**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 Requireme nts for the 20 10 Sulfur Dioxide National Ambient Air Quality

Standards **FROM:** Ellen Schmitt, L ife Scientist /s/ 4/30/14

Office of Air Program Planning **TO:** File **THRU:** Cristina Fernandez , Associate Director /s/ 4/30/14

Office o f 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 f or the 20 10 sulfur dioxi de (SO 2 ) 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 SO 2 at a level of 75 parts per billion (ppb), based on a 3 - ye ar average of the annual 99 th per centile of 1 - hour daily

maximum concentrations. S ection 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 th e 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 SO 2 NAAQS, states ty pically have met many

of the basic program elements required in section 110(a)(2) of the CAA through earlier SIP submissions in co nnection with previous SO 2 standards.2

**C. EPA REQUIREMENTS** F or the 2010 SO 2 NAAQS, s tates must provide SI P submissions , or provide certification that the existing SI P contains provisions addressing relevant infrastructure SI P elements from s ection s 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 20 10 SO 2 NAAQS . Th is SI P revision, which was submitted by WVDEP on June 25, 2013 , addressed for the 2010 SO 2 NAAQS the following infrastructure elements , or portions thereof, that EPA is proposing to approv e : section 110(a)(2)(A), (B), (C), (D ) , (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA. EPA will tak e separate action on the portions of CAA section 110(a)(2) infrastructure elements for the 20 10 SO 2 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)(I I) and (J). EPA will also take later separate action on CAA section 110(a)(2) (D)(i)(I ) , (D)(i)(I I) (visibility protection) and (E)(ii) for the 2010 SO 2 NAAQS as it relates to i nterstate transport of emissions , visibility protection, and CAA section 128, “State Boards.” EPA is not proposing any action for CAA 1 10(a)(2)(I ) and portions of elements that pertain to Part D nonattainment area requirements. **E. EVALUATION OF STAT E SUBMITTAL**  **1. Section 110(a)(2)(A)**  EPA has determined that West Virginia has established laws and regulations applicable to the 2010 SO 2 NAAQS that include enforceable emissions limitations and other control measures, means or techniques, as well as s chedules 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 Adminis trative 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 SO 2 to meet the applicable requirements of the CAA include the fo llowing SI P approved regulations: 45CSR10 ( T o 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 St ationary 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 Preventi on of S ignificant Deterioration), 45CSR19 ( Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution Which Cause3

or Contribute to Nonattainment) , and 45CSR41 (“ Control of Annual Sulfur Dioxide Emissions to Mitigate Interstate Tr ansport of Fine Particulate Matter and Sulfur Dioxide”), Additionally , the following state rules are applicable to s ulfur oxide emission limitations and control measures: 45CSR10A (Testing, Monitoring, Recordkeeping and Reporting Requirements Under 45CSR 10), 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 (“Requi rements for Operating Permits”). The latter rule, 45CSR 30, 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 , i n 2012, EPA granted limited approval and limited disapproval of West Virginia’s regional haze SIP which also includes emission measures related to SO 2 . See 77 FR 16932 (March 23, 2012). West Virginia’s regional haze SIP and the status of its approval ar e discussed in greater detail for CAA 110(a)(2)(D)(i)(I I) below. West Virginia has two partial counties (Brooke and Marshall) designated as nonattainment for the 2010 SO 2 NAAQS. Emissions limitations and other control measures needed to attain the NAAQS in areas designated nonattainment for the SO 2 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 disapp roval 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 . Ther e 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 appro ved 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 ). Inthis action, EPA is not proposing to approve or disapprov e 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 rulemaki ng. See 78 FR 12460 (February 2 2, 2013) . Inthe meantime, EPA encourages any s tate having a deficient SSM provision to take steps to correct it as soon as possible.4

Also in this action, EPA is not proposing to approve or disapprove any existing West Vir ginia 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 . Inthe meantime, EPA encourages any s tate 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 SO 2 NAAQS meets the requirements of CAA section 110(a)(2)( A ). **2. Section 110(a)(2)(B)**  According t o WVDEP, the Secretary of WVDEP has the authority under W.Va. Code section 22 - 5 - 4(a)(1) & (3) “to develop way s and means for the regulation and control of pollution of the air of the state” and “conduct such studies and research relating to air pollution a nd 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 20 10 SO 2NAAQS. All ambient air mon itors 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 P art 58, Appendix E. West Virginia operates and maintains an established ne twork of fourteen ambient SO 2 monitors in the state for the purpose of assessing compliance with the 2010 SO 2 NAAQS. WVDEP informs EPA of planned changes to the monitoring site by providing adequate prior notification. Pursuant to 40 CFR 58.10, WVDEP sub mits to EPA , on an annual basis , a monitoring network plan , which describes how West Virginia is complying with monitoring requirements and explains any

changes to the monitorin g network. West Virginia’s 2012 Annual Air Quality Monitoring Network Design P lan 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 SO 2 . Inaccordance with EPA’s revised SO 2 NAAQs Amendments to Ambient Monitoring and Reporting Requirements, WVDAQ collects and reports SO 2 5 - minute average data from the state’s fourteen SO 2 monitoring sit es. 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 f or SO 2 is reviewed, edited, validated, and entered into the EPA air quality sy stem (AQS) for updating pursuant t o prescribed AQS procedures, and is certified annually as required under 40 CFR 58.15.5

Based upon EPA’s review of the SI P submittal, EPA finds West Virginia ’s infrastructure SIP submittal for the 2010 SO 2 NAAQS meets the requirements of CAA section 110( a)(2)( B ) . **3. Se**  **ction 110(a)(2)(C)** According to WVDEP, its Secretary has the statutory

authority to enforce any

control measures for the 20 10 SO 2 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 : 45CSR 10, 45CSR13, 45CSR14, 45CSR18, 45CSR19, 45CSR30, 45CSR33, and 45CSR41 . EPA finds the provisions described in West Virginia ’s infrastructure SIP submittal for the 2010 SO 2 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 SO 2 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 Virgi nia’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). Inthe approved West Virginia SIP, West Virg inia 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 SO 2 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 20 10 SO 2 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. 2 012), cert. granted, 133 U.S. 2857 (2013) . However, that situation has since changed due to the decision by the United States6

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 20 10 SO 2 NAAQS and will take separate, later action on West Virginia’s obligations for Section 110(a)(2)(D)(i)(I ) for the 20 10 SO 2 NAAQS . **Section 110(a)(2)(D)(i)(II)** As disc ussed 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)(I I) of the CAA for the 20 10 SO 2 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 definit ion 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 SI Ps include provisions prohibiting any source or other ty

pe 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 1 8, 2008 r egional h aze SI P submittal which included reliance on the Clean Air Interstate Rule (CAIR) for electrical generating units (EGUs). 1 Subsequently , EPA granted limited approval and limited disapp roval of West Virginia’s regional haze SI P 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)(I I) for visibility protection for the 20 10 SO 2 NAAQS . Although W est Virginia ’s infrastructure SIP submittal for the 2010 SO 2 NAAQS referred to West Virginia’s r eg ion al haze SI P for section 110(a)(2) (D)(i)(I I) for visibility prot ection, EPA intends to take separate action on West Virginia’s submittal for this specific element of 110(a)(2)(D)(i)(I I) at a later date. ( **Section 110(a)(2)(D)(ii)** EPA finds the West Virginia SI P me e t s 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 Vir ginia that West Virgi nia has no currently

1 On May 12, 2005, EPA published CAIR, which requires sign ificant reductions in emissions of SO 2 and nitrogen oxides (NOx) from EGUs to limit the interstate transport of these pollutants and the ozone and fine particulate matter they form in the atmosphere. 70 FR 25162. At the time the West Virginia regional ha ze 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 th e definition of regulated NSR pollutant.7

pending obligations pursuant to CAA Section 126(b) related to the 20 10 SO 2 NAA QS. Additionally , there are no findings under CAA section 115 , “International Air Pollution”, against West Virginia with respect to the 2010 SO 2 NAAQs. Acc ording to the infrastructure SIP submittal, the S tate 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 infr astructure SIP submittal for the 2010 SO 2 NAAQS meets the requirements of CAA section 110(a)(2)( D ) (II). **5 .**  **Section 110(a)(2)(E)** EPA finds WVDEP has demonstrated it ha s adequate personnel to carry out its implementation plan with respect to the 20 10 S O 2NAAQS . At present, a staff of approximately 90 full time employees is employed at WVDEP’s D AQ. West Virginia’s Air Director supervises the air monitoring, compliance and enforcement, hazardous waste, permitting and planning sections, as well as three r egional DAQ offices, and answers to the Secretary . DAQ states in its SI P 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 year s following SI P 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 SI P. 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 cov er 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 s tate 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 sub mit 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 ef fect and codified at Title 45 of the Code of State Rules, including the ambient air quality standards for SO 2 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 SO 2 NAAQS meets the requirements of CAA section 110(a)(2) (E) (i) and (i ii) . 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 20 10 SO 2 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 SO 2 from s uch 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 P art 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 P art 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 SO 2 emissions through permits issued under 45CSR10, 45 CSR13, 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 P art 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 wh ich 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 SO 2 emission limitations or standards established pursuant to 45CSR10, 45 CSR13, 45CSR14, 45CSR18, 45CS R19, 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 or9

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 o r information are protected by

confidentiality . The ty

pes 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 EP A’s review of the submittal, EPA finds West Virginia ’s infrastructure SIP submittal for the 2010 SO 2 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 en dangerment 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 p ermit. 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 SO 2 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. Inaddition, West Virginia’s SI P - appr oved rule 45CSR11 (Prevention of Air Pollution Emergency

Episodes) provides a mechanism to prevent the buildup of SO 2 concentrations during periods of adverse meteorological conditions in which air pollutants may accumulate, thereby preventing the occurren ce 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 S tate. 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) (“Pre vention of Air Pollution Emergency

Episodes”) for the 2010 SO 2 NAAQS.10

Based upon EPA’s review of the submittal, EPA finds West Virginia ’s infrastructure SIP submittal for the 2010 SO 2 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 SI P s , as set forth in 40 CFR 51.104. Specificall y, 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” incor

porates 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 c onvenient 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 SO 2 NAAQS meets the requirements of CAA section 110(a)(2) ( H) . **9 .**  **S ection 110(a)(2)(J)**  As mentioned previously , EPA will take se parate action on the portion of section 110(a)(2)( J ) of the CAA for the 2010 SO 2 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 SI P 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 a uthority under W.Va. Code section 22 - 5 - 4(a)(2)11

for West Virginia’s practices of consultation with local governments, organizations and L and 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 f

or the 2010 SO 2 NAAQS, West Virginia’s permitting program includes thr ee SI P - 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 demonstr ated 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 notifi cation 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 an d 169B). In the event of the establishment of a new NAAQS, however, the visibility

and regional haze program requirements under part C do not change. Thus, EPA finds that there are no applicable visibility obligation s under part C “triggered” under secti on 110(a)(2)(J) when a new NAAQS becomes effective. West Virginia has submitted SI P 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 20 10 SO 2 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) .12

**1 0**  **. Section 110(a)(2)(K** 

**)** EPA find s that West Virginia has the authority and technical c apability

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 way s and means for the regulation and control of po llution 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 pe rform 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 qual ity 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 employ s one full time technical employee who is respo nsible for air quality modeling. West Virginia ’s 2010 SO 2 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 SO 2 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 Virgi nia’s SI P 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 i mplementation 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 whic h 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 way s that EPA may request. Based upon EPA’s review of the submittal, EPA finds West Virginia ’s infrastructure SIP submittal for the 2010 SO 2 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 th e definition of regulated NSR pollutant.13

**1 1**  **. Section 110(a)(2)(L**  **)** West Virginia’s June 25, 2013 infrastructure SI P submittal for the 2010 SO 2 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 appli cation 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 SO 2 NAAQS meets the requ irements of CAA section 110(a)(2) ( L) . **1 2**  **. 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 implementat ion, 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 Virgini a SI P. 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 Manager s 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 . Inaccordance with the F ederal 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 opp ortunity

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 f ulfill the requirements for consultation with local political subdivisions affected by the SI P. Based upon EPA’s review of the submittal, EPA finds West Virginia ’s infrastructure SIP submittal for the 2010 SO 2 NAAQS meets the requirements of CAA section 110(a)(2) ( M) . **F .**  **CONCLUSIONS AND RECOMMEND**  **ED AGENCY ACTION** EPA has analy

zed West Virginia’s June 25, 2013 infrastructure submittal for the 20 10 SO 2 NAAQS and the Agency finds West Virginia’s submittal meet s the requirements of section 110(a)(2)(A), (B ), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, of the14

CAA. EPA will tak e separate action on the portions of CAA section 110(a)(2) infrastructure elements for the 20 10 SO 2 NAAQS as they relate to the West Virginia’s PSD progr am, 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)(I I)(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 20 10 1 - hour SO 2 NAAQS.