# dep

west virginia department of environmental protection

Ex e c uti v e Of

f ice

601 5 7 th 

# Street SE

C h ar l est on

, W V 25 3 04 E a rl R ay T omblin

, Go ver n or

R a nd y C. Hu ff

m a n

, C abinet S ecre t ary

d e p. wv.gov



# Dec e mber 12

, 2012

Mr

. Shawn M

. Gar v in

Regional Administrator

U

. S. EPA, Region III (3RAOO)

1650 Arch Street

Philadelphia

, P A 19103-2029



# Re: Revision to the West Virginia State Implementation Plan Pursuant to Clean Air Act

Section 110(a)(2)(A)-(M) Requirementsfor the 2010 l

- hour N0 2 

# NAAQS

- Request

For Approval

Dear Administrator Garvin:

On behalf of the State of West Virginia

, I am herein subm i tting a revision to the State

Implementation Plan (SIP ) to satisf y state obligations under the Clean Air Act Section

110(a)(2)(A)

- (M ) requirements for the 2010 I

- hour nitrogen dioxide National Ambient Air

Qualit y Standards (NA A QS ). In this re v ision to the SIP

, West Virginia is demonstrating that it

has adequate resources and authorit y to implement the 2010 l

- hour nitrogen dioxide N AAQS

.

T he SIP revision includes appropriate documentation which demonstrates that s tate and federal

administrative procedural requirements have been fulfilled, including public participation

. The

public comment period ended on December 3, 2012

. Included with this submittal is an

electronic copy on compact disk in searchable PDF format

. We certify that the enclosed

electronic copy contains an e x act dupl i cate of information contained in the hardcopy submission

.

If y ou have an y questions regarding this submittal or require additional information

, please

contact John A

. Benedict

, Director ofthe Di v ision of Air Qualit y at ( 304) 9 2 6

- 0462

.

Sincerely,

Rand y C

. Huffman

Cabinet Secretar y

RCH l jlm

E nclosure

cc : Diana Esher (3APOO)

Jo hn A

. Bened i ct, Director, WVDEP

Promoting a healthy environment

.west virginiadepartment of environmentalprotectionFinal West VirginiaState Implementation Plan Revision forClean Air Act Section 110(a)(2)(A)-(M)Requirements for Nitrogen DioxideDecember 12, 2012West Virginia Division of Air Quality601 57thStreet, SECharleston, W.Va. 25304Promoting a healthy environmentThis page intentionally left blank.1Final West Virginia State Implementation Plan Revision forClean Air Act Section 110(a)(2)(A)-(M) Requirements for Nitrogen DioxideA State Implementation Plan (SIP) is a plan for each state thatidentifies how that state will attain and/or maintain the primary and secondaryNational Ambient Air Quality Standards (NAAQS). The SIP is a series of complex, fluid documentscontaining regulations, source-specificrequirements, non-regulatory items such as plans and inventories,and in some cases additional requirements promulgated by theU.S.Environmental Protection Agency (EPA). The initial SIPs for states were approvedby EPA on May 31, 1972. SIPs can be revised bythe statewith EPA approval as necessary. The federally enforceable SIP forWest Virginia is compiled in 40CFR Part 52, Subpart XX. In this revisionto the SIP, West Virginia is demonstrating that it has adequate resources and authority to implement the 2010 1-hour nitrogen dioxide (NO2)NAAQS. The 2010 1-hour NO2NAAQS are incorporated by reference inWest Virginia legislative Rule 45CSR8.This SIP revision addresses requirements of Section 110(a)(2)(A)-(M) of the Clean Air Act (CAA) many of which have been addressed inother SIP revisions. It is a compilation of elements that demonstrate how the 2010 1-hour NO2NAAQS is being implemented, maintained andenforced in West Virginia. The elements of this SIP revision, once approved by EPA, will provide a federally enforceable compilation of howWest Virginia will continue to comply withthe Section 110(a)(2) requirements of the CAA.In 1961, the State Legislature passed the AirPollution Control Law of WestVirginia, making West Virginia the sixteenth stateto have astatewide air pollution control law. The lawprovided for a separate state agency composed of a seven member Commission, a Director andstaff. The powers, authorities and funding of the original Commission were subsequently conveyed to the Office of Air Quality and then tothe Division of Air Quality (WVDAQ) withinthe West Virginia Department of Environmental Protection (WVDEP). Staffing, fundingandlegal authorities now incorporate over 90 full time staff, with a multi-million dollar annual budget and approximately 40 legislative rules.DAQ has a variety of substantial funding sources, including construction/modification permit fees, Title V operating permit fees, non-Title Voperating fees, general State revenue and federal grant monies.The agency has demonstrated the ability toimplement state and federal requirements for fifty years as most recently evidencedby a federallyapproved revision to the West Virginia hospital/medical/infectious waste incinerator(HMIWI) Section 111(d)/129 plan, limited approval ofWest Virginia’s Regional Haze SIP revision,and approval of revisions to West Virginia’s Prevention of Significant Deterioration of AirQuality SIP. Legislative authority for the West Virginia air quality program relating to the responsibilities in the Clean AirAct is codified inthe West Virginia Air Pollution Control Act (APCA), W.Va. Code§22-5, more specifically §22-5-1, which gives West Virginia theprimaryresponsibility for assuring air quality pursuant to the CAA. Many elements of Section 110(a)(2)(A)-(M) already exist in the approved SIP orrecently submitted SIP revisions for other NAAQS. This SIP revision may reiterate and/orreinforce some of these previously submittedand/or approved elements. Some requirements, such as those for intergovernmentalconsultation, air qualitymodeling and compliance withPart D of the CAA, are fulfilled during the development and submission to EPA, as a SIP revision, of attainment plans and relatedrequirements under Subpart 1and Subpart 5 of the CAA. On February 17, 2012, EPA rule established air quality designations for all areas inthe United States for the 2010 1-hour NO2NAAQS. In the final rule at 77FR9584, EPA designated the entire stateof West Virginia asunclassifiable/attainment for the 2010 1-hour NO2NAAQS.2Section110(a) elementThe implementation plan shall:West Virginia Implementation§110(a)(2)(A)include enforceable emissionlimitations and other controlmeasures, means, or techniques(including economic incentivessuch as fees, marketable permits,and auctions of emissions rights),as well as schedules andtimetables for compliance as maybe necessary or appropriate tomeet the applicable requirementsof this Act.Enforceable Emission Limitations and Other Control Measures:The Secretaryhas the authority under W.Va. Code §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) topromulgate rules in accordance with the Administrative Procedures Act (W.Va. Code§§ 29A3-1 et seq.). Approximately forty rules implemented under the auspices of theAPCA are currently in effect and codified atTitle 45 of the West Virginia Code of StateRules, including the ambient air quality standards for criteria pollutants (including the2010 1-hour NO2NAAQS) contained in legislativerule 45CSR8. Enforceable emissionlimitations and other control measures for NO2may be found in the Code of StateRules as necessary or appropriate to meet the applicable requirements of the CAA:45CSR11 - The purpose of this West Virginia SIP approved rule (58FR34526) is toprovide a mechanism to prevent the buildupof air pollutant concentrations duringperiods of adverse meteorological conditions in which air pollutants may accumulate,thereby preventing the occurrence of anemergency due to the effects of thesepollutants on health. To achieve this purpose, three stages of criteria (pollutantconcentration levels) have been established andspecific emission reduction plans willbe developed which will be initiated at each criteria stage toprevent furtherdeterioration of the air supply to any airquality region or substantial portion thereof.45CSR11 contains episode criteria, methods of measurement, preplanned reductionstrategies and emission reduction plan requirements for sources of NO2emissions inWest Virginia.45CSR13 - The purpose of this West VirginiaSIP approved rule (72FR5932) is to setforth the procedures for stationary sourcereporting, and the criteria for obtaining apermit to construct and operate a new stationary source which is not a majorstationary source, to modify a non-major stationary source, to make modificationswhich are not major modifications to an existing major stationary source, to relocatenon-major stationary sources withinthe state of West Virginia. NO2is a “regulatedpollutant’” as defined under 45CSR13-2.20.b. An emissions increase of six (6) poundsper hour and ten (10) tons per year or more, or more than 144 pounds per calendarday of NO2triggers a modification under 45CSR13.45CSR14 - The purpose of this West Virginia SIP approved rule (77FR63736) is tosatisfy the prevention of significant deterioration permit program requirements in PartC of the CAA. 45CSR14 contains a significant impact level for NO2of 1.0μg/m3forannual averaging times and a de minimis air quality impact concentration of 14μg/m3over an annual averaging time. 45CSR14 also contains a maximum allowablepollutant concentration increase over baseline concentration for NO2of 2.5, 25 and 503§110(a)(2)(A)(continued)μg/m3for annual arithmetic mean averaging time in Class I, Class II and Class IIIareas, respectively, and a maximum allowable pollutant concentration increase overminor source baseline concentration for NO2of 25μg/m3for annual arithmetic meanaveraging time. A PSD source in an attainment area may have a NO2emissionlimitation in a permit under 45CSR14 based upon a BACT analysis in accordance withCAA Sections 165(a)(3) and (4).45CSR16 - The purpose of this rule is to incorporate the federal New SourcePerformance Standards under Part A of the Clean Air Act and 40 CFR Part 60. WestVirginia received NSPS program delegation for Part 60 NSPS authority under45CSR16 on December 14, 1984 at FR48692.West Virginia has received automaticdelegation of authority to enforce part 60 NSPS in accordance with EPA letters of03/19/01, and 01/08/02 as well as EPA’s Noticeat 67FR15486. All current emissionlimitations or standards of performance for NO2promulgated under 40 CFR Part 60are incorporated by reference under 45CSR16,except any limitation or standard thatmay be included in Subparts B, C, Ca, Cb, Cc, Cd, Ce, Ea, Eb, Ec, WWW, AAAA,BBBB, CCCC, DDDD, EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule is to adopt standards of performance, andestablish emission guidelines and compliance times pursuant to Sections 111(d) and129 of the federal Clean Air Act for solid waste combustion sources in West Virginia.EPA recently approved West Virginia’s Section 111(d)/129 Plan forhospital/medical/infectious waste incinerators at 77FR3389. Section 111(d)/129 solidwaste combustion sources in West Virginia are subject to any applicable NO2standard of performance or emissionguideline promulgated under 40 CFR 60,Subparts Eb, AAAA, Ec, Ce, CCCC, DDDD, EEEE and LLLL.45CSR19 - The purpose of this West Virginia SIP approved rule (71FR64468) is tosatisfy the nonattainment area new sourcereview permit program requirements inPart D of the CAA. 45CSR19 contains a significance level for NO2and significantimpact level (ambient air concentration increase) of 1.0μg/m3for annual averagingtimes. West Virginia has no designated NO2non-attainment areas.45CSR30 - This West Virginia rule establishes a permitting program pursuant to TitleV of the CAA. Any major stationary source subject to enforceable NO2emissionlimitations or control measures pursuant to 45CSR11, 45CSR13, 45CSR14,45CSR16, 45CSR18 or 45CSR19 will be contained in a permit issued by WestVirginia under its established Title V permit program. The effective date of interimapproval of West Virginia’s Title V Program and 45CSR30 was 12/15/95. EPA fullyapproved the West Virginia Title V program viadirect final rule published on 10/03/01(66FR50325). EPA approved revisions to 45CSR30 contained in DAQ’s 07/01/01 rulevia a separate DFR published on 10/09/01 (66FR51318). These revisions becamefederally effective 11/23/01. West Virginiasubmitted a revision of its approvedOperating Permit Program to EPA Region III on June 6, 2012.4Pursuant to West Virginia Code, §22-5-1 declares the state’s public policy “to fulfill itsprimary responsibility for assuring air quality pursuant to the ‘Federal Clean Air Act’, asamended.”The Secretary has the authority under W.Va. Code §§22-5-4(a)(1) & (3) “to developways and means for the regulation and controlof pollution of the air of the state” and“conduct such studies and research relating to air pollution and its control andabatement”.§110(a)(2)(B)provide for establishment andoperation of appropriate devices,methods, systems, andprocedures necessary tomonitor, compile, and analyzedata on ambient air quality, andupon request, make such dataavailable to the Administrator;Establishment of Monitoring System:Pursuant to West Virginia Code, §22-1-1(a)(1), “protecting the environment isfundamental to the health and welfare ofindividual citizens,” and, the state “has a duty to provide and maintain a healthfulenvironment for our citizens.” Under §22-1-1(a)(2), “the state has the primaryresponsibility for protecting the environment.” §22-1-1(b) “declares that theestablishment of a department of environmentalprotection is in the public interest” andthat “It is the policy of the state .....to useall practical means and measures to preventor eliminate harm to the environment and biosphere, to create and maintain conditionsunder which man and nature can exist in productive harmony, .....”Additionally, §22-5-1 declares thestate’s public policy “to fulfill its primary responsibilityfor assuring air quality pursuant to the‘Federal Clean Air Act’, as amended.”As set forth in §22-1-1(b)(5), the WVDEP,“insofar as federal environmental programsrequire state participation” must “endeavor toobtain and continue state primacy in theadministration of such federally-mandated programs,.....and to cooperate withappropriate federal agencies tomeet environmental goals.”Under §22-1-6(a), the WVDEP Cabinet Secretary “is the chief officer of thedepartment” with the powers, duties and authority pursuant to §§22-5-2(3) and 22-5-4.The Secretary has the authority under W.Va. Code §§22-5-4(a)(1) & (3) “to developways and means for the regulation and controlof pollution of the air of the state” and“conduct such studies and research relating to air pollution and its control andabatement”.Monitoring System Operation:On February 17, 2012, EPA promulgated air qualitydesignations for the 2010 1-hour NO2NAAQS. In this final rule at 77FR9584, the entirestate of West Virginia is designated unclassifiable/attainment for the 2010 1-hour NO2NAAQS. Because WestVirginia has no NO2nonattainment areas and is well below thethresholds of the criteria to establish NO2monitoring, no monitoring for this pollutant isnecessary.5§110(a)(2)(B)(continued)Availability of Data:In order to keep EPA informed of planned changes to monitoringsites, WVDEP provides EPA Region III with adequate prior notification.Details of thesechanges and anticipated approvals of the changes are communicated to EPA. On anannual basis, WVDEP submits to EPA a monitoring site design plan required under 40CFR §58.10, that describes how West Virginia is complying with monitoringrequirements and explains any changes to the monitoring network. This plan alsoprovides for a description of each change, the reason for each change, and any otherinformation relevant to the change. West Virginia’s 2011 Annual Air Quality MonitoringNetwork Design Plan was submitted toEPA on June 22, 2011, and consequentlyapproved by EPA via letter received by West Virginia on December 6, 2011. On June27, 2012, West Virginia submitted a 2012 Annual Air Quality Monitoring NetworkDesign Plan to EPA.As provided in West Virginia Code, §§22-5-4(a)(2), 22-5-10 and §110(a)(2)(B) of theCAA, WVDEP will collect and report to EPA ambient air quality data. The reports willcomply with the federal requirements of 40CFR §58.16. The data is reviewed, edited,validated, and entered into the EPA air quality system (AQS) forupdating pursuant toprescribed AQS procedures. The EPA AQS receives each report within 90 days afterthe end of the quarterly reporting period. Datais certified annually as required under 40CFR §58.15.§110(a)(2)(C)include a program to provide forthe enforcement of the measuresdescribed in subparagraph (A)and regulation of the modificationand construction of any stationarysource within the areas coveredby the plan as necessary toassure that national ambient airquality standards are achieved,including a permit program asrequired in parts C and D;Enforcement of Control Measures for the 2010 1-Hour NO2NAAQS:Pursuant to§22-1-6(a), the WVDEP Cabinet Secretary “isthe chief officer of the department” withthe powers, duties and authority pursuant to §§22-5-2(3) and 22-5-4.The Secretary has the authority under W.Va. Code §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) to promulgate rules in accordance with the Administrative Procedures Act(W.Va. Code §§ 29A3-1 et seq.)The Secretary has the authority under W.Va. Code §22-5-4(a)(5) “to enter ordersrequiring compliance withthe provisions of this article andthe rules lawfullypromulgated hereunder.”The Secretary has the authority under W.Va.Code §22-5-4(a)(9) “to enter and inspectany property, premise or place ....for the purpose of ascertaining the state ofcompliance with this article and the rules promulgated under the provisions of thisarticle.”The Secretary has the authority under W.Va. Code §22-5-4(a)(16) “to do all thingsnecessary and convenient to prepare and submit a plan or plans for theimplementation, maintenance andenforcementof the Federal Clean Air Act .....”6§110(a)(2)(C)(continued)The Secretary also has the authority under W.Va. Code §22-5-5 to enter an orderdirecting a person tocease and desist activity which violates theprovisions of §22-5-1et seq and therules promulgated pursuant thereto.Pursuant to W.Va. Code §22-5-6,violators of theprovisions of §22-5-1 et seq and therules promulgated pursuant thereto are subject to civil penalty.West Virginia therefore has an establishedlegal framework and inherent ability toprovide for the enforcement of the measures described the §110(a)(2)(A) element ofthis document, and contained in a permit issued under 45CSR13, 45CSR14,45CSR19 or 45CSR30 (see below).Regulation of the Modification and Construction of Stationary Sources:ThePrevention of Significant Deterioration (PSD) and nonattainment area New SourceReview (NNSR) programs contained in Parts C and D of Title I of the CAA, andcollectively referred to as the major New Source Review (NSR) program, governpreconstruction review and permitting of any new or modified major stationary sourcesof air pollutants regulated under the CAA as well as any precursors to the formation ofthat pollutant when identified for regulation by EPA. Forthe 2010 1-hour NO2NAAQS,West Virginia's permitting program includes the following three SIP approved rules:NSR rule 45CSR13 (72FR5932) which provides a permitting program for constructionand modification of minor sources, PSD rule 45CSR14 (77FR63736) which satisfiesthe prevention of significant deteriorationpermit program requirements in Part C of theCAA, and NNSR rule 45CSR19 (71FR64468) which satisfies the nonattainment areanew source review permit program requirements set forth in Part D of the CAA. WestVirginia also has an approved Title V operating permit program (66FR50325).West Virginia’s SIP-approved minor NSR permitting program under 45CSR13(72FR5932) provides regulation of the modification and construction of minorstationary sources as necessary to assure that the 2010 1-hour NO2NAAQS areachieved.EPA has not proposed to amendthe PSD regulations with regard to the 2010 1-hourNO2NAAQS. However, West Virginia will revise its PSD program under 45CSR14(77FR63736) to address any applicable EPA amendments of the NO2PSD ruleswithin three years from the date of such amendments.West Virginia is authorized to implement its existing PSD permit program in order toensure that the construction and modification of major stationary sources does notcause or contribute to a violation of the 2010 1-hour NO2NAAQS through SIPapproved PSD rule 45CSR14 (77FR63736). The PSD program will regulate futuregrowth and provide for continued maintenance of the standard.7The purpose of 45CSR14 is to satisfy the prevention of significant deterioration permitprogram requirements in Part C of the CAA. 45CSR14 containsa significant impactlevel for NO2of 1.0μg/m3for annual averaging times and a de minimis air qualityimpact concentration of 14μg/m3over an annual averaging time. 45CSR14 alsocontains a maximum allowable pollutant concentration increase over baselineconcentration for NO2of 2.5, 25 and 50μg/m3for annual arithmetic mean averagingtime in Class I, Class II and Class III areas, respectively, and a maximum allowablepollutant concentration increase over minor source baseline concentration for NO2of25μg/m3for annual arithmetic mean averaging time. A PSD source in an attainmentarea may have a NO2emission limitation in a permit under 45CSR14 based upon aBACT analysis in accordance with CAA Sections 165(a)(3) and (4).West Virginia PSD rule 45CSR14 limits PSD applicability with respect to greenhousegas-emitting sources by adopting the applicability thresholds included in EPA’sTailoring Rule. West Virginia’s 2012 legislative rule 45CSR14became effective onJune 1, 2012. The fully-adopted rule was submitted to EPA as a SIP revision on June6, 2012.West Virginia NNSR rule 45CSR19 (71FR64468) satisfies the nonattainment areanew source review permit program requirements in Part D of the CAA. On June 6,2012, West Virginia submitted a subsequentrevision to the SIP which includesrevisions to 45CSR19 that include new Significant Impact Levels promulgated by EPA.45CSR19 contains a significance level for NO2and significant impact level (ambientair concentration increase) of 1.0μg/m3for annual averaging times. West Virginia hasno designated NO2non-attainment areas. West Virginia will revise its NNSR programto address any applicable EPA amendments of the NO2NNSR rules within threeyears from the date of such amendments.45CSR30 - This West Virginia rule establishes a permitting program pursuant to TitleV of the CAA. Any major stationary source subject to enforceable NO2emissionlimitations or control measures pursuant to 45CSR11, 45CSR13, 45CSR14,45CSR16, 45CSR18 or 45CSR19 will be contained in a permit issued by WestVirginia under its established Title V permit program. The effective date of interimapproval of West Virginia’s Title V Program and 45CSR30 was 12/15/95. EPA fullyapproved the West Virginia Title V program viadirect final rule published on 10/03/01(66FR50325). EPA approved revisions to 45CSR30 contained in DAQ’s 07/01/01 rulevia a separate DFR published on 10/09/01 (66FR51318). These revisions becamefederally effective 11/23/01.§110(a)(2)(D)contain adequate provisions -(i) prohibiting, consistent with theSignificant Contribution and Interference with Maintenance:EPA has designatedall monitored areas throughout the nation,including all states which border WestVirginia, as unclassifiable/attainment for the 2010 1-hour NO2NAAQS. Because there8§110(a)(2)(D)(continued)provisions of this title, any sourceor other type of emissions activitywithin the state from emitting anyair pollutant in amounts whichwill-(I) contribute significantly tononattainment in, or interfere withmaintenance by, any other statewith respect to any such nationalprimary or secondary ambient airquality standard, or(II) interfere with measuresrequired to be included in theapplicable implementation planfor any other State under part Cto prevent significantdeterioration of air quality or toprotect visibility,(ii) ensuring compliance with theapplicable requirements ofsections 126 and 115 (relating tointerstate and internationalpollution abatement);are no NO2nonattainment areas, there are no sources within West Virginia that emitNO2which contribute significantly to nonattainment in, or interfere with maintenanceby, any other state with respect to the 2010 1-hour NO2NAAQS.As set forth in 45CSR14-4, ambient air quality increments and ceilingsare not confinedto a state boundary. Pursuant to the public review procedures set forth in 45CSR14-17,West Virginia must provide notice to anystate affected by a proposed source ormodification. The WVDAQ must send a copy of the advertisement to the applicant, tothe Administrator, and to officials and agencies having cognizance over the locationwhere the proposed construction would occur as follows:any other State or local airpollution control agencies, the chief executives of the city and county where the sourcewould be located; any comprehensive regional land use planning agency, any State,and any Federal Land Manager, whose lands may be affected by emissions from thesource or modification.As set forth in 45CSR14-9, any person proposing to construct or relocate a majorstationary source or to make a major modification must demonstrate that allowableemission increases from the proposed sourceor modification, in conjunction with allother applicable emission increases or reductions (including secondary emissions)would not cause or contribute to air pollutionin violation of any National Ambient AirQuality Standard or any applicable maximum allowable increase over the baselineconcentrationin any area.Interference With Required Measures Under Part C:Because there are no NO2nonattainment areas, there are no sources within West Virginia that interfere withmeasures in an applicable implementation planfor any other state under Part C of theCAA to prevent significant deterioration ofair quality or to protect visibility. WestVirginia confirms that new major sources and major modifications in the state aresubject to PSD under legislative rule 45CSR14. The purpose of this West Virginia SIPapproved rule (77FR63736) is to satisfy the prevention of significant deteriorationpermit program requirements in Part Cof the CAA. Under 45CSR14, “.....allapplications filed by any person to construct major new or modified stationary airpollution sources, intending to locate in areas with air quality better than the levels setto protect the public health and welfare, orthat might impact those areas, mustadequately meet the pre-construction reviewprocedures and conditions of the CleanAir Act as amended ....”. This rule includesspecific federal requirements which ensurethat new or modified sources do not interfere with measures to prevent significantdeterioration of air quality by providing amechanism to prevent the development of anynew non-attainment problems. 45CSR14 requires the evaluation of sources of airpollutants and to preclude the construction orrelocation of any major stationary sourceor major modification in any area classified as attaining National Ambient Air QualityStandards or unclassifiable in which the establishment of such source or modificationmay interfere with the goals of the prevention of significant deterioration of air qualitylevels.9West Virginia confirms that new major sources and major modifications in nonattainment areas of the state are subject to NNSR under legislative rule 45CSR19.The purpose of this West Virginia SIP approved rule (71FR64468) is to satisfy thenonattainment area new source review permit program requirements in Part D of theCAA. West Virginia has no designated NO2non-attainment areas.Protect Visibility:West Virginia received partial approval of its Regional Haze SIP onMarch 23, 2012 at 77FR16973.Ensuring Compliance with Sections 126 and 115: West Virginia has demonstratedthat it has met its obligations pursuant toCAA Section 126(a) through the adoption of45CSR14-7,Public Review Procedureswhich requires notification to other states ofpotential impacts from a source. West Virginia has no currently pending obligationspursuant to CAA Section 126(b). West Virginia has submitted to EPA (June 6, 2012) afully-adopted PSD program under 45CSR14 that applies to all regulated NSRpollutants, including GHG. 45CSR14 limits PSD applicability with respect togreenhouse gas-emitting sources by adoptingthe applicability thresholds included inEPA’s Tailoring Rule. West Virginia’s 2012 legislative rule45CSR14 became effectiveon June 1, 2012. The fully-adopted rule was submitted to EPA as a SIP revision onJune 6, 2012. West Virginia has made thenecessary submittals to demonstrate thatWest Virginia has adequate provisions ensuring future compliance with therequirements of Section 126(a) of theCAA as may be necessary. There are nopending actions pursuant to NO2and Sections 126(b) or (c), or 115 of the CAAapplicable to West Virginia.§110(a)(2)(E)(i)provide(i) necessary assurances thatthe state (or, except where theAdministrator deemsinappropriate, the generalpurpose local government orgovernments, or a regionalagency designated by the stateor general purpose localgovernments for such purpose)will have adequate personnel,funding, and authority understate (and, as appropriate, local)law to carry out suchimplementation plan (and is notprohibited by any provision ofPersonnel:WVDEP has demonstrated adequate personnel to carry out theimplementation plan with respect to the 2010 1-hour NO2NAAQS. The Secretaryemploys adequate personnel and retains specialists under W.Va. Code §22-5-4(a)(8)that are "necessary, incident or convenient" to accomplish the statutory mandate tocarry out the implementation plan. WVDAQhas a staff of approximately 90 full timeemployees. The West Virginia Air Directorsupervises the air monitoring, complianceand enforcement, hazardous waste, permittingand planning sections, as well as threeregional DAQ offices, and answers to the WVDEP Cabinet Secretary. Because of thenature of the national and state economies, WVDAQ does not anticipate any changesin resources considered necessary duringthe 5 years following SIP submittal; andprojects a similar resource need at 1, 3, and five year intervals.Funding:The APCA (Chapter 2, Article 5 of the W.Va. Code) provides adequatefunding under W.Va. Code §§22-1-10(a) and 22-5-4(a)(17) to carry out theimplementation plan. W.Va. Code §22-5-12 sets forth the statutory operating permitrequirements for stationary sources underTitle V of the CAA. 45CSR30 establishesfees sufficient to cover the direct and indirect costs of administering the air pollution10§110(a)(2)(E)(i)(continued)federal or state law from carryingout such implementation plan orportion thereof);control planning process, Title V operating permit program, and support the airpollution control program authorized by statute. The APCA also authorizes theestablishment of fees to cover non-Title V permitting costs under 45CSR22. The airquality program also receives revenue from fines and penalties (Air Pollution ControlFund) and federal funds under Section 105 and 103 of the CAA, and state general fundappropriations.Legal Authority:The APCA, W.Va. Code §22-5-1,declares the state's policy "to fulfillits primary responsibility for assuring air quality" pursuant to the CAA. The WVDEPCabinet Secretary is authorized under W.Va. Code §§22-1-6(c)(1) and 22-5-4(a)(12) tocarry out and represent the state in any and all matters pertaining to theimplementation plan, including revising the SIP as necessary. The Secretary has theauthority under W.Va. Code §22-5-4(a)(16) “to do all things necessary and convenientto prepare and submit a plan or plans for the implementation, maintenance andenforcement of the Federal Clean Air Act ....” The Secretary is not prohibited by anyprovision of federal or state law from carrying out the implementation plan or portionthereof. The legal authorities specified are available to the WVDEP Cabinet Secretaryat the time of submission of this SIP revision.West Virginia has adopted emission standards and limitations and other measuresnecessary for attainment and maintenance ofnational standards. The Secretary hasthe authority under W.Va. Code §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) topromulgate rules in accordance with the Administrative Procedures Act (W.Va. Code§§ 29A3-1 et seq.). Approximately forty rules promulgated under the auspices of theAPCA are currently in effect and codifiedat Title 45 of the Code of State Rules,including the 2010 1-hour NO2NAAQS and NAAQS for other criteria pollutantscontained in SIP approved rule 45CSR8 (77FR56125). Statutory permittingrequirements are set forth in W.Va. Code §§22-5-11 & 12. West Virginia has an EPAapproved air permitting program for both major and minor facilities, under state rules45CSR13, 45CSR14, 45CSR19 and 45CSR30 (as applicable).The WVDEP Cabinet Secretary is authorized to enforce applicable laws, regulations,and standards under WV Code §§22-1-6(d)(3), 22-05-4(a)(5) and 22-05-4(a)(6), andseek injunctive relief under WV Code §22-5-7.The WVDEP Cabinet Secretary is authorized to abate pollutant emissions on anemergency basis to prevent substantial endangerment to the health of persons. W.Va.Code §22-5-5 authorizes the Secretary to issue an order to cease and desist anyactivity that violates the APCA. The Secretary may also suspend, modify or revoke asource’s permit. Under §22-5-6, the Secretary may also institute lawsuits for civilpenalties. §22-5-7 authorizes the Secretary to seek applications for injunctive relief.§22-5-8 authorizes the Secretary, with the written authorization of the Governor, to shutdown a source of NO2emissions, thereby preventingthe emission of air pollutantswhich substantially contributes to an emergency that requires immediate action to11§110(a)(2)(E)(i)(continued)protect public health. As provided in West Virginia Code, §§22-5-4(a)(2) and 22-5-10,the Secretary may consult with EPA to affirmaccuracy of any information consideredwhile executing authority under §§22-5-5, -6, -7 or -8.The WVDEP Cabinet Secretary is authorized toprevent construction, modification, oroperation of a facility, building,structure, or installation,or combination thereof, whichdirectly or indirectly results or may resultin emissions of any air pollutant at anylocation which will prevent the attainmentor maintenance of a national standard. Newmajor sources and major modifications in West Virginia are subject to PSD underlegislative rule 45CSR14. The purpose ofthis West Virginia SIP approved rule(77FR63736) is to satisfy the prevention ofsignificant deterioration permit programrequirements in Part C of the CAA. Under45CSR14, “.....all applications filed by anyperson to construct major new or modified stationary air pollution sources, intending tolocate in areas with air quality better than the levels set to protect the public health andwelfare, or that might impact those areas,must adequately meet the pre-constructionreview procedures and conditions of the Clean Air Act as amended ....”. This ruleincludes specific federal requirements which ensure that new or modified sources donot interfere with measures to prevent significant deterioration of air quality byproviding a mechanism to prevent thedevelopment of any new non-attainmentproblems. 45CSR14 requires the evaluation ofsources of air pollutants and to precludethe construction or relocation of any major stationary source or major modification inany area classified as attaining National Ambient Air Quality Standards orunclassifiable in which the establishment ofsuch source or modification may interferewith the goals of the prevention of significant deterioration of air quality levels.Pursuant to W.Va. Code §22-5-4(a)(14), theWVDEP Cabinet Secretary is authorizedto obtain information necessary to determine whether air pollution sources are incompliance with applicable laws, regulations, and standards. Under WV Code §§22-5-4(a)(14) and 22-5-4(a)(15), the WVDEP Cabinet Secretary is authorized to requirerecordkeeping. Under W. Va. Code §22-5-44(a)(9), the WVDEP Cabinet Secretary isauthorized to and to make inspections andconduct tests of air pollution sources.Under W.Va. Code §22-5-4(a)(15), the WVDEP Cabinet Secretary is authorized torequire owners or operators of stationary sources to install, maintain, and use emissionmonitoring devices and to make periodic reports to the State on the nature andamounts of emissions from such stationarysources. Under WV Code §22-5-10, theWVDEP Cabinet Secretary is authorized to make such data available to the public asreported and as correlated with any applicable emission standards or limitations.§110(a)(2)(E)(ii)(ii) requirements that the statecomply with the requirementsrespecting state boards undersection 128, andState Boards Under Section 128:Because West Virginia does not have a boardwhich approves permits or enforcementorders, this element is not applicable.12§110(a)(2)(E)(iii)(iii) necessary assurances that,where the state has relied on alocal or regional government,agency, or instrumentality for theimplementation of any planprovision, the state hasresponsibility for ensuringadequate implementation of suchplan provision;Responsibility for Implementation ofAssured Local Plan Provision:West Virginiahas not relied onany local or regional government, agency, or instrumentality for theimplementation of any state implementation plan provision for the 2010 1-hour NO2NAAQS. West Virginia will retain primacy with respect to any future plan that relies onlocal or regional governments, agencies or instrumentalities. By statute, West Virginiahas prime responsibility for ensuring adequateimplementation of such a plan provision.The Secretary has the authority under W.Va. Code §22-5-4(a)(16) “to do all thingsnecessary and convenient to prepare and submit a plan or plans for theimplementation, maintenance and enforcement of the Federal Clean Air Act .....”As set forth in §22-1-1(b)(5), the WVDEP,“insofar as federal environmental programsrequire state participation” must “endeavor toobtain and continue state primacy in theadministration of such federally-mandated programs,.....and to cooperate withappropriate federal agencies to meet environmental goals.”§110(a)(2)(F)require, as may be prescribed bythe Administrator -(i) the installation,maintenance, and replacementof equipment, and theimplementation of othernecessary steps by owners oroperators of stationary sourcesto monitor emissions from suchsources,(ii) periodic reports on thenature and amounts ofemissions and emissions-relateddata from such sources, and(iii) correlation of such reportsby the state agency with anyemission limitations or standardsestablished pursuant to this Act,which reports shall be availableat reasonable times for publicinspection;Monitoring:W.Va. Code §22-5-4(a)(15) authorizes the Secretary to require theinstallation, maintenance and replacement of equipment, and the implementation ofother necessary steps by owners or operators of stationary sources to monitor andreport emissions of NO2from such sources as the Secretary may prescribe. Under thisauthority, West Virginia requires the installation, maintenance, and replacement ofmonitoring equipment at stationary sources through permits issued under 45CSR13,45CSR14, 45CSR19, 45CSR30, and via compliance orders. West Virginia is subjectto the Air Emission Reporting Rule (AERR)set forth in 40 CFR Part 51, Subpart A.WVDAQ’s emissions inventory program provides source-specific emissions data toEPA pursuant to the AERR reporting requirements.45CSR16 - The purpose of this rule isto incorporate thefederal New SourcePerformance Standards under Part A of the Clean Air Act and 40 CFR Part 60. Allcurrent monitoring requirements for NO2promulgated under 40 CFR Part 60 areincorporated by reference under 45CSR16 except any limitation or standard that maybe included in Subparts B, C, Ca, Cb,Cc, Cd, Ce, Ea, Eb, Ec, WWW, AAAA, BBBB,CCCC, DDDD, EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule isto adopt standards of performance, andestablish emission guidelines and compliance times pursuant to Sections 111(d) and129 of the federal Clean Air Act for solid waste combustion sources in West Virginia.Section 111(d)/129 solid waste combustion sources in West Virginia are subject to anyapplicable NO2monitoring requirement promulgated under 40 CFR 60, Subparts Eb,AAAA, Ec, Ce, CCCC, DDDD, EEEE and LLLL.Reporting:In accordance with the emission reports and recordkeeping requirementsset forth in 40 CFR §51.211, W.Va. Code §§22-5-4(a)(15) authorizes the Secretary to13require periodic reports on the nature andamounts of emissions and emissions-relateddata from owners or operators of stationary sources (monitoring data) of NO2. Pursuantto W.Va. Code §§22-5-4(a)(14), the Secretaryis authorized to require such informationas the Secretary may require in a formor manner prescribed by the Secretary(emissions inventory program). Under this authority, West Virginia requires periodicreports on the nature and amounts of emissions and emissions-related data fromstationary sources through permits issued under 45CSR13, 45CSR14, 45CSR19,45CSR30 and via compliance orders. WVDAQperiodically reports emission inventoryinformation to EPA as required by 40 CFR Part 51, Subparts A and K.45CSR16 - The purpose of this rule isto incorporate thefederal New SourcePerformance Standards under Part A of the Clean Air Act and 40 CFR Part 60. Allcurrent reporting requirements for NO2promulgated under 40 CFR Part 60 areincorporated by reference under 45CSR16 except any limitation or standard that maybe included in Subparts B, C, Ca, Cb,Cc, Cd, Ce, Ea, Eb, Ec, WWW, AAAA, BBBB,CCCC, DDDD, EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule isto adopt standards of performance, andestablish emission guidelines and compliance times pursuant to Sections 111(d) and129 of the federal Clean Air Act for solid waste combustion sources in West Virginia.Section 111(d)/129 solid waste combustion sources in West Virginia are subject to anyapplicable NO2reporting requirement promulgated under 40 CFR 60, Subparts Eb,AAAA, Ec, Ce, CCCC, DDDD, EEEE and LLLL.Correlation of Reports:W.Va. Code §22-1-6(d)(3) authorizes the Secretary to“investigate for violations of statutes orrules which the department is charged withenforcing.” §22-5-4(a)(3) authorizes the Secretary to correlate periodic emissionsreports with any NO2emission limitations or standards established pursuant to45CSR11, 45CSR13, 45CSR14, 45CSR18, 45CSR19, 45CSR30 or the CAA. As setforth in W.Va. Code §22-5-10, the Secretary makes available at reasonable times forpublic inspection the periodic emissions reported under §§22-5-4(a)(14) & (15). TheSecretary has the responsibility of making all records, reports or information obtainedby the Department or referred to at public hearings under the provisions of the APCAavailable to the public, except to the extentthe records, reports or information areprotected by confidentiality pursuant to 45CSR31. The types of records DEP routinelyprovides access to include notifications, inspection reports, notices of violation,enforcement orders, applications, permit review letters, sample results, monitoringreports, permits, approvals and denials that would relate to §110(a)(2)(F). WVDEPgenerally makes information available for public access through its website, but alsomakes hard copy reports available uponwritten request. CEMS emissions data areuploaded to AIRS and CAMD, and EPA may make such data available to the public.§110(a)(2)(G)provide for authority comparableComparable Authority:W.Va. Code §22-5-5 authorizes the Secretary to issue an14to that in section 303 andadequate contingency plans toimplement such authority;order to cease and desist any activity thatviolates the APCA. The Secretary may alsosuspend, modify or revoke a source’s permit. Under §22-5-6, the Secretary may alsoinstitute lawsuits for civil penalties. §22-5-7 authorizes the Secretary to seekapplications for injunctive relief. §22-5-8 authorizes the Secretary, with the writtenauthorization of the Governor,to shut down a source of NO2emissions, therebypreventing the emission of air pollutantswhich substantially contributes to anemergency that requires immediate action toprotect public health. As provided in WestVirginia Code, §§22-5-4(a)(2)and 22-5-10, the Secretary may consult with EPA toaffirm accuracy of any information considered while executing authority under §§22-5-5, -6, -7 or -8.Contingency Plans:West Virginia satisfies the criteria to be classified a Priority IIIRegion under 40 CFR §51.150(f) for NO2, as it does not meet the criteria set forth in 40CFR §§51.150(a)-(e). Pursuant to 40 CFR §51.152(c), areas classified as Priority III donot need to develop episode (contingency) plans.45CSR11 - The purpose of this West Virginia SIP approved rule (58FR34526) is toprovide a mechanism to prevent the buildup of air pollutant concentrations duringperiods of adverse meteorological conditions in which air pollutants may accumulate,thereby preventing the occurrence of anemergency due to the effects of thesepollutants on health. To achieve this purpose, three (3) stages of criteria (pollutantconcentration levels) have been established andspecific emission reduction plans willbe developed which will be initiated at each criteria stage toprevent furtherdeterioration of the air supply to any air quality region or substantial portion thereof.45CSR11 contains episode criteria, methods of measurement, preplanned reductionstrategies and emission reductionplan requirements for sources of NO2emissions inWest Virginia.§110(a)(2)(H)provide for revision of such plan-(i) from time to time as may benecessary to take account ofrevisions of such nationalprimary or secondary ambientair quality standard or theavailability of improved or moreexpeditious methods of attainingsuch standard, and(ii) except as provided inparagraph (3)(C), whenever theAdministrator finds on the basisof information available to theRevision of NAAQS:To satisfy the SIP revision provisions set forth in 40 CFR§51.104, W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all thingsnecessary and convenient to prepare andsubmit a plan for the implementation,maintenance and enforcement of the Clean Air Act. WVDEP has historically revised,and will continue to revise its NAAQS rules as necessary to take account of revisionsof the national primary or secondary ambientair quality standards or improved or moreexpeditious methods of attaining the standards. Below are brief recent historyexamples of how West Virginia has promulgated various versions of NAAQS rule45CSR8 to incorporate revisions to the primary and secondary NAAQS:On February 10, 2009, West Virginia received full SIP approval of its 2008 NAAQS rule45CSR8 (74FR6552). This rule contains ambient air quality standards for all criteriapollutants, including the 2006 PM2.5NAAQS, equivalent to the national primary andsecondary ambient air quality standards established under Section 109 of the Clean AirAct, and promulgated by the United StatesEnvironmental Protection Agency under 4015§110(a)(2)(H)(continued)Administrator that the plan issubstantially inadequate to attainthe national ambient air qualitystandard which it implements, orto otherwise comply with anyadditional requirementsestablished under this Act;CFR Part 50 through June 1, 2007.The 2009 version of 45CSR8 includes the revised the 8-hour primary and secondaryozone NAAQS. Revisions to the rule also include deletion of references to the obsoleteone-hour ozone NAAQS. EPAannounced reconsiderationof the 2008 primary andsecondary ozone standards on September 16, 2009. Subsequently, EPA Region IIIadvised the WV DAQ that 45CSR8 may notbe approvable into the SIP because theozone standard is under reconsideration. At the request of EPA Region III, 45CSR8was withdrawn as a revision to the SIP on November 16, 2009.The 2010 version of 45CSR8 included the revised national primary and secondary leadNAAQS and deletion of redundant methods of measurement language in section 4.EPA Region III advised the WV DAQ that the2010 version of 45CSR8 may not beapprovable into the SIP because the ozone standard is under reconsideration. At therequest of EPA Region III, 45CSR8 was not submitted as a revision to the SIP.West Virginia submitted a NAAQS SIP revision to EPA Region III on July 8, 2011.Revisions to the 2011 version of NAAQS rule 45CSR8 provide for incorporation byreference of the NAAQS as promulgated by the EPA as of June 1, 2010, rather thanreiterating the NAAQS in the rule. EPAhas revised the primary nitrogen dioxideNAAQS, and 45CSR8 incorporates by reference the 2010 1-hour NO2NAAQS. OnSeptember 12, 2012, West Virginia received full SIP approval of 2011 rule 45CSR8(77FR56125).West Virginia submitted a NAAQS SIP revision to EPA Region III onJune 6, 2012.Revisions to the 2012 version of the ruleincorporate by reference the 2010 1-hour SO2NAAQS. Specifically, EPA established a new 1-hour SO2standard at a level of 75 partsper billion (ppb), based on the 3-year average of the annual 99th percentile of 1-hourdaily maximum concentrations.Inadequate Plan:W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all thingsnecessary and convenient to prepare andsubmit a plan for the implementation,maintenanceand enforcement of the Clean Air Act. When, if ever, EPA finds the SIPis substantially inadequate to attain the NAAQS which it implements or otherwise tocomply with the CAA, West Virginia will revise the plan as necessary for adequacy.§110(a)(2)(J)meet the applicable requirementsof section 121 (relating toconsultation) and section 127(relating to public notification)andpart C (relating to prevention ofsignificant deterioration of airquality and visibility protection)Consultation:Satisfying the applicable requirementsof Section 121 of the CAA, theW.Va. APCA provides adequate authority under W.Va. Code §22-5-4(a)(2) for WestVirginia’s practices of consultation with local governments, organizations and LandManagers for purposes of air pollution control.WVDEP also consults with such entitiesregarding implementation plans for air quality maintenance requirements,preconstruction review of direct sources, nonattainment requirements, and preventionof significant deterioration. For the 2010 1-hour NO2NAAQS, West Virginia’s16§110(a)(2)(J)(continued)permitting program includes three SIP approved rules: minor NSR rule 45CSR13(68FR9559), PSD rule 45CSR14 (77FR63736), and major NSR 45CSR19(71FR64468). West Virginia also has anapproved Title V operating permit program(66FR50325). WVDEP has previouslydemonstrated a commitment to suchconsultation through encouragement and support for an Early Action Compact, andthrough Federal Land Manager consultation for the WV Haze SIP.Notification:W.Va. Code §22-4-(a)(10) authorizes the WVDAQ to notify the public ofimminent and serious hazards to public health. W.Va. Code §22-1-12 providesauthority for the public notification of NAAQS violations and education efforts asrequired by CAA Section 127. Each year,WVDEP issues a comprehensive Air QualityAnnual Report, which compares monitored air quality data with the NAAQS, and tracksthe Air Quality Index. The Report contains emissions information and air qualityhighlights from the previous year, and providespublic awareness of criteria pollutantsand their effects on health; educational website links to tips that improve air quality,links to technical websites and outreach efforts.PSD and Visibility:Pursuant to the CAA, if a regulated pollutant becomes subject toregulation under PSD, West Virginia’s PSD rule 45CSR14 provides for theimplementation of any new PSD requirementsthat are triggered upon the effective dateof any new NAAQS. West Virginia submitted 2012 PSD rule 45CSR14 as a SIPrevision to EPA Region III onJune 6, 2012. This fully-adopted rule applies to allregulated NSR pollutants, including greenhouse gases.There are no new applicable visibility protection obligationsunder Section 110(a)(2)(J)as a result of the 2010 1-hourNO2NAAQS.§110(a)(2)(K)provide for:(i) the performance of such airquality modeling as theAdministrator may prescribe forthe purpose of predicting theeffect on ambient air quality ofany emissions of any air pollutantfor which the Administrator hasestablished a national ambient airquality standard, and(ii) the submission, upon request,of data related to such air qualitymodeling to the Administrator;Air Quality Modeling:West Virginia Code §§22-5-4(a)(1)&(3) authorizes theSecretary to “develop ways and means for theregulation and control of pollution of theair of the state” and “conduct such studiesand research relating to air pollution and itscontrol and abatement”. Inherent in West Virginia's authority to meet the NAAQS andto conduct studies and research is the obligation for WVDEP to perform modeling asrequired under the CAA to demonstrate attainment of the NAAQS, as prescribed by theAdministrator. WVDAQ employs one full timetechnical employee who is responsiblefor air quality modeling. WVDEP also participates in regional planning organizationssuch as the Southeastern Modeling Analysis and Planning project (SEMAP), whichperforms NAAQS modeling for member states. Any air quality modeling to beconducted with respect to the NO2NAAQS may be source-oriented dispersion modelssuch as AERMOD.Submission of Data:W.Va. Code §§22-5-4(a)(2), 22-5-10 and 22-5-4(a)(16)authorizes the Secretary to submit, upon request by the Administrator, modeling datapredicting the effect on ambient air qualityof any emissions of any air pollutant for17which the Administrator has established anational ambient air quality standard. WestVirginia will submit to EPA current and future air quality modeling data as part of itsrelevant SIP submissions and through Federalgrant commitments or in other ways thatEPA may request. West Virginia can also provide relevant data as part of the NAAQSimplementation process.§110(a)(2)(L)§110(a)(2)(L)(continued)require the owner or operator ofeach major stationary source topay to the permitting authority,as a condition of any permitrequired under this Act, a feesufficient to cover-(i) the reasonable costs ofreviewing and acting upon anyapplication for such a permit,and(ii) if the owner or operatorreceives a permit for suchsource, the reasonable costs ofimplementing and enforcing theterms and conditions of any suchpermit (not including any courtcosts or other costs associatedwith any enforcement action),until such fee requirement issuperseded with respect to suchsources by the Administrator'sapproval of a fee program undertitle V;Permit Fees for Permit Review, Implementation and Enforcement:West Virginiahas SIP approved PSD rule 45CSR14 (77FR63736) and major NSR rule 45CSR19(71FR64468) (construction permits). Programpermit fees are contained in the rules.The collected fees have been sufficient to cover permit review, and implementationand enforcement of permit terms and conditions.West Virginia also has an approved Title V operating permit program under 45CSR30(66FR50325). Title V Program permit fees which satisfy the fee determination andcertification requirements set forth in 40CFR §70.9 are contained in the rule. Thecollected fees have been sufficient to cover permit review, and implementation andenforcement of permit terms and conditions.§110(a)(2)(M)provide for consultation andparticipation by local politicalsubdivisions affected by the plan;Consultation:The WVDEP Cabinet Secretary has the authority under W.Va. Code§22-5-4(a)(16) “to do all things necessary andconvenient to prepare and submit a planor plans for the implementation, maintenance and enforcement of the Federal CleanAir Act .....” Under this statute, and pursuant to the General Plan Requirements setforth in 40 CFR §51.240, the West Virginia Division of Air Quality is the organizationauthorized to develop, implement and enforcethe SIP. W.Va. Code §22-5-4(a)(2),authorizes the Secretary to advise, consult and cooperate with local politicalsubdivisions affected by the implementation plan. West Virginia consults with localgovernments, organizations and Land Managers with respect to SIP development.18WVDAQ also consults with such entities regarding implementation plans for air qualitymaintenance requirements, preconstruction review of direct sources, nonattainmentrequirements, and prevention of significant deterioration.Notice and Opportunity for Public Hearing:In accordance with the federalprocedural requirements at 40 CFR §51.102, any plan or plan revision, or individualcompliance schedule, prepared by WVDAQ is subject to a 30 day public notice periodwith public hearing, or in cases where there is little anticipated public interest, theopportunity for a public hearing. Staterules which contain such public noticeprocedures include permitting rules 45CSR13, 45CSR14, 45CSR19 and 45CSR30.

# F INAL WEST VIRG INIA STATE IMP LEMENTATIO N P LAN REVISION

F OR CLEAN AIR ACT SECTION 110(A)(2) (A)- (M) REQUIREMENTS

F OR NITROGEN DIOXIDE

RESPONSE TO COMMENTS

On November 2, 2012, the Divi sion of Air Quality (DAQ ) commenced a thirty day public

comment period to acc ept written comments and/or a written reque st for a public hear ing on a

proposed revision to the State I mplementation Plan which demonstrates that West Virgi nia has

adequate resour ces and authority to implement the 2010 1-hour nitrog en diox ide National Ambient

Air Qua lity

Standards.

Writt en comments wer e acc epted throug h 6:00 PM on Monday

, Decem ber 3, 2012. No

commenter submitt ed written comments reg arding the proposed implementation plan revision, and

no person reque sted a public hear ing. Consequently

, DAQ published in the W est Virginia Register

on Dec ember

7, 2012, a public notice a nnouncing that a public hea ring will not be held.

# Volume XXIX



# Issue 44

November 2, 2012



# Pages 1794

- 1824



# A Weekly Publication

Administrative Law Division

Judy Cooper, Manager

Natalie E. Tennant

Secretary of State

Administrative Law Division

Bldg. 1, Suite 157K

1900 Kanawha Blvd. E.

Charleston, WV 25305-0770

(304) 558-6000

www. wvsos.com 

# WEST

VIRGINIA

REGISTER

Published by the Office of the Secretary of State

CONTENTS

I. Chronological Index

II. Open Government Meetings Listing

III. Price List

IV. Rule Monitor

V. Notices

a. Legislative Rules

b. Interpretive Rules

c. Procedural Rules

d. Emergency Rules

e. Legislative Rule-Making Review Committee

VI. Legislative Interims

VII. Orders

VIII. Ethics Commission Opinions

IX. Office of Tax Appeal Decisions

X. Other Documents or Information Filed

XI. Publication Deadlines and Publication Dates



# U"l'

# AGENCY

AccessWV

Administration, Dept. of

Blue Ridge CTC

Commerce

Consolidated Public Retirement Board

Courthouse Facilities Improvement Authority

Culture and History, WV Div. of

Dental Examiners 

# I i 

# DHHR-BMS, WV

, Early Intervention lnteragency

1 

# Coordinating Council,;wv

Eastern WV Comm. Action Agency

Education 

# I

Educational Broadcasting Authority

Environmental Protection 

# I

Fairmont State University Bd. of Gov.

Forestry, Div. of 

# I

Glenville State College Bd. of Gov.

Governor Earl Ray Tomblin 

# I

Health and Human Resources

Health Care Authority, WV 

# J

Health Sciences 

# & Technolog Academy (HSTA)

Higher Education Policy Commission

Highways 

# I

Infrastructure & 

# Jobs Development Council

Jobs Investment Trust Board 

# I

Kanawha Co. Solid Waste Auth.

Lottery 

# I

McDowell Co. Alternative Sentencing Program

Motor Vehicles, Div. of 

# I

New River Comm. & Tech. College

North Central Community Corrections

Northern Panhandle Comm. Criminal Justice Board

Optometry, WV Board of

Parkways Authority

Physical Therapy, WV Bd. of

Poison Center, WV

Proclamation

Professional Engineers, WV Bd. of

Public Defender Corp. 

# I

Public Employees Grievance Board

Real Estate Comm. 

# I

Regional Jail & 

# Correctional Facility Auth.

Ron Yost Personal Assistance Services Program

School Board Association, WV

State Rail Authority

Transportation, WV Dept. of

Veterinary Medicine

West Virginia Northern Comm. College

WVUH-E/City Hospital, INc.

, 

# __ I 

# PAGE(S)

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# NOTICE OF PUBLIC COMMENT PERIOD 

# 2012 OCT 25 Pl1 2: 57

The West Virginia Department of Environmental Protection (DEP) is announcing an

opportunity for public comment on a proposed revision to the State Implementation. Plan (SIP) 

# OTHER



# PUBLIC NOTICE

2UI2 

# OCT 25 PH 2:**0~** 

# WEST VIRGINIA MEDICAID PROGRAM

cHANGE To THE

,, I

# ~_,c..:._!:..:-; 

# rATE--

regarding the 2010 1-hour nitrogen dioxide (NO,) National Ambient Air Quality**Sf~ildards** 

# , "" 

# :,1-!Jt

__________ _

_________ [NAAQS)_The SIP is the plan developed by West Virginia in order to fulfill its-responsibilities

___ _ 

# ------REIMBuRsEMENT METHODO[OGY-

--



# F under the Clean Air Act (CAA) to attain and maintain the NAAQS promulgated by the U.S.

Environmental Protection Agency (U.S. EPA). The public comment period begins November 2,

2012 and ends December 3, 2012.

In this proposed revision to the SIP, West Virginia is demonstrating that it has adequate

resources and authority to implement the 20 I 0 1-hour NO, NAAQS. Compliance with specific

CAA section IIO(a)(2) requirements is detailed in a document demonstrating that the State meets

these express requirements through authorities granted under state laws and regulations, as well

as implementation of existing air programs. DEP is seeking comments on whether the document

adequatelydemonstrates_West Virginia's compliance with the pertinent federal CAA mandates

- related to 

# tliese SIP infrastructure elements.

Upon completion of the public notice period, and after addressing any written comment,

the DEP will submit the final documentation to the U.S. EPA as a revision to the SIP. This

proposed SIP revision is considered to be non-controversial in nature. Therefore, a public hearing

will be held only if requested in writing, and the written request is received by December 3,

20 I 2. Any person who requests a public hearing should identify any substantive issue they intend

to raise in a hearing. If properly requested, the hearing will be held beginning at 6:00p.m. on

December 10,2012 at the address below and the public comment period will be extended until

the close of the hearing. A public notice announcing whether a hearing will be held will be

posted in the 

# West Virginia Register published on December 7, 2012.

Copies of the proposed CAA**~110(a)(2)** 

# SIP revision may be viewed between 8:30a.m.

and 4:30p.m. at the DEP Division of Air**Qn~lity...{>()k5-/th--SE,--Ehar!eston;-\Vv-2530.r,----­** 

# beginning November 2, 2012, or electronically upon e-mail request to:

Tammy.L.Mowrer@wv.gov. The proposal may also be accessed via the following web address:

http://www.dep.wv.gov/daq/Generai/Pages/PublicNoticeandComment.aspx.

Send written comments to be included in the formal record to John A. Benedict, Director,

Division of Air Quality at the above address. Please identify the document to which the

comments apply, the commenter's name, address, and telephone number. Comments will also be

accepted by e-mail if received by 5:00p.m. on December 3, 2012 to:**Tammy.L.Mowrer~IMV.gov.** 

# Comments submitted by U.S. Mail must be postmarked by

December 3, 2012. 

# FOR

ACUTE CARE HOSPITALS

Pursuant to 42 U.S.C. §1396a(a)(13)(1997) and 42 C.F.R. §447.205, the Department of

Health and Human Resources (Department). Bureau for Medical Services (Bureau)

provides notice of the filing of a state plan amendment to modify reimbursement to West

Virginia acute care hospitals.

Effective-October 1, 2012, the Bureau will revise its acute care hospital reimbursement

to provide for interim payments, subject to final settlement, from a pool of funds to be

directed toward acute care prospective payment system (PPS) hospitals and hospitals

providing tertiary and rural safety net services. This plan amendment will continue to

classify hospitals based on U.S. Census classification for rural and metropolitan

statistical areas.

The purpose and rationale for this plan amendment is to renew the PPS and tertiary and

rural safety net hospitals' supplemental payment pools and set new pool amounts.

This plan amendment is expected to result in an annual aggregate amount $56,631,315

for fiscal year 2013.

Documents detailing lhesa--proposed--actions-wilJ--be-avanallteTor publtc tnspection in

each county office of the Department of Health and Human Resources during normal

business hours, 8:30a.m. to 4:30p.m., beginning November 1, 2012 through December

1, 2012 and on the web at: www.dhhr.wv.gov/bms under Public Notices.

Written comments may be sent to the West Virginia Department 

# of Hei:llth and Human

Resources, Bureau for Medical Services, 350 Capitol Street, Suite 251, Charleston, WV

25301-3706 or on the web at www.dhhr.wv.gov/bms under Public Notices or by email to

SPAcomments@IW.gov. Any written comments received will be available for review at

the above address during normal business hours of 8:30 a.m. to 4:30 p.m., beginning

November 1, 2012 through December 1, 2012 or on the web at www.dhhr.wv.gov/bms

under Public Notices.



# - 00 

# "'

# NOTICE OF P UBLIC HEARING CA NCELLATIO N

I n the Novembe r 2, 2012 W est Virginia Register , the West Virg inia Depa rtment of

Environmental Protec tion (DEP) announc ed an oppor tunity for a public hear ing on a

proposed

revision to the State I mplementation Plan (SI P) reg arding the 2010 1-hour nitrog en dioxi de

2 

# (NO ) Na tional Ambient Air Quality Standards (N AAQS). I

n this proposed revision to the SI P,

West Virginia is de monstrating tha t it has adequa te re source s and authority to implement the

2 

# 2010 1-hour NO NAAQS. Compliance w ith specific CAA se ction 110(a) (2) r equire ments is

detailed in a doc ument demonstrating that the State meets these express require ments throug h

authorities g rante d under state laws and r eg ulations, as well as implementation of e x isting air

prog rams. DEP soug ht comments on whether the document a dequate ly demonstrates West

Virg inia’s compliance with the pertinent fe dera l CAA mandates r elated to these SI P

infrastruc ture e lements. The public c omment period beg an Nove mber 2, 2012 a nd ended

Dec ember

3, 2012. No per son reque sted a public he aring . There fore the public hea ring

tentatively

schedule d for De cembe r 10, 2012 is here by canc elled.

# BILLED 

# TO



# L CHARLESTON NEWSPAPERS

P.O. Box 2993

Charleston, West Virginia 25330

Billing 348-4898

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CHARLESTON WV 25304 USA



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TOTAL INVOICE AMOUNT 187.11

OFFICIAl SEAl

Notary Public, State of West Virginia



# MARY T PRILLAMAN

5508 Ohio Street

Soulh Charleston, WV 25309**~,;("?'** 

# My commission expires Apri112,2021

# Volume XXIX

Issue 49

December 7, 2012



# Pages 1 967

- 2016



# A Weekly Publication

Administrative Law Division

Judy Cooper, Manager

Natalie E. Tennant

Secretary of State

Administrative Law Division

Bldg. I, Suite 157K

1900 Kanawha Blvd. E.

Charleston, WV 25305-0770

(304) 558-6000

www.wvsos.com 

# WEST

VIRGINIA

REGISTER

Published by the Office of the Secretary of State

CONTENTS

I. Chronologicallndex

II. Open Government Meetings Listing

Ill. 

# Price List

IV. Rule Monitor

V. Notices

a. Legislative Rules

b. Interpretive Rules

c. Procedural Rules

d. Emergency Rules

e. Legislative Rule-Making Review Committee

VI. Legislative Interims

VII. Orders

VIII. Ethics Commission Opinions

IX. Office of Tax Appeal Decisions

X. Other Documents or Information Filed

XI. Publication Deadlines and Publication Dates

# AGENCY

Administration, Dept. of

Affordable Housing Trust Fund



# Agriculture

Bluefield State College Bd. of Gov.

Broadband Deployment Council

Calhoun Co. Solid Waste Auth.



# Charleston Area Alliance

City Hospital Inc

Commerce

Comm. & 

# Tech. College Education

Consolidated Public Retirement Bd.

Corridor G Regional Development Auth.

Crime, Delinquency 

# & Correction

Dental Examiners



# DOA

Early Childhood Advisory Council

Eastern WV Comm. 

# & Tech. College

Education

Education and the Arts

Educational Broadcasting Auth.

EMS Advisory Council

Enterprise Resource Planning Bd.



# Environmental Protection

Environmental Quality Bd.

Fairmont State University



# Governor, Office of the

Grievance Decisions

Harrison Co. Comm.

Health and Human Resources

Health Care Authority

Highland Hospital Association

Homeland Security & 

# Emergency Management

Human Rights Comm.

Insurance Commission

Investment Management Bd.

Justice & 

# Comm. Services {DJCS)

Kanawha Co. Solid Waste Auth.

Kanawha Valley Comm. & 

# Tech. College

King Coal Highway 1-73174 Auth.

Kyova Interstate Planning Comm.

Labor

Landscape Architects, Bd. of

Legislative Interim

Lottery

Marshall University

McDowell Co. Alternative Sentencing Program

Medicine

Miner Training, Education and Certification

Monongalia Co. Solid Waste Auth.

Municipal Pensions Oversight Bd.

Natural Resources, Div. of

New RiverComm. 

# & Tech. College

Nursing Home Administrators licensing Bd.

Oil and Gas

Optometry, WV Bd. of

Osteopathic Medicine

Osteopathic Medicine, WV School of

Pharmacy, Bd. of

Professional Engineers, Bd. of

Public Broadcasting, WV

Public Defender Corporations

Public Defender Services

Public Port Auth. Bd.

Public Service Comm.

Putnam Co. Oev. Auth.

Racing Comm.

Real Estate Appraiser Bd.

Real Estate Comm.

Region 11 Planning 

# & Development Council

Regional Intergovernmental Council

Registered Professional Nurses

Respiratory Care, Bd. of

Revenue/DHHR

School Building Auth.

Solid Waste Mgmt. Bd.

State Election Comm.

Tax Department

Transportation

West Uberty University

West Virginia University Bd. of Gov.

West Virginia University Hospitals 

# PAGE(S)

1968

1968

1995,2000

1968

1968

1968

1968



# 1968

1968

1968, 1999

1969

1969

1995-6

2000-2

1969

1969

1969

1969

1970

1970

1970

1970

1970,2013

1970

1970

1971

2011-12

1971

1967,1979,1996,2013

1971,2010,2014-5

1971

1971

1971

2010

1971-2

1972

1972

1972

1972

1972

1972

1973

2009

1973

1973

1973

2002-3, 2010

1973

1973

1973

1973

1973

1974

1998

1974,2004

2004-5,2010

1974

1974,2006

1974

1974

1975

1975

1975

1975

1975

1997

1976

1976,2010

1976

1976

2007-8

1976

1976

1976

1977

1977

2015-16

1977

1977

1977

1978

# NOTICE OF PUBLIC**IIEARI~G CA~CELLATI0:'\1** 



# In the November 2, 2012 1/l.•st l'i1giuia R<:J.!H/1!1", 

# the West Virginia Dl'partmcnt of

Fnvironmt:ntal Protection (DEP) announced an opportunity for a public hearing on a proposed

re1•ision to tht: State lmpkmcntation Plan (SIP) regarding the 2010 \-hour nitrogen dioxide



# (NO:) National Ambient Air Quality 

# Stand;nds (NAAQS). In this proposed revision to the SIP,

Wt:st Virginia is demonstrating that 

# it has adequate resources and authority to implement the**~0!0** 

# \-hour**NO~** 

# NAAQS. Compliance with specific CAA section I \O(a)(2) requirements is

d<!ta!lcd in a document demonstrating that the State**m~:cts thc~e**  

# express reqturements through

iiUthorities gmnted under state laws and regulations, as well as implementation of existing air

programs. DF.P sought comments on 

# whether the document adequately demonstrates West

Vtrginia's compliance with the pertinent federal CAA 

# mandates related to these SIP

infrastructure clemcnts. The public comment**p~:riod** 

# began November 

# 2, ::!012 and**~:ndcJ** 

# December 3, 

# 2012. No person requested a 

# public hearing. Therefore the public hearing

tcntatiwly scheduled for December \0, 

# 2012 is hereby cancelled.

<;Q**~** 

# '



# C•

# ~·

# ~~>' 

# m,.**~**



# ;::;



# co**~** 

# n 

# '

r

# ~ 

# 9

r



# co 

# OTHER 

# @

STAlE 

# <W W[ST \'IRGI:-11.4.



# Dl:PART!\U:NT OF HEALTH AND 

# IIUMA..''Ii RESOURCES

HURF:AU t'OR PUDI.IC IlEAL Til

OHIC:E OF EN\'IR0;.1,1EN'J'AL m:AL'I'II SERVICES

Earl Ray Tomblin Rocco S. Fuctlto

Governor Cabinet**S~cr~tny**



# MEMORANDUM

To: Interested Parties

From: Robert W. DeCrease, P. E . 

# .J?;Iu,J-**~** Drinking Water Treatment

# £~~~!ving Fund

Date:

Subject: November 30, 2012



# Gilmer County Public Service District- Water Line Extensions

DWTRF# I\DWTRFB012

IJDC# 2010\V-1177

Gilmer County**~~ ~** **~**

# ~

co**~** 

# n 

# ' J. ·, 

# r



# 8**~**

# E~· '!?

N 

# m:J.o·



# co

The West Virginia Bureau for Public Heallh (Bureau) is issuing 

# a Finding of No Significant

Impact (FONSI) for the Gilmer County Public Service District's Water Line Extensions to Cox's Run,

Wolf Pen and Alice Road project 

# ,-·

The review process dctennined no significant environmental impacts would result from the

proposed action. Consequently, a preliminary decision not to prepare an Environmentul Impact

Statement has been made.

This action 

# is based on a careful review of the environmental information documents and other

supporting data. These documents are on file at the Bureau, Environmental Engineering Division, and

are available for public review upon request. The FONST is also available at the Infrastructure &



# Capacity Development website h!!Irl/www.wvdhhr.org!oehs!eedli&cd under the link for DWTRF

Project Environmental Reviews.

Comments supporting or disagreeing with th1s preliminary decision may be submitted within 30

days of issuance of the FONSI for consideration to Paul Daniels, at 350 Capitol Street, Room 313,

Charleston, West Virginia 25301-3713. You may email comments to paul.e.daniels@wy.gov. You

may 

# FAX comments to (304) 558-4322. After evaluating the comments received, the Bureau will

make a c'lccision no sooner than thirty (30) calendar days from the date of this Finding of No Significant

Impact. No administrative action will be taken with respect to this proposal during this time frame.

RWD:ped

350 Capitol Street, Room 313

Charll"'lon, Wei! Virginia 25JOI-3713**Tdephon~:** 

# (304) 558-2981



# "'

0



# w

# NOTICE OF P UBLIC COMMENT P ERIOD

The West Virg inia Depa

rtment of Environmenta l Protection (DEP) is announc ing a n

opportunity

for public c omment on a proposed r evision to the State I mplementation Plan (SI P)

2 

# reg arding the 2010 1-hour nitrog en dioxi de (N O ) Na tional Ambient Air Quality Standards

(NAA QS). The SI P is t he plan de veloped by West Virginia in or der to fulf ill it s responsibilities

under the Clean Air Ac t (CAA) to attain a nd maintain the NAAQ S promulga ted by the U.S.

Environmental Protec tion Age ncy (U.S. EPA). The public c omment period beg ins November 2,

2012 and ends D ece mber 3, 2012.

I n this proposed revision to the SI P, W est Virg inia is demonstrating that it has adequa te

2 

# resour ces a

nd authority

to implement the 2010 1-hour NO NAAQS. Compliance w ith specific

CAA section 110(a )(2) require ments is detailed in a docume nt demonstrating that the State meets

these e x press re quirements throug h authorities g rante d under state laws and r eg ulations, as well

as implementation of existi ng air prog rams. DEP is seeking comments on whethe r the doc ument

adequately

demonstrates West Virg inia’s compliance with the pertinent fe dera l CAA mandates

rela ted to these SI P infrastructur e ele ments.

Upon completion of the public notice period, a nd afte r addr essing any

written comment,

the DEP will submit the final doc umentation to the U.S. EPA as a re vision to t he SI P. This

proposed SI P revision is considered to be non-controve rsial in nature . There fore , a public hea ring

will be held only

if reque sted in writing, a nd the written re quest is rec eived by Dec ember

3,

2012. Any

person who r equests a public he aring should identify any substantive issue they

intend

to raise in a he aring . I f prope rly reque sted, the hea

ring will be held beg inning a t 6:00 p.m. on

Dec ember

10, 2012 at the addr ess below a nd the public comment per iod will be ext ended until

the close of

the hea ring . A public notice a

nnouncing whether

a hea ring will be held will be

posted in the W

est Virginia Register

published on Dec ember

7, 2012.

Copies of the propose d CAA §110(a) (2) SI P revision may be viewe d betwee n 8:30 a.m.

and 4:30 p.m. at the DEP Division of Air Qua lity , 601 57th SE, Charleston, WV 25304,

beg inning Nove mber 2, 2012, or e lectronic ally upon e-ma il request to:

Tammy .L .Mowrer @wv.g ov. The proposa l may also be a cce ssed via the f ollowing we b addre ss:

http:// www.de p.wv.g ov/daq/Gene ral/Pag es/PublicNoticeandComment.aspx.

Send written comments to be include d in the formal r ecor d to J ohn A. B enedic t, Direc tor,

Division of Air Quality

at the above addre ss. Please identify the document to which the

comments apply , the commenter ’s name, a ddress, a nd telephone numbe r. Comments will also be

acc epted by

e-ma il if rece ived by

5:00 p.m. on Dece mber 3, 2012 to:

Tammy .L .Mowrer @wv.g ov. Comments subm itted by U.S. Mail must be postm arke d by

Dec ember

3, 2012.

# - dep

west virginia department of environmental protection

Division of Air Quality

601 57th Stre e t S E

C harle s t o n

, WV 25304

Phon e 304 / 926-04 75 • FAX: 3 04 / 926-04 79



# Ms. Diana Esher

, Director

Air Protection Division

U.S. EPA

, Region III (3APOO)

1650 Arch Street

Philadelphia, P A 19103-2029 October 31,2012 Earl R ay T o mblin

, Gov e rnor

Rand y C. Huffman

, C abin e t Se c r e tary

www

. d e p

. wv

. gov



# Re: Proposed West Virginia State Implementation Plan Revision for Clean Air Act Section

11 O(a)(2)(A)-(M) Requirements for Nitrogen Dioxide- Request For Comments

Dear Ms. Esher:

Enclosed for your agency's review and comment is a copy of the proposed West Virginia State

Implementation Plan (SIP) revision for the Clean Air Act Section 11 O(a)(2)(A)-(M) requirements

for nitrogen dioxide. In this proposed SIP revision, the State is demonstrating that it has adequate

resources and authority to implement the 2010 1-hour nitrogen dioxide NAAQS. Compliance with

specific CAA section 11 O(a)(2) requirements is detailed in a doc u ment demonstrating that the State

meets these express requirements through authorities granted under state l aws and regulations

, as

well as implementation of existing air programs.

DEP is seeking comments on whether the document adequate l y demonstrates West Virginia's

compliance with the pertinent federal CAA mandates related to these infrastructure elements

. We

are announcing an oppmiunity for public comment on this proposed SIP revision. The public

comment period begins November 2, 2012 and ends December 3, 2012. A copy of the public notice

is also enclosed. Please submit any written comments to my attention at the above address. If you

or your staff has any questions or needs more information regard i ng this matter, please contact me

at (304) 926 -04 62.

JAB / jlm

Enclosure

cc: Marilyn Powers John A. 

# Benedic t

Director



# Promoting a hea lthy env ironm e nt.west virginiadepartment of environmentalprotectionProposed West VirginiaState Implementation Plan Revision forClean Air Act Section 110(a)(2)(A)-(M)Requirements for Nitrogen DioxideNovember 2, 2012West Virginia Division of Air Quality601 57thStreet, SECharleston, W.Va. 25304Promoting a healthy environmentThis page intentionally left blank.1Proposed West Virginia State Implementation Plan Revision forClean Air Act Section 110(a)(2)(A)-(M) Requirements for Nitrogen DioxideA State Implementation Plan (SIP) is a plan for each state thatidentifies how that state will attain and/or maintain the primary and secondaryNational Ambient Air Quality Standards (NAAQS). The SIP is a series of complex, fluid documentscontaining regulations, source-specificrequirements, non-regulatory items such as plans and inventories,and in some cases additional requirements promulgated by theU.S.Environmental Protection Agency (EPA). The initial SIPs for states were approvedby EPA on May 31, 1972. SIPs can be revised bythe statewith EPA approval as necessary. The federally enforceable SIP forWest Virginia is compiled in 40CFR Part 52, Subpart XX. In this revisionto the SIP, West Virginia is demonstrating that it has adequate resources and authority to implement the 2010 1-hour nitrogen dioxide (NO2)NAAQS. The 2010 1-hour NO2NAAQS are incorporated by reference inWest Virginia legislative Rule 45CSR8.This SIP revision addresses requirements of Section 110(a)(2)(A)-(M) of the Clean Air Act (CAA) many of which have been addressed inother SIP revisions. It is a compilation of elements that demonstrate how the 2010 1-hour NO2NAAQS is being implemented, maintained andenforced in West Virginia. The elements of this SIP revision, once approved by EPA, will provide a federally enforceable compilation of howWest Virginia will continue to comply withthe Section 110(a)(2) requirements of the CAA.In 1961, the State Legislature passed the AirPollution Control Law of WestVirginia, making West Virginia the sixteenth stateto have astatewide air pollution control law. The law provided for a separate state agency composed of a seven member Commission, a Director andstaff. The powers, authorities and funding of the original Commission were subsequently conveyed to the Office of Air Quality and then tothe Division of Air Quality (WVDAQ) withinthe West Virginia Department of Environmental Protection (WVDEP). Staffing, fundingandlegal authorities now incorporate over 90 full time staff, with a multi-million dollar annual budget and approximately 40 legislative rules.DAQ has a variety of substantial funding sources, including construction/modification permit fees, Title V operating permit fees, non-Title Voperating fees, general State revenue and federal grant monies.The agency has demonstrated the ability toimplement state and federal requirements for fifty years as most recently evidencedby a federallyapproved revision to the West Virginia hospital/medical/infectious waste incinerator(HMIWI) Section 111(d)/129 plan, limited approval ofWest Virginia’s Regional Haze SIP revision,and approval of revisions to West Virginia’s Prevention of Significant Deterioration of AirQuality SIP. Legislative authority for the West Virginia air quality program relating to the responsibilities in the Clean AirAct is codified inthe West Virginia Air Pollution Control Act (APCA), W.Va. Code §22-5, more specifically §22-5-1, which gives West Virginia theprimaryresponsibility for assuring air quality pursuant to the CAA. Many elements of Section 110(a)(2)(A)-(M) already exist in the approved SIP orrecently submitted SIP revisions for other NAAQS. This SIP revision may reiterate and/orreinforce some of these previously submittedand/or approved elements. Some requirements, such as those for intergovernmentalconsultation, air qualitymodeling and compliance withPart D of the CAA, are fulfilled during the development and submission to EPA, as a SIP revision, of attainment plans and relatedrequirements under Subpart 1and Subpart 5 of the CAA. On February 17, 2012, EPA rule established air quality designations for all areas inthe United States for the 2010 1-hour NO2NAAQS. In the final rule at 77FR9584, EPA designated the entire stateof West Virginia asunclassifiable/attainment for the 2010 1-hour NO2NAAQS.2Section110(a) elementThe implementation plan shall:West Virginia Implementation§110(a)(2)(A)include enforceable emissionlimitations and other controlmeasures, means, or techniques(including economic incentivessuch as fees, marketable permits,and auctions of emissions rights),as well as schedules andtimetables for compliance as maybe necessary or appropriate tomeet the applicable requirementsof this Act.Enforceable Emission Limitations and Other Control Measures:The Secretaryhas the authority under W.Va. Code §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) topromulgate rules in accordance with the Administrative Procedures Act (W.Va. Code§§ 29A3-1 et seq.). Approximately forty rules implemented under the auspices of theAPCA are currently in effect and codified atTitle 45 of the West Virginia Code of StateRules, including the ambient air quality standards for criteria pollutants (including the2010 1-hour NO2NAAQS) contained in legislativerule 45CSR8. Enforceable emissionlimitations and other control measures for NO2may be found in the Code of StateRules as necessary or appropriate to meet the applicable requirements of the CAA:45CSR11 - The purpose of this West Virginia SIP approved rule (58FR34526) is toprovide a mechanism to prevent the buildupof air pollutant concentrations duringperiods of adverse meteorological conditions in which air pollutants may accumulate,thereby preventing the occurrence of anemergency due to the effects of thesepollutants on health. To achieve this purpose, three stages of criteria (pollutantconcentration levels) have been established andspecific emission reduction plans willbe developed which will be initiated at each criteria stage toprevent furtherdeterioration of the air supply to any airquality region or substantial portion thereof.45CSR11 contains episode criteria, methods of measurement, preplanned reductionstrategies and emission reduction plan requirements for sources of NO2emissions inWest Virginia.45CSR13 - The purpose of this West VirginiaSIP approved rule (72FR5932) is to setforth the procedures for stationary sourcereporting, and the criteria for obtaining apermit to construct and operate a new stationary source which is not a majorstationary source, to modify a non-major stationary source, to make modificationswhich are not major modifications to an existing major stationary source, to relocatenon-major stationary sources withinthe state of West Virginia. NO2is a “regulatedpollutant’” as defined under 45CSR13-2.20.b. An emissions increase of six (6) poundsper hour and ten (10) tons per year or more, or more than 144 pounds per calendarday of NO2triggers a modification under 45CSR13.45CSR14 - The purpose of this West Virginia SIP approved rule (77FR63736) is tosatisfy the prevention of significant deterioration permit program requirements in PartC of the CAA. 45CSR14 contains a significant impact level for NO2of 1.0μg/m3forannual averaging times and a de minimis air quality impact concentration of 14μg/m3over an annual averaging time. 45CSR14 also contains a maximum allowablepollutant concentration increase over baseline concentration for NO2of 2.5, 25 and 503§110(a)(2)(A)(continued)μg/m3for annual arithmetic mean averaging time in Class I, Class II and Class IIIareas, respectively, and a maximum allowable pollutant concentration increase overminor source baseline concentration for NO2of 25μg/m3for annual arithmetic meanaveraging time. A PSD source in an attainment area may have a NO2emissionlimitation in a permit under 45CSR14 based upon a BACT analysis in accordance withCAA Sections 165(a)(3) and (4).45CSR16 - The purpose of this rule is to incorporate the federal New SourcePerformance Standards under Part A of the Clean Air Act and 40 CFR Part 60. WestVirginia received NSPS program delegation for Part 60 NSPS authority under45CSR16 on December 14, 1984 at FR48692.West Virginia has received automaticdelegation of authority to enforce part 60 NSPS in accordance with EPA letters of03/19/01, and 01/08/02 as well as EPA’s Noticeat 67FR15486. All current emissionlimitations or standards of performance for NO2promulgated under 40 CFR Part 60are incorporated by reference under 45CSR16,except any limitation or standard thatmay be included in Subparts B, C, Ca, Cb, Cc, Cd, Ce, Ea, Eb, Ec, WWW, AAAA,BBBB, CCCC, DDDD, EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule is to adopt standards of performance, andestablish emission guidelines and compliance times pursuant to Sections 111(d) and129 of the federal Clean Air Act for solid waste combustion sources in West Virginia.EPA recently approved West Virginia’s Section 111(d)/129 Plan forhospital/medical/infectious waste incinerators at 77FR3389. Section 111(d)/129 solidwaste combustion sources in West Virginia are subject to any applicable NO2standard of performance or emissionguideline promulgated under 40 CFR 60,Subparts Eb, AAAA, Ec, Ce, CCCC, DDDD, EEEE and LLLL.45CSR19 - The purpose of this West Virginia SIP approved rule (71FR64468) is tosatisfy the nonattainment area new sourcereview permit program requirements inPart D of the CAA. 45CSR19 contains a significance level for NO2and significantimpact level (ambient air concentration increase) of 1.0μg/m3for annual averagingtimes. West Virginia has no designated NO2non-attainment areas.45CSR30 - This West Virginia rule establishes a permitting program pursuant to TitleV of the CAA. Any major stationary source subject to enforceable NO2emissionlimitations or control measures pursuant to 45CSR11, 45CSR13, 45CSR14,45CSR16, 45CSR18 or 45CSR19 will be contained in a permit issued by WestVirginia under its established Title V permit program. The effective date of interimapproval of West Virginia’s Title V Program and 45CSR30 was 12/15/95. EPA fullyapproved the West Virginia Title V program viadirect final rule published on 10/03/01(66FR50325). EPA approved revisions to 45CSR30 contained in DAQ’s 07/01/01 rulevia a separate DFR published on 10/09/01 (66FR51318). These revisions becamefederally effective 11/23/01. West Virginiasubmitted a revision of its approvedOperating Permit Program to EPA Region III on June 6, 2012.4Pursuant to West Virginia Code, §22-5-1 declares the state’s public policy “to fulfill itsprimary responsibility for assuring air quality pursuant to the ‘Federal Clean Air Act’, asamended.”The Secretary has the authority under W.Va. Code §§22-5-4(a)(1) & (3) “to developways and means for the regulation and controlof pollution of the air of the state” and“conduct such studies and research relating to air pollution and its control andabatement”.§110(a)(2)(B)provide for establishment andoperation of appropriate devices,methods, systems, andprocedures necessary tomonitor, compile, and analyzedata on ambient air quality, andupon request, make such dataavailable to the Administrator;Establishment of Monitoring System:Pursuant to West Virginia Code, §22-1-1(a)(1), “protecting the environment isfundamental to the health and welfare ofindividual citizens,” and, the state “has a duty to provide and maintain a healthfulenvironment for our citizens.” Under §22-1-1(a)(2), “the state has the primaryresponsibility for protecting the environment.” §22-1-1(b) “declares that theestablishment of a department of environmentalprotection is in the public interest” andthat “It is the policy of the state .....to useall practical means and measures to preventor eliminate harm to the environment and biosphere, to create and maintain conditionsunder which man and nature can exist in productive harmony, .....”Additionally, §22-5-1 declares thestate’s public policy “to fulfill its primary responsibilityfor assuring air quality pursuant to the‘Federal Clean Air Act’, as amended.”As set forth in §22-1-1(b)(5), the WVDEP,“insofar as federal environmental programsrequire state participation” must “endeavor toobtain and continue state primacy in theadministration of such federally-mandated programs,.....and to cooperate withappropriate federal agencies tomeet environmental goals.”Under §22-1-6(a), the WVDEP Cabinet Secretary “is the chief officer of thedepartment” with the powers, duties and authority pursuant to §§22-5-2(3) and 22-5-4.The Secretary has the authority under W.Va. Code §§22-5-4(a)(1) & (3) “to developways and means for the regulation and controlof pollution of the air of the state” and“conduct such studies and research relating to air pollution and its control andabatement”.Monitoring System Operation:On February 17, 2012, EPA promulgated air qualitydesignations for the 2010 1-hour NO2NAAQS. In this final rule at 77FR9584, the entirestate of West Virginia is designated unclassifiable/attainment for the 2010 1-hour NO2NAAQS. Because WestVirginia has no NO2nonattainment areas and is well below thethresholds of the criteria to establish NO2monitoring, no monitoring for this pollutant isnecessary.5§110(a)(2)(B)(continued)Availability of Data:In order to keep EPA informed of planned changes to monitoringsites, WVDEP provides EPA Region III with adequate prior notification.Details of thesechanges and anticipated approvals of the changes are communicated to EPA. On anannual basis, WVDEP submits to EPA a monitoring site design plan required under 40CFR §58.10, that describes how West Virginia is complying with monitoringrequirements and explains any changes to the monitoring network. This plan alsoprovides for a description of each change, the reason for each change, and any otherinformation relevant to the change. West Virginia’s 2011 Annual Air Quality MonitoringNetwork Design Plan was submitted toEPA on June 22, 2011, and consequentlyapproved by EPA via letter received by West Virginia on December 6, 2011. On June27, 2012, West Virginia submitted a 2012 Annual Air Quality Monitoring NetworkDesign Plan to EPA.As provided in West Virginia Code, §§22-5-4(a)(2), 22-5-10 and §110(a)(2)(B) of theCAA, WVDEP will collect and report to EPA ambient air quality data. The reports willcomply with the federal requirements of 40CFR §58.16. The data is reviewed, edited,validated, and entered into the EPA air quality system (AQS) forupdating pursuant toprescribed AQS procedures. The EPA AQS receives each report within 90 days afterthe end of the quarterly reporting period. Datais certified annually as required under 40CFR §58.15.§110(a)(2)(C)include a program to provide forthe enforcement of the measuresdescribed in subparagraph (A)and regulation of the modificationand construction of any stationarysource within the areas coveredby the plan as necessary toassure that national ambient airquality standards are achieved,including a permit program asrequired in parts C and D;Enforcement of Control Measures for the 2010 1-Hour NO2NAAQS:Pursuant to§22-1-6(a), the WVDEP Cabinet Secretary “isthe chief officer of the department” withthe powers, duties and authority pursuant to §§22-5-2(3) and 22-5-4.The Secretary has the authority under W.Va. Code §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) to promulgate rules in accordance with the Administrative Procedures Act(W.Va. Code §§ 29A3-1 et seq.)The Secretary has the authority under W.Va. Code §22-5-4(a)(5) “to enter ordersrequiring compliance withthe provisions of this article andthe rules lawfullypromulgated hereunder.”The Secretary has the authority under W.Va.Code §22-5-4(a)(9) “to enter and inspectany property, premise or place ....for the purpose of ascertaining the state ofcompliance with this article and the rules promulgated under the provisions of thisarticle.”The Secretary has the authority under W.Va. Code §22-5-4(a)(16) “to do all thingsnecessary and convenient to prepare and submit a plan or plans for theimplementation, maintenance andenforcementof the Federal Clean Air Act .....”6§110(a)(2)(C)(continued)The Secretary also has the authority under W.Va. Code §22-5-5 to enter an orderdirecting a person tocease and desist activity which violates theprovisions of §22-5-1et seq and therules promulgated pursuant thereto.Pursuant to W.Va. Code §22-5-6,violators of theprovisions of §22-5-1 et seq and therules promulgated pursuant thereto are subject to civil penalty.West Virginia therefore has an establishedlegal framework and inherent ability toprovide for the enforcement of the measures described the §110(a)(2)(A) element ofthis document, and contained in a permit issued under 45CSR13, 45CSR14,45CSR19 or 45CSR30 (see below).Regulation of the Modification and Construction of Stationary Sources:ThePrevention of Significant Deterioration (PSD) and nonattainment area New SourceReview (NNSR) programs contained in Parts C and D of Title I of the CAA, andcollectively referred to as the major New Source Review (NSR) program, governpreconstruction review and permitting of any new or modified major stationary sourcesof air pollutants regulated under the CAA as well as any precursors to the formation ofthat pollutant when identified for regulation by EPA. Forthe 2010 1-hour NO2NAAQS,West Virginia's permitting program includes the following three SIP approved rules:NSR rule 45CSR13 (72FR5932) which provides a permitting program for constructionand modification of minor sources, PSD rule 45CSR14 (77FR63736) which satisfiesthe prevention of significant deteriorationpermit program requirements in Part C of theCAA, and NNSR rule 45CSR19 (71FR64468) which satisfies the nonattainment areanew source review permit program requirements set forth in Part D of the CAA. WestVirginia also has an approved Title V operating permit program (66FR50325).West Virginia’s SIP-approved minor NSR permitting program under 45CSR13(72FR5932) provides regulation of the modification and construction of minorstationary sources as necessary to assure that the 2010 1-hour NO2NAAQS areachieved.EPA has not proposed to amendthe PSD regulations with regard to the 2010 1-hourNO2NAAQS. However, West Virginia will revise its PSD program under 45CSR14(77FR63736) to address any applicable EPA amendments of the NO2PSD ruleswithin three years from the date of such amendments.West Virginia is authorized to implement its existing PSD permit program in order toensure that the construction and modification of major stationary sources does notcause or contribute to a violation of the 2010 1-hour NO2NAAQS through SIPapproved PSD rule 45CSR14 (77FR63736). The PSD program will regulate futuregrowth and provide for continued maintenance of the standard.7The purpose of 45CSR14 is to satisfy the prevention of significant deterioration permitprogram requirements in Part C of the CAA. 45CSR14 containsa significant impactlevel for NO2of 1.0μg/m3for annual averaging times and a de minimis air qualityimpact concentration of 14μg/m3over an annual averaging time. 45CSR14 alsocontains a maximum allowable pollutant concentration increase over baselineconcentration for NO2of 2.5, 25 and 50μg/m3for annual arithmetic mean averagingtime in Class I, Class II and Class III areas, respectively, and a maximum allowablepollutant concentration increase over minor source baseline concentration for NO2of25μg/m3for annual arithmetic mean averaging time. A PSD source in an attainmentarea may have a NO2emission limitation in a permit under 45CSR14 based upon aBACT analysis in accordance with CAA Sections 165(a)(3) and (4).West Virginia PSD rule 45CSR14 limits PSD applicability with respect to greenhousegas-emitting sources by adopting the applicability thresholds included in EPA’sTailoring Rule. West Virginia’s 2012 legislative rule 45CSR14became effective onJune 1, 2012. The fully-adopted rule was submitted to EPA as a SIP revision on June6, 2012.West Virginia NNSR rule 45CSR19 (71FR64468) satisfies the nonattainment areanew source review permit program requirements in Part D of the CAA. On June 6,2012, West Virginia submitted a subsequentrevision to the SIP which includesrevisions to 45CSR19 that include new Significant Impact Levels promulgated by EPA.45CSR19 contains a significance level for NO2and significant impact level (ambientair concentration increase) of 1.0μg/m3for annual averaging times. West Virginia hasno designated NO2non-attainment areas. West Virginia will revise its NNSR programto address any applicable EPA amendments of the NO2NNSR rules within threeyears from the date of such amendments.45CSR30 - This West Virginia rule establishes a permitting program pursuant to TitleV of the CAA. Any major stationary source subject to enforceable NO2emissionlimitations or control measures pursuant to 45CSR11, 45CSR13, 45CSR14,45CSR16, 45CSR18 or 45CSR19 will be contained in a permit issued by WestVirginia under its established Title V permit program. The effective date of interimapproval of West Virginia’s Title V Program and 45CSR30 was 12/15/95. EPA fullyapproved the West Virginia Title V program viadirect final rule published on 10/03/01(66FR50325). EPA approved revisions to 45CSR30 contained in DAQ’s 07/01/01 rulevia a separate DFR published on 10/09/01 (66FR51318). These revisions becamefederally effective 11/23/01.§110(a)(2)(D)contain adequate provisions -(i) prohibiting, consistent with theSignificant Contribution and Interference with Maintenance:EPA has designatedall monitored areas throughout the nation,including all states which border WestVirginia, as unclassifiable/attainment for the 2010 1-hour NO2NAAQS. Because there8§110(a)(2)(D)(continued)provisions of this title, any sourceor other type of emissions activitywithin the state from emitting anyair pollutant in amounts whichwill-(I) contribute significantly tononattainment in, or interfere withmaintenance by, any other statewith respect to any such nationalprimary or secondary ambient airquality standard, or(II) interfere with measuresrequired to be included in theapplicable implementation planfor any other State under part Cto prevent significantdeterioration of air quality or toprotect visibility,(ii) ensuring compliance with theapplicable requirements ofsections 126 and 115 (relating tointerstate and internationalpollution abatement);are no NO2nonattainment areas, there are no sources within West Virginia that emitNO2which contribute significantly to nonattainment in, or interfere with maintenanceby, any other state with respect to the 2010 1-hour NO2NAAQS.As set forth in 45CSR14-4, ambient air quality increments and ceilingsare not confinedto a state boundary. Pursuant to the public review procedures set forth in 45CSR14-17,West Virginia must provide notice to anystate affected by a proposed source ormodification. The WVDAQ must send a copy of the advertisement to the applicant, tothe Administrator, and to officials and agencies having cognizance over the locationwhere the proposed construction would occur as follows:any other State or local airpollution control agencies, the chief executives of the city and county where the sourcewould be located; any comprehensive regional land use planning agency, any State,and any Federal Land Manager, whose lands may be affected by emissions from thesource or modification.As set forth in 45CSR14-9, any person proposing to construct or relocate a majorstationary source or to make a major modification must demonstrate that allowableemission increases from the proposed sourceor modification, in conjunction with allother applicable emission increases or reductions (including secondary emissions)would not cause or contribute to air pollutionin violation of any National Ambient AirQuality Standard or any applicable maximum allowable increase over the baselineconcentrationin any area.Interference With Required Measures Under Part C:Because there are no NO2nonattainment areas, there are no sources within West Virginia that interfere withmeasures in an applicable implementation planfor any other state under Part C of theCAA to prevent significant deterioration ofair quality or to protect visibility. WestVirginia confirms that new major sources and major modifications in the state aresubject to PSD under legislative rule 45CSR14. The purpose of this West Virginia SIPapproved rule (77FR63736) is to satisfy the prevention of significant deteriorationpermit program requirements in Part Cof the CAA. Under 45CSR14, “.....allapplications filed by any person to construct major new or modified stationary airpollution sources, intending to locate in areas with air quality better than the levels setto protect the public health and welfare, orthat might impact those areas, mustadequately meet the pre-construction reviewprocedures and conditions of the CleanAir Act as amended ....”. This rule includesspecific federal requirements which ensurethat new or modified sources do not interfere with measures to prevent significantdeterioration of air quality by providing amechanism to prevent the development of anynew non-attainment problems. 45CSR14 requires the evaluation of sources of airpollutants and to preclude the construction orrelocation of any major stationary sourceor major modification in any area classified as attaining National Ambient Air QualityStandards or unclassifiable in which the establishment of such source or modificationmay interfere with the goals of the prevention of significant deterioration of air qualitylevels.9West Virginia confirms that new major sources and major modifications in nonattainment areas of the state are subject to NNSR under legislative rule 45CSR19.The purpose of this West Virginia SIP approved rule (71FR64468) is to satisfy thenonattainment area new source review permit program requirements in Part D of theCAA. West Virginia has no designated NO2non-attainment areas.Protect Visibility:West Virginia received partial approval of its Regional Haze SIP onMarch 23, 2012 at 77FR16973.Ensuring Compliance with Sections 126 and 115: West Virginia has demonstratedthat it has met its obligations pursuant toCAA Section 126(a) through the adoption of45CSR14-7,Public Review Procedureswhich requires notification to other states ofpotential impacts from a source. West Virginia has no currently pending obligationspursuant to CAA Section 126(b). West Virginia has submitted to EPA (June 6, 2012) afully-adopted PSD program under 45CSR14 that applies to all regulated NSRpollutants, including GHG. 45CSR14 limits PSD applicability with respect togreenhouse gas-emitting sources by adoptingthe applicability thresholds included inEPA’s Tailoring Rule. West Virginia’s 2012 legislative rule45CSR14 became effectiveon June 1, 2012. The fully-adopted rule was submitted to EPA as a SIP revision onJune 6, 2012. West Virginia has made thenecessary submittals to demonstrate thatWest Virginia has adequate provisions ensuring future compliance with therequirements of Section 126(a) of theCAA as may be necessary. There are nopending actions pursuant to NO2and Sections 126(b) or (c), or 115 of the CAAapplicable to West Virginia.§110(a)(2)(E)(i)provide(i) necessary assurances thatthe state (or, except where theAdministrator deemsinappropriate, the generalpurpose local government orgovernments, or a regionalagency designated by the stateor general purpose localgovernments for such purpose)will have adequate personnel,funding, and authority understate (and, as appropriate, local)law to carry out suchimplementation plan (and is notprohibited by any provision ofPersonnel:WVDEP has demonstrated adequate personnel to carry out theimplementation plan with respect to the 2010 1-hour NO2NAAQS. The Secretaryemploys adequate personnel and retains specialists under W.Va. Code §22-5-4(a)(8)that are "necessary, incident or convenient" to accomplish the statutory mandate tocarry out the implementation plan. WVDAQhas a staff of approximately 90 full timeemployees. The West Virginia Air Directorsupervises the air monitoring, complianceand enforcement, hazardous waste, permittingand planning sections, as well as threeregional DAQ offices, and answers to the WVDEP Cabinet Secretary. Because of thenature of the national and state economies, WVDAQ does not anticipate any changesin resources considered necessary duringthe 5 years following SIP submittal; andprojects a similar resource need at 1, 3, and five year intervals.Funding:The APCA (Chapter 2, Article 5 of the W.Va. Code) provides adequatefunding under W.Va. Code §§22-1-10(a) and 22-5-4(a)(17) to carry out theimplementation plan. W.Va. Code §22-5-12 sets forth the statutory operating permitrequirements for stationary sources underTitle V of the CAA. 45CSR30 establishesfees sufficient to cover the direct and indirect costs of administering the air pollution10§110(a)(2)(E)(i)(continued)federal or state law from carryingout such implementation plan orportion thereof);control planning process, Title V operating permit program, and support the airpollution control program authorized by statute. The APCA also authorizes theestablishment of fees to cover non-Title V permitting costs under 45CSR22. The airquality program also receives revenue from fines and penalties (Air Pollution ControlFund) and federal funds under Section 105 and 103 of the CAA, and state general fundappropriations.Legal Authority:The APCA, W.Va. Code §22-5-1,declares the state's policy "to fulfillits primary responsibility for assuring air quality" pursuant to the CAA. The WVDEPCabinet Secretary is authorized under W.Va. Code §§22-1-6(c)(1) and 22-5-4(a)(12) tocarry out and represent the state in any and all matters pertaining to theimplementation plan, including revising the SIP as necessary. The Secretary has theauthority under W.Va. Code §22-5-4(a)(16) “to do all things necessary and convenientto prepare and submit a plan or plans for the implementation, maintenance andenforcement of the Federal Clean Air Act ....” The Secretary is not prohibited by anyprovision of federal or state law from carrying out the implementation plan or portionthereof. The legal authorities specified are available to the WVDEP Cabinet Secretaryat the time of submission of this SIP revision.West Virginia has adopted emission standards and limitations and other measuresnecessary for attainment and maintenance ofnational standards. The Secretary hasthe authority under W.Va. Code §§22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17) topromulgate rules in accordance with the Administrative Procedures Act (W.Va. Code§§ 29A3-1 et seq.). Approximately forty rules promulgated under the auspices of theAPCA are currently in effect and codifiedat Title 45 of the Code of State Rules,including the 2010 1-hour NO2NAAQS and NAAQS for other criteria pollutantscontained in SIP approved rule 45CSR8 (77FR56125). Statutory permittingrequirements are set forth in W.Va. Code§§22-5-11 & 12. West Virginia has an EPAapproved air permitting program for both major and minor facilities, under state rules45CSR13, 45CSR14, 45CSR19 and 45CSR30 (as applicable).The WVDEP Cabinet Secretary is authorized to enforce applicable laws, regulations,and standards under WV Code §§22-1-6(d)(3), 22-05-4(a)(5) and 22-05-4(a)(6), andseek injunctive relief under WV Code §22-5-7.The WVDEP Cabinet Secretary is authorized to abate pollutant emissions on anemergency basis to prevent substantial endangerment to the health of persons. W.Va.Code §22-5-5 authorizes the Secretary to issue an order to cease and desist anyactivity that violates the APCA. The Secretary may also suspend, modify or revoke asource’s permit. Under §22-5-6, the Secretary may also institute lawsuits for civilpenalties. §22-5-7 authorizes the Secretary to seek applications for injunctive relief.§22-5-8 authorizes the Secretary, with the written authorization of the Governor, to shutdown a source of NO2emissions, thereby preventingthe emission of air pollutantswhich substantially contributes to an emergency that requires immediate action to11§110(a)(2)(E)(i)(continued)protect public health. As provided in West Virginia Code, §§22-5-4(a)(2) and 22-5-10,the Secretary may consult with EPA to affirmaccuracy of any information consideredwhile executing authority under §§22-5-5, -6, -7 or -8.The WVDEP Cabinet Secretary is authorized toprevent construction, modification, oroperation of a facility, building,structure, or installation,or combination thereof, whichdirectly or indirectly results or may resultin emissions of any air pollutant at anylocation which will prevent the attainmentor maintenance of a national standard. Newmajor sources and major modifications in West Virginia are subject to PSD underlegislative rule 45CSR14. The purpose ofthis West Virginia SIP approved rule(77FR63736) is to satisfy the prevention of significant deterioration permit programrequirements in Part C of the CAA. Under45CSR14, “.....all applications filed by anyperson to construct major new or modified stationary air pollution sources, intending tolocate in areas with air quality better than the levels set to protect the public health andwelfare, or that might impact those areas,must adequately meet the pre-constructionreview procedures and conditions of the Clean Air Act as amended ....”. This ruleincludes specific federal requirements which ensure that new or modified sources donot interfere with measures to prevent significant deterioration of air quality byproviding a mechanism to prevent thedevelopment of any new non-attainmentproblems. 45CSR14 requires the evaluation of sources of air pollutants and to precludethe construction or relocation of any major stationary source or major modification inany area classified as attaining National Ambient Air Quality Standards orunclassifiable in which the establishment ofsuch source or modification may interferewith the goals of the prevention of significant deterioration of air quality levels.Pursuant to W.Va. Code §22-5-4(a)(14), theWVDEP Cabinet Secretary is authorizedto obtain information necessary to determine whether air pollution sources are incompliance with applicable laws, regulations, and standards. Under WV Code §§22-5-4(a)(14) and 22-5-4(a)(15), the WVDEP Cabinet Secretary is authorized to requirerecordkeeping. Under W. Va. Code §22-5-44(a)(9), the WVDEP Cabinet Secretary isauthorized to and to make inspections andconduct tests of air pollution sources.Under W.Va. Code §22-5-4(a)(15), the WVDEP Cabinet Secretary is authorized torequire owners or operators of stationary sources to install, maintain, and use emissionmonitoring devices and to make periodic reports to the State on the nature andamounts of emissions from such stationarysources. Under WV Code §22-5-10, theWVDEP Cabinet Secretary is authorized to make such data available to the public asreported and as correlated with any applicable emission standards or limitations.§110(a)(2)(E)(ii)(ii) requirements that the statecomply with the requirementsrespecting state boards undersection 128, andStateBoards Under Section 128:Because West Virginia does not have a boardwhich approves permits or enforcementorders, this element is not applicable.12§110(a)(2)(E)(iii)(iii) necessary assurances that,where the state has relied on alocal or regional government,agency, or instrumentality for theimplementation of any planprovision, the state hasresponsibility for ensuringadequate implementation of suchplan provision;Responsibility for Implementation ofAssured Local Plan Provision:West Virginiahas not relied onany local or regional government, agency, or instrumentality for theimplementation of any state implementation plan provision for the 2010 1-hour NO2NAAQS. West Virginia will retain primacy with respect to any future plan that relies onlocal or regional governments, agencies or instrumentalities. By statute, West Virginiahas prime responsibility for ensuring adequateimplementation of such a plan provision.The Secretary has the authority under W.Va. Code §22-5-4(a)(16) “to do all thingsnecessary and convenient to prepare and submit a plan or plans for theimplementation, maintenance and enforcement of the Federal Clean Air Act .....”As set forth in §22-1-1(b)(5), the WVDEP,“insofar as federal environmental programsrequire state participation” must “endeavor toobtain and continue state primacy in theadministration of such federally-mandated programs,.....and to cooperate withappropriate federal agencies to meet environmental goals.”§110(a)(2)(F)require, as may be prescribed bythe Administrator -(i) the installation,maintenance, and replacementof equipment, and theimplementation of othernecessary steps by owners oroperators of stationary sourcesto monitor emissions from suchsources,(ii) periodic reports on thenature and amounts ofemissions and emissions-relateddata from such sources, and(iii) correlation of such reportsby the state agency with anyemission limitations or standardsestablished pursuant to this Act,which reports shall be availableat reasonable times for publicinspection;Monitoring:W.Va. Code §22-5-4(a)(15) authorizes the Secretary to require theinstallation, maintenance and replacement of equipment, and the implementation ofother necessary steps by owners or operators of stationary sources to monitor andreport emissions of NO2from such sources as the Secretary may prescribe. Under thisauthority, West Virginia requires the installation, maintenance, and replacement ofmonitoring equipment at stationary sources through permits issued under 45CSR13,45CSR14, 45CSR19, 45CSR30, and via compliance orders. West Virginia is subjectto the Air Emission Reporting Rule (AERR)set forth in 40 CFR Part 51, Subpart A.WVDAQ’s emissions inventory program provides source-specific emissions data toEPA pursuant to the AERR reporting requirements.45CSR16 - The purpose of this rule isto incorporate thefederal New SourcePerformance Standards under Part A of the Clean Air Act and 40 CFR Part 60. Allcurrent monitoring requirements for NO2promulgated under 40 CFR Part 60 areincorporated by reference under 45CSR16 except any limitation or standard that maybe included in Subparts B, C, Ca, Cb,Cc, Cd, Ce, Ea, Eb, Ec, WWW, AAAA, BBBB,CCCC, DDDD, EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule isto adopt standards of performance, andestablish emission guidelines and compliance times pursuant to Sections 111(d) and129 of the federal Clean Air Act for solid waste combustion sources in West Virginia.Section 111(d)/129 solid waste combustion sources in West Virginia are subject to anyapplicable NO2monitoring requirement promulgated under 40 CFR 60, Subparts Eb,AAAA, Ec, Ce, CCCC, DDDD, EEEE and LLLL.Reporting:In accordance with the emission reports and recordkeeping requirementsset forth in 40 CFR §51.211, W.Va. Code §§22-5-4(a)(15) authorizes the Secretary to13require periodic reports on the nature andamounts of emissions and emissions-relateddata from owners or operators of stationary sources (monitoring data) of NO2. Pursuantto W.Va. Code §§22-5-4(a)(14), the Secretaryis authorized to require such informationas the Secretary may require in a formor manner prescribed by the Secretary(emissions inventory program). Under this authority, West Virginia requires periodicreports on the nature and amounts of emissions and emissions-related data fromstationary sources through permits issued under 45CSR13, 45CSR14, 45CSR19,45CSR30 and via compliance orders. WVDAQperiodically reports emission inventoryinformation to EPA as required by 40 CFR Part 51, Subparts A and K.45CSR16 - The purpose of this rule isto incorporate thefederal New SourcePerformance Standards under Part A of the Clean Air Act and 40 CFR Part 60. Allcurrent reporting requirements for NO2promulgated under 40 CFR Part 60 areincorporated by reference under 45CSR16 except any limitation or standard that maybe included in Subparts B, C, Ca, Cb,Cc, Cd, Ce, Ea, Eb, Ec, WWW, AAAA, BBBB,CCCC, DDDD, EEEE, FFFF, LLLL and MMMM.45CSR18 - The purpose of this rule isto adopt standards of performance, andestablish emission guidelines and compliance times pursuant to Sections 111(d) and129 of the federal Clean Air Act for solid waste combustion sources in West Virginia.Section 111(d)/129 solid waste combustion sources in West Virginia are subject to anyapplicable NO2reporting requirement promulgated under 40 CFR 60, Subparts Eb,AAAA, Ec, Ce, CCCC, DDDD, EEEE and LLLL.Correlation of Reports:W.Va. Code §22-1-6(d)(3) authorizes the Secretary to“investigate for violations of statutes orrules which the department is charged withenforcing.” §22-5-4(a)(3) authorizes the Secretary to correlate periodic emissionsreports with any NO2emission limitations or standards established pursuant to45CSR11, 45CSR13, 45CSR14, 45CSR18, 45CSR19, 45CSR30 or the CAA. As setforth in W.Va. Code §22-5-10, the Secretary makes available at reasonable times forpublic inspection the periodic emissions reported under §§22-5-4(a)(14) & (15). TheSecretary has the responsibility of making all records, reports or information obtainedby the Department or referred to at public hearings under the provisions of the APCAavailable to the public, except to the extentthe records, reports or information areprotected by confidentiality pursuant to 45CSR31. The types of records DEP routinelyprovides access to include notifications, inspection reports, notices of violation,enforcement orders, applications, permit review letters, sample results, monitoringreports, permits, approvals and denials that would relate to §110(a)(2)(F). WVDEPgenerally makes information available for public access through its website, but alsomakes hard copy reports available uponwritten request. CEMS emissions data areuploaded to AIRS and CAMD, and EPA may make such data available to the public.§110(a)(2)(G)provide for authority comparableComparable Authority:W.Va. Code §22-5-5 authorizes the Secretary to issue an14to that in section 303 andadequate contingency plans toimplement such authority;order to cease and desist any activity thatviolates the APCA. The Secretary may alsosuspend, modify or revoke a source’s permit. Under §22-5-6, the Secretary may alsoinstitute lawsuits for civil penalties. §22-5-7 authorizes the Secretary to seekapplications for injunctive relief. §22-5-8 authorizes the Secretary, with the writtenauthorization of the Governor,to shut down a source of NO2emissions, therebypreventing the emission of air pollutantswhich substantially contributes to anemergency that requires immediate action toprotect public health. As provided in WestVirginia Code, §§22-5-4(a)(2)and 22-5-10, the Secretary may consult with EPA toaffirm accuracy of any information considered while executing authority under §§22-5-5, -6, -7 or -8.Contingency Plans:West Virginia satisfies the criteria to be classified a Priority IIIRegion under 40 CFR §51.150(f) for NO2, as it does not meet the criteria set forth in 40CFR §§51.150(a)-(e). Pursuant to 40 CFR §51.152(c), areas classified as Priority III donot need to develop episode (contingency) plans.45CSR11 - The purpose of this West Virginia SIP approved rule (58FR34526) is toprovide a mechanism to prevent the buildup of air pollutant concentrations duringperiods of adverse meteorological conditions in which air pollutants may accumulate,thereby preventing the occurrence of anemergency due to the effects of thesepollutants on health. To achieve this purpose, three (3) stages of criteria (pollutantconcentration levels) have been established andspecific emission reduction plans willbe developed which will be initiated at each criteria stage toprevent furtherdeterioration of the air supply to any air quality region or substantial portion thereof.45CSR11 contains episode criteria, methods of measurement, preplanned reductionstrategies and emission reductionplan requirements for sources of NO2emissions inWest Virginia.§110(a)(2)(H)provide for revision of such plan-(i) from time to time as may benecessary to take account ofrevisions of such nationalprimary or secondary ambientair quality standard or theavailability of improved or moreexpeditious methods of attainingsuch standard, and(ii) except as provided inparagraph (3)(C), whenever theAdministrator finds on the basisof information available to theRevision of NAAQS:To satisfy the SIP revision provisions set forth in 40 CFR§51.104, W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all thingsnecessary and convenient to prepare andsubmit a plan for the implementation,maintenance and enforcement of the Clean Air Act. WVDEP has historically revised,and will continue to revise its NAAQS rules as necessary to take account of revisionsof the national primary or secondary ambientair quality standards or improved or moreexpeditious methods of attaining the standards. Below are brief recent historyexamples of how West Virginia has promulgated various versions of NAAQS rule45CSR8 to incorporate revisions to the primary and secondary NAAQS:On February 10, 2009, West Virginia received full SIP approval of its 2008 NAAQS rule45CSR8 (74FR6552). This rule contains ambient air quality standards for all criteriapollutants, including the 2006 PM2.5NAAQS, equivalent to the national primary andsecondary ambient air quality standards established under Section 109 of the Clean AirAct, and promulgated by the United StatesEnvironmental Protection Agency under 4015§110(a)(2)(H)(continued)Administrator that the plan issubstantially inadequate to attainthe national ambient air qualitystandard which it implements, orto otherwise comply with anyadditional requirementsestablished under this Act;CFR Part 50 through June 1, 2007.The 2009 version of 45CSR8 includes the revised the 8-hour primary and secondaryozone NAAQS. Revisions to the rule also include deletion of references to the obsoleteone-hour ozone NAAQS. EPAannounced reconsiderationof the 2008 primary andsecondary ozone standards on September 16, 2009. Subsequently, EPA Region IIIadvised the WV DAQ that 45CSR8 may notbe approvable into the SIP because theozone standard is under reconsideration. At the request of EPA Region III, 45CSR8was withdrawn as a revision to the SIP on November 16, 2009.The 2010 version of 45CSR8 included the revised national primary and secondary leadNAAQS and deletion of redundant methods of measurement language in section 4.EPA Region III advised the WV DAQ that the2010 version of 45CSR8 may not beapprovable into the SIP because the ozone standard is under reconsideration. At therequest of EPA Region III, 45CSR8 was not submitted as a revision to the SIP.West Virginia submitted a NAAQS SIP revision to EPA Region III on July 8, 2011.Revisions to the 2011 version of NAAQS rule 45CSR8 provide for incorporation byreference of the NAAQS as promulgated by the EPA as of June 1, 2010, rather thanreiterating the NAAQS in the rule. EPAhas revised the primary nitrogen dioxideNAAQS, and 45CSR8 incorporates by reference the 2010 1-hour NO2NAAQS. OnSeptember 12, 2012, West Virginia received full SIP approval of 2011 rule 45CSR8(77FR56125).West Virginia submitted a NAAQS SIP revision to EPA Region III onJune 6, 2012.Revisions to the 2012 version of the ruleincorporate by reference the 2010 1-hour SO2NAAQS. Specifically, EPA established a new 1-hour SO2standard at a level of 75 partsper billion (ppb), based on the 3-year average of the annual 99th percentile of 1-hourdaily maximum concentrations.Inadequate Plan:W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all thingsnecessary and convenient to prepare andsubmit a plan for the implementation,maintenanceand enforcement of the Clean Air Act. When, if ever, EPA finds the SIPis substantially inadequate to attain the NAAQS which it implements or otherwise tocomply with the CAA, West Virginia will revise the plan as necessary for adequacy.§110(a)(2)(J)meet the applicable requirementsof section 121 (relating toconsultation) and section 127(relating to public notification)andpart C (relating to prevention ofsignificant deterioration of airquality and visibility protection)Consultation:Satisfying the applicable requirementsof Section 121 of the CAA, theW.Va. APCA provides adequate authority under W.Va. Code §22-5-4(a)(2) for WestVirginia’s practices of consultation with local governments, organizations and LandManagers for purposes of air pollution control.WVDEP also consults with such entitiesregarding implementation plans for air quality maintenance requirements,preconstruction review of direct sources, nonattainment requirements, and preventionof significant deterioration. For the 2010 1-hour NO2NAAQS, West Virginia’s16§110(a)(2)(J)(continued)permitting program includes three SIP approved rules: minor NSR rule 45CSR13(68FR9559), PSD rule 45CSR14 (77FR63736), and major NSR 45CSR19(71FR64468). West Virginia also has anapproved Title V operating permit program(66FR50325). WVDEP has previouslydemonstrated a commitment to suchconsultation through encouragement and support for an Early Action Compact, andthrough Federal Land Manager consultation for the WV Haze SIP.Notification:W.Va. Code §22-4-(a)(10) authorizes the WVDAQ to notify the public ofimminent and serious hazards to public health. W.Va. Code §22-1-12 providesauthority for the public notification of NAAQS violations and education efforts asrequired by CAA Section 127. Each year,WVDEP issues a comprehensive Air QualityAnnual Report, which compares monitored air quality data with the NAAQS, and tracksthe Air Quality Index. The Report contains emissions information and air qualityhighlights from the previous year, and providespublic awareness of criteria pollutantsand their effects on health; educational website links to tips that improve air quality,links to technical websites and outreach efforts.PSD and Visibility:Pursuant to the CAA, if a regulated pollutant becomes subject toregulation under PSD, West Virginia’s PSD rule 45CSR14 provides for theimplementation of any new PSD requirementsthat are triggered upon the effective dateof any new NAAQS. West Virginia submitted 2012 PSD rule 45CSR14 as a SIPrevision to EPA Region III onJune 6, 2012. This fully-adopted rule applies to allregulated NSR pollutants, including greenhouse gases.There are no new applicable visibility protection obligationsunder Section 110(a)(2)(J)as a result of the 2010 1-hourNO2NAAQS.§110(a)(2)(K)provide for:(i) the performance of such airquality modeling as theAdministrator may prescribe forthe purpose of predicting theeffect on ambient air quality ofany emissions of any air pollutantfor which the Administrator hasestablished a national ambient airquality standard, and(ii) the submission, upon request,of data related to such air qualitymodeling to the Administrator;Air Quality Modeling:West Virginia Code §§22-5-4(a)(1)&(3) authorizes theSecretary to “develop ways and means for theregulation and control of pollution of theair of the state” and “conduct such studiesand research relating to air pollution and itscontrol and abatement”. Inherent in West Virginia's authority to meet the NAAQS andto conduct studies and research is the obligation for WVDEP to perform modeling asrequired under the CAA to demonstrate attainment of the NAAQS, as prescribed by theAdministrator. WVDAQ employs one full timetechnical employee who is responsiblefor air quality modeling. WVDEP also participates in regional planning organizationssuch as the Southeastern Modeling Analysis and Planning project (SEMAP), whichperforms NAAQS modeling for member states. Any air quality modeling to beconducted with respect to the NO2NAAQS may be source-oriented dispersion modelssuch as AERMOD.Submission of Data:W.Va. Code §§22-5-4(a)(2), 22-5-10 and 22-5-4(a)(16)authorizes the Secretary to submit, upon request by the Administrator, modeling datapredicting the effect on ambient air qualityof any emissions of any air pollutant for17which the Administrator has established anational ambient air quality standard. WestVirginia will submit to EPA current and future air quality modeling data as part of itsrelevant SIP submissions and through Federalgrant commitments or in other ways thatEPA may request. West Virginia can also provide relevant data as part of the NAAQSimplementation process.§110(a)(2)(L)§110(a)(2)(L)(continued)require the owner or operator ofeach major stationary source topay to the permitting authority,as a condition of any permitrequired under this Act, a feesufficient to cover-(i) the reasonable costs ofreviewing and acting upon anyapplication for such a permit,and(ii) if the owner or operatorreceives a permit for suchsource, the reasonable costs ofimplementing and enforcing theterms and conditions of any suchpermit (not including any courtcosts or other costs associatedwith any enforcement action),until such fee requirement issuperseded with respect to suchsources by the Administrator'sapproval of a fee program undertitle V;Permit Fees for Permit Review, Implementation and Enforcement:West Virginiahas SIP approved PSD rule 45CSR14 (77FR63736) and major NSR rule 45CSR19(71FR64468) (construction permits). Programpermit fees are contained in the rules.The collected fees have been sufficient to cover permit review, and implementationand enforcement of permit terms and conditions.West Virginia also has an approved Title V operating permit program under 45CSR30(66FR50325). Title V Program permit fees which satisfy the fee determination andcertification requirements set forth in 40CFR §70.9 are contained in the rule. Thecollected fees have been sufficient to cover permit review, and implementation andenforcement of permit terms and conditions.§110(a)(2)(M)provide for consultation andparticipation by local politicalsubdivisions affected by the plan;Consultation:The WVDEP Cabinet Secretary has the authority under W.Va. Code§22-5-4(a)(16) “to do all things necessary andconvenient to prepare and submit a planor plans for the implementation, maintenance and enforcement of the Federal CleanAir Act .....” Under this statute, and pursuant to the General Plan Requirements setforth in 40 CFR §51.240, the West Virginia Division of Air Quality is the organizationauthorized to develop, implement and enforcethe SIP. W.Va. Code §22-5-4(a)(2),authorizes the Secretary to advise, consult and cooperate with local politicalsubdivisions affected by the implementation plan. West Virginia consults with localgovernments, organizations and Land Managers with respect to SIP development.18WVDAQ also consults with such entities regarding implementation plans for air qualitymaintenance requirements, preconstruction review of direct sources, nonattainmentrequirements, and prevention of significant deterioration.Notice and Opportunity for Public Hearing:In accordance with the federalprocedural requirements at 40 CFR §51.102, any plan or plan revision, or individualcompliance schedule, prepared by WVDAQ is subject to a 30 day public notice periodwith public hearing, or in cases where there is little anticipated public interest, theopportunity for a public hearing. Staterules which contain such public noticeprocedures include permitting rules 45CSR13, 45CSR14, 45CSR19 and 45CSR30.