UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

1650 Arch Street

Philadelphia, Pennsylvania 19103

DATE: April 30, 2014

SUBJECT: Technical Support Document for the West Virginia State Implementation Plan for 

the Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient 

Air Quality Standards

FROM: Ellen Schmitt, Life Scientist /s/ 4/30/14

Office of Air Program Planning

TO: File

THRU: Cristina Fernandez, Associate Director /s/ 4/30/14

Office of Air Program Planning 

A. INTRODUCTION

The Environmental Protection Agency (EPA) is taking action on a submittal made by the State of 

West Virginia to meet the Clean Air Act (CAA) section 110(a)(2) infrastructure requirements for

the 2010 sulfur dioxide (SO2) national ambient air quality standards (NAAQS).

B. BACKGROUND

On June 22, 2010 (75 FR 35520), EPA promulgated a revised NAAQS for the 1-hour primary

SO2 at a level of 75 parts per billion (ppb), based on a 3-year average of the annual 99th percentile 

of 1-hour daily maximum concentrations.

Section 110(a) of the CAA requires states to submit state implementation plans (SIPs) that 

provide for the implementation, maintenance, and enforcement of new or revised NAAQS within 

three years following the promulgation of such NAAQS. Section 110(a)(2) of the CAA lists 

specific elements that states must meet or continue to meet in these SIP submissions. The 

requirements include SIP infrastructure elements such as requirements for modeling, monitoring, 

and emissions inventories that are designed to assure attainment and maintenance of the 

NAAQS. For the 2010 SO2 NAAQS, states typically have met many of the basic program 

elements required in section 110(a)(2) of the CAA through earlier SIP submissions in connection 

with previous SO2 standards. 
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C. EPA REQUIREMENTS

For the 2010 SO2 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 July 1, 2013, EPA received West Virginia Department of Environmental Protection’s

(WVDEP) submittal to satisfy the requirements of section 110(a)(2) of the CAA for the 2010 

SO2 NAAQS. This SIP revision, which was submitted by WVDEP on June 25, 2013, addressed 

for the 2010 SO2 NAAQS 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 will take separate action on the portions of CAA section 110(a)(2) 

infrastructure elements for the 2010 SO2 NAAQS as they relate to 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)(i)(II) and (J). EPA will also take later separate action 

on CAA section 110(a)(2)(D)(i)(I), (D)(i)(II) (visibility protection) and (E)(ii) for the 2010 SO2

NAAQS as it relates to interstate transport of emissions, visibility protection, and CAA section 

128, “State Boards.” EPA is not proposing any action for CAA 110(a)(2)(I) and portions of 

elements that pertain to Part D nonattainment area requirements. 

E. EVALUATION OF STATE SUBMITTAL

1. Section 110(a)(2)(A)

EPA has determined that West Virginia has established laws and regulations applicable to the 

2010 SO2 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. EPA finds the Secretary of WVDEP holds the legislative authority to 

promulgate regulations concerning air pollution control in accordance with the West Virginia 

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 SO2 to meet the applicable requirements of the CAA include the following SIPapproved regulations: 45CSR10 (To Prevent and Control Air Pollution from the Emissions of 

Sulfur Oxides), 45CSR11 (Prevention of Air Pollution Emergency Episodes), 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 
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or Contribute to Nonattainment), and 45CSR41 (“Control of Annual Sulfur Dioxide Emissions to 

Mitigate Interstate Transport of Fine Particulate Matter and Sulfur Dioxide”),

Additionally, the following state rules are applicable to sulfur oxide emission limitations and 

control measures: 45CSR10A (Testing, Monitoring, Recordkeeping and Reporting 

Requirements Under 45CSR10), 45CSR16 (Standards of Performance for New Stationary

Sources), 45CSR18 (Control of Air Pollution from Combustion of Solid Waste), 45CSR33 

(“Acid Rain Provisions and Permits”), and 45CSR30 (“Requirements for Operating Permits”). 

The latter rule, 45CSR30, which establishes an EPA-approved Title V operating permit program, 

includes all the enforceable emission limitations or control measures pursuant to 45CSR10, 

45CSR11, 45CSR13, 45CSR14, 45CSR16, 45CSR18, 45CSR19, 45CSR33, and 45CSR41. 

Furthermore, in 2012, EPA granted limited approval and limited disapproval of West Virginia’s 

regional haze SIP which also includes emission measures related to SO2. See 77 FR 16932 

(March 23, 2012). West Virginia’s regional haze SIP and the status of its approval are discussed 

in greater detail for CAA 110(a)(2)(D)(i)(II) below.

West Virginia has two partial counties (Brooke and Marshall) designated as nonattainment for 

the 2010 SO2 NAAQS. Emissions limitations and other control measures needed to attain the 

NAAQS in areas designated nonattainment for the SO2 NAAQS are due on a different schedule 

from the section 110 infrastructure elements and will be reviewed and acted upon through a 

separate process at a later time. 

On May 9, 2013, EPA finalized a narrow disapproval of a previous West Virginia SIP submittal 

for PSD requirements because the West Virginia PSD regulations did not properly address 

condensable emissions of particulate matter within the definition of “regulated NSR pollutant.” 

See 78 FR 27062. There are no sanctions associated with this disapproval; however, EPA is 

required to promulgate a Federal Implementation Plan (FIP) within two years of final disapproval 

if the definition of “regulated NSR pollutant” is not corrected. EPA had previously 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).

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. See 78 FR 12460 (February 22, 2013). In the meantime, 

EPA encourages any state having a deficient SSM provision to take steps to correct it as soon as 

possible.
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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 addressing such state regulations in a separate 

rulemaking. See 78 FR 12460. In the meantime, EPA encourages any state having a 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.

Based upon EPA’s review of the infrastructure SIP submittal, EPA finds West Virginia’s June 

25, 2013 infrastructure SIP submittal for the 2010 SO2 NAAQS meets the requirements of CAA 

section 110(a)(2)(A).

2. Section 110(a)(2)(B)

According to WVDEP, the Secretary of WVDEP has the authority under W.Va. Code section 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 2010 SO2NAAQS. 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. 

West Virginia operates and maintains an established network of fourteen ambient SO2 monitors 

in the state for the purpose of assessing compliance with the 2010 SO2 NAAQS. 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 2012 Annual Air Quality

Monitoring Network Design Plan was approved by EPA on February 21, 2013 and its 2013 

Annual Air Quality Monitoring Network Design Plan was approved by EPA on December 10, 

2013. 

As provided in W.Va. Code sections 22-5-4(a)(2) and 22-5-10 and CAA section 110(a)(2)(B), 

WVDEP collects and reports to EPA ambient air quality data for SO2. In accordance with EPA’s 

revised SO2 NAAQs Amendments to Ambient Monitoring and Reporting Requirements, 

WVDAQ collects and reports SO2 5-minute average data from the state’s fourteen SO2

monitoring sites. 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 SO2 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. 
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Based upon EPA’s review of the SIP submittal, EPA finds West Virginia’s infrastructure SIP 

submittal for the 2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(B). 

3. Section 110(a)(2)(C)

According to WVDEP, its Secretary has the statutory authority to enforce any control measures 

for the 2010 SO2 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), 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 or contained in a permit issued under: 

45CSR10, 45CSR13, 45CSR14, 45CSR18, 45CSR19, 45CSR30, 45CSR33, and 45CSR41. 

EPA finds the provisions described in West Virginia’s infrastructure SIP submittal for the 2010 

SO2 NAAQS meet the requirements for enforcement of the measures described in section 

110(a)(2)(C) of the CAA. 

EPA will take separate action on the portion of section 110(a)(2)(C) of the CAA for the 2010 

SO2 NAAQS as it relates to West Virginia’s PSD program as required by part C of Title I of the 

CAA. EPA has previously 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).

In the approved West Virginia SIP, West Virginia has an EPA-approved minor new source 

review (NSR) permitting program for regulation of minor sources and minor modifications

located in 45CSR13 (Permits for Construction, Modification, Relocation and Operation of 

Stationary Sources of Air Pollutants, Notification Requirements, Temporary Permits, General 

Permits, and Procedures for Evaluation). 

Based upon EPA’s review of the submittal, EPA finds West Virginia’s infrastructure SIP 

submittal for the 2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(C) for 

enforcement of measures in 110(a)(2)(A) and regulation of minor sources and minor 

modifications.

 

4. Section 110(a)(2)(D)

Section 110(a)(2)(D)(i)(I)

West Virginia’s June 25, 2013 infrastructure SIP submission for the 2010 SO2 NAAQS did not 

include a component to address 110(a)(2)(D)(i)(I). At the time of West Virginia’s submission on 

June 25, 2013, a submission to address Section 110(a)(2)(D)(i)(I) was not required. See EME 

Homer City Generation, LP v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted, 133 U.S. 2857

(2013). However, that situation has since changed due to the decision by the United States 
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Supreme Court in EME Homer City on April 29, 2014. Thus, in this rulemaking action, EPA is 

not proposing to act on 110(a)(2)(D)(i)(I) for West Virginia’s June 25, 2013 infrastructure SIP 

submission for the 2010 SO2 NAAQS and will take separate, later action on West Virginia’s 

obligations for Section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS. 

Section 110(a)(2)(D)(i)(II)

As discussed previously, EPA will take separate action on the portion of the June 25, 2013 

infrastructure SIP submittal which addresses section 110(a)(2)(D)(i)(II) of the CAA for the 2010 

SO2 NAAQS for West Virginia’s PSD program as required by part C of Title I of the CAA. On 

May 9, 2013, EPA finalized a narrow disapproval of a previous West Virginia SIP submittal for 

PSD requirements because the West Virginia PSD regulations did not properly address 

condensable emissions of particulate matter within the definition of “regulated NSR pollutant.” 

See 78 FR 27062. There are no sanctions associated with this disapproval; however, EPA is 

required to promulgate a FIP within two years of final disapproval if the definition of “regulated 

NSR pollutant” is not corrected. EPA had previously 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).

Prong 4 of section 110(a)(2)(D)(i)(II) 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

Subsequently, EPA granted limited approval and limited disapproval of West Virginia’s regional 

haze SIP based on West Virginia’s reliance upon CAIR which had been remanded by the time of 

EPA’s action on the West Virginia regional haze SIP. See 77 FR 16932 (March 23, 2012). At 

this time EPA is not proposing action on Section 110(a)(2)(D)(i)(II) for visibility protection for 

the 2010 SO2 NAAQS. Although West Virginia’s infrastructure SIP submittal for the 2010 SO2 

NAAQS referred to West Virginia’s regional haze SIP for section 110(a)(2)(D)(i)(II) for 

visibility protection, EPA intends to take separate action on West Virginia’s submittal for this 

specific element of 110(a)(2)(D)(i)(II) at a later date. (Section 110(a)(2)(D)(ii) 

EPA finds the West Virginia SIP meets obligations for CAA section 126, “Interstate Pollution 

Abatement,” through the 45CSR§14-7, Public Review Procedures, which requires a new or 

modified source to notify other states of potential impacts from a source in accordance with 40 

CFR 51.166(q)(2)(iv). EPA concurs with West Virginia that West Virginia has no currently

 

1 On May 12, 2005, EPA published CAIR, which requires significant reductions in emissions of 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. 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. 

2

EPA has discussed previously in this document the limited disapproval of West Virginia’s PSD program 

due to failure to include condensables within the definition of regulated NSR pollutant.
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pending obligations pursuant to CAA Section 126(b) related to the 2010 SO2 NAAQS. 

Additionally, there are no findings under CAA section 115, “International Air Pollution”, against 

West Virginia with respect to the 2010 SO2 NAAQs. According to the infrastructure SIP 

submittal, the State has adequate provisions insuring future compliance with the requirements of 

sections 126 and 115 of the CAA as may be necessary.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s infrastructure SIP 

submittal for the 2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(D)(II). 

5. Section 110(a)(2)(E)

EPA finds WVDEP has demonstrated it has adequate personnel to carry out its implementation 

plan with respect to the 2010 SO2NAAQS. At present, a staff of approximately 90 full time 

employees is employed at WVDEP’s 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 states in its SIP 

submittal that 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. There are no other organizations in West Virginia that participate in developing, 

implementing and enforcing the SIP.

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’s 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 and Title V 

operating permit program and to 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 WVDEP Secretary is 

authorized under W.Va. 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-
8

4(a)(17) to promulgate rules in accordance with the West Virginia Administrative Procedures 

Act (W.Va. Code section 29A3-1 et seq.). Approximately forty rules are currently in effect and 

codified at Title 45 of the Code of State Rules, including the ambient air quality standards for 

SO2 and other criteria pollutants contained in 45CSR8. 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). 

Based upon EPA’s review of the submittal, EPA finds West Virginia’s infrastructure SIP 

submittal for the 2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(E)(i) and 

(iii).

As to CAA section 110(a)(2)(E)(ii) requirements, EPA will take later separate action on this 

portion of section 110(a)(2)(E) as it relates to CAA section 128, “State Boards” for the 2010 SO2

NAAQS.

6. Section 110(a)(2)(F)

EPA finds 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 SO2 from such 

sources as the Secretary may prescribe, through permits issued under 45CSR13, 45CSR14, 

45CSR19, 45CSR30, 45CSR41, under WV regulation 45CSR10A 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. 

For 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 WVDEP 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 SO2 emissions through permits issued under 45CSR10, 

45CSR13, 45CSR14, 45CSR18, 45CSR19, 45CSR30, 45CSR33, and 45CSR41, through 

45CSR10A, 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.

EPA finds W.Va. Code section 22-1-6(d)(3) authorizes the WVDEP 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 SO2

emission limitations or standards established pursuant to 45CSR10, 45CSR13, 45CSR14, 

45CSR18, 45CSR19, 45CSR30, 45CSR33, 45CSR41, 45CSR10A, 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 
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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 section 110(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 submittal, EPA finds West Virginia’s infrastructure SIP 

submittal for the 2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(F). 

7. Section 110(a)(2)(G)

EPA finds 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 WVDEP 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 SO2 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. 

In addition, West Virginia’s SIP-approved rule 45CSR11 (Prevention of Air Pollution 

Emergency Episodes) provides a mechanism to prevent the buildup of SO2 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. Therefore, 

EPA finds West Virginia has in its approved SIP an adequate contingency plan to implement the 

air agency’s emergency episode authority. 45CSR11 meets the applicable requirements of 40 

CFR Part 51, subpart H (40 CFR 51.150 through 51.153) (“Prevention of Air Pollution 

Emergency Episodes”) for the 2010 SO2 NAAQS.
10

Based upon EPA’s review of the submittal, EPA finds West Virginia’s infrastructure SIP 

submittal for the 2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(G) of the 

CAA.

8. 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’s 45CSR8 “Ambient Air Quality Standards” incorporates by

reference all relevant primary and secondary NAAQS and is included in the West Virginia SIP. 

See 77 FR 65493 (updating 45CSR8 in West Virginia SIP).

EPA finds W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all things necessary and 

convenient to prepare and submit a plan for implementation, maintenance, and enforcement of 

the CAA. Therefore, if EPA finds the West Virginia SIP substantially inadequate to attain the 

NAAQS, West Virginia has authority to revise the plan as necessary for adequacy.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s infrastructure SIP 

submittal for the 2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(H). 

9. Section 110(a)(2)(J)

As mentioned previously, EPA will take separate action on the portion of section 110(a)(2)(J) of 

the CAA for the 2010 SO2 NAAQS as it relates to West Virginia’s PSD program as required by

part C of Title I of the CAA. On May 9, 2013, EPA finalized a narrow disapproval of a previous 

West Virginia SIP submittal for PSD requirements because the West Virginia PSD regulations 

did not properly address condensable emissions of particulate matter within the definition of 

“regulated NSR pollutant.” See 78 FR 27062. There are no sanctions associated with this 

disapproval; however, EPA is required to promulgate a FIP within two years of final disapproval 

if the definition of “regulated NSR pollutant” is not corrected. EPA had previously 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.

EPA finds West Virginia satisfies the applicable requirements of section 121 of the CAA relating 

to consultation. The APCA provides adequate authority under W.Va. Code section 22-5-4(a)(2) 
11

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. To 

address consultation for the 2010 SO2 NAAQS, West Virginia’s permitting program includes 

three SIP-approved rules: minor NSR rule 45CSR13, PSD rule 45CSR14, and major NSR rule 

45CSR19. West Virginia also has an approved Title V operating permit program (66 FR 50325).

West Virginia stated in its infrastructure SIP submittal that it has demonstrated its commitment 

to consultation through encouragement and support for an Early Action Compact and through 

Federal Land Manager consultation for its West Virginia regional haze SIP. EPA finds West 

Virginia has a process for consultation with general-purpose local governments, designated 

organizations of elected officials of local governments, and any federal land manager having 

authority over federal land to which the plan applies, consistent with CAA section 121.

EPA finds W.Va. Code section 22-4-(a)(10) addresses requirements in Section 127 of the CAA 

for public notification because the Code authorizes 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 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 CAA (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. 

Based upon EPA’s review of the submittal, EPA finds West Virginia’s infrastructure SIP 

submittal for the 2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(J) (except 

for the portion of this element related to PSD upon which EPA will take separate action). 
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10. Section 110(a)(2)(K)

EPA finds 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 WVDEP 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. West Virginia states in its infrastructure SIP submittal 

that a source-oriented dispersion model such as AERMOD will be the air quality model that 

WVDEP will use to demonstrate the adequacy of a control strategy to provide for the timely

attainment and maintenance of the NAAQS, pursuant to 40 CFR §§51.112 and 51.115(b). 

WVDEP’s DAQ employs one full time technical employee who is responsible for air quality

modeling. West Virginia’s 2010 SO2 infrastructure SIP submittal demonstrates WVDEP has the 

authority and will perform modeling, as required under the CAA, to demonstrate attainment of 

the 2010 1-hour SO2 NAAQS. 

EPA also finds that inherent in the authority of WVDEP’s Secretary is the capability to conduct 

new source review modeling required under the CAA and included in West Virginia’s PSD and 

NSR permit programs (45CSR14 and 45 CSR19) included in West Virginia’s SIP.2 West 

Virginia’s SIP includes PSD source impact and modeling requirements (45CSR14-§§9 and 10, in 

accordance with 40 CFR §§51.166(k) and (l)). In addition, all applications of air quality

modeling, where appropriate, for PSD purposes are based on the applicable air quality models, 

databases, and other requirements specified in the Appendix W of 40 CFR Part 51 (Guideline on 

Air Quality Models). Pursuant to 45CSR14-§10.2, where an air quality impact model specified 

in Appendix W of 40 CFR Part 51 is inappropriate, the model may be modified or another model 

substituted, provided that the modification or substitution is approved in writing by the EPA 

Administrator.

Finally, EPA finds West Virginia can provide relevant ambient air quality data as part of the 

permitting and NAAQS implementation 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 EPA , modeling data 

predicting the effect on ambient air quality of any emissions of any air pollutant for which EPA

has established a NAAQS. The infrastructure SIP submittal states 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 submittal, EPA finds West Virginia’s infrastructure SIP 

submittal for the 2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(K). 

 

2

EPA has discussed previously in this document the limited disapproval of West Virginia’s PSD program 

due to failure to include condensables within the definition of regulated NSR pollutant.
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11. Section 110(a)(2)(L)

West Virginia’s June 25, 2013 infrastructure SIP submittal for the 2010 SO2 NAAQS provides 

that West Virginia’s approved Title V operating permits program under 45CSR30 (see 

66FR50325 (Nov. 19, 2001)) provides for sufficient fees to cover the reasonable costs of 

reviewing and acting upon any application for permits and the reasonable costs of implementing 

and enforcing the terms and conditions of any such permit. 

Based upon EPA’s review of the submittal, EPA finds West Virginia’s infrastructure SIP 

submittal for the 2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(L). 

12. Section 110(a)(2)(M)

EPA finds the WVDEP 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 the 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 Federal 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 West Virginia SIP includes 

45CSR13, 45CSR14 and 45CSR19. 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 submittal, EPA finds West Virginia’s infrastructure SIP 

submittal for the 2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(M). 

F. CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA has analyzed West Virginia’s June 25, 2013 infrastructure submittal for the 2010 SO2

NAAQS and the Agency finds 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 
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CAA. EPA will take separate action on the portions of CAA section 110(a)(2) infrastructure 

elements for the 2010 SO2 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). Additionally, EPA will take separate action on requirements of 

110(a)(2)(D)(i)(I)(transport), (D)(i)(II)(visibility protection), and (E)(ii). It is recommended that a 

notice of proposed rulemaking be prepared approving West Virginia’s June 25, 2013 

infrastructure submittal for the elements identified herein for the 2010 1-hour SO2 NAAQS.