threeregional DAQ offices, and answers to theSecretary. Because of the nature of thenational and state economy, WVDAQ does notanticipate any significant changes innecessary resources during the 5 years following SIP submittal; and projects a similarresource need at 1, 3, and five year intervals.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 the CAA.9§110(a)(2)(E)(i)(continued)implementation plan (and is notprohibited by any provision offederal or state law from carryingout such implementation plan orportion thereof);45CSR30 establishes fees sufficient to cover the direct and indirect costs ofadministering the air pollution control planning process, Title V operating permitprogram, and support the air pollution control program authorized by statute. TheAPCA also authorizes the establishment of fees to cover non-Title V permitting costsunder 45CSR22. The air quality program also receives revenue from fines andpenalties (Air Pollution Control Fund) and federal funds under Section 105 and 103 ofthe CAA, and state general appropriations.Legal Authority:The APCA, W.Va. Code §22-5-1,declares the state's policy "to fulfillits primary responsibility for assuring air quality" pursuant to the CAA. The Secretary isauthorized under W.Va. Code §§22-1-6(c)(1)and 22-5-4(a)(12) to carry out andrepresent the state in any and all matters pertaining to the implementation plan. 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 enforcementof the Federal Clean Air Act ....” TheSecretary is not prohibited by any provisionof federal or state law from carrying out theimplementation plan or portion thereof. The legal authorities specified are available tothe Secretary at the time of submission of this SIP revision.West Virginia has adopted emission standards and limitations and other measuresnecessary for attainment and maintenance ofnational standards. The Secretary hasthe authority under W.Va. Code §§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.). Approximately forty rules revised under the auspices of the APCAare currently in effect and codified at Title45 of the Code of State Rules, including theambient air quality standards for ozone andother criteria pollutants contained in45CSR8. Statutory permitting requirementsare set forth in W.Va. Code §§22-5-11 &12. West Virginia has anEPA-approved air permitting program for both major andminor facilities, under state rules 45CSR13, 45CSR14,45CSR19 and45CSR30 (asapplicable).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 W.Va. Code §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 Air Pollution Control Act. The Secretary may also suspend, modify or revoke asource’s permit. Under §22-5-6, the Secretary may also institute lawsuits for civilpenalties. §22-5-7 authorizes the Secretary to seek applications for injunctive relief.§22-5-8 authorizes the Secretary, with the written authorization of the Governor, to shutdown a source, thereby preventing the emission of air pollutants which substantiallycontributes to an emergency that requires immediate action to protect public health. As10§110(a)(2)(E)(i)(continued)provided in West Virginia Code, §§22-5-4(a)(2) and 22-5-10, the Secretary may consultwith EPA to affirm accuracy of any information considered while executing authorityunder §§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 (76 FR 30832) is tosatisfy the prevention of significant deterioration permit program requirements in Part Cof the CAA. Under 45CSR14, “.....all applications filed by any person to construct majornew or modified stationary air pollution sources, intending to locate in areas with airquality better than the levels set to protect thepublic health and welfare, or that mightimpact those areas, must adequately meet the pre-construction review procedures andconditions of the Clean Air Act as amended....”. This rule includes specific federalrequirements which ensure that new ormodified sources do not interfere withmeasures to prevent significantdeterioration of air quality by providing a mechanism toprevent the development of any new non-attainment problems. 45CSR14 requires theevaluation of sources of air pollutants and topreclude the construction or relocation ofany major stationary source or major modification in any area classified as attainingNational Ambient Air Quality Standards or unclassifiable in which the establishment ofsuch source or modification may interfere with the goals of the prevention of significantdeterioration of air quality levels.Under W.Va. Code §22-5-4(a)(14), the Secretary is authorized to obtain informationnecessary to determine whether air pollutionsources are in compliance with applicablelaws, regulations, and standards. Under W.Va. Code §§22-5-4(a)(14) and 22-5-4(a)(15), the Secretary is authorized to require recordkeeping. Under W.Va. Code §22-5-44(a)(9), the Secretary is authorized toand to make inspections and conduct tests ofair pollution 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 W.Va. Code §22-5-10, the Secretary isauthorized to make such data available to the public as reported and as correlated withany applicable emission standards or limitations.§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. Section 128(a)(2): Any potential conflicts of interest by the head of anexecutive agency that approves permits orenforcement orders shall be adequately11disclosed pursuant to WV Code §6B-2-6, which requires the filing of a financialdisclosure statement for the head of an executive agency.§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 state implementation plan provision for the 2008 8-hour ozoneNAAQS. West Virginia will retain primacy with respect to anyfuture plan that relies onlocal or regional governments, agencies or instrumentalities. By statute, West Virginiahas prime responsibility for ensuring adequateimplementation of such a plan provision.The Secretary 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 the implementation,maintenance and enforcement of the Federal Clean Air Act .....”As set forth in §22-1-1(b)(5), the WVDEP, “insofar as federal environmental programsrequire state participation” must “endeavorto obtain and continue state primacy in theadministration of such federally-mandated programs,.....and to cooperate withappropriate federal agencies to meet environmental 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 standardsestablished pursuant to this Act,which reports shall be availableat reasonable times for publicMonitoring:W.Va. Code §22-5-4(a)(15) authorizes the Secretary to require theinstallation, maintenance and replacement of equipment, and the implementation ofother necessary steps by owners or operators of stationary sources to monitor andreport emissions of NOx or VOC from such sources as the Secretary may prescribe.Under this authority, West Virginia requires the installation, maintenance, andreplacement of monitoring equipment atstationary sources through permits issuedunder 45CSR13, 45CSR14, 45CSR19, 45CSR30, CAIR rules 45CSR39 and 45CSR40,and via compliance orders. West Virginia is subject to the Air Emission Reporting Rule(AERR) set forth in 40 CFR Part 51, Subpart A. WVDAQ’s emissions inventory programprovides source-specific emissions datato EPA pursuant to the AERR reportingrequirements. WVDAQ notes that major sourcesof NOx in West Virginia have installedcontinuous emission monitors for NOx as required by the CAIR (rules 45CSR39 and45CSR40) and the CSAPR FIP. These sources monitor their annual and ozone seasonNOx emissions in accordance with 40 CFR Part 75.Reporting:In accordance with the emission reports and recordkeeping requirementsset forth in 40 CFR §51.211, W.Va. Code §§22-5-4(a)(15) authorizes the Secretary torequire periodic reports on the natureand amounts of NOx or VOC emissions andemissions-related data from owners or operators of stationary sources (monitoringdata). Pursuant to W.Va. Code §§22-5-4(a)(14), the Secretary is authorized to requiresuch information as the Secretary may require in a form or manner prescribed by theSecretary (emissions inventory program). Under this authority, West Virginia requiresperiodic reports on the nature and amountsof emissions and emissions-related data12inspection;from stationary sources through permits issued under 45CSR13,45CSR14, 45CSR19,45CSR30, CAIR rules 45CSR39 and 45CSR40, and via compliance orders. WVDAQperiodically reports emission inventory information to EPA as required by 40 CFR Part51, Subparts A and K. WVDAQ notes that major sources of NOx in West Virginia havecontinuous emission monitors for NOx as required by the CAIR (rules 45CSR39 and45CSR40) and the CSAPR FIP. These sourcesreport their annual and ozone seasonNOx emissions in accordance with 40 CFR Part 75.Correlation of Reports:W.Va. Code §22-1-6(d)(3) authorizes the Cabinet Secretary to“investigate for violations of statutes orrules which the department is charged withenforcing.” §22-5-4(a)(3) authorizes the Secretary to correlate periodic emissionsreports with any NOx or VOC emission limitation or standard established pursuant to45CSR13, 45CSR14, 45CSR19, 45CSR30, CAIR rules 45CSR39 and 45CSR40, viacompliance orders, or the CAA. As set forth in W.Va. Code §22-5-10, the Secretarymakes available at reasonable times for public inspection the periodic emissionsreported under §§22-5-4(a)(14)& (15). The Secretary has the responsibility of makingall records, reports or information obtainedby the Department 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 WVDAQ routinely provides access to includenotifications, inspection reports, notices ofviolation, enforcement orders, applications,permit review letters, sample results, monitoring reports, permits, approvals and denialsthat would relate to §110(a)(2)(F). WVDAQgenerally makes information available forpublic access through its website, but alsomakes hard copy reports available uponwritten request. Reports submitted under40 CFR Part 75 are made available to thepublic by EPA.§110(a)(2)(G)provide for authority comparableto that in section 303 andadequate contingency plans toimplement such authority;Comparable Authority:W.Va. Code §22-5-5 authorizes the Cabinet Secretary to issuean order to cease and desist any activity thatviolates the Air Pollution Control Act. TheSecretary may also suspend, modify or revoke a source’s permit. Under §22-5-6, theSecretary may also institute lawsuits for civil penalties. §22-5-7 authorizes theSecretary to seek applications for injunctive relief. §22-5-8 authorizes the Secretary,with the written authorization of the Governor, to shut down a violating source (includingemitters of NOx or VOC), thereby preventing the emission of air pollutants whichsubstantially contributes to an emergency that requires immediate action to protectpublic health. As provided in West Virginia Code, §§22-5-4(a)(2) and 22-5-10, theSecretary may consult with EPA to affirm accuracy of any information considered whileexecuting authority under §§22-5-5, -6, -7 or -8.Contingency Plans:SIP approved rule 45CSR11 (58 FR 34526) provides amechanism to prevent the buildup of ozoneconcentrations during periods of adversemeteorological conditions in which air pollutants may accumulate, thereby preventing13the occurrence of an emergency due to the effects of these pollutants on health. Toachieve this purpose, three stages of criteria(pollutant concentration levels) have beenestablished and specific emission reduction plans will be implemented which will beinitiated at each criteria stage to prevent further deterioration of the air quality to any airquality region in West Virginia.West Virginia satisfies the criteria to be classified a Priority III Region under 40 CFR§51.150(f) for ozone, as it does not meet the criteria set forth in 40 CFR §§51.150(a)-(e). Pursuant to 40 CFR §51.152(c), areas classified asPriority III do not need todevelop episode (contingency) plans.To date, EPA has not promulgated aclassification system for the 2008 8-hour ozone NAAQS.§110(a)(2)(H)§110(a)(2)(H)(continued)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 attainthe national ambient air qualitystandard which it implements, orto otherwise comply with anyadditional requirementsestablished under this Act;Revision of NAAQS:To satisfy the SIP revision provisions set forth in 40 CFR§51.104, W.Va. Code §22-5-4(a)(16) authorizesthe Secretary to do all things necessaryand convenient to prepare and submit a plan for the implementation, maintenance andenforcement of the Clean Air Act. WVDAQ hashistorically revised, and will continue torevise its NAAQS rules as necessary to takeaccount of revisions of the national primaryor secondary ambient air quality standards orimproved or more expeditious methods ofattaining the standards. Below are brief recent history examples of how West Virginiahas promulgated various versions of NAAQS rule 45CSR8 to take account of revisionsand maintain the primary and secondary NAAQS:On February 8, 2009, West Virginia received full SIP approval of its 2008 NAAQS rule45CSR8 (74 FR 6552). This rule contains ambient air quality standards for all criteriapollutants, including the 2008 8-hour ozone NAAQS, equivalent to the national primaryand secondary ambient air quality standardsestablished under Section 109 of theClean Air Act, and promulgated by the UnitedStates Environmental Protection Agencyunder 40 CFR Part 50 through June 1, 2007.The 2009 version of 45CSR8 includes the 2008 8-hour primary and secondary ozoneNAAQS. Revisions to the rule also includedeletion of references to the obsolete onehour ozone NAAQS. The 2009 rule becameeffective June 1, 2009. EPA announcedreconsideration of the 2008 8-hour primary and secondary ozone standards onSeptember 16, 2009. Subsequently, EPA Region III advised the WVDAQ that 45CSR8may not be approvable into the SIP because the new ozone standards were underreconsideration. At the request of EPA Region III, 45CSR8 was withdrawn as a revisionto the SIP on November 16, 2009.The 2010 version of 45CSR8 included the 2008 8-hour primary and secondary ozoneNAAQS, and the 2008 national primary and secondary lead NAAQS and deletion ofredundant methods of measurement language in section 4. The 2010 rule becameeffective June 1, 2010. EPA Region III advised the WVDAQ that the 2010 version of45CSR8 may not be approvable into the SIP because the new ozone standards were14under reconsideration. At the request of EPA Region III, 45CSR8 was not submitted asa revision to the SIP.West Virginia submitted a NAAQS SIP revision to EPA Region III on July 8, 2011.Revisions to the 2011 version of the rule provide for incorporation by reference of theNAAQS as promulgated by the EPA as of June 1, 2010, rather than reiterating theNAAQS in the rule. Additionally, the EPAhas revised the primary nitrogen dioxideNAAQS, and 45CSR8 incorporates by reference these revised standards. The 2011rule became effective June 16, 2011. It incorporates the 2008 8-hour ozone NAAQS byreference.Inadequate Plan:W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all thingsnecessary and convenient to prepare and submit a plan for the implementation,maintenanceand enforcement of the Clean Air Act. 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)§110(a)(2)(J)(continued)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:Satisfying the applicable requirements of Section 121 of the CAA, theAPCA provides adequate authority under W.Va.Code §22-5-4(a)(2) for West Virginia’spractices of consultation with local governments, organizations and Land Managers forpurposes of air pollution control. WVDAQ also consults with such entities regardingimplementation plans for air quality maintenance requirements, preconstruction reviewof direct sources, nonattainment requirements, andprevention of significantdeterioration. For the 2008 8-hour ozone NAAQS, West Virginia’s permitting programincludes three SIP approved rules: minor NSR rule 45CSR13 (68 FR 9559), PSD rule45CSR14 (76 FR 30832), and NNSR rule 45CSR19 (71 FR 64468). West Virginia alsohas an approved Title V operating permitprogram (66 FR 50325). WVDAQ haspreviously demonstrated a commitment tosuch consultation through encouragementand support for an Early Action Compact, and through Federal Land Managerconsultation for the West Virginia Regional Haze SIP.Notification:W.Va. Code §22-4-(a)(10) authorizes the WVDAQ to notify the public ofimminent and serious hazards to public health. W.Va. Code §22-1-12 providesauthority for the public notification of NAAQS violations and education efforts asrequired by CAA Section 127. Each year,WVDEP issues a comprehensive Air QualityAnnual Report, which compares monitored air quality data with the NAAQS, and tracksthe Air Quality Index. The Report contains emissions information and air qualityhighlights from the previous year, and providespublic awareness of criteria pollutantsand their effects on health; educational website links to tips that improve air quality,links to technical websites and outreach efforts.PSD and Visibility:Pursuant to the CAA, if a regulated pollutant becomes subject toregulation under PSD, West Virginia’s PSD rule 45CSR14 provides for the15implementation of any new PSD requirementsthat are triggered upon the effective dateof any new NAAQS. West Virginia submitted 2011 PSD rule 45CSR14 to EPA RegionIII on August 31, 2011. Thisfully-adopted rule applies to all regulated NSR pollutants,including greenhouse gases.West Virginia’s Regional Haze SIP was submitted to EPA on June 8, 2008. Byoperation of law, it became technicallyand administratively complete on or aboutDecember 18, 2008. On July 13, 2011 at 76 FR 41158, EPA proposed a limitedapproval and limited disapproval of West Virginia’s Regional Haze SIP revision. Theagency proposed to approve the revision asmeeting the requirements of CAA sections110(a)(2)(D)(i)(II) and 110(a)(2)(J). The deficiency in the SIP revision arises from theremand by the U.S. Court ofAppeals for the District of Columbus to EPA of the CleanAir Interstate Rule (CAIR), overwhich the state has no control.§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:West Virginia Code, §§22-5-4(a)(1) & (3), authorizes theSecretary to “develop ways and means for theregulation and control of pollution of theair of the state” and “conduct such studiesand research relating to air pollution and itscontrol and abatement”. Inherent in West Virginia's authority to meet the NAAQS and toconduct studies and research is the obligation for WVDAQ to perform modeling asrequired under the CAA to demonstrate attainment of the NAAQS, as prescribed by theAdministrator. WVDAQ employs one full timetechnical employee who is responsible forair quality modeling. WVDAQ also participates in regional planning organizations suchas the Association for Southeastern Integrated Planning (ASIP) and the SoutheasternModeling And Planning organization (SEMAP), which performs NAAQS modeling formember states. West Virginia will perform modeling, as required under the CAA todemonstrate attainment of the 2008 8-hour ozone NAAQS. Air quality modeling to beconducted with respect to the 2008 8-hour ozone NAAQS may utilize regional scalephotochemical models such as CMAQ or CAMX. However, because all ozone monitorsin the state indicate compliance with the2008 8-hour ozone NAAQS, WVDAQ does notexpect that such modeling will be necessary.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 a national ambient air quality standard. WestVirginia will submit to EPA current and future air qualitymodeling data as part of itsrelevant SIP submissions and through Federal grant commitments or in other ways thatEPA may request.§110(a)(2)(L)require the owner or operator ofPermit Fees for Permit Review, Implementation and Enforcement:West Virginia16§110(a)(2)(L)(continued)each 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 (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;has SIP approved PSD rule 45CSR14 (76 FR 30832) and major NSR rule 45CSR19(71 FR 64468) (construction permits). Programpermit fees are contained in the rules.The collected fees have been sufficient to cover permit review, and implementation andenforcement of permit terms and conditions.West Virginia also has an approved Title V operating permit program under 45CSR30(66 FR 50325). Title V Program permit fees which satisfy the fee determination andcertification requirements set forth in 40CFR §70.9 are contained in the rule. Thecollected fees have been sufficient to cover permit review, and implementation andenforcement of permit terms and conditions. WVDAQ has periodically increased TitleV permitting fees to ensureprogram sustainability.§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) “to doall 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 West Virginia Division of Air Quality is the organization authorized todevelop, implement and enforce the SIP.W.Va. Code §22-5-4(a)(2) authorizes theSecretary to advise, consult and cooperate with local political subdivisions affected bythe implementation plan. West Virginia consults with local governments, organizationsand Land Managers with respect to SIP development.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, the17opportunity for a public hearing. Staterules which contain such public noticeprocedures include permitting rules 45CSR13, 45CSR14, 45CSR19 and 45CSR30.