UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

1650 Arch Street

Philadelphia, Pennsylvania 19103

DATE: August 6, 2010

SUBJECT: Technical Support Document - West Virginia, Title 45, Legislative Rule, 

Department of Environmental Protection, Air Quality, Series 14, Permits for 

Construction and Major Modification of Major Stationary Sources of Air 

Pollution for the Prevention of Significant Deterioration 

/s/

FROM: Sharon McCauley, Environmental Protection Specialist

Office of Permits and Air Toxics (3AP10) 

TO: File

THRU: Kathleen Anderson, Associate Director

Office of Permits and Air Toxics (3AP10)

I. BACKGROUND

On July 20, 2009, the West Virginia Department of Environmental Protection submitted a SIP 

revision that replaces the current version of 45CSR14 last approved by EPA on December 4, 

2006 at 71 FR 64470. This revision governs permits for constructing and significantly 

modifying major stationary sources of air pollutants. The references to pollution control projects 

and clean units were deleted in accordance with a federal appellate court decision vacating those 

provisions. The United States Court of Appeals for the District of Columbia Circuit ruled in New 

York v. EPA, 413 F.3d 3 (D.C. Cir. June 24, 2005) that EPA lacked the authority to promulgate 

the Clean Unit provisions, and the Court requested that EPA vacate that portion of the 2002 

Federal regulation, codified at 40 CFR 52.21(x), as contrary to the statute. Also, the Court 

determined EPA lacked the authority to create PCP exceptions from NSR and vacated those parts 

of the 1991 and 2002 rules, codified at 40 CFR 52.21(b)(32) and 52.21(z), as contrary to the 

Statute. Also, this revision will establish NOx as a precursor to ozone in the State of West 

Virginia and will and include the “reasonable possibility” federal provision equivalent. This 

revision was made effective as a legislative rule in West Virginia on June 1, 2009.

The Federal PSD program has undergone several relevant changes since the last State SIP 

approval of its PSD permitting program. The following provides a summary of the final federal 

provision changes that occurred from December 4, 2006 through the present that will not be part 

of this revision request to the West Virginia's regulatory PSD SIP approved program.

1. Final Rule to Revise Nonattainment New source Review Regulations: Appendix S

On February 28, 2007 - This final rule updated the regulations that apply to the process for 
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permitting new or modified industrial facilities in areas that do not meet EPA's health based 

national air quality standards for ground-level ozone and fine particle pollution. These areas are 

known as nonattainment areas.

2. Final Changes for Certain Ethanol Production Facilities Under Three Clean Air Act 

Permitting Programs

On April 12, 2007 EPA’s final action modified the definition of a "chemical process plant" as it 

applies to three Clean Air Act permitting programs.

3. Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review 

(NSR): Removal of Vacated Elements

On June 5, 2007 EPA removed provisions for pollution control projects (PCP) and clean units 

(CU) from its New Source Review (NSR) regulations. These provisions were part of EPA’s NSR 

improvement rule issued on December 31, 2002. On June 24, 2005, the United States Court of 

Appeals for the District of Columbia Circuit vacated the portions of the 2002 and 1992 NSR 

rules that pertained to CU and PCP.

4. Rule Clarification Assures that New Source Review Program is Applied Appropriately

On December 14, 2007 EPA issued a final rule to clarify when facilities must keep records and 

report emissions when a “reasonable possibility” test shows that projected emissions increases 

could equal or exceed 50 percent of the Clean Air Act’s NSR significant levels for any pollutant. 

This rule does not change permitting requirements.

5. EPA Issues Final Rules Governing the Implementation of NSR for Fine Particulate Matter

On May 8, 2008, the Environmental Protection Agency (EPA) issued final rules governing the 

implementation of the New Source Review (NSR) program for particulate matter less then 2.5 

micrometers in diameter (PM2.5). PM2.5 also is known as fine particles. This rule finalizes 

several NSR program requirements for sources that emit PM2.5 and other pollutants that 

contribute to PM2.5

6. EPA Finalizes Rule Reconsidering Inclusion of Fugitive Emissions

On December 10, 2008, EPA finalized revisions to the December 31, 2002 New Source Review 

(NSR) Improvement rules to change the requirements of the major NSR programs regarding the 

treatment of fugitive emissions.

7. EPA issues an interpretive memorandum entitled "EPA's Interpretation of Regulations That 

Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit 

Program."

On December 18, 2008 the Administrator issued an interpretive memorandum entitled "EPA's 

Interpretation of Regulations That Determine Pollutants Covered by Federal Prevention of 

Significant Deterioration (PSD) Permit Program."
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8. Final Rule Defines Approach for Grouping Projects under the New Source Review Permitting 

Program

On January 12, 2009, EPA issued a final rule that revises the agency’s policy on “aggregation.” 

For the purpose of determining whether NSR applies, this rule directs facilities and permitting 

authorities to combine, or aggregate, emissions from plant modifications when those projects are 

related. Thus, total emissions for the related projects must be considered when permitting 

authorities determine whether NSR applies. 

9. Denial of Petitions to Reconsider Aspects of the PM2.5 NSR Requirements and Reasonable 

Possiblity Rule

January 15, 2009 - EPA has denied two petitions for reconsideration of two final rules under the 

New Source Review permitting program for PM2.5 Requirements and Reasonable Possibility

Rule. Note well; West Virginia’s regulations do comply with the Reasonable Possibility

rulemaking. 

10. EPA Reconsiders New Source Review Final Rule

February 9, 2009 - To allow further review of the January 15, 2009, final rule modifying the 

NSR air permitting program’s “aggregation” policy, EPA is extending the effective date of the 

rule. This action is in response to the White House’s January 20, 2009, and the Office of 

Management and Budget’s January 21, 2009, memoranda regarding regulatory review. EPA also 

will reconsider one or more of the aspects of this final rule raised by the Natural Resources 

Defense Council in a petition for reconsideration. To allow time for the review and the 

reconsideration, EPA will stay the effective date of this rule for 90 days, until May 18, 2009.

11. Granting of Petitions to Reconsider Aspects of the Reasonable Possibility, Fugitive 

Emissions and PM2.5 NSR Permitting Rules

April 24, 2009 - EPA notified petitioners of its intent to reconsider portions of three rules under 

its New Source Review (NSR) permitting program.

12. EPA extends effective date of the aggregation rule for 1-year

May 8, 2009 - This final rule extends until May 18, 2010, the effective date of the January 12, 

2009 aggregation rule. During this time, EPA will reconsider the final aggregation rule. 

13. Stays the "Grandfathering" Provision for the PM2.5 NSR Permitting Rule for Nine Months

September 16, 2009 - EPA staying until June 22, 2010 the "grandfathering" provision for 

particulate mater less than 2.5 micrometers (PM2.5) requirements in the Federal Prevention of 

Significant Deterioration (PSD) program published in the Federal Register on May 16, 2008.
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14. Final Rule Facilitates the use of Flexible Air Permits

September 25, 2009 - Flexible air permits enable major air emissions sources to implement 

operational plans and make anticipated changes to these plans without further review and 

approval. These permits do not provide approval for operational changes outside the scope 

authorized in the initial permit and sources must still meet all Clean Air Act requirements that 

apply to them. Pilot studies have shown that flexible permitting approaches can minimize the 

need for permit revisions, provide significant economic benefits, encourage innovation, and 

increase public awareness -- all while ensuring equal or greater environmental protection.

15. Approval and Promulgation of Wisconsin NSR Reform Regulations: Denial of Petition for 

Reconsideration

January 20, 2010 - EPA responded to a petition from the NRDC and Sierra Club. Their petition 

requested that EPA reconsider and stay of certain parts of the Wisconsin's SIP. After carefully 

reviewing the petition for reconsideration, EPA has denied it. EPA also denied NRDC's request 

for a stay of the final rule approving the Wisconsin state plan. 

16. Stay of Fugitive Emissions Rule for 18 Months

March 24, 2010 - EPA has stayed for 18 additional months, the rule establishing how fugitive 

emissions should be treated for New Source Review permitting. A previous stay will expire on 

March 30, 2010. 

17. Stay of Aggregation Rule 

May 6, 2010 - EPA extended the effective date of the January 15, 2009 final rule that modified 

the New Source Review air permitting program’s policy on “Aggregation.”

18. Final GHG Tailoring Rule

May 13, 2010 - EPA sets greenhouse gas (GHG) emissions thresholds to define when permits 

under the New Source Review Prevention Significant Deterioration (PSD) and title V Operating 

Permit programs are required for new and existing industrial facilities. The State has the 

authority to regulate GHGs, however, the State will now need to adopt the equivalent federal 

threshold levels for GHGs based on the Tailoring Rule. 

In the previously approved NSR Reform SIP revision at 71 FR 64470 dated December 4, 2006, 

West Virginia had requested that EPA not act upon the provisions of 45 CSR 14.19.8 pertaining 

to the recordkeeping and reporting requirements for sources that elect to use the actual-toprojected actual emission test and where there is a ``reasonable possibility'' that a project may

result in a significant net emissions increase. EPA is now proposing to approve 45 CSR 14.19.8 

into the West Virginia SIP revision with this proposed action as regulatory corrections have been 

made to the State’s regulations dated June 1, 2009.
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EPA determined that the proposed amendments to West Virginia's prevention of significant 

deterioration (PSD) permit program at 45 CSR 14, as submitted on July 20, 2009, meet the 

minimum requirements of 40 CFR 51.166 and the Clean Air Act. This amendment is being 

proposed for approval as a revision to the West Virginia SIP.

II. SUMMARY OF ACTION

This rule establishes a state construction permit program consistent with the federal Clean Air 

Act’s Title I program and implementing regulations at 40 CFR §51.166, “Prevention of 

Significant Deterioration of Air Quality.” 45CSR14 is part of the State Implementation Plan and 

sets forth the criteria and procedures for major stationary sources to obtain a permit to construct, 

operate and/or modify a major stationary source.

As required by 40 CFR Part 51, Subpart I - “Review of New Sources and Modifications,” this 

rule adopts criteria and procedures for the prevention of significant deterioration of air quality 

that are consistent with the governing federal regulation at 40 CFR §51.166. Promulgation of this 

rule by the Legislature is necessary for the State to fulfill its responsibilities under 40 CFR Part 

51 and the CAA, as amended. Revisions to the WV rule have removed provisions for pollution 

control projects (PCPs) and clean units (CUs) per a 2005 US Court of Appeals for the District of 

Columbia Circuit court decision which vacated these provisions in the federal counterpart. 

These references for PCPs and CUs now being deleted from the WV regulations, were never part 

of the currently approved WV SIP. This revision simply is adding new references to include 

NOx as a precursor to ozone to comport with federal counterpart language. The West Virginia 

Department of Air Quality (DAQ) has now submitted a final rule 45CSR14 as a proposed 

revision to the State Implementation Plan.

In the previously approved NSR Reform SIP revision at 71 FR 64470 dated December 4, 2006, 

West Virginia had requested that EPA not act upon the provisions of 45 CSR 14.19.8 pertaining 

to the recordkeeping and reporting requirements for sources that elect to use the actual-toprojected actual emission test and where there is a ``reasonable possibility'' that a project may

result in a significant net emissions increase. EPA is now proposing to approve 45 CSR 14.19.8 

into the West Virginia SIP revision with this proposed action as regulatory corrections have been 

made to the State’s regulations dated June 1, 2009.

III. PROGRAM REVIEW

A. West Virginia Submittal

The West Virginia submittal includes revisions to the State rule to remove provisions for 

pollution control projects and clean units per a 2005 U.S. Court of Appeals decision 

which vacated these provisions in the federal counterpart. These regulations were not 

part of the previously approved PSD program approved at 71 FR 64470. New references 

were added to the State rule which include NOx as a precursor to ozone in the proposed 

SIP revision package to comport with federal counterpart language.
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B. Public Comment on the revised State rules contained in this SIP approval– Comments 

were received from the Sierra Club, West Virginia Chapter and the Environmental 

Protection Agency, Region III. Changes as described below, based on these comments, 

were included in this submittal.

1. The Sierra Club requested several deletions of language, specifically:

2.40. d regarding use of fuel derived from municipal solid waste

2.50 "plant-wide applicability limit"

 These deletions were not made in order for the rule to be consistent with federal 

counterpart language.

2. EPA sought clarification regarding West Virginia's intention to revise their existing 

legislative language on the prevention of significant deterioration (PSD) State 

Implementation Plan (SIP) regarding NSR reform provisions that were not included in 

the regulatory package received by EPA on August 11, 2008. EPA commented on the 

following:

a). Regarding New Source Review, §51.166, Reasonable Possibility in Recordkeeping, 

EPA provided revised language for the amendments.

DAQ revised the rule to be consistent with EPA's comment and the current federal 

counterpart language.

b). Regarding Major Emitting Facility Definition §51.166 Treatment of Certain Ethanol 

Production Facilities Under Major Emitting Facility, EPA provided revised language.

DAQ revised the rule to be consistent with EPA's comment and the current federal 

counterpart language.

c). EPA provided revised language for §51.166 Prevention of Significant Deterioration 

for Nitrogen Oxides Increment.

DAQ responded that the rule contains this language, which is consistent with EPA's 

comment and current federal counterpart language. The language provided in EPA's 

comments simply provides flexibility to states, and is not a necessary component of the 

state rule.

d). EPA provided revised language for §51.165 Permit Requirements Clarification to add 

'Replacement Unit' and PAL Baseline.

DAQ revised the rule by including the valid definition of "Replacement Unit". However, 

DAQ has not included the following language in parenthesis from that definition which 

reads (as discussed in paragraph (y)(2) of this section), as section (y) has been stayed 
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indefinitely by court order. If the stay is lifted, DAQ will reinsert the phrase in 

subsequent rulemaking.

DAQ has found that the rule already contains the following language suggested by the 

commenter: Emissions from units on which actual construction began after the 24-month 

period must be added to the PAL level in an amount equal to the potential to emit of the 

units."

DAQ has revised the rule with a new subdivision 25.6.b, which contains the language in 

(w)(6)(ii) above.

C. Regulatory Review of Proposed SIP 

WV DAQ Series 14-2 Definitions

The following is a brief summary of the changes.

Section Status Description

Regulation 

2.17

Deletion Deleted definition of Clean Units (CUs)

Regulation 

2.40.i.

Deletion Deleted reference to Pollution Control Projects (PCPs) in the 

definition of major modification.

Regulation 

2.46.d.2 

and g.4

Deletion Deleted reference to CUs in the definition of net emissions 

increase.

Regulation 

256

Deletion Deleted definition of PCPs.

Regulation 

2.74a

Modified Modified to include NOx as a precursor to Ozone

Regulation 

2.77

Clarification Provided chart format for definition of significant impact. No 

text Change.

WV DAQ Series 14-3 Applicability

The following is a brief summary of the changes.

Section Status Description

Regulation 

3.4.e and f

Deletion Deleted reference of CUs.

Regulation 

3.6

Deletion Deleted reference to PCPs.

WV DAQ Series 14-4 Ambient Air Quality and Ceilings

The following is a brief summary of the changes.

Section Status Description

Regulation 

4.1

Clarification Provided chart format. No text change.
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Section Status Description

Regulation 

3.6

Deletion Deleted reference to PCPs.

WV DAQ Series 14-13 Additional Requirements and Variances for Sources Impacting 

Federal Class I Areas

The following is a brief summary of the changes.

Section Status Description

Regulation 

13.6

Clarification Provided chart format. No text change.

WV DAQ Series 14-16 Specific Exemptions

The following is a brief summary of the changes.

Section Status Description

Regulation 

16.6.d

Modified Modified to include NOx as a precursor to ozone. 

Regulation 

16.7

Modified text Table 2 De Minimus Air Quality Impacts was moved to chart in 

16.6.d...

WV DAQ Series 14-19 Permit Transfer, Cancellation and Responsibility

The following is a brief summary of the changes.

Section Status Description

Regulation 

19.8

Modified Modified to exclude CUs and added text regarding reasonable 

possibility. 

WV DAQ Series 14-22 Clean Unit Test for Emission Units that are subject to BACT or 

LAER

The following is a brief summary of the changes.

Section Status Description

Regulation 

22.

Deleted Deleted entire section. 

WV DAQ Series 14-23 Clean Unit Provisions for Emission Units that Achieve an Emission 

Limitation Comparable to BACT

The following is a brief summary of the changes.

Section Status Description

Regulation 

23.

Deleted Deleted entire section. 
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WV DAQ Series 14-24 PCP Exclusion Procedural Requirements

The following is a brief summary of the changes.

Section Status Description

Regulation 

24.

Deleted Deleted entire section. 

IV. Infrastructure 

This SIP revision is also necessary to ensure that the SIP provides for the attainment and 

maintenance of the NAAQS. Section 110(a)(2)(C) of the Act, 42 U.S.C. § 7410(a)(2)(C), 

requires the state SIP to have a program for regulation of construction and modification of 

sources including a permit program as required by Parts C of Title I of the Act to assure NAAQS 

are achieved. This action, upon approval will establish NOx as a precursor to ozone and will 

accomplish programmatic needs found in the Federal Register notice regarding infrastructure for 

West Virginia dated March 27, 2008 73 FR 16205, page 16208.

NOx as a precursor to ozone became regulated under 40 CFR Part 51.166 and 40 CFR 52.21 on 

November 29, 2005 in Federal Register 70 FR 71612. As such, this action would approve NOx 

as a precursor to ozone.

V. RECOMMENDED AGENCY ACTION

EPA recommends approving the revision to West Virginia's SIP, 45CSR14 - Permits for 

Construction and Major Modification of Major Stationary Sources of Air Pollution for the 

Prevention of Significant Deterioration. This revision will establish NOx as a precursor to ozone

and will also include “reasonable possibility” federal provision equivalent.