west virginia department of environmental protection

Appendix H.5

WV Rules 

to Control

Particulate Matter

Promoting a healthy environment.
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45CSR6

CONTROL OF AIR POLLUTION

FROM COMBUSTION OF

REFUSE

Agency Approved Version submitted for 

Legislative Approval during 2008 Session

WV Regional Haze SIP Appendix H.5 - 1
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WV Regional Haze SIP Appendix H.5 - 2
45CSR6

1

TITLE 45

LEGISLATIVE RULE

DIVISION DEPARTMENT OF ENVIRONMENTAL PROTECTION

OFFICE DIVISION OF AIR QUALITY

SERIES 6

TO PREVENT AND CONTROL OF AIR POLLUTION FROM COMBUSTION OF REFUSE

§45-6-1. General.

1.1. Scope.

1.1.a. This rule establishes emission

standards for particulate matter and requirements

for activities involving incineration of refuse

which are not subject to, or are exempted from

regulation under a federal counterpart for specific

combustion sources. This rule also prohibits (with

limited exception) open burning and sets forth the

registration, permitting, reporting, testing,

emergency, natural disaster and exemption

provisions for activities involving the combustion

of refuse and land clearing debris.

1.1.a. 1.1.b. The purpose of this rule is to

prevent and control air pollution from combustion

of refuse. Neither compliance with the provisions

of this rule nor the absence of specific language to

cover particular situations constitutes approval or

implies consent or condonement of any emission

which is released in any locality in such manner or

amount as to cause or contribute to undesirable

levels of air contaminants statutory air pollution.

Neither does it exempt nor excuse anyone from

complying with other applicable laws, ordinances,

regulations or orders of governmental entities

having jurisdiction over combustion of refuse or

open burning.

1.1.b. 1.1.c. All persons engaged in any

form of combustion of refuse shall give careful

consideration to the effects of the resultant

emissions on the air quality of the area(s) affected

by such burning. Important considerations include,

but are not limited to, the location and time of

burning, the type of material being burned and the

potential emissions and the prevailing

meteorological conditions. Persons failing to give

due consideration to these factors will be in

violation of this rule.

1.1.c. 1.1.d. It is the intent of the Director

Secretary that all incorporated areas and other

local governmental entities prohibit open burning

and develop alternative methods for disposal of

waste material refuse. If such action is not taken in

any air basin, air quality control region or other

such areas as the Director Secretary may

designate, then such action may be taken by the

Director Secretary to insure ensure compliance

with air quality standards.

1.2. Authority. -- W.Va. Code §22-5-1 et seq

§22-5-4.

1.3. Filing Date. -- June 21, 2001.

1.4. Effective Date. -- July 1, 2001.

1.5. Former Rules. -- This legislative rule

amends 45CSR6 “To Prevent and Control Air

Pollution From Combustion of Refuse” which was

filed on June 2, 2000 June 21, 2001, and which

became effective August 31, 2000 July 21, 2001.

§45-6-2. Definitions.

2.1. “Agency Administrator” means a

National Park Service Park Superintendent,

Bureau of Indian Affairs Agency Superintendent,

U.S. Forest Service Forest Supervisor, Bureau of

Land Management District Manager, Fish and

Wildlife Service Refuge Manager, State Forest

Officer, Fire Chief, or an authorized designee

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thereof.

2.1. 2.2. “Air Curtain Incinerator” means an

incinerator that operates by forcefully projecting

a curtain of air across an open chamber or pit in

which combustion occurs. Incinerators of this type

can be constructed above or below ground and

with or without refractory walls and floor. (Air

curtain incinerators are not to be confused with

conventional combustion devices with enclosed

fireboxes and controlled air technology such as

mass burn, modular, and fluidized bed

combustors.)

2.2. 2.3. “Air Pollution”, or ‘statutory air

pollution’ shall have the meaning ascribed to it in

W.Va. Code §22-5-2.

2.3. 2.4. “Air Pollution Control Equipment”

means any equipment used for collecting or

converting gasborne particulate or gaseous

materials for the purpose of preventing or

reducing emission of these materials into the open

air.

2.4. “Clean Lumber” means wood or wood

products that have been cut or shaped and include

wet, air-dried, and kiln-dried wood products.

Clean lumber does not include wood products that

have been painted, pigment-stained, or pressuretreated by compounds such as chromate copper

arsenate, pentacholrophenol, and creosote.

2.5. “Director” means the director of the

division of environmental protection or such other

person to whom the director has delegated

authority or duties pursuant to W. Va. Code §§22-

1-6 or 22-1-8.

2.5. “CFR” means the Code of Federal

Regulations published by the Office of the Federal

Register, National Archives and Records Service,

General Services Administration.

2.6. “Flare”, or ‘flare stack’ means and

includes a combustion source normally comprised

of, but not limited to, a length of stack or pipe

which has an attached burner mechanism designed

to destroy liquid or gaseous material with an open

or semi-enclosed flame.

2.7. “Incineration” means the destruction of

combustible refuse by burning in a furnace

designed for that purpose. For the purposes of this

rule, the destruction of any combustible liquid or

gaseous material by burning in a flare/flare flare or

flare stack, thermal oxidizer or thermal catalytic

oxidizer stack shall be considered incineration.

2.8. “Incinerator” means any device used to

accomplish incineration.

2.9. “Incinerator Capacity” shall be the

manufacturer's or designer's guaranteed maximum

charging rate or such other rate as may be

determined by the Director Secretary in

accordance with good engineering practices. In

case of conflict the determination by the Director

Secretary shall govern. For the purpose of this

rule, the total of the capacities of all furnaces

within one system shall be considered as the

“Incinerator Capacity”.

2.10. “Industrial Waste Incinerator” means an

incinerator which is used to incinerate gaseous,

liquid, semi-liquid and/or solid by-product waste

from industrial sources.

2.11. “Land Clearing Debris” means that

vegetative material generated by clearing of land

for purposes of preparation for development,

construction, mining or other such activity. Nonvegetative refuse is not included in this meaning.

2.12. “Opacity” means the degree to which

smoke and/or or particulate matter emissions

reduce the transmission of light and obscure the

view of an object in the background.

2.13. “Open Burning” means the combustion

of refuse whereby the gaseous products of

combustion are not conveyed through man-made

means from one point to another and are

discharged directly to the open air. This term

includes ‘burn barrels’, but does not include air

curtain incinerators.

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2.14. “Particulate Matter” means any material,

except uncombined water, that exists in a finely

divided form as a liquid or solid.

2.15. “Pathological Waste Incinerator” means

an incinerator used to dispose of animal and/or

human tissue, bandages, medical wastes and

medical laboratory wastes waste material

consisting of only human or animal remains,

anatomical parts or tissue, the bags or containers

used to collect and transport the waste material,

and animal bedding (if applicable).

2.16. “Person” means any and all persons,

natural or artificial, including the state of West

Virginia or any other state, the United States of

America, any municipal, statutory, public or

private corporation organized or existing under the

laws of this or any other state or country, and any

firm, partnership or association of whatever

nature.

2.17. “Prescribed burning” means the

controlled application of fire to vegetation under

specified environmental conditions and

precautionary measures, which allows the fire to

be confined to a predetermined area for the

purpose of accomplishing specifically planned

wildlife and forest management objectives.

2.17. 2.18. “Refuse” means the useless

and/or, unwanted or discarded solid, liquid and/or

or gaseous waste materials resulting from

community, commercial, industrial or citizen

activities.

2.19. “Secretary” means the Secretary of the

Department of Environmental Protection or such

other person to whom the Secretary has delegated

authority or duties pursuant to W.Va. Code §§22-

1-6 or 22-1-8.

2.18. 2.20. “Sewage Sludge Incinerator”

means an incinerator which is used to incinerate

the sludge produced by municipal or industrial

sewage treatment plants.

2.19. 2.21. “Smoke” means small gasborne

and airborne particles emitted as the result of the

combustion of refuse in sufficient numbers to be

visible.

2.20. “Wood Waste” means untreated wood

and untreated wood products, including tree

stumps (whole or chipped), trees, tree limbs

(whole or chipped), bark, sawdust, chips, scraps,

slabs, millings and shavings. Wood waste does not

include:

2.20.a. Yard waste;

2.20.b. Construction, renovation, or

demolition wastes; or

2.20.c. Clean lumber.

2.21. “Yard Waste” means grass, grass

clippings, bushes, shrubs, and clippings from

bushes and shrubs from residential, commercial/,

retail, institutional, or industrial sources as part of

maintaining yards or other private or public lands.

2.22. Other words and phrases used in this

rule, unless otherwise indicated, shall have the

meaning ascribed to them in W.Va. Code §22-5-1

et seq.

§45-6-3. Open Burning Prohibited.

3.1. General Provisions. -- The open burning

of refuse by any person, firm, corporation,

association or public agency is prohibited except

for the following exemptions exceptions:

3.1.a. Vegetation grown on the premises of

a home or farm, provided that there is compliance

with the provisions of subdivision 1.1.b, and the

health, safety, comfort and property of persons are

protected from the effects of such burning.

3.1.b. Fires set for the purpose of bona fide

instruction and training of public and industrial

employees and members of volunteer fire

departments in the methods of fighting fires,

provided that approval to conduct such burning is

received from the Director or the Director’s duly

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authorized representative Secretary. Burning of

structures for fire training is subject to specific

requirements of 45CSR15, in particular, 45CSR34

and 40 CFR Part 61 Subpart M.

3.1.c. Open burning of land clearing debris

provided that all the following conditions are met:

3.1.c.1. There is no practical alternate

method for the disposal of the material to be

burned;

3.1.c.2. The health, safety, comfort and

property of persons are protected from the effects

of such burning; and

3.1.c.3. Approval to conduct such

burning is received from the Director or the

Director’s duly authorized representative

Secretary.

3.1.d. Open burning of propellant and

explosive wastes, provided that the open burning

is conducted in accordance with 45CSR25.

3.1.e. Prescribed burning, in accordance

with a written prescribed fire plan approved by the

West Virginia Division of Forestry, or in the case

of federal lands, approved by the appropriate

Agency Administrator and endorsed by the West

Virginia Division of Forestry, prior to ignition for

the following wildlife, forest and associated land

management purposes:

3.1.e.1. To improve forest health;

3.1.e.2. To maintain and restore

wildlife habitat;

3.1.e.3. To reduce forest fuels and

minimize the effect of wildfires;

3.1.e.4. To prepare land for planting or

seeding (site preparation);

3.1.e.5. To restore fire-dependent

forest ecosystems; and

3.1.e.6. To integrate with other control

methods for use in eradication of non-native

invasive plants.

3.2. The exemptions listed in subsection 3.1

are subject to the following stipulation:

3.2.a. Upon notification by the Director

Secretary, no person shall cause, suffer, or allow

or permit any form of open burning during

existing or predicted periods of atmospheric

stagnation. Notification shall be made by such

means as the Director Secretary may deem

necessary and feasible.

§45-6-4. Emission Standards for Incinerators

and Incineration.

4.1. No person shall cause, suffer, or allow

or permit particulate matter to be discharged from

any incinerator into the open air in excess of the

quantity determined by use of the following

formula:

Emissions (lb/hr) = F x Incinerator Capacity

(tons/hr)

Where, the factor, F, is as indicated in Table I

below:

Table I: Factor, F, for Determining Maximum

Allowable Particulate Emissions.

Incinerator Capacity Factor F 

A. Less than 15,000 lbs/hr 5.43

B. 15,000 lbs/hr or greater 2.72

4.2. After September 1, 1969, in In the

Counties of Brooke, Hancock, Ohio, Marshall and

Kanawha; and the Magisterial Districts of Valley

(Fayette County), Scott and Pocatalico (Putnam

County), Tygart (Wood County), the City of

Fairmont and those portions of Union and

Winfield Magisterial Districts west of I-79

(Marion County), no person shall cause, suffer, or

allow or permit the operation of any incinerator

during the period starting one (1) hour before

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sunset and extending until two (2) hours after

sunrise. This subsection shall not apply to the

operation of flares, pathological waste, industrial,

municipal or sewage sludge incinerators.

4.3. Emission of Visible Particulate Matter.

-- No person shall cause, suffer, or allow or permit

emission of smoke into the atmosphere from any

incinerator which is twenty (20%) percent (20%)

opacity or greater.

4.4. The provisions of subsection 4.3 shall

not apply to smoke which is less than forty (40%)

percent (40%) opacity, for a period or periods

aggregating no more than eight (8) minutes per

start-up, or six (6) minutes in any sixty (60)-

minute period for stoking operations.

4.5. No person shall cause, suffer, or allow

or permit the emission of particles of unburned or

partially burned refuse or ash from any incinerator

which are large enough to be individually

distinguished in the open air.

4.6. Incinerators, including all associated

equipment and grounds, shall be designed,

operated and maintained so as to prevent the

emission of objectionable odors.

4.7. Incineration of Residues and Hazardous

Materials Pathological Waste. -- Persons

responsible for the incineration of hazardous

materials such as insecticides, empty insecticide

containers, toxic materials, certain chemical

residues, explosives, used bandages and other

medical wastes, pathological wastes, human and

animal remains and other like materials waste

shall give the utmost care and consideration to the

potential harmful effects of the emissions resulting

from such activities. Evaluation of these facilities

as to adequacy, efficiency and emission potential

will be made on an individual basis by the

Director Secretary, working in conjunction with

other appropriate governmental agencies.

4.8. Air Curtain Incinerators --

Notwithstanding any other provisions in this rule,

the construction, modification, siting, and

operation of air curtain incinerators shall be

subject only to sections 9, 10, 11 and the

following requirements:

4.8.a. Incinerators as defined and regulated

in 40 CFR Part 60, Subparts Eb, CCCC (65

FR75338, December 1, 2000) and AAAA

(65FR76350, December 6, 2000) shall comply

with applicable requirements set forth in those

regulations. The requirements of 40 CFR Part 60

Subparts CCCC and AAAA as related to air

curtain incinerators are hereby incorporated by

reference. All notices, reports and other

information required to be submitted to the

Administrator of the United States Environmental

Protection Agency pursuant to 40 CFR Part 60,

Subparts Eb, CCCC and AAAA shall also be

submitted to the Director.

4.8.b. Only land clearing debris, wood

waste, clean lumber or yard waste as defined in

this rule or 40 CFR Part 60, Subparts Eb, CCCC

and AAAA may be burned by an air curtain

incinerator.

4.8.c. Except as provided in subdivision

4.8.e, construction or modification of an air

curtain incinerator shall be subject to the

permitting requirements of 45CSR13, 45CSR14,

or 45CSR19, as applicable.

4.8.d. Except for incinerators subject to

subdivision 4.8.e, air curtain incinerators not

subject to subdivision 4.8.a shall comply with

emission control, reporting, and recordkeeping

requirements identical to those set forth under 40

CFR §60.2250, 40 CFR §60.2255, and 40 CFR

§60.2260. Reports, notices, and other information

required to be submitted to the Administrator of

the United States Environmental Protection

Agency under those cited sections must only be

submitted to the Director.

4.8.e. T e m p o r a r y A i r C u r t a i n

Incinerators. -- Air curtain incinerators not

subject to subdivision 4.8.a that are temporarily

sited and operated only for the disposal of on-site

land clearing debris are not shall not be subject to

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the emission standards of this rule or to the

preconstruction permitting requirements of

45CSR13, provided that the following conditions

are met:

4.8.e.1. 4.8.a. There is no practical

alternative method for the disposal of the material

to be burned incinerated;

4.8.e.2. 4.8.b. The health, safety, comfort

and property of persons are protected from the

effects of such burning incineration;

4.8.e.3. 4.8.c. Approval to conduct such

burning incineration is received from the director

or the director’s duly authorized representative

Secretary; and

4.8.e.4. 4.8.d. The temporary air curtain

incinerator is not subject to the requirements of

section 9 of this rule, 45CSR14, 45CSR18, or

45CSR19, or 45CSR30.

4.8.f. Air curtain incinerators subject to the

requirements of 45CSR30 shall apply for and

obtain an operating permit in accordance with the

provisions of 45CSR30.

4.9. Except for flares and temporary air

curtain incinerators under subsection 4.8, the

owner or operator of an incinerator shall post

operating instructions for the incinerator clearly

visible by the operator from the incinerator

charging area. Such posting shall provide

instruction for proper operation in order to prevent

a violation of this rule.

4.10. The owner and operator of an incinerator

shall design, construct and operate the facility in

accordance with all applicable rules promulgated

by the Secretary including, but not limited to, this

rule, 45CSR13, 45CSR14, 45CSR18, 45CSR19,

45CSR25, 45CSR30 and 45CSR34, as applicable.

§45-6-5. Registration.

5.1. Within thirty (30) days after the

effective date of this rule, all persons owning

and/or operating incinerators within the state an

incinerator in West Virginia shall have registered

with the Director Secretary on forms made

available by the Director Secretary, the name of

the person, company or corporation operating the

plant, the address, location, county, ownership

(lessee, lessor), the principal officer of the

company and any such other reasonable

information as the Director Secretary may require

including, but not limited to, make, model,

capacity, operating temperature, fuel used, stack

parameters and description of air pollution control

equipment.

§45-6-6. Permits.

6.1. No Except for temporary air curtain

incinerators under subsection 4.8, no person shall

construct, modify or relocate any incinerator

without first obtaining a permit in accordance with

the provisions of W.Va. Code §§22-5-1 et seq.,

45CSR13, 45CSR14, and 45CSR19, and

45CSR30, as applicable, provided that, and

notwithstanding the provisions of 45CSR13, flares

and flare stacks meeting the following

requirements shall not be required to obtain a

preconstruction permit under 45CSR13:

6.1.a. Temporary flares used in conjunction

with maintenance and repair of natural gas

pipelines, combusting only the gas contained

therein, which meet the following conditions:

6.1.a.1. The flare or flare stack exists

on-site for a cumulative period of less than thirty

(30) days in any twelve (12) consecutive month

period;

6.1.a.2. The maximum emissions from

the flare or flare stack, based on the potential to

emit for the period of time that the flare or flare

stack is in use, do not exceed the threshold

amounts specified in the definitions of “stationary

source” and “modification” in 45CSR13;

6.1.a.3. The flare or flare stack is not

subject to the requirements of 40 CFR Parts 60,

61, or 63, or 45CSR14 or 45CSR19 45CSR14,

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45CSR16, 45CSR19, 45CSR25, 45CSR30 or

45CSR34; and

6.1.a.4. The source maintains records

of emissions, monitoring results or other records

sufficient to determine compliance with the

requirements of paragraphs 6.1.a.1 through 6.1.a.3

for a minimum period of three (3) years and makes

such records available upon the Director’s

Secretary’s request.

6.1.b. Temporary flares, other than those

identified in subdivision 6.1.a, which meet the

following conditions:

6.1.b.1. The flare or flare stack exists

on-site for a cumulative period of less than ten

(10) days in any twelve (12) consecutive month

period;

6.1.b.2. The maximum emissions from

the flare or flare stack, based on the potential to

emit for the period of time that the flare or flare

stack is in use, do not exceed the threshold

amounts specified in the definitions of “stationary

source” and modification” in 45CSR13;

6.1.b.3. The flare or flare stack is not

subject to the requirements of 40 CFR Parts 60,

61, or 63, or 45CSR14 or 45CSR19 45CSR14,

45CSR16, 45CSR19, 45CSR25, 45CSR30 or

45CSR34;

6.1.b.4. The flare or flare stack meets

all of the general control device requirements of

40 CFR §60.18, including, but not limited to, the

requirement to monitor the flare to ensure it is

operated and maintained in conformance with its

design and the opacity standard in 40 CFR

§60.18(c)(1);

6.1.b.5. The flare or flare stack is

designed and operated in a manner to prevent

violations of any national ambient air quality

standards standard;

6.1.b.6. The source notifies the

Director Secretary within ten (10) working days of

locating any flare or flare stack on-site, which

notification shall include the location and

anticipated duration that such flare will remain onsite; and

6.1.b.7. The source maintains records

of emissions, monitoring results or other records

sufficient to determine compliance with the

requirements of paragraphs 6.1.b.1 through 6.1.b.6

for a minimum period of three (3) years and makes

such records available upon the Director’s

Secretary’s request.

6.2. Nothing contained in this rule shall be

construed or inferred to mean that permit

requirements in accordance with applicable rules

shall be in any way limited or inapplicable,

including but not limited to the permitting

requirements under 45CSR13, 45CSR14,

45CSR19, 45CSR25 and 45CSR30.

§45-6-7. Reports and Testing.

7.1. At such reasonable times as the Director

Secretary may designate, the operator of any

incinerator shall be required to conduct or have

conducted stack tests to determine the particulate

matter loading, by using 40 CFR Part 60,

Appendix A, Method 5 or other equivalent U.S.

EPA approved method approved by the Director

Secretary, in exhaust gases. Such tests shall be

conducted in such manner as the Director

Secretary may specify and be filed on forms and

in a manner acceptable to the Director Secretary.

The Director, or the Director’s authorized

representative, Secretary may, at the Director’s

Secretary’s option, witness or conduct such stack

tests. Should the Director Secretary exercise his or

her option to conduct such tests, the operator will

provide all the necessary sampling connections

and sampling ports to be located in such manner

as the Director Secretary may require, power for

test equipment and the required safety equipment

such as scaffolding, railings and ladders to comply

with generally accepted good safety practices.

7.2. The Director, or the Director’s duly

authorized representative, Secretary may conduct

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such other tests as the Director Secretary may

deem necessary to evaluate air pollution emissions

other than those noted above.

§45-6-8. Variances.

8.1. If it can be demonstrated to the Director

Secretary that the disposal of certain materials by

any method other than burning leads to ground

water contamination, then the person responsible

for the disposal of such materials shall submit to

the Director Secretary within sixty (60) days of

such demonstration a program and preconstruction

permit application under 45CSR13 leading to the

construction of a suitable incinerator. If such

program and permit is accepted approved by the

Director Secretary, the person shall not be in

violation as long as such incineration is in

accordance with the approved program is observed

and permit issued by the Secretary.

8.2. Due to an unavoidable malfunction of

equipment, emissions exceeding those provided

for any limitation in this rule may be permitted by

the Director Secretary for periods not to exceed

five (5) days upon specific application to the

Director Secretary. Such application shall be made

within twenty-four (24) hours of the malfunction.

In cases of major equipment failure, additional

time periods may be granted by the Director

Secretary provided a corrective program has been

submitted by the owner or operator and approved

by the Director Secretary.

§45-6-9. Emergencies and Natural Disasters.

9.1. In situations involving flood, tornado,

ice storm, high winds or other natural disaster the

Director Secretary may, based on demonstrated

need, allow approve temporary open burning or

incineration of vegetation, non-hazardous building

debris and other non-hazardous debris from such

natural disaster which would otherwise be subject

to the requirements of sections 3, 4 or 6 of this

rule, provided that:

9.1.a. There is no practical alternative

method for disposal of the material to be burned;

and

9.1.b. The health, safety, comfort and

property of persons are protected from such

burning.; and

9.1.c. Approval to conduct such burning is

received from the Secretary.

9.2. During a declared state of emergency

under Annex W of the West Virginia Emergency

Operations Plan involving a highly contagious

animal or poultry disease, the Secretary may

approve temporary incineration or open burning of

animal or poultry remains and related pathological

waste which would otherwise be subject to the

requirements of sections 3, 4 or 6 or 45CSR18,

provided that:

9.2.a. There is no practical alternative

method for carcass and pathological waste

disposal;

9.2.b. The health, safety, comfort and

property of persons are protected from such

incineration or burning; and

9.2.c. Approval to conduct such

incineration or burning is received from the

Secretary.

§45-6-10. Exemptions.

10.1. The following combustion units are

subject to the requirements of 45CSR18 and shall

be exempt from the requirements of this rule:

10.1.a. Large municipal waste

combustors, small municipal waste combustion

units, hospital/ medical/ infectious waste

incinerators, commercial and industrial solid waste

incineration units, and other solid waste

incineration units;

10.1.b. Air curtain incinerators which are

a distinct operating unit of any commercial or

industrial facility; 

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10.1.c. Any air curtain incinerator that

burns less than 35 tons per day of municipal solid

waste, or is located at an institutional facility

burning any amount of institutional waste

generated at that facility; and

10.1.d. Incinerators or air curtain

incinerators used on a temporary basis to combust

vegetation or debris from disaster recovery or a

state of emergency.

10.2. Any pathological waste incinerator

subject to 45CSR18 or 45CSR25 shall be exempt

from the requirements of this rule.

10.3. Any facility which incinerates low-level

radioactive waste or chemotherapeutic waste shall

be exempt from the requirements of this rule.

10.4. Any hazardous waste combustor subject

to 40 CFR Part 63, Subpart EEE and 45CSR34

shall be exempt from the requirements of this rule.

10.5. Any hazardous waste incinerator subject

to 40 CFR Parts 264 or 265 and 45CSR25 shall be

exempt from the requirements of this rule.

§45-6-10. §45-6-11. Effect of the Rule.

10.1. 11.1. Nothing in this rule shall be

construed to allow or permit the installation,

establishment or construction of a new municipal

or commercial solid waste facility utilizing

incineration technology for the purpose of solid

waste incineration in violation of W.Va. Code

§22-15-19.

§45-6-11. §45-6-12. Inconsistency Between

Rules.

11.1. 12.1. In the event of any inconsistency

between this rule and any other existing rule of the

West Virginia Division Department of

Environmental Protection, such the inconsistency

shall be resolved by the determination of the

Director Secretary and such the determination

shall be based upon the application of the more

stringent provision, term, condition, method or

rule.

WV Regional Haze SIP Appendix H.5 - 11
WV Regional Haze SIP Appendix H.5 - 12
45CSR17

TO PREVENT AND CONTROL

PARTICULATE MATTER AIR

POLLUTION FROM

MATERIALS HANDLING,

PREPARATION, STORAGE AND

OTHER SOURCES OF FUGITIVE

PARTICULATE MATTER

WV Regional Haze SIP Appendix H.5 - 13
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45CSR17

1

TITLE 45

LEGISLATIVE RULE

DIVISION OF ENVIRONMENTAL PROTECTION

OFFICE OF AIR QUALITY

SERIES 17

TO PREVENT AND CONTROL PARTICULATE MATTER 

AIR POLLUTION FROM MATERIALS HANDLING, PREPARATION, STORAGE

AND OTHER SOURCES OF FUGITIVE PARTICULATE MATTER

§45-17-1. General.

1.1. Scope. -- The purpose of this rule is to

prevent and control particulate matter air pollution

from materials handling, preparation, storage and

other sources of fugitive particulate matter. 

1.2. The Director particularly urges the

cooperation of municipalities in utilizing street

sweepers equipped with dust capturing equipment,

on a regular basis, to minimize particulate matter

reentrainment into the air from heavily trafficked

streets. In addition, municipalities should take

such action as necessary to control fugitive

particulate matter emissions arising from unpaved

streets, access roads, private parking lots and any

other such sources of uncontrolled particulate

matter.

1.3. Authority. -- W. Va. Code §§22-5-1 et

seq.

1.4. Filing Date. -- June 2, 2000.

1.5. Effective Date. -- August 31, 2000.

1.6. Former Rules. -- This legislative rule

amends 45CSR17 “To Prevent and Control

Particulate Air Pollution from Materials Handling,

Preparation, Storage and Sources of Fugitive

Particulate Matter” which was filed on March 30,

1979, and which became effective May 1, 1979. 

§45-17-2. Definitions.

2.1. "Air Pollution", 'statutory air pollution',

shall have the meaning ascribed to it in W. Va.

Code §22-5-2.

2.2. "Director" means the director of the

division of environmental protection or such other

person to whom the director has delegated

authority or duties pursuant to W. Va. Code §§22-

1-6 or 22-1-8.

2.3. "Fugitive Particulate Matter", for the

purpose of this rule, means particulate matter

which becomes airborne from activities including,

but not limited to: handling, transporting or

storage of materials; storage structure(s); the use,

repair, construction, alteration, renovation or

demolition of building(s), road(s) or other

activities; disposal areas; haul roads; plant

grounds; public, private and industrial parking

areas or lots; public and private streets and

highways; mobile drills; and any other activity

which generates airborne particulate matter.

2.4. "Materials" includes, but is not limited

to, limestone, dolomite, iron ore, slag, coke, coal,

sandstone, magnetite, sinter, sand, coal refuse,

soda ash, ash, cement or earth.

2.5. "Opacity" means the degree to which

emissions reduce the transmission of light and

obscure the view of an object in the background.

2.6. "Particulate Matter" means any material

except uncombined water that exists in a finely

divided form as a liquid or solid.

2.7. "Person" means any and all persons,

natural or artificial, including the state of West

Virginia or any other state, the United States of

America, any municipal, statutory, public or

private corporation organized or existing under the

laws of this or any other state or country, and any

firm, partnership or association of whatever

WV Regional Haze SIP Appendix H.5 - 15
45CSR17

2

nature. 

2.8. “Statutory Air Pollution” means and is

limited to the discharge into the air by the act of

man of substances (liquid, solid, gaseous, organic

or inorganic) in a locality, manner and amount as

to be injurious to human health or welfare, animal

or plant life, or property, or which would interfere

with the enjoyment of life or property.

2.9. Other words and phrases used in this

rule, unless otherwise indicated, shall have the

meaning ascribed to them in W. Va. Code §22-5-1

et seq.

§45-17-3. Control and Prohibition of Fugitive

Particulate Emissions.

3.1. No person shall cause, suffer, allow or

permit fugitive particulate matter to be discharged

beyond the boundary lines of the property on

which the discharge originates or at any public or

residential location, which causes or contributes to

statutory air pollution.

3.2. When a person is found in violation of

this rule, the Director may require the person to

utilize a system to minimize fugitive particulate

matter. This system to minimize fugitive

particulate matter may include, but is not limited

to, the following:

3.2.a. Use, where practicable, of water or

chemicals for control of particulate matter in

demolition of existing buildings or structures,

construction operations, grading of roads or the

clearing of land;

3.2.b. Application of asphalt, water or

suitable chemicals on unpaved roads, material

stockpiles and other surfaces which can create

airborne particulate matter;

3.2.c. Covering of material transport

vehicles, or treatment of cargo, to prevent contents

from dripping, sifting, leaking or otherwise

escaping and becoming airborne, and prompt

removal of tracked material from roads or streets;

or

3.2.d. Installation and use of hoods, fans

and fabric filters to enclose and vent the handling

of materials, including adequate containment

methods during sandblasting, abrasive cleaning or

other similar operations.

§45-17-4. Control Programs and Schedules.

4.1. Any person operating a source of fugitive

particulate matter in violation of the provisions of

this rule shall submit a control program upon the

request of the Director. The control program shall

be embodied in a consent order as provided in W.

Va. Code §22-5-4.

§45-17-5. Variance

5.1. A variance may be granted for up to ten

(10) days from the requirements of this rule by the

Director for conditions beyond the control of any

person. Any request for a variance shall contain

evidence satisfactory to the Director. Variances of

over ten (10) days may be granted by the Director,

provided an acceptable control program has been

submitted by the person requesting said variance.

§45-17-6. Exemptions.

6.1. Sources that are subject to the fugitive

particulate matter emission requirements of

45CSR2, 45CSR3, 45CSR5 and 45CSR7 shall be

exempt from the provisions of this rule, provided

that such sources shall not be exempt from the

provisions of W. Va. Code §§22-5-1 et seq.,

including the provisions of §22-5-3 relating to

statutory air pollution.

6.2. Normal agricultural activities shall be

exempt from the provisions of this rule, to the

extent that such activities do not cause, suffer,

permit or allow statutory air pollution as defined

in this rule.

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45CSR17

3

§45-17-7. Enforcement.

7.1. Notwithstanding any other provisions in

this rule, the Director may take any and all

enforcement actions authorized under the Code

for a violation of this rule, including, but not

limited to, requiring the immediate cessation or

abatement of the discharge causing or contributing

to statutory air pollution. 

§45-17-8. Inconsistency Between Rules.

8.1. In the event of any inconsistency

between this rule and any other existing rule of the

Division of Environmental Protection, such

inconsistency shall be resolved by the

determination of the Director and such

determination shall be based upon the application

of the more stringent provision, term, condition,

method or rule.

8.2. Fugitive particulate matter emission

requirements of any other applicable rule issued

by the Director may be taken into consideration by

the Director in determining compliance with this

rule.

WV Regional Haze SIP Appendix H.5 - 17