Volume XXVII

Issue 23

June 11,2010

Pages 925 - 976

A Weekly Publication

Administrative Law Division

Judy Cooper, Manager

Natalie E. Tennant

Secretary ofState

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 ofthe 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 ofTax Appeal Decisions

X. Other Documents or Information Filed

XI. Publication Deadlines and Publication Dates
AGENCY

Administration

Agriculture

Air Quality

Bluefield State College Bd. of Governors

Charleston Area Alliance

Community and Technical College Education

Concord University

Conservation Agency

Consolidated Public Retirement Board

County Bd. Member Training Standards Review Comm.

Crime, Delinquency and Correction

Economic Development Authority

Environmental Protection, Dept. of

Ethics Commission

Fairmont State University

Film Office, WV

Forestry, Div. of

Glenville State College

Governor's 21 sl Century Jobs Cabinet

Grievance Report

Health and Human Resources

Health Care Authority

Hearing Aid Dealers, WV Board of

Higher Education Policy Commission

Highways

Insurance Commission

Labor

Licensed Practical Nurses, Bd. of Examiners

Lottery

Marshall Community

& Technical College

Medicine, Board of

Miners' Health, Safety and Training

Mountwest Comm.

& Tech. College

Municipal Home Rule Bd.

Natural Resources

Northwest Regional EMS Inc.

Parkways Economic Dev.

& Tourism Auth.

Personnel

Physical Therapy

Professional Surveyors, WV

Public Defender Services, WV

Putnam County Development Auth.

Racing Commission

Real Estate Commission

Region7 Workforce Investment Board

Registered Professional Nurses

Solid Waste Management Board

Southern West Virginia Comm.

& Tech. College

Surface Mine Board

Tax Department

Tourism

Water Resources

WorkForce West Virginia

PAGElS)

931

971

925-8,939,958-61,971

931

931

931

931·2

932

932

932

928,939,961

932

933,972

969

933

933

933

933

933

970

973

968,974·6

933

934

928,930,939,962,967

934

934

934

934·5,962

935

935

935

935

935

935

936

936

936

936

937

937

937

928,939,963·4

937

937

937-8

938

938

968

929,939·40,964·5

938

929,940,965·6

938
CHRONOLOGICAL INDEX, VOLUME XXVII ISSUE 23

NEW PROPOSED RULES FILED FOR PUBLIC COMMENT THIS WEEK

I AGENCY II RULEITYPE II AUTHORITY II HEARING/COMMENT PERIOD/LOCATION I

Air Quality Ambient Air Quality Standards §22-5-4 Public Hearing:

(45-8) Legislative July 12, 2010, 6:00 pm

WV Dept. of Environmental Protection

Dolly Sods Conference Room

601 57th Street, SE

Charleston, WV 25304

Written Comments:

July 12, 2010, Close of Hearing

Kathy Cosco, Public Information Office

WV De~t. of Environmental Protection

601 57' Street, SE

Charleston, WV 25304

Air Quality Permits for Construction and Major Modification of Major §22-5-4 Public Hearing:

(45-14) Stationary Sources of Air Pollution for the Prevention of July 12, 2010, 6:00 pm

Significant Deterioration WV Dept. of Environmental Protection

Legislative Dolly Sods Conference Room

601 57'h Street, SE

Charleston, WV 25304

Written Comments:

July 12, 2010, Close of Hearing

Kathy Cosco, Public Information Office

WV DeJ?t. of Environmental Protection

601 57 Street, SE

Charleston, WV 25304

<.0

IV

VI
CHRONOLOGICAL INDEX, VOLUME XXVII ISSUE 23

NEW PROPOSED RULES FILED FOR PUBLIC COMMENT THIS WEEK I

Standards of Performance for New Stationary Sources

Legislative

Air Quality

(45-16)

i.i

I AGENCY II RULEITYPE II AUTHORITY II HEARING/COMMENT PERIOD/LOCATION I ..., ,

Air Quality

(45-18)

Control of Air Pollution from Combustion of Solid Waste

Legislative

§22-5-4 Public Hearing:

July 12, 2010, 6:00 pm

WV Dept. of Environmental Protection

Dolly Sods Conference Room

601 5ih Street, SE

Charleston, WV 25304

Written Comments:

july 12, 2010, Close of Hearing

Kathy Cosco, Public Information Office

WV DeJ?t. of Environmental Protection

601 57 Street, SE

Charleston, WV 25304

\D

N

O'l
CHRONOLOGICAL INDEX, VOLUME XXVII ISSUE 23

NEW PROPOSED RULES FILED FOR PUBLIC COMMENT THIS WEEK I

I AGENCY II RULEITYPE II AUTHORITY II HEARING/COMMENT PERIOD/LOCATION I IAir Quality I Permits tor Construction and Major Modification of Major I§22-5-4 I Public Hearing:

(45-19) Stationary Sources of Air Pollution Which Cause or July 12, 2010,6:00 pm

Contribute to Nonattainment WV Dept. of Environmental Protection

Legislative Dolly Sods Conference Room

601 57'h Street, SE

Charleston, WV 25304

Written Comments:

July 12, 2010, Close of Hearing

Kathy Cosco, Public Information Office

WV De~t. of Environmental Protection

601 57' Street, SE

Charleston, WV 25304

Air Quality

(45-25)

Control of Air Pollution from Hazardous Waste

Treatment, Storage and Disposal Facilities

Legislative

§22-5-4 Public Hearing:

July 12, 2010, 6:00 pm

WV Dept. of Environmental Protection

Dolly Sods Conference Room

601 57'h Street, SE

Charleston, WV 25304

Written Comments:

July 12, 2010, Close of Hearing

Kathy Cosco, Public Information Office

WV De~t. of Environmental Protection

601 57' Street, SE

Charleston, WV 25304

<D

IV

.....
CHRONOLOGICAL INDEX, VOLUME XXVII ISSUE 23 I

NEW PROPOSED RULES FILED FOR PUBLIC COMMENT THIS WEEK I

I AGENCY 1\ RULEITYPE II AUTHORITY II HEARING/COMMENT PERIOD/LOCATION I

Air Quality Emission Standards for Hazardous Air Pollutants §22-5-4 Public Hearing:

(45-34) Legislative July 12, 2010, 6:00 pm

WV Dept. of Environmental Protection

Dolly Sods Conference Room

601 57th Street, SE

Charleston, WV 25304

Written Comments:

JUly 12, 2010, Close of Hearing

Kathy Cosco, Public Information Office

WV De~t. of Environmental Protection

601 5i Street, SE

Charleston, WV 25304

Crime, Delinquency and Law Enforcement Training Standard §30-29-3 Written Comments Only

Correction Legislative July 15, 2010, 5:00 pm

(149-2) Retired Captain Chuck Sadler

Law Enforcement Training Coordinator

Div. of Criminal Justice Service

1204 Kanawha Boulevard East

Charleston, WV 25301

(304) 558-8814 ext. 53315

Charles.A.Sadler@wv.gov

Highways Use of State Road Rights of Way and Adjacent Areas §§17-1, 2A, 4,16,20, Written Comments Only

(157-6) Legislative 22 and 23 July7, 2010, 4:00 pm

Marvin Murphy; Kathy Holtsclaw

WV Dept. of Transportation, Div. of Highways

Building 5, Room 164

1900 Kanawha Boulevard East

Charleston, WV 25305-0430

Racing Commission Thoroughbred Racing §§19-23-2(a),19-23- Written Comments Only

(178-1 ) Legislative 3(17),19-23-6,19-23- July 8,2010,5:00 pm

8,19-23-9,19-23-13, WV Racing Commission

19-23-13b, 19-23-15 106 Dee Drive

Charleston, WV 25311

<D

N

00
CHRONOLOGICAL INDEX, VOLUME XXVII ISSUE 23 I

NEW PROPOSED RULES FILED FOR PUBLIC COMMENT THIS WEEK I

I AGENCY II RULEITYPE II AUTHORITY II HEARING/COMMENT PERIOD/LOCATION I

Racing Commission Pari-Mutuel Wagering §19-23-6 Written Comments Only

(178-5) Legislative July 8, 2010, 5:00 pm

WV Racing Commission

106 Dee Drive

Charleston, WV 25311

Tax Department Exchange of Information Agreement Between The State §§11-10-5s(b)(4) and Written Comments Only

(110-50E) Tax Department and The West Virginia Lottery 29A-3-1 et seq. july 6, 2010, 5:00 pm

Legislative Legal Division

State Tax Department

PO Box 1005

Charleston, WV 25324-1005

Tax Department EXhange of Information Agreement between the State §§11-10-5 and Written Comments Only

(110-50F) Tax Department and the Office of the State Fire Marshal 5s(b)(4) July 6, 2010, 5:00 pm

Legislative Legal Division

State Tax Department

PO Box 1005

Charleston, WV 25324-1005

Water Resources Requirements Governing Water Quality Standards §§22-11-4(a)(16); 22- Public Hearing:

(47-2) Legislative 11-7b July 19, 2010, 6:00 pm

Coopers Rock Training Room

WV De~t. of Environmental Protection

601 5i Street SE

Charleston, WV 25304

Written Comments:

July 19, 2010, at end of public hearing

Linda B. Keller

Water Quality Standards Program

WV De~t. of Environmental Protection

601 5i Street SE

Charleston, WV 25304

<D

IV

<D
I NEW EMERGENCY RULES FILED THIS WEEK I

I AGENCY II RULEfTYPE II AUTHORITY II EFFECTIVE DATE II DATE NOTICE FOR HEARING I

I

Highways I Use of State Road Rights of Way and §§17-1,2A,4,16,20, IERDbyJuly20,2010 II July 7, 2010 I . (157-6) . Ad·acent Areas l....:2=2:...;:a.:;..:n-=.d=23=--__----''--. -J.. ---'.

<D

W

o
MEETING NOTICES

Open Governmental Proceedin2s Act §6-9A et seq.

Agency I Date Filed I Purpose I Meetin~ DatelLocation

Administration, Department of 1115/2010 Regular monthly meeting June 18,2010 9:00 AM

Division of Rehabiliation Services

Committee for the Purchase of WV Small Conference Room

Commodities and Servicesfrom Institute, WV

the Handicapped

Bluefield State College Board of 411612010 Regular meeting of the BSC Board of Governors. General business of the June 17,2010 6:45 PM

Governors Board will be considered. Private Dining Room

Harris-Jefferson Student Center

Bluefield State College

Charleston Area Alliance 211612010 Regular Meeting June 22, 2010 12:00 PM

1116 Smith Street

Board ofDirectors Charleston, WV 25301

Community and Technical *6/9/2010 To discuss a technical program delivery agreement between Pierpont June 14,2010 02:00 PM

College Education, WV Council Community and Technical College and Fairmont State University. Conference Call

for

Executive Committee

Community and Technical 511712010 Annual Planning Meeting June 16, 2010 1:30 PM

College Education, WV Council Parkersburg Country Club

for 4910 1st Avenue

Vienna, WV 26105-1850

Community and Technical 5117/2010 Regular Business Meeting June 17,2010 9:00 AM

College Education, WV Council WVU at Parkersburg

for 300 Campus Drive

Parkersburg, WV 26104

Concord University 5/28/2010 Committee Meeting June 16,2010 2:20 PM

Concord Room, Marsh Hall, 20lA

Finance and Facilities Committee

Concord University 3/512010 Regularly scheduled meeting June 16,2010 3:30 PM

Board ofGovernors

Concord University

Marsh Hall Room 201A

Concord University 5/2812010 Committee Meeting June 16,2010 1:20PM

External Affairs Committee

Concord Room, Marsh Ha1l201A

Concord University 5/2812010 Committee Meeting June 16,2010 1:00 PM

Concord Room

Executive Committee

*This meeting wasfiled late and does not comply with the Open GovernmentalProceedings Act

ID

W

-
MEETING NOTICES

Ooen Governmental Proceedin~sAct §6-9A et seq.

Ae:ency I Date Filed I Purpose I Meetine: Date/Location

Concord University 5/2812010 Committee Meeting June 16,2010 II :35 AM

Concord Room. Marsh Ha1l20lA

Student Affairs Committee

Concord University 5/28/2010 Concord Room, 20lA June 16, 2010 10:35 AM

Marsh Hall Concord Room Marsh Hall A204

Academic Affairs Committee

Conservation Agency, WV 61712010 Emergency meeting to discuss Funding to match the American Recovery June 10,2010 1:00 PM

and Reinvestment Act funds for New Creek Site 14 Rehab and Upper Video teleconference available from WVCA at

WV State Conservation Tygarts Elkwater Fork mitigation. Guthrie and Morgantown

Committee

Consolidated Public Retirement 51712010 To conduct regular business. Agenda available at agency June 23, 2010 9:00 AM

Board 4101 MacCorkle Avenue, SE

Charleston, West Virginia 25304

Accounting and Investment

Committee

Consolidated Public Retirement 51712010 To conduct regular business June 22, 2010 2:00 PM

Board 4104 MacCorkle Avenue, SE

Charleston, West Virginia 25304

Disabilitv Review Committee

Consolidated Public Retirement 51712010 to conduct regular business. Agenda available at agency June 23,2010 II :00 AM

Board 4101 MacCorkle Avenue, SE

Charleston, West Virginia 25304

Board ofTrustees

County Board Member Training 61712010 Quarterly meeting of County Board Member Training Standards Review June 16,2010 1:30 PM

Standards Review Committee Committee, including review of Orientation program for newly-elected Governor's Mansion

county boards of education members which is slated for June 21-23,2010,

in Morgantown - Waterfront Place Hotel.

Economic Development 6/912010 Regular monthly meeting. The Board of Directors will also consider and June 17,2010 10:00 AM

Authority take action on a Resolution authorizing and directing the issuance of Lottery NorthGate Business Park

Revenue Bonds in an amount not to exceed $180,000,000 to be used for all 160 Association Drive

or a portion of the costs of constructing, equipping, improving or Charleston. West Virginia

maintaining capital improvement projects for state institutions of higher

education, state parks, the state capitol complex and other state facilities or

tourism sites, and to pledge the revenues paid into the Education, Arts,

Sciences and Tourism Fund, a special fund created pursuant to the Lottery

Act and existing in the State Treasury (the "EAST Fund").

*This meeting wasfiled late and does not comply with the Open GovernmentalProceedings Act

IN'"N
MEETING NOTICES

Open Governmental Proceedings Act §6~9A et seq.

Ae:enev I Date Filed I Purpose I Meetine: DatelLocation

Environmental Protection, 6/8/2010 The West Virginia Department of Environmental Protection (WVDEP) will June 16, 2010 10:00 AM

Department of hold a public meeting to discuss water quality issues of Daugherty Run and 601 57th Street SE

Fly Ash Run of Daugherty Run with Allegheny Energy. Charleston. WV 25304

Water Quality Standards Room #2157 (Great Kanawha River)

Program

Fairmont State University 6/9/2010 Regular Meeting June 17, 2010 9:00 AM

Falcon Center Conference Rooms

Board ofGovernors

Film Office, West Virginia 6/912010 Call to order; approval of minutes from last meeting; review new June 18,2010 9:30 AM

(Commerce, Tourism) application(s) (in executive session); vote on applications (in open session); WV Division of Tourism

new business; old business; adjourn. A printed agenda is available through Conference Room

Film Credit Development the Film Office. 90 MacCorkle Ave SW

Committee South Charleston, WV 25303

Forestry, Division of 61112010 Regular meeting of advisory group to state urban forestry program. June 16,2010 10:00 AM

USA Steak Buffet

Urban and Community Forestry Bridgeport, WV

Council

Glenville State College 512712010 To discuss regular business of the Board. June 16,2010 12:30 PM

Mollohan Campus Community Center

Board ofGovernors Third Floor, Room 319

Glenville State College Board of 512712010 To discuss business and finance issues pertaining to the Board of June 16,2010 11:00 AM

Governors Governors. Mollohan Campus Community Center

Third Floor, Room 319

Business and Finance Committee

Glenville State College Board of 5/27/2010 To discuss student and academic affairs issues pertaining to the Board. June 16,2010 11:00 AM

Governors Mollohan Campus Community Center

Third Floor, Room 311

Student and Academic Affairs

Committee

Governor's 21 st Century Jobs 6/912010 Regular Business June 17,2010 11 :00 AM

Cabinet Department of Education and the Arts

Conference Room

Parent Engagement and State Capitol Complex Building 5, Room 205

Education Committee Charleston, WV

Hearing Aid Dealers, WV Board 6/212010 Regular Board Meeting June 17,2010 1:00 PM

of Bureau for Public Health conference room

350 Capitol St., Room 706 (Diamond Bldg.)

Charleston, WV 25301

*This meeting wasfiled late and does not comply with the Open GovernmentalProceedings Act

<D

W

W
MEETING NOTICES

Open Governmental Proceedin~sAct §6-9A et seq.

A2enCY I Date Filed I Purpose I Meetin2 DateILocation

Higher Education Policy 6/9/2010 To discuss the recommendation for a slate of officers to the full June 17,2010 8:30 AM

Commission Commission Chancellor's Conference Room

10th Floor, Boulevard Tower

Nominating Committee 1018 Kanawha Boulevard East

Charleston

and by conference call

Higher Education Policy 6/9/2010 To conduct business before the next regular meeting June 18,2010 1:00 PM

Commission Alexander Parker Boardroom

The Blennerhassett Hotel, 320 Market Street

Committee ofthe Whole Parkersburg, and by conference call

Insurance Commissioner, WV 6/8/2010 Special meeting re: consideration of draft overview ofsafety initiatives in June 23, 2010 10:30 AM

Offices of the the workers' compensation insurance market and self-insureds. WV Offices of the Insurance Commissioner

1124 Smith Street - 4th Floor, Room 400

Workers' Compensation Charleston, WV 25301

Industrial Council

Labor 6/8/2010 Contractor Licensing Board Meeting Agenda: I. Public Comment; 2. June 17,2010 9:00 AM

General Discussion; 3. Disciplinary Hearings; 4. Cease and Desist Orders Office of WV Division of Labor

Contractor Licensing Bldg 6, Room 749B, Capitol Complex

Charleston, WV 25305

Licensed Practical Nurses. Board 511412010 Regular Meeting. Proposed Agenda is posted on the Board's website at June 16,2010 9:30 AM

of Examiners www.lpnboard.state.wv.us under "News" Large Conference Room

101 Dee Drive

Charleston, WV

Lottery 6/1/2010 Monthly committee meetings June 17, 2010 10:00 AM

Lottery Headquarters

Finance/Audit & 312 MacCorkle Avenue

GameslRules/Security/Marketing Charleston, WV

Committees

Lottery 6/1/2010 Monthly committee meeting June 17,2010 9:00 AM

Lottery headquarters

Building Committee 312 MacCorkle Avenue

Charleston, WV

*This meeting wasfiled late and does not comply with the Open Governmental Proceedings Act

\D

W

"'"
MEETING NOTICES

Open Governmental Proceedinl!s Act §6-9A et seq.

Aeencv I Date Filed I Purpose I Meeting Date/Location

Lottery 61112010 Monthly business meeting June 17,2010 11 :00 AM

Lottery Headquarters

Commission meeting 312 MacCorkle Avenue

Charleston, WV

Marshall Community & 2/112010 Regularly scheduled monthly meeting. June 18,2010 8:00 AM

Technical College 917 Third Avenue

Huntington, WV 25701

Institutional Board ofGovernors

Medicine, Board of 5/18/2010 The general purpose of this meeting is to discuss personnel matters of the June 17,2010 3:00 PM

West Virginia Board of Medicine. Medicine, Board of

Ad Hoc Committee on Personnel 101 Dee Drive, Suite 103

Charleston, WV 25311

Miners' Health. Safety and 5/27/2010 Monthly Board meeting June 23,2010 10:00 AM

Training 1615 Washington Street, E.

Charleston, WV

Coal Mine Health and Safety

Board

Miners' Health, Safety and 512712010 Monthly Board meeting; will also meet June 23 June 22,2010 1:00 PM

Training 1615 Washington Street, E.

Charleston,WV

Coal Mine Health and Safety

Board

Mountwest Community & 5/19/2010 Regularly scheduled monthly meeting of the Finance & Facilities June 16, 2010 8:00 AM

Technical College Committee. Mountwest Community & Technical College

Cooking & Culinary Institute

Institutional Board of 917 Third Avenue

Governors/Finance & Facilities Huntington, WV

Committee

Municipal Home Rule Board, 6/312010 Regular Business Meeting June 17,2010 10:30 AM

WV Morgantown Public Safety Building

300 Spruce Street, 1st Floor Conference Room

Morgantown, WV

Natural Resources. Division of 61112010 Quarterly Whitewater Commission Meeting June 16, 2010 1:00 PM

River Expeditions Headquarters

Whitewater Commission 900 Broadway Avenue

Oak Hill WV 25801

*This meeting wasfiled late and does not comply with the Open Governmental Proceedings Act

'"

W

IJl
MEETING NOTICES

Open Governmental Proceedin~s Act §6-9A et seq.

A2encv I Date Filed I Purpose I Meetin2 Date/Location

Northeastern Regional EMS Inc. 4/2312010 Annual Meeting of Board of Directors June 17,2010 7:00 PM

82 Sue Court

Board ofDirectors Martinsburg, WV 25405

Parkways Economic 6/9/2010 Discussion of and possible Board action on the new Toll Collection System June 17,2010 ll:OOAM

Development and Tourism Contract. Beckley South Maintenance Facility

Authority 374 George Street

Beckley, West Virginia 25801

Parkways Economic 6/9/2010 Approval of minutes of the 5/2011 0 Joint Committee meetings; Update, June 17,2010 9:30 AM

Development and Tourism discussion and/or decision(s) on: Tamarack capital improvement needs; Beckley South Maintenance Facility

Authority Request for access to VanKirk Drive; Paint Creek Scenic Trail Association 374 George Street

request to place Interpretive Kiosk at Tamarack; Tamarack General Beckley, West Virginia 25801

Economic Development and Manager and Financial Report; Summer construction projects update;

Tourism/Facilities/Finance Development of policies and procedures for use of emergency gates;

Dynamic message signs and closed circuit TV installation update; New Toll

Collection System contract; Implementation of new legislation regarding

the renaming and reorganization of the Parkways Authority (the agenda for

this meeting will be available three days in advance by calling 304-926-

1900 or at the website www.wvturnpike.com; items of business may be

added to the agenda up to 48 hours prior to the date of meeting).

Personnel, WV Division of 6/3/2010 Regular meeting June 17, 2010 2:00 PM

1900 Kanawha Boulevard, East

State Personnel Board Building 6, Room 425

State Capitol Complex

Physical Therapy, WV Board of 6/812010 Discuss Rule Making and Discplinary. June 18, 2010 12:15 PM

Teleconference

WV Board of Physical Therapy

101 Dec Drive

Charleston, WV 25311

Physical Therapy, WV Board of 6/8/2010 Emergency meeting to Discuss Emergency Rule June 13,2010 2:30 PM

Panera Bread

Sunset Committee Mountaineer Boulevard

2830 Mountaineer Boulevard

Charleston, WV 25309

"This meeting wasfiled late and does not comply with the Open Governmental Proceedings Act

\Q

W

0'1
MEETING NOTICES

Open Governmental Proceedings Act §6-9A et seq.

A2ency I Date Filed I Purpose I Meeting DatelLocation

Professional Surveyors. WV 6/2/2010 Regularly Scheduled Board Meeting and Complaint Review. Agenda June 22, 2010 10:00 AM

Board of available 3 business days prior to meeting by contacting the Board Office. Board Office

Sutton, West Virginia

Professional Surveyors, WV 6/9/2010 Emergency meeting to Discuss WV Code 30-13A Legislative Changes June 10,2010 9:30 AM

Board of effective June 10,2010 via teleconference

Public Defender Services, WV 6/3/2010 To discuss indigent criminal defense operations. June 18,2010 12:00 PM

200 Civic Center Drive

IndiJlent Defense Commission Charleston, WV 2530 I

Putnam County Development 511912010 Required Monthly Board Meeting for June 22, 2010 June 22, 2010 4:30 PM

Authority Putnam Chamber of Commerce Building

5664 State Route 34

Winfield, WV 25213

Putnam County Development 6110/2010 Required Membership Meeting June 22, 2010 4:00 PM

Authority 5664 State Route 34

Winfield, WV 25213

Membershiv Committee

Real Estate Commission 5/17/2010 Regular Meeting June 17,2010 9:00 AM

300 Capitol Street

Charleston, WV 25301

Region 7 Workforce Investment 5/1912010 Annual WIB Meeting June 17,2010 6:00 PM

Board Deaf and Blind School

Seaton Hall

Romney, WV

Registered Professsional Nurses, 5/7/2010 Regular Board Meeting June 16,2010 9:00 AM

WV Board of Conference Room

101 Dee Drive, Suite 102

Charleston, WV 25311

Registered Professsional Nurses, 6/1/2010 To review Education Programs and related issues. June 17,2010 8:00 PM

WV Board of Board Conference Room

101 Dec Drive, Suite 102

Education Committee MeetinR Charleston, WV 25311

Registered Professsional Nurses, 6/1/2010 To review disciplinary cases and related issues. June 16,2010 3:00 PM

WV Board of CLOSED TO THE PUBLIC Board Conference Room

101 Dee Drive, Suite 102

Discivlinarv Review Committee Charleston, WV 25311

*This meeting wasfiled late and does not comply with the Open Governmental Proceedings Act

Ie

W

-..l
MEETING NOTICES

Open Governmental Proceedin2S Act §6-9A et seq.

A2ency I Date Filed I Purpose I Meeting Date/l..ocation

Registered Professsional Nurses, 5n12010 Regular Board Meeting June 17, 2010 9:00AM

WV Board of Conference Room

101 Dee Drive, Suite 102

Charleston, WV 25311

Registered Professsional Nurses. 61112010 To review disciplinary cases and related issues. June 16,2010 8:00 AM

WV Board of CLOSED TO THE PUBLIC Board Conference Room

101 Dee Drive, Suite 102

Disciplinarv Review Committee Charleston, WV 25311

Solid Waste Management Board, 6/8/2010 FY 2011 Grant Program and Review of Grant Applications Submitted. June 16,2010 9:30 AM

WV Quality Inn-Lewisburg

540 N. Jefferson Street

Grants Committee Lewisburg, WV 24901

Solid Waste Management Board, 6/8/2010 FY 2012 Proposed Budget and Total Aggregate Amount of Grant Funds June 16,2010 9:00 AM

WV Available for FY 20 II. Quality Inn-Lewisburg

540 N. Jefferson Street

Finance Committee Lewisburg, WV 24901

Solid Waste Management Board, 6/8/2010 Financial Reports, Mason County Solid Waste Authority FY 2010 Grant June 16. 2010 10:00 AM

WV Budget Revision Request, Monroe County Solid Waste Authority FY 2010 Quality Inn-Lewisburg

Grant Budget Revision Request, Harrison County and Lincoln County 540 N. Jefferson Street

Commercial Solid Waste Facility Siting Plan Updates, Lincoln County Lewisburg, WV 24901

Solid Waste Authority Comprehensive Litter and Solid Waste Control Plan

Update, SWANA Transfer Station Training and an Executive Session.

Southern West Virginia 12/16/2009 Regular business meeting of the Southern West Virginia Community and June 22, 201 0 6:00 PM

Community and Technical Technical College Board of Governors. General business of the Board will Southern West Virginia Community and

College be considered. The meeting agenda will be posted three days prior to the Technical College

meeting at http:southemwv.edu Building C - Room 428

Board ofGovernors 2900 Dempsey Branch Road

Mount Gay, WV

Tourism. WV Division of 4/2812010 Monthly Tourism Commission Meeting June 17, 2010 1:30 PM

Oglebay Resort

WV Tourism Commission WheelingWV

WorkForce West Virginia 6/8/2010 Workforce Investment Board Director's meeting. Topics include but not June 17, 2010 10:00 AM

limited to: Summer Programs; Elevate America; Fiscal; Open Discussion 112 California Avenue

Workforce Investment Board Charleston, WV 25305

*This meeting wasfiled late and does not comply with the Open GovernmentalProceedings Act

ID

W

00
PRICE LIST

AGENCY RULE/ORDER AMOUNT

Air Quality Ambient Air Quality Standards $15.60 (45-8)

Air Quality Permits for Construction and Major Modification of Major Stationary Sources of Air $12.80 (45-14) Pollution for the Prevention of Significant Deterioration

Air Quality Standards of Performance for New Stationary Sources $12.40 (45-16)

Air Quality Control of Air Pollution from Combustion of Solid Waste $17.00 (45-18)

Air Quality Permits for Construction and Major Modification of Major Stationary Sources of Air $12.80 (45-19) Pollution Which Cause or Contribute to Nonattainment

Air Quality Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities $13.00 (45-25)

Air Quality Emission Standards for Hazardous Air Pollutants $20.60 (45-34)

Crime, Delinquency and Law Enforcement Training Standard $8.80 Correction

(149-2)

Highways Use of State Road Rights of Way and Adjacent Areas $9.20 (157-6)

Highways Use of State Road Rights of Way and Adjacent Areas $9.60 (157-6, emergency)

Racing Commission Thoroughbred Racing $23.10 (178-1)

Racing Commission Pari-Mutuel Wagering $15.00 (178-5)

Tax Department Exchange of Information Agreement Between the State Tax Dept. and the WV Lottery $3.80 (110-50E)

'"

w

'"
Tax Deparment Exchange of Information Agreement Between the State Tax Dept. and the Office ofthe $3.60 (ItO-50F) State Fire Marshal

Water Resources Requirements Governing Water Quality Standards $12.80 (47~2)

'i.

o
Ollicc oflhe Secrelary of Stale

Building I, Suile 157-K

1900 Kanawha Bhd., casl

('harh:slon, West Virginia 25305

Natalie E. Tennant

Secretary of State

State of West Virginia

Telephone: (304) 558-6000

Toll Free: 1-866-S0S-VOTE

Fax: (304) 558-0900

\\WW,wv,os,com

941

GUIDE FOR USING THE RULE MONITOR IN THE STATE REGISTER

Column 1, Agency Name, (Title and Series Number)

Column 2. Rule Title, Price and Type

Column 3. Date Notice of Public Hearing or Comment Period Filed

Column 4. Date of Public Hearing or Last Date Comments Will Be Received

Column 5. Date Emergency Rule Filed, Emergency Amendments Filed, Emergency Rule Decision

(ERD) Number & Date ERD Filed (Effective Date of Emergency Rule)

Column 6. Date Agency Approved legislative Rules Filed.

Column 7. Date Review by the Legislative Rule-Making Review Committee & Action Taken ....Please

Note.... The Board of Education, Board of Trustees & Board of Directors File Their Rules

With the Educational Over-Sight Committee

Column 8. Legislative Action

Column 9. Date Agency Final Files Legislative, Procedural or Interpretive Rules. This is the Final

Step for Procedural & Interpretive Rules

Column 10. Date Rule is Effective

• Titles followed by an asterisk (**) indicate that the rule is in effect as an emergency

• Emergency rules will not have a "Notice" date until the agency files one but the rule will appear in

Columns 1, 2 & 5. An Agency must file for either a public hearing or public comment period either before

filing as an emergency or no more than 30 days after filing the rule as an emergency

• If more than one date appears in a column, it means the agency has repeated that step (ex. - holding an

additional public hearing)

• If a particular step is not required by law for a particular rule, the liN/A" will appear in the excluded step

column

• Once a rule becomes effective & the effective date appears in Column 10, the rule will be removed from

the monitor after the rule is distributed in the loose leaf version of the Code of State Rules
TITLE NUMBER

TITLE 3

TITLE 10

TITLE 11

TITLE 13

TITLE 17

TITLE 24

TITLE 27

TITLE 29

TITLE 33

TITLE 35

TITLE 36

TITLE 38

TITLE 45

TITLE 47

TITLE 58

TITLE 61

TITLE 63

TITLE 64

TITLE 65

TITLE 69

TITLE 78

TITLE 81

TITLE 82

TITLE 85

TITLE 86

TITLE 87

TITLE 90

TITLE 91

TITLE 96

TITLE 110

TITLE 112

TITLE 113

TITLE 114

TITLE 126

TITLE 133

TITLE 135

TITLE 143

TITLE 144

TITLE 148

TITLE 150

TITLE 153

TITLE 157

TITLE 158

TITLE 162

TITLE 175

TITLE 176

TITLE 177

TITLE 178

TITLE 179

TITLE 190

TITLE 191

TITLE 204

TITLE 205

TITLE 207

TITLE 210

CROSS REFERENCE OF RULE MONITOR TITLE NUMBERS AND AGENCIES

NAME OF AGENCY

BARBERS AND COSMETOLOGISTS

LICENSED PRACTICAL NURSES

MEDICINE

OCCUPATIONAL THERAPY

PSYCHOLOGISTS

OSTEOPATHY

COUNSELING

SPEECH-LANGUAGE PATHOLOGY & AUDIOLOGY

OFFICE OF WASTE MANAGEMENT (FORMERLY PART OF TITLE 47)

OFFICE OF OIL AND GAS

COAL MINE HEALTH & SAFETY

MINING & RECLAMATION

OFFICE OF AIR QUALITY

OFFICE OF WATER RESOURCES

NATURAL RESOURCES

AGRICULTURE

CONSERVATION AGENCY

HEALTH

HEALTH CARE AUTHORITY

HEALTH & HUMAN RESOURCES

HUMAN SERVICES

STATE POLICE

CULTURE AND HISTORY

WORKERSCOMPENSATION BY THE INSURANCE COMMISSION

VETERANS AFFAIRS

FIRE COMMISSION

CORRECTIONS

MOTOR VEHICLES

WORKFORCE WEST VIRGINIA

TAX DEPARTMENT

TREASURER

HEALTH INSURANCE PLAN

INSURANCE

EDUCATION

HIGHER EDUCATION POLICY COMMISSION

COMMUNITY &TECHNICAL COLLEGE EDUCATION

PERSONNEL

TOURISM

ADMINISTRATION

PUBLIC SERVICE COMMISSION

SECRETARY OF STATE

DIVISION OF HIGWAYS

ETHICS COMMISSION

CONSOLIDATED PUBLIC RETIREMENT BOARD

ALCOHOL BEVERAGE CONTROL COMMISSION

ALCOHOL BEVERAGE CONTROL COMMISSION - BEER

ATHLETIC COMMISSION

RACING COMMISSION

LOTTERY

REAL ESTATE APPRAISER LICENSING & CERTIFICATION BOARD

FAMILY PROTECTION SERVICES BOARD

HATFIELD-MCCOY REGIONAL RECREATION AUTHORITY

OUTDOOR HERITAGE CONSERVATION FUND

COALFIELD COMMUNITY DEVELOPMENT

GOHELP

942
RULE MONITOR

AGENCY/SERIES NO RULE NOTICE HEARING EMER RULE SEC/STATE LRMRC-ACTION LEGIS FINAL FILE EFFECTIVE

Administration State Owned Vehicles 6/25/2009 7/27/2009 7/30/2009 Modified & 8B240 3/30/2010 5/112010

(148-3) $4.00 Approved HB 4063

Legislative 10/13/2009 BUNDLED

Filed 8B240

10/21/2009

Administration Procedure for the Payment of 1212912009 1/29/2010

(148-21) Unused Sick Leave to Employees

$4.00

Procedural

Agriculture Animal Disease Control 5/1212009 6/11/2009 5/12/2009 7/28/2009 Modified & SB 241 4/812010 7/1/2010

(61-1) $6.40 Withdrawn Approved HB 4064

Legislative 5/19/2009 9/14/2009 BUNDLED

6/23/2009 Filed HB 4108

Approved 9/22/2009

7/112009

Agriculture West Virginia Apiary Law of 1991 6/1/2010 7/1/2010 6/1/2010

(61-2) $3.80 ERDby

Legislative 7/1312010

Agriculture General Groundwater Protection 6/1/2010 7/1/2010

(61-6C) Rules for Fertilizers and Manures

$3.80

Legislative

Agriculture Integrated Pest Management 6/11/2009 7/15/2009 7/21/2009 Modified & SB242 4/8/2010 7/1/2010

(61-12J) Programs in Schools and Day Care Approved HB 4065

Centers/Facilities 8/10/2009 BUNDLED

$4.60 Filed HB 4108

Legislative 9/4/2009

Agriculture West Virginia Shellfish Rule 6/29/2009 7/29/2009 7/31/2009 Modified & SB243 4/8/2010 7/1/2010

(61-23B) $3.60 Approved HB 4066

Legislative 9/14/2009 BUNDLED

Filed HB 4108

9/23/2009

AgriCUlture Best Management Practices for 6/11/2009 7/13/2009 7/15/2009 Modified & SB403 4/812010 7/1/2010

(61-27) Land Application of Waste Products Approved BUNDLED

from Aquaculture Facilities 1/11/2010 HB 4108

$2.40 Filed

Legislative 1/14/2010

'£.

IoU
AGENCY/SERIES NO RULE NOTICE HEARING

RULE MONITOR

EMER RULE SEc/STATE LRMRe-ACTION LEGIS FINAL FILE EFFECTIVE

Air Quality

(45-8)

Ambient Air Quality Standards

$3.60

Legislative

6/10/2009 7/13/2009 7/28/2009 Approved

10/13/2009

S8273

HB 4050

BUNDLED

SB 273

4/3012010 6/112010

Air Quality Ambient Air Quality Standards 6/9/2010 7/12/2010

(45-8) $15.60

Legislative

Air Quality Permits for Construction and Major 6/10/2009 7/13/2009 7/2812009 Modified & SB267 4/30/2010 6/112010

(45-14) Modification of Major Stationary Approved HB 4088

Sources of Air Pollution for the 12/8/2009 BUNDLED

Prevention of Significant Filed SB273

Deterioration 12/14/2009

$11.40

Legislative

Air Quality Permits for Construction and Major 6/9/2010 7/1212010

(45-14) Modification of Major Stationary

Sources of Air Pollution for the

Prevention of Significant

Deterioration

$12.80

Legislative

Air Quality Standards of Performance for New 6/10/2009 7/13/2009 7/28/2009 Approved SB268 4/30/2010 6/112010

(45-16) Stationary Sources 10/13/2009 HB 4045

$2.80 BUNDLED

Legislative SB 273

Air Quality Standards of Performance for New 6/9/2010 7/1212010

(45-16) Stationary Sources

$12.40

Legislative

Air Quality Control of Air Pollution from 6/9/2010 7/12/2010

(45-18) Combustion of Solid Waste

$17.00

Legislative

Air Quality Permits for Construction and Major 6/10/2009 7/13/2009 7/2812009 Approved SB269 4/30/2010 6/112010

(45-19) Modification of Major Stationary 1218/2009 HB 4046

Sources of Air Pollution Which BUNDLED

Cause or Contribute to SB 273

Nonattainment

$11.00

Legislative

I,Q

t
RULE MONITOR

AGENCY/SERIES NO RULE NOTICE HEARING EMER RULE SEC/STATE LRMRC-ACTION LEGIS FINAL FILE EFFECTIVE

Air Quality Permits for Construction and Major 6/9/2010 7/12/2010

(45-19) Modification of Major Stationary

Sources of Air Pollution Which

Cause or Contribute to

Nonattainment

$12.80

Legislative

Air Quality Control of Air Pollution from 6/10/2009 7/13/2009 7/28/2009 Approved 8B270 4/30/2010 611/2010

(45-25) Hazardous Waste Treatment, 10/13/2009 HB 4047

Storage and Disposal Facilities BUNDLED

$6.60 SB 273

Legislative

Air Quality Control of Air Pollution from 6/9/2010 7/12/2010

(45-25) Hazardous Waste Treatment,

Storage and Disposal Facilities

$13.00

Legislative

Air Quality Acid Rain Provisions and Permits 6/10/2009 7/13/2009 7/28/2009 Approved SB271 4/30/2010 6/112010

(45-33) $2.60 10/13/2009 HB 4048

Legislative BUNDLED

SB 273

Air Quality Emission Standards for Hazardous 6/1012009 7/13/2009 7/28/2009 Approved SB272 4/30/2010 6/112010

(45-34) Air Pollutants 10/1312009 HB 4049

$2.80 BUNDLED

Legislative SB 273

Air Quality Emission Standards for Hazardous 6/9/2010 7/1212010

(45-34) Air Pollutants

$20.60

Legislative

Alcohol Beverage Licensed Retailer Operations 9/14/2009 10/15/2009 8/3112009 11/20/2009

Control Comm. $7.60 Approved

(175-1) Legislative 10/8/2009

Alcohol Beverage Licensing of Retail Outlets 9114/2009 10/15/2009 8/3112009 11/20/2009

Control Comm. $14.80 12110/2009 1/1212010 Approved 212212010

(175-5) Legislative 10/8/2009

Amendment

12110/2009

Approved

12114/2009

Alcohol Beverage Nonintoxicating Beer Licensing and 5/20/2009 6/2212009 7/16/2009 Modified & SB404 5/512010 5/5/2010

Control Comm.-Beer Operations Procedures ApproVed

(176-1) $6.80 1/11/2010

Legislative Filed

1/21/2010

<D

....

VI
RULE MONITOR

AGENCY/SERIES NO RULE NOTICE HEARING EMER RULE SEC/STATE LRMRC-ACTION LEGIS FINAL FILE EFFECTIVE

Athletic Commission Administrative Rules of the WV 5/20/2009 612212009 7/31/2009 Modified & SB244 5/5/2010 7/1/2010

(177-1) State Athletic Commission Approved HB 4067

$7.60 12/8/2009

Legislative Filed

1/8/2010

Barbers & Qualifications, Training, 6/30/2009 7/30/2009 7/31/2009 Modified & SB249 4/13/2010 7/1/2010

Cosmetologists Examination and Licensure of Approved HB 4072

(3-2) Instructors in Barbering and Beauty 121712009 BUNDLED

Culture Filed HB 4108

$3.60 12/14/2009

Legislative

Barbers & Rules and Regulations for Licensing 6/30/2009 7/30/2009 7/31/2009 Modified & SB250 4/13/2010 7/1/2010

Cosmetologists Schools of Barbering and Beauty Approved HB 4073

(3-3) Culture 12/7/2009 BUNDLED

$3.20 Filed HB 4108

Legislative 12/14/2009

Barbers & Operation of Barber, Beauty Shops 6/30/2009 7/30/2009 7/31/2009 Modified & SB 251 4/13/2010 7/1/2010

Cosmetologists and Schools of Barbering and Approved HB 4074

(3-5) Beauty Culture 12/7/2009 BUNDLED

$3.00 Filed HB 4108

Legislative 12114/2009

Barbers & Schedule of Fees 6/30/2009 7/30/2009 7/31/2009 Approved SB252 4/13/2010 7/1/2010

Cosmetologists $2.40 121712009 HB 4043

(3-6) Legislative BUNDLED

HB 4108

Barbers & Schedule of Fees 5/10/2010 6/11/2010 4/27/2010

Cosmetologists $3.40 Withdrawn

(3-6) Legislative 5/10/2010

51712010

Approved

5/14/2010

Barbers & Schedule of Fines 6/30/2009 7/30/2009 7/31/2009 Modified & SB253 4/13/2010 7/1/2010

Cosmetologists $4.80 Approved HB 4075

(3-7) Legislative 121712009 BUNDLED

Filed HB 4108

12/14/2009

Barbers & Continuing Education 6/30/2009 7/30/2009 7/31/2009 Modified & 8B247 4/13/2010 7/1/2010

Cosmetologists $4.40 Approved HB 4070

(3-11) Legislative 121712009 BUNDLED

Filed HB 4108

12/14/2009

*
AGENCY/SERIES NO RULE NOTICE HEARING

RULE MONITOR

EMER RULE SEC/STATE LRMRC-ACTION LEGIS FINAL FILE EFFECTIVE

Coal Mine Health and

Safety

(36-2)

Coal Mine Health and

Safety

(36-4)

Emergency Communications

Requirements for Shaft and/or

Slope Operation and Arrangements

for Emergency Medical Assistance

and Transporting for Injured

Persons; Reporting Requirements;

Posting Requirements at Shaft

and/or Slope Operations

$2.60

Legislative Exempt ___ __

The Movement of Mining Equipment

Within Coal Mines

$4.60

Legislative Exempt

5/4/2010

5/4/2010

5/4/2010

5/4/2010

Coal Mine Health and Shortwall Mining

Safety $3.00

(36-7) Legislative Exelllpt

5/4/2010 5/4/2010

Coal Mine Health and

Safety

(36-9)

Coal Mine Health and

Safety

(36-11)

Electrical Provisions in Shaft and/or

Slope Construction Operations

$3.00

Legislative Exempt

Underground Mine Foreman-Fire

Boss Required; Assistants;

Certification; The Reopening of

Abandoned Mines and the DeEnergization of Self-Propelled

Electric Coal Feeders; Performance

Requirements

$2.80

Legislative Exempt

5/4/2010

5/4/2010

5/4/2010

5/4/2010

Coal Mine Health and

Safety

(36-21)

Coal Mine Health and

Safety

(36-25)

The Instructions of Employees and 5/4/2010

Supervision of Apprentices; Annual

Examination of Persons Using

Flame Safety Lamps; Records of

Examination; Maintenance of

Methane Detectors

$2.60

Legislative Exempt___~

Operation of Track HaUlage 4/9/2010

Locomotives

$2.60

LegislativeExempt_~__

5/4/2010

5/10/2010

Coal Mine Health and

Safety

(36-27)

Rules and Regulations Governing

Surface Areas on Mine Property

and Limitations on Mining Adjacent

to Gas Facilities

$3.80

51712010 8/5/2010
AGENCY/SERIES NO RULE NOTICE HEARING

RULE MONITOR

EMER RULE SEC/STATE LRMRC-ACTION LEGIS FINAL FILE EFFECTIVE

Coal Mine Health and

Safety

(36-44)

Coal Mine Health and

Safety

(36-47)

Coal Mine Health and

Safety

(36-48)

Coal Mine Health and

Safety

(36-49)

Mine Rescue Requirements for the 4/2212010 5/28/2010

Office of Miners' Health, Safety and

Training

$4.00

Legislative

Rules and Regulations Governing 10/27/2009 121212009

High Voltage Longwalls, Circuits

and Equipment

$3.80

Legislative

Rules and Regulations Governing 10/27/2009 1212/2009

High Voltage Continuous Miners

$5.00

Legislative _

Requirement to Keep a Barometer 4/22/2010 5/28/2010

in the Mine Office; Requirement to

Develop a Training Program for Use

of Barometer by Mine Foreman to

be Developed by Board of Miner

Training and Certification; Recordkeeping

$3.20

Legislative

Coal Mine Health and

Safety

(36-50)

Coal Mine Health and

Safety

(36-51)

Coal Mine Health and

Safety

(36-52)

Coal Mine Health and

Safety

(36-53)

Belt Conveyor; Installation; 4/2212010

Maintenance; Examination of Belt

Conveyors and Belt Entries,

Automatic Fire Warning Devices

$5.20

Legislative

Accessible Outlets; Safe Roadways 4/22/2010

for Emergencies; Accessibility of

First Aid Equipment, Use of Special

Capsule for Removal of Personnel,

Escape way Maps and Drills

$4.40

Legislative

Fire In and About Mine; Notification 4/22/2010

of Director and District Mine

Inspector; Mine Emergency

Evacuation Plan

$3.60

Legislative

Testing and Calibration of Machine 4/22/2010

Mounted Methane Monitors on

Working Face Equipment

$3.20

Legislative

5/28/2010

5/28/2010

5/28/2010

5/28/2010

't

co
AGENCY/SERIES NO RULE NOTICE HEARING

RULE MONITOR

EMER RULE SEC/STATE LRMRC-ACTION LEGIS FINAL FILE EFFECTIVE

Coal Mine Health and

Safety

(36-54)

Initial Training Program for

Prospective Mine Rescue Team

Members and Additional Mine

Rescue Requirements

$4.00

Legislative

4/27/2010 5/28/2010

Coalfield Community Community Development 6/30/2009 7/31/2009 7/31/2009 Modified & 8B282 4/29/2010 7/112010

Development Assessment & Real Property Approved HB4097

(207-1) Valuation Procedures for Office of 12/8/2009 BUNDLED

Coalfield Community Development Filed 4110

$4.00 12115/2009

Legislative

Community & Guidelines for the Offering of Early 1/29/2010 3/112010 4/22/2010 5/22/2010

Technical College Enrollment Courses for High School

Education Students

(135-19) $4.00

Procedural

Community & Bookstores and Textbooks 1/29/2010 311/2010 412212010 5/2212010

Technical College $4.40

Education Procedural

(135-51) ".__."--~~--

Consolidated Public General Provisions 5/7/2010 6/7/2010

Retirement Board $4.00

(162-1) Legislative

Consolidated Public Teachers' Defined Contribution 5/7/2010 6/7/2010

Retirement Board System

(162-3) $4.40

Legislative

Consolidated Public Teachers' Retirement System 6/1512009 7/15/2009 7/30/2009 Modified & SB256 4/1212010 7/1/2010

Retirement Board $4.20 Approved HB 4078

(162-4) Legislative 9/14/2009 BUNDLED

Filed SB240

9/23/2009

Consolidated Public Public Employees Retirement 51712010 6/7/2010 4/13/2010

Retirement Board System ERDby

(162-5) $5.40 5/25/2010

Legislative

Consolidated Public Refund, Reinstatement, Retroactie 51712010 617/2010

Retirement Board Service, Loan and Employer Error

(162-7) Interest Factors

$4.40

Legislative

Consolidated Public West Virginia State Police 51712010 6/7/2010 4/13/2010

Retirement Board $5.40 ERDby

(162-9) Legislative 5/25/2010

\0

-l'>

\0
RULE MONITOR

AGENCY/SERIES NO RULE NOTICE HEARING EMER RULE SEC/STATE LRMRC-ACTION LEGIS FINAL FILE EFFECTIVE

Counseling Licensed Professional Counselor 6/16/2009 7/17/2009 7/31/2009 Modified & SB263 4/26/2010 7/112010

(27-2) Fees Approved HB 4084

$2.80 11/17/2009 BUNDLED

Legislative Filed HB 4108

11/25/2009

Counseling Licensed Professional Counselor 611612009 7/17/2009 7/31/2009 Modified & SB264 4/26/2010 7/1/2010

(27-3) License Renewal and Continuing Approved HB 4085

Professional Education 10/13/2009 BUNDLED

Requirements Filed HB 4108

$4.00 10/19/2009

Legislative

Counseling Marriage and Family Therapists 6/16/2009 7/17/2009 7/31/2009 Modified & SB 265 4/26/2010 7/112010

(27-8) Licensing Rule Approved HB 4086

$4.40 11/17/2009 BUNDLED

Legislative Filed HB 4108

11/25/2009

Counseling Marriage and Family Therapists Fee 6/16/2009 7/17/2009 7/31/2009 Modified & SB266 4/26/2010 7/112010

(27-9) Rule Approved HB 4087

$2.80 11/17/2009 BUNDLED

Legislative Filed HB 4108

11/25/2009

Counseling Marriage and Family License 6/16/2009 7/17/2009 7/31/2009 Modified & SB262 4/26/2010 7/1/2010

(27-10) Renewal and Continuing Approved HB 4083

Professional Education 10/13/2009 BUNDLED

$4.20 Filed HB 4108

Legislative 10/19/2009

Crime, Delinquency Law Enforcement Training Standard 61712010 7/15/2010

and Correction $8.80

(149-2) Legislative

Culture and History Archives and History Library 10/21/2009 11/23/2009 11/24/2009 1/4/2010

(82-6) Services and Fee Guidelines

$6.20

Procedural

Education Standards for Basic and Specialized 5/13/2010 6114/2010

(126-25A) Health Care Procedures (2422.7)

$30.20

Legislative Exempt

Education 21$t Century Science 9-12 Content 2111/2010 3/15/2010 4/16/2010 7/1/2010

(126-44R) Standards and Objectives for WV

Schools (2520.35)

$24.50

Legislative

Education 21 st Century Advisor/Advisee 5-12 3/11/2010 4/1212010 5/13/2010 6/14/2010

(126-44U) Content Standards and Objectives

for West Virginia Schools (2520.19)

$17.50

Legislative

U)

V1

0
RULE MONITOR

AGENCY/SERIES NO RULE NOTICE HEARING EMER RULE SEC/STATE LRMRC-ACTION LEGIS FINAL FILE EFFECTIVE

Education Establishment and Operation of 3/11/2010 4/12/2010 5/13/2010 7/112010

(126-72) Regional Education Service

Agencies (3233)

$5.60

Legislative

Education Standards of Professional Practice 2111/2010 3126/2010 5/24/2010 7/112010

(126-165) for WV Superintendents, Principals

and Teacher Leaders (5800)

$10.20

Legislative

Ethics Commission Forms 4/13/2010 5/14/2010

(158-20) $3.40

Legislative

Family Protection Family Protection Programs, 3/18/2010 4/19/2010 3/17/2010

Services Board Outreach Service and Shelter Approved

(191-2) Licensure 3/31/2010

$5.80 Withdrawn

Legislative 51712010

Family Protection Perpetrator Intervention Program 3/18/2010 4/19/2010 3/17/2010

Services Board Licensure Approved

(191-3) $5.20 3/31/2010

Legislative Withdrawn

51712010

Fire Commission State Fire Code 5/14/2009 6/1612009 7/21/2009 Modified & SB283 4/26/2010 7/112010

(87-1) $7.40 Approved HB 4098

Legislative 12/8/2009 BUNDLED

Filed HB 4081

12/16/2009

Fire Commission State Building Code 5/14/2009 6/16/2009 7/21/2009 Modified with SB284 4/26/2010 7/112010

(87-4) $4.00 certain HB 4127

Legislative amendments & BUNDLED

Approved HB 4081

1218/2009

Filed

12/16/2009

Health and Human Nurse Aide Abuse Registry 6/25/2009 7/27/2009 7/31/2009 Modified & 8B290 4/9/2010 7/1/2010

Resources $3.60 Approved HB 4102

(69-6) Legislative 11/17/2009

Filed

11/20/2009

Higher Education Guidelines for the Offering of 112712010 311/2010 4/27/2010 5/27/2010

Policy Commission College Courses for High School

(133-19) Students

$4.40

Procedural

ID

\J1

-
RULE MONITOR

AGENCY/SERIES NO RULE NOTICE HEARING EMER RULE SEc/STATE LRMRe-ACTION LEGIS FINAL FILE EFFECTIVE

Higher Education Bookstores and Textbooks 1/27/2010 3/1/2010 4/27/2010 5/27/2010

Policy Commission $9.00

(133-51) Procedural

Highways Use of 8tate Road Rights of Way 61712010 7/7/2010 61712010

(157-6) and Adjacent Areas ERD by

$9.20 7/20/2010

Legislative

Human Services Out-of-School-Time Child Care 6/30/2009 7/30/2009 7/31/2009 Modified & 88408 4/9/2010 7/1/2010

(78-21 ) Center Licensing Requirements Approved

$8.80 1/1312010

Legislative Filed

1/20/2010

Insurance Commission Variable Life Insurance 5/26/2009 6/25/2009 7/17/2009 Modified & 88409 4/14/2010 7/16/2010

(114-11 D) $6.40 Approved

Legislative 1/13/2010

Filed

1/26/2010

Insurance Commission Annuity Disclosure 5/26/2009 6/25/2009 7/17/2009 Modified & 88410 4/14/2010 7/16/2010

(114-11 E) $6.80 Approved

Legislative 1/13/2010

Filed

1/25/2010

Insurance Commission Use of Senior-Specific Certifications 5/26/2009 612512009 7/17/2009 Modified & S8296 4/14/2010 7/112010

(114-89) and Professional Designations in Approved H84107

the Sale of Life Insurance and 12/7/2009

Annuities Filed

$3.00 12/17/2009

Legislative

Miners' Health, 8afety Rules and Regulations Goveming 5/26/2010 6/30/2010

and Training the Safety of Those Employed in

(56-3) and Around Surface Mines in West

Virginia

$19.90

Legislative

Mines Training Certification of Surface Mine 5/4/2010 5/4/2010

Education & Foremen

Certification, Board of $2.80

(48-6) Legislative Exempt

Mining & Reclamation West Virginia Surface Mining 12/16/2009 1118/2010 12/16/2009 2/1/2010

(38-2) Reclamation Rule Approved

$31.20 12/2312009

Legislative

Motor Vehicles Denial, Revocation, Restriction or 9124/2009 10/26/2009 9/9/2009 10129/2009 Modified & 8B299 4/15/2010 7/1/2010

(91-5) NonRenewal of DriVing Privileges Approved Approved HB 4109

$11.80 9/18/2009 11/18/2009 BUNDLED

Legislative Filed S8291

11/23/2009

ID

VI

IV
RULE MONITOR

AGENCY/SERIES NO RULE NOTICE HEARING EMER RULE SEC/STATE lRMRC-ACTION lEGIS FINAL FilE EFFECTIVE

Motor Vehicles Collection of Tax on the Sale of a 9/24/2009 10/26/2009 919/2009 10129/2009 Approved SB300 4/1512010 7/1/2010

(91-9) Vehicle Approved 11/17/2009 HB 4056

$3.80 9/1812009 BUNDLED

Legislative SB 291

Natural Resources Special Motorboating Regulations 5/4/2010 6/6/2010 4/13/2010

(58-27) $3.40

Legislative

Natural Resources Deer Hunting Rule 5/28/2009 6/29/2009 7/10/2009 Modified & SB302 5/312010 7/1/2010

(58-50) $3.00 Approved HB 4110

LegiSlative 8/10/2009 BUNDLED

Filed HB 4110

8/14/2009

Natural Resources Special Fishing Rule 5/28/2009 6/29/2009 7/31/2009 Approved 8B303 5/3/2010 7/1/2010

(58-61 ) $3.20 9/14/2009 HB 4058

Legislative BUNDLED

HB 4110

Occupational Therapy Administrative Rule of the Bd. Of 5/15/2009 6/18/2009 7f712009 Modified & SB304 4115/2010 7/1/2010

(13-1) Occupational Therapy and Approved HB 4111

Licensure of Occupational 11/17/2009 BUNDLED

Therapists and Occupational Filed HB 4108

Therapy Assistants 11/24/2009

$3.80

Legislative

Occupational Therapy Fees for Services Rendered by the 5/1512009 6/18/2009 6/12/2009 71712009 Modified & SB305 4/15/2010 7/1/2010

(13-3) Board Approved Approved HB 4112

$2.60 7/22/2009 11/17/2009 BUNDLED

Legislative Filed HB 4108

11/24/2009

Occupational Therapy Continuing Education and 5115/2009 611812009 71712009 Modified & SB306 4/15/2010 7/112010

(13-4) Competence Approved HB 4113

$3.40 11/17/2009 BUNDLED

Legislative Filed HB 4108

11/24/2009

Occupational Therapy Competency Standards for 511512009 6/18/2009 5/13/2009 71712009 Modified & SB307 4/15/2010 7/112010

(13-5) Advanced Practice by Occupational Approved Approved HB4114

Therapists and Occupational 6/2/2009 11117/2009 BUNDLED

Therapy Assistants Filed HB 4108

$2.80 11/24/2009

Legislative

Occupational Therapy Ethical Standards of Practice 511512009 6/18/2009 71712009 Modified & SB308 4/15/2010 7/112010

(13-6) $2.80 Approved HB 4115

Legislative 11/17/2009

Filed

11/24/2009

<D

VI

IN
RULE MONITOR

AGENCY/SERIES NO RULE NOTICE HEARING EMER RULE SEc/STATE lRMRC-ACTION lEGIS FINAL FilE EFFECTIVE

Outdoor Heritage Rules of the Outdoor Heritage 6/23/2009 7/24/2009 7/30/2009 Modified & 5B 312 4/29/2010 7/112010

Conservation Fund Conservation Fund Approved HB 4119

(205-1) $4.00 9/14/2009 BUNDLED

Legislative Filed HB 4110

9/21/2009

Parkways Economic Rule Providing for Sign, Kiosk or 5/19/2010 6/25/2010

Dev. & Tourism Auth. Monument Placement at Turnpike

(184-4) Travel Plazas, Rest Areas,

Welcome Center and Tarnarack

$3.40

Procedural

Personnel Administrative Rule of the WV Div. 5/29/2009 6/2912009 7/30/2009 Approved SB 313 5/4/2010 7/1/2010

(143-1) of Personnel 10/13/2009 HB 4059

$10.00 BUNDLED

Legislative SB240

Professional Application of Engineering Seal 5/26/2010 6/28/2010

Engineers, Bd. of Reg. $3.20

(7-3) Interpretive

Psychologists Organization and Procedures of the 5/5/2010 617/2010

(17-2) Bd. Of Examiners of Psychologists

$5.40

Procedural

Psychologists Qualifications for Licensure as a 6/11/2009 7/13/2009 7/27/2009 Modified with SB 415 4/16/2010 6/112010

(17-3) Psychologist andlor a School certain BUNDLED

Psychologist amendments and HB 4108

$5.20 Approved

Legislative 1/13/2010

Filed

1/14/2010

Public Service Rules for the Government of Sewer 8/15/2008 10/31/2008

Commission Utilities

(150-5) $12.40

Exempt Legislative

Public Service Rules for the Government of Water 8/15/2008 10/31/2008

Commission Utilities

(150-7) $14.40

Exempt Legislative

Public Service Rules Governing Electric Utility Net- 2/2/2010 41512010

Commission Metering Arrangements and

(150-33) Interconnections

$7.20

Procedural

Racing Commission Thoroughbred Racing 1/1212010 2/1212010 1/12/2010 4/1212010

(178-1) $14.50 Approved

Legislative 1/28/2010

THE ABOVE RULE HAS BEEN WITHDRAWN 6/7/2010

ID

V1

..,.
RULE MONITOR

AGENCY/SERIES NO RULE NOTICE HEARING EMER RULE SEC/STATE LRMRC-ACTION LEGIS FINAL FILE EFFECTIVE

Racing Commission Thoroughbred Racing 61712010 7/8/2010

(178-1 ) $23.10

Legislative

Racing Commission Pari-Mutuel Wagering 61712010 7/8/2010

(178-5) $15.00

Legislative

Real Estate Appraiser Requirements for Licensure and 11712009 2113/2009 1212312008 3/2312009 Modified & SB314 4/26/2010 7/112010

Licensing & Certification 6/30/2009 7/30/2009 Effective Withdrawn Approved HB 4120

Certification Board $8.60 2/4/2009 7/1312009 9/14/2009 BUNDLED

(190-2) Legislative Expired Filed HB 4108

3/23/2010 9/22/2009

Real Estate Appraiser Renewal of Licensure or 11712009 2/13/2009 12/2312008 3123/2009 Approved SB 315 4/26/2010 4/26/2010

Licensing & Certification Effective 7/15/2009 HB 4060

Certification Board $3.00 214/2009 BUNDLED

(190-3) Legislative HB 4108

Real Estate Appraiser Investigative and Hearing 3/3/2010 4/5/2010 4/26/2010 5/26/2010

Licensing & Procedures

Certification Board $3.40

(190-4) Procedural

Regional Jail & Charges Assessed Against Inmates 4/1212010 5/28/2010

Correctional Facility for Services Provided by Regional

Authority Jail, Medical Co-Payment

(94-9) $3.80

Interpretive

Sanitarians, Bd. Of Interim Fee Schedule 5/18/2010

Reg. for $3.40

(20-3) Legislative

Secondary Schools Athletics, Provisions Governing 5/13/2010 6/14/2010

Activities Comm. Eligibility

(127-2) $5.60

Legislative Exempt

Secondary Schools Provisions Governing Contests 5/13/2010 6114/2010

Activities Comm. $8.80

(127-3) Legislative Exempt

Senior Services WV State Plan for Aging Programs 4/1/2010 Hearing

(76-3) $12.10 5/17/2010

Interpretive Comments

611/2010

Speech-Language Licensure of Speech-Pathology and 5/11/2009 611512009 6/17/2009 Modified & SB 319 4/812010 7/1/2010

Pathology & Audiology Audiology Approved HB 4124

(29-1) $4.60 7/15/2009 BUNDLED

Legislative Filed HB 4108

7/23/2009

State Police Organizational Structure 5/25/2010 613012010

(81-13) $3.60

Interpretive

'"

U1

U1
RULE MONITOR

AGENCY/SERIES NO RULE NOTICE HEARING EMER RULE SEC/STATE LRMRC-ACTION LEGIS FINAL FILE EFFECTIVE

State Rail Authority Valuation of Used Rolling Stock and 3/31/2010 4/30/2010 5/13/2010

(172-2) Equipment

$3.60

Legislative

Tax Department WV Film Industry Investment Act 6/26/2009 7/27/2009 7/30/2009 Modified & SB 418 5/612010 5/11/2010

(110-13X) $4.40 Approved

Legislative 1/11/2010

Filed

1/21/2010

Tax Department Consumers Sales and Service Tax 5/19/2009 612212009 6/23/2009 Modified & SB320 5/6/2010 5/11/2010

(110-15C) and Use Tax - Drugs, Durable Approved HB 4125

Medical Goods, Mobility Enhancing 11/18/2009

Equipment and Prosthetic Devices Filed

Per Se Exemption; Motor Vehicles 11/30/2009

Per Se Exemption

$2.80

Legislative

Tax Department Residential Solar Energy Tax Credit 6/2612009 7/27/2009 7/30/2009 Modified & SB 321 5/612010 5/11/2010

(110-21 D) $4.00 Approved HB 4126

Legislative 11/18/2009

Filed

11/30/2009

Tax Department Corporate Net Income Tax 612612009 7/27/2009 7/31/2009 Modified & SB419 5/6/2010 5/11/2010

(110-24) $17.10 Approved

Legislative 1/11/2010

Filed

1/21/2010

Tax Department Exchange of Information Agreement 6/312010 7/6/2010

(110-50E) Between the State Tax Department

and the WV Lottery

$3.80

Legislative

Tax Department Exchange of Information Agreement 6/3/2010 7/6/2010

(110-50F) Between the State Tax Department

and the State Fire Marshal

$3.60

Legislative

Treasurer's Office Establishment of Imprest Funds 5/26/2010 6/28/2010

(112-3) $3.60

Legislative

Waste Management Solid Waste Management Rule 6/12/2009 7/14/2009 7/30/2009 Modified & SB 274 4/912010 5/1/2010

(33-1 ) $22.70 Approved HB 4089

Legislative 12/8/2009 BUNDLED

Filed SB 273

12111/2009

""

V1

Ol
RULE MONITOR

AGENCY/SERIES NO RULE NOTICE HEARING EMER RULE SEC/STATE LRMRC·ACTION LEGIS FINAL FILE EFFECTIVE

Water Resources Requirements Governing Water 3/3/2010 4/1/2010 3/3/2010 6/4/2010

(47-2) Quality Standards 6/4/2010 7/19/2010 Approved

$12.80 3/5/2010

Legislative

Water Resources National Pollutant Discharge 6/12/2009 7/16/2009 7/30/2009 Modified & S8277 4/8/2010 7/1/2010

(47-10) Elimination System (NPDES) Approved H84091

Program 9/14/2009 BUNDLED

$13.20 Filed 58273

Legislative 9/17/2009

Water Resources Requirements Governing 6/12/2009 7/16/2009 7/30/2009 Modified & S8239 4/23/2010 7/112010

(47-12) Groundwater Standards Approved H84092

$3.20 9/14/2009 BUNDLED

Legislative Filed 5B 273

9/18/2009

Water Resources WVlNPDES Rule for Coal Mining 6/10/2009 7/14/2009 7/31/2009 Modified & S8279 4/21/2010 7/112010

(47-30) Facilities Approved HB4094

$12.90 9/14/2009 BUNDLED

Legislative Filed SB 273

9/17/2009

Workers Compo by the Workers Compensation Policies, 2123/2010 3125/2010

Insurance Comm. Coverage Issues and Related

(85-8) Topics

$6.80

Legislative Exempt

Workers Compo by the Medical Review 2/23/2010 312512010

Insurance Comm. $3.60

(85-22) Legislative Exempt

WorkForce West Employer Violator System 8/5/2009 9/7/2009 7/31/2009 9/24/2009

Virginia $5.20 Approved

(96-3) Legislative 8/24/2009

<0

V1

-...I
, r:: 10:::9

Do Not Mark In This Box

____________________________

v,~ v : .,Co

Do Not Mark In This Box LEGISLATIVE WEST VIRGINIA

SECRETARY OF STATE

;'.1: , .; NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION

Form #1

WEST VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION

Fonn#1

NonCE OF A PUBLIC HEARING ON A PROPOSED RULE NOTICE OF A PUBLIC HEARING ON A PROPOSED RULE

AGENCY: WV I?q>artmcnt ofEttvironmenlal Proleotion - Division ofAir Quality TITLE NUMBER: 4_5

RULE TYPE: Legislative CITE AUTHORITY: W, Va. Code §22-5-4

AMENDMENT TO AN EXISTING RULE: YESCEJ NoD

AGENCY: WV Department of Environmental Protection· Division ofAir Quality TITLE NUMBER: 4_5

RULE TYPE: Legislative CITE AUTHORITY: W. Va. Code §22-5-4

AMENDMENT TO AN EXISTING RULE: YES!JD NoD

IF YES, SERIES NUMBER OF RULE BEING AMENDED: 45CSR8

TITLE OF RULE BEING AMENDED' Ambient Air Quality Standards

IF YES, SERIES NUMBER OF RULE BEING AMENDED: 45CSRI4

TITLE OF RULE BEING AMENDED: Permi.. for Constructioo and Major Modification ofMajor StationatV Sources ofAir Pollution for the Prevention ofSignificant Deterioration

IFNO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEING PROPOSED: _

IF NO. SERIES NUMBER OF RULE BEING PROPOSED: _

'tiTLE OF RULE BEING PROPOSED: _

DATE OF PUBLIC HEARING: July 12,2010 TIME: 6:00 p.m.

LOCATION OF PUBLIC HEARING: WV Department o(Environmental Protection

Dolly Sods Confo..... Room

601 571h S_~ S.E.

OI_n, WV 25304 n

COMMENTS LIMITED TO: ORALO WRiTTEND BOTH[KJ

DATE OF PUBLIC HEARING: July 12.2010 TIME: 6:00p.m.

LOCAnON OF PUBLIC HEARING: WV Department ofEnvironmental Protection

Dolly Sods ConfdtellCC Room

601 57th Street, S.E.

Charleston~ WV 25304

COMMENTS LIMITED TO: ORALD WRITTEND BOTH[8]

III

DATE WRITTEN COMMENT PERIOD ENDS:

WRITTEN COMMENTS MAYBE MAILED TO:

The Department requests that persons wishing to make

comments at the hearing make an effort to submit written

comments in order to facilitate the review ofthcse comments.

The isslleS 10 be beard shall be limited 10 1he proposed role.

July 12,2010 TIME: Close ofHearing

Kadw Cosco. Public Inform.t;.n Office wv Department ofSnvirontnCfltal Prol.ection

601 57th Stm:t, S.E.

OI",I","on. WV 25304

DATE WRlTrEN COMMENT PERIOD ENDS:

WRITTEN COMMENTS MAY BE MAILED TO:

The Department requests that persons wishing to make

comments at the hearing make an effort to submit written

comments in order to facilitate the review ofthese comments.

July 12,2010 TIME: Close o!Hearing

Kathy Cos<». Publie Inform.tion Office WVl)~.partmen[-orEnv\ronin_cntal-Pi:Oicction

60I 57th Street, S.E.

Charleston, WV 25304

fhe issues to be heard shall be limited to the proposed rule.

ATrACH AlYUEfSUMMARY OF YOUR PROPOSAL , ,.--c ~-

" , Autholjf:ed Siil\lli'iml AHACM A!llY£Ii: SUMMARY OF YOUR PROPOSAL

-. "-'.~""

.. _.".;'''1 ";~$'

AuthorizedS~ature . ".

~\0'loD 't\{)~

ID

VI

(Xl
;:.J:' 3

Do Not Mark In This Box

---------------------------~'--~~~~~~~.~,~--------

.WEST VIRGINIA

LEGISLATIVE SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION

Fonn#1

i.:... •. '-' ~"w= :~

Do Not Mark In This Box

Fonn#1

WEST VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION ___________________________ ~I -----~---

NOTICE OF A PUBLIC HEARING ON A PROPOSED RULE NOTICE OF A PUBLIC HEARING ON A PROPOSED RULE

AGENCY: WV Oepa_eot ofEoviroomental Protection· Division ofAi, Quality TITLE NUMBER: 45 AGENCY: WV Department ofEnvironmental Protection· Division ofAi, Quality TITLE NUMBER: 45

RULE TYPE: Legislative CITE AUTHORITY: W. Va. Code §22-5-4

AMENDMENT TO AN EXISTING RULE: YES[8] NoD

IF YES, SERIES NUMBER OF RULE BEING AMENDED: 45CSRI6

TITLE OF RULE BEING AMENDED: Standards ofP",fonnanee for New Stationary Sources

RULE TYPE: Legislative CITE AUTHORITY: W. Va. Code §22-5-4

AMENDMENT TO AN EXISTING RULE: YES[8] NoD

IF YES, SERIES NUMBER OF RULE BEING AMENDED: 45CSRI8

TITLE OF RULE BEING AMENDED: Control of Ai, Pollution trom Combustion ofSolid Waste

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEING PROPOSED: _

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEING PROPOSED: _

._-----------------------------------------

DATE OF PUBUC HEARING: July 12,2010 TIME: 6:00 p.m.

LOCATION OF PUBLIC HEARING: WV Otpamnent ofEnvironmental Protection

Dolly Sods CODf~nce Room

DATE OF PUBLIC HEARING: July 12.2010 TIME: 6:<l0 p.m.

LOCATION OF PUBLIC HEARING: WV Depatlment ofEnviromoental Protection

Dolly Sods Conference Room

601 57th Street, S.I1. 601 57th Street. S.I1.

Charleston. WV 25304 !!I Charleston, WV 25304 n

COMMENTS LIMITED TO: ORALO WRITTENO BonI[8] COMMENTS LIMITED TO: ORALO WRITTENO BOTH[8]

DATE WRITTEN COMMENT PERIOD ENOS:

WRITTEN COMMENTS MAY BE MAILED TO:

The Department requests that persons wishing to make

comments at the hearing make an effort to submit written

comments in order to facilitate the review ofthese comments.

July 12.2010 TIME: Close ofHearing

Kathv CoseQ.. Public.lnf«.nmation Office

WV"Ddi'»amncnt-ofEnvironmental Protection

60l 57th Street, S.I1.

Charleston, WV 25304

DATE WRITTEN COMMENT PERIOD ENDS:

WRITTEN COMMENTS MAY BE MAILED TO:

The Department requests that persons wishing to make

comments at the hearing make an effort to submit written

comments in order to facilitate the review ofthese comments.

July 12,2010 TIME: Clos.ofHearln;

Kathy CoS<>O•.Publie Information Office

wv r>epartmentofEnvironmenrafPrOtCCtlon

601 57th Street. S.E.

CbadesLOn. WV 25304

Th< issues to be heard shall be limited 10 the proposed rule. The issues to be heard shall be limited to the proposed rule.

A1-rACI1 AI!RIUSUMMARY OF YOUR PROPOSAL

0-.0

...."i

,.(

., .. --~~t~oril:c4 ;g;;a~~ ..1

AHACH A SUMMARY OF YOUR PROPOSAL

va ~0-

,.,._.~'" -..:::~~~ '~, ·c:,-'-<.s$,.s.·<.:~«:;-~,. -. " .... ."', 'Il&:J\\..... .., AUlhori~ignatufli; ' .•

'"

VI

'"
-------------------- ~I ----------

fa: 1,1

WEST VIRGINIA Do Not Mark In This Box

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION Form #1

.~,. 10= fa

Do Not Mark In Th' LEGISLATIVE WEST IS Box VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION ___________________________ Form #1 I :.

NOTICE OF A PUBUC HEARING ON A PROPOSED RULE NOTICE OF A PUBLIC HEARING ON A PROPOSED RULE

RULE TYPE: Legislative C[TE AUTHORITY: W. Va. Code §22-5·4

AMENDMENT TO AN EXISTING RULE: YES[8J NoD

[F YES, SERIES NUMBER OF RULE BEING AMENDED: 45CSRI9

RULE TYPE: Legislative CITE AUTHORITY: W. Va. Code §22.54

AMENDMENT TO AN EXISTING RULE: YES[8] NoD

IF YES, SERIES NUMBER OF RULE BEING AMENDED: 45CSR25

AGENCY: WV Depanment ofEnvironmental ProteCtion - Division ofAir Qualily TITLE NUMBER: 45 AGENCY: WV Department ofEuvironmental Protection - Division ofAir Quality TITLE NUMBER: 45

TITLE OF RULE BEING AMENDED- P"""its for Construction and Major Modification "fMajor Stalion... Sources ofAir Pollution Which Cause orContribute to Nonattainment

TITLE OF RULE BEING AMENDED' CQntrol ofAir PQllution from Hazardous W.ste Trcatrncn; Stora.e and Disposal Pacilities

IF NO, SERIES NUMBER OF RULE BE[NG PROPOSED: _

• TITLE OF RULE BEING PROPOSED: _

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

T[TLE OF RULE BEING PROPOSED: _

"------------------------------------------

DATE OF PUBLIC HEARING: July 12,2010 T[ME: 6:00p.m.

LOCAnON OF PUBLIC HEARING: WV Department ofEnvironmental Protection

Dolly ~ods Conference Room

DATE OF PUBLIC HEARING: July 12.2010 TIME: 6:00 p.m.

LOCATION OF PUBLIC HEARING: WV Department ofEnvironmental Protection

Dolly Sods Conference Room

601 57th S....t. S.E.

Charleston. WV 25304 n

60I 57th Street. S.B.

Charleston, WV 25304 a

COMMENTS LIMITED TO: ORALD WRITfEND BOTHOO COMMENTS LIMITED TO: ORALD WRITTEND BOTHOO

DATE WRITTEN COMMENT PER[OD ENDS:

WRITTEN COMMENTS MAYBE MAILED TO:

The Department requests that persons wishing to make

comments at the hearing make an effort to submit written

comments in order to facilitate the review ofthese comments.

July 12.2010 TIME: Close ofHearing

Kathv (..:01>_<:0. PuQ.licJnf9rmati9n Office

WV Depanment ofEnvironmental Protection

601 57th St>=t. S.t!

Charl...ton, WV 25304

DATE WRITTEN COMMENT PERIOD b'NDS:

WRiTfEN COMMENTS MAYBE MAILED TO:

The Department requests that persons wishing to make

comments at the hearing make an effort to submit written

comments in order to facilitate the review of these comments.

1uly 12. 2010 TIME: Close ofHearing

Kathv CQSCO. P~1je I~fonni1tiQn Office:

WV DepartmcnCOfltilVironmenlal P",rceiion

601 57th Slrcct. S.E.

Charleston, WV 25304

The issues to be heard shall limited 10 the proposed rule. The i~l:;ues 10 be heard shall be limited 10 th~ proposed rule,

AITACII A.!lBIEl SUMJI,tARY OF YOUR PROPOSAl. ~~- .v< ~i;""::""""':-

Auth~ SIgnature

AHACH A :!llY.E[ SUMMARY OF YOUR PROPOSAL ......-- .. ,......... ""'" " Author'li!ed Signatu're

.(ttfJ

..,.

I" --0

\ ')P

'"0-

o
Forrn#2 I ( :,0,1:- ._-------------

ZU!llX:-1 MlIl:5J

Do Not Mark In This Box

NOTICE OF A COMMENT PERIOD ON A PROPOSED RULE

WEST VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION

LEGISLATIVE

- y.,-\,t;

Lt. ,:, -s r.'llO: l; I

WEST Do Not Mark In This Box VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION

-~~~------------------ ~I----~----~------

NOTICE OF A PUBLIC HEARING ON A PROPOSED RULE

RULE TYPE: Legislative CITE AUTHORlTY: ,ilS!l!ta!lllut!lloryrv..;3!ll0.''29lt;-301- _

AMENDMENT TO AN EXISTING RULE: YES.25- NO_

IF YES, SERlES NUMBER OF RULE BEING AMENDED: 2

mLE OF RULE BEING AMENDED:.-=.L._w.,:En....:,fo.,:=_mc.:.:..,nt..::T:.::ra:.::in:.::in:. B.:..Sta::.n..:da::.rd:.- _

AGENCY: WV Department orEnvironmental Protection - Division orAir Quality TITLE NUMBER: 45

RULE TYPE: Legislative CITE AUTHORITY: W. Va. Code ~22-5-4

AMENDMENT TO AN EXISTING RULE: YESCEJ NoD

IF YES. SERIES NUMBER OF RULE BEING AMENDED: 45CSR34

TITLE OF RULE BEING AMENDED' Emission Standards for Hazardous Air Pollut.....

AGENCY: Governor's Committee on Crime, Delinquency and Correclion TITLE NUMBER: 149

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEING PROPOSED: _

IF NO, SERlES NUMBER OF RULE BEING PROPOSED:-----

TITLE OF RULE BEING PROPOSED:-------------------

------------------------------------------

DATE OF PUBLIC HEARING: July 12. 2010 TIME: 6:00 p.m.

LOCATION OF PUBLIC HEARING: WVDep.rtment ofEnvironmOl,llIJ Protection

DoILy Sods Conference Room

601 57th Street, S.E.

Charleston, WV 25304 n

IN LIEU OF A PUBLIC HEARING, A COMMENT PERlOD HAS BEEN ESTABLISHED DURING WHICH

ANYINTERESTEDPERSON MAYSEND COMMENTS CONCERNINGTHESE PROPOSED RULES. THIS

COMMENTPERIOD WILL END ON July 15.2010 AT 5:00p.m. ONLY WRITTEN

COMMENTS WILL BE ACCEPTED AND ARE TO BE MAILED TO THE FOLLOWING ADDRESS:

¥b:1P

THE ISSUES TO BE HEARD SHALL BE

LIMITED TO THIS PROPOSED RULE.

.,/), ,~~/j;~1;;~cT~-" Authorizedslgnature . /,.'

ATTACHA~SUMMARYO;Y~~b~el Executive Director

(304) 558·8814, eXl 53315 Char!...A.Sadlcr@wv.gov

1204 Kanawha BoUlevard E:tst

Charl..ton. WV 25301

Law EnforcementTraining Coordinator

Division QfCriminal Justice Services

Retired Captain Chuck Sadier

,~~-----_._ ... ". ....- ....•.. --------...;

. ..... Auth"rized)i~atur. ,,~ ',,:;.

Charl",,"'n, WV 25304

TIME: Close oCHearinG

Kathv Coseo. Public Information Office

WVDCpartment ofBnvlronJmn-t'iIPfotcction

601 57th Street, S.B.

, -J ",,- -::::-::"<:'" 'r. """,- .. ¢..s..:-<'>,~1-~. ~".. :::.:.~

'11te issues to be heard shall be limited to th~ proposed rule.

DATE WRlTTEN COMMENT PERIOD ENDS: July 12,2010

WRITTEN COMMENTS MAY BE MAILED TO:

The Department requests that persons wishing to make

comments at the hearing make an effort to submit written

comments in order to facilitate the review ofthese comments.

ATrACH A:mYElSUMMARY Of YOUR PROPO~AL

COMMENTS LIMITED TO: ORAtO WRiTTENO BomQI]

~1>\P

\D

at

-
NOTICE OF A COMMENT PERIOD ON A PROPOSED RULE

fH.jAwqy,s AGENCY: West Virgmia Doponmcnt ofTr>csportalion TITLE NUMBER: 151

WEST VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION ~M~

-------------------------

00 Not Marft In This Box

i r.. I::: I

LEGISLATIVE

'ji;,:\ i1 ij'

\I"

\L,ll"h;; ;U

;i;1

June 8, 2010

t,i,~~~~~~\ L07T€~\~J:';;-O H\ IH~ 1:\! {d4 ',51,-(1=;00

1,\\;0.; 'i"1>-1321

---, '<'';'~·I ••'1 l•. l.'lil (. J

;\.fus~"rnvl' n

IliIt'dllr

RULE TYPE: Legislative CITEAUTHORlTY: WVaCode 11-1 2A 4,16202:1 Mdn

AMENDMENT TO AN EXISTING RULE: YES 2.. NO_

JF YES. SERIES NUMBER OF RULE BEING AMENDED: Six

TITLE OF RULE BEING AMENDED: USC .rState Road Rigbts orWay and Adjacent Aroa,

IF NO. SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BElNG PROPOSED: _

Honorable Natalie Tennant

West Virginia Secretary of State

Altn: Administrative Law Division

1900 Kanawha Boulevard, East

Charleston, WV 25305-0771

Dear Secretary Tennant:

IN LIEU OF A PUBLTC HEAR.lNG. A COMMENT PERIOD HAS BEEN ESTABLISHED DURING WHICH

ANY INTERESTEDPERSONMAY SENDCOMMENTSCONCERNINGTHESEPROPOSEDRULES. THIS

COMMENTPERlODWn,LENDON July 1 ,2010 AT 4:00p.m. ONLYWRmEN

COMMENTS WILL BE ACCEPTED AND ARE TO BE MAILED TO THE FOLLOWING ADDRESS:

Mll1\'in Murphy; Kathy Holtsclaw

wv Dept. ofTmnsportation~ Division ofHighways

Rldg. 5, Runm 164

1900 KlInawba Blvd.• E,

Chnrieston. WV 25305·0430

THE ISSUES TO BE HEARD SHALL BE

LIMITED TO THIS PROPOSED RULE.

"

/ t J f}'k ,J "JtLi'vt tA. iVw'U~1'\'" Authoriud Sign.tlire v

Pursuant to W, Va. Code §29-22A-5{a), the West Virginia State Lottery is, from time to

time, to adopt game rules pertaining to Racetrack Video Lottery which are specifically

authorized by W. Va, Code §§29-22A-1 et seq.

Enclosed are game rules for 'Triple Lucky 7s", "Triple Double Diamond Free Games",

"Classic Sevens", 'Triple Stars", "Double Diamond Strike", 'Triple Lucky 7's", "3X 2X Super

Sevens", "Double Diamond Strike", "Red, White & Blue", "Maggie and the Martians·, "Golden

Eagle", "Snapdragon", "White Orchid", "Red Mansions", "Captain Payback", "Cats", "Cats",

"Wildwood", "Diamond Queen", "Arctic Fox", "Vesuvius", "Night Sky", "UI' Lady", "Five Times

Pay", "Triple Red Hot Gold Free Games", 'Triple Lucky 7'1', "Double Diamond", 'Triple Silver",

"2X 3X 4X 5X Dragon", "Triple Strike 2 for 1", "Big Time Payroll", "Super Slingo Jackpot".

"Double 3X 4X 5X Times Pay", "Treasures of Troy·, "Stinkin' Rich", "Super Times Pay Free

Games". "Super 2X 3X 4X 5X Times Pay Free Games", and "BAMI" games manufactured by

International Game Technology for lottery terminals located at all four licensed racetracks in

the State.

AITACH ABB.IEE SUMMARY OF YOUR PROPOSAL

~~ 't!,

<D

0\

IV
LEGISLATIVE

~':>Tc;

Do Not Mark In This Box

.JO£ MAN(:"HIN UI

GOVERNOR

, ZfilO JLN -i PH 12: ~l;

DEPARTMENT OF REVENUE VIRO'L T. HELTON

CABINET SECRETARY

OFFICE OF THE SIlCRETARY "

r

WEST VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION

Form #2

-------------------------

..' - i r,·~ t.....,

t ~, I":": ..;

TITLE NUMBER: 178

STATECAPITOL

CHARLESlON, WEST VIRGrNfA

June 4. 20!0

The Honorable Nalalie E, Tennanl

West Virginia Secretary of State

State Capitol, Building 1. Suite 157-K

Charleston. West Virginia 25305

NOTICE OF A COMMENT PERIOD ON A PROPOSED RULE

AGENCY' West Virgmia Racing Commission

RULE TYPE: Legisl>li,e CITE AUTHORITY: WV Cod< 19-?3-2!o! 19=23.3(171, 19·2.1-6, . 19-23-8,19·23-9,19-23·13, 19·23-l3b, 19·23·15

AMENDMENT TO AN EXISTING RULE: YES _'_ NO_

IF YES, SERIES NUMBER OF RULE BEING AMENDED: _

TITLE OF RULE BEING AMENDED:Th_ oro_"..:g1_'b_n:d_R_a_ci...: ng:.- _

Dear Secretary Tennant:

Re: Withdrawal l,f amendment to 178 CSR 1

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEING PROPOSED: _

Sincerely;'

IN LIEU OF A PUBLIC HEARING. A COMMENT PERIOD HAS BEEN ESTABLISHED DURING WHICH

ANY INTERESTEDPERSON MAY SENDCOMMENTSCONCERNINGTHESE PROPOSEDRULES, THIS

COMMENTPERIOD WILL END ON July 8, 2010 AT 5:uO p.m. ONLYWRI'ITEN

COMMENTS WILL BE ACCEPTED AND ARE TO BE MAILED TO THE FOLLOWING ADDRESS:

The Wcsl Virginia Racing Commission proposes a complete repeal and replace of its

Thoroughbred Racing rule in a legislath'e rule filed today for public comment. The Commission

theretbre wishes to withdraw the Legislative Rule previously filed on April] 2. 20I0, This rule was

initially tiled lIS an Emergency Rule in January 20! 0 amending one section of 178 CSR L

Thoroughhred Racing,

Thank you for your attention to this matter,

; '/,j

/ ' ,/,fjl.t." j",{/',.(" , "-

Virgil f. BlIlton )

Cabinet Secretary

VTHlcn

ce: Joe E, Smith. Chainnan ofthe West Virginia Racing Commission

West Virginia Racing Commission

106 OecDtive

Chl1{1cston. Wcs[ Virginia 25311

THE ISSUES TO BE HEARD SHALL BE

LIMITED TO THIS PROPOSED RULE,

/'

"

f"

A'liiloriz.;'fSignature

WEsT WINe, ROOM 3011 P.O. Box 963 CIIARLfS1'ON, WEsT VIRGINIA 25324 'TELEPHONE 300 5sa-om FAt;SJM'LE 3041558-1324

A'ITACH A.!mlEl SUMMARY OF YOUR PROPOSAL

'"IV ~,,&-J'\:

-0

en

w
NOTICE OF A COMMENT PERIOD ON A PROPOSED RULE

WEST VIRGINIA Do Not Mark In This Box

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION

Form #2

-------------------------

" • - i P., ;2::':

LEGISLAllVE

WEST VIRGINIA

SECRETARY OF STATE

NATALIE TENNANT

ADMINISTRATIVE LAW DIVISION

Form #2

il:

Do Not Mark In this Box

-3 Pi'~ 3: 3ci

IF YES, SERIES NUMBER OF RUI.E BEING AMENDED: __..:.-__

TITLE OF RULE BEING AMENDED,:..·P=.ari:.;.M:;.:u:;.:tue:;.:l...;W..:ag::.:""=.·n::::g.- _

RULE TYPE: Legisla'ive CITE AUTHORlTY: ~W~VUC-'!l9!l!doL!I2:9.bnl:l.6!_ _

AMENDMENT TO AN EXISTING RULE: YES _x_ NO_

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEING PROPOSED: _

NOTICE OF A COMMENT PERIOD ON A PROPOSED RULE

sQ!L

AGENCY: ~.Ta" D!lll.a.rtl!l~!l.t ~_..... __..._.• TITLE NUMBER: ...1HL..... . .•. _.~ .__

IF NO. SERIES NUMBliR OF RULE BEING PROPOSED:

RULE TYPE: ..Legislative .... CITE AUTHORITY ..'w".YlLCQd.J;..§§ll·Hl:Ss(b)(4) & 22ecl:L~Sl!L-..._

AMENDMENT TO AN EXISTING RULE: YES_ .. _. NO K

IF YES, SERIES NUMBER OF RULE BEING AMENDED: _...

TITLE OF RULE BEING AMliNDED:

TITLE NUMBER: 178 AGENCY:Wes' Virginia Racing Commission

------------------------------------------ TITLE OF RULE BEING PROPOSED: ..,l;Ji~h!'!!i!U'fInformati2!1 ~~£l!:tten:rJJ~ T!!!!,,];l~em

~nd TheWe~1 'ljrginia J"Q!!!;J:L ..__ .__

West Virginia Racing CommiiSion

IN LIEU OF A PUBLIC HEARING, A COMMENT PERlOD HAS BEEN ESTABLISHED DURING WHICH

ANY INTERESTED PERSON MAYSENDCOMMENTS CONCERNINGTHESE PROPOSED RULES. THIS

COMMENTPERIODWILLENDON July 8, 2010 AT 5:00 p.m. ONLY WRITTEN

COMMENTS WILL BE ACCEPTED AND ARE TO BE MAILED TO THE FOLLOWING ADDRESS:

106 Doe Orive

Charleston, West Virgini3 25311

THE ISSUES TO BE HEARD SHALL BE

LIMITED TO THIS PROPOSED RULE.

IN LIEU OF A PUBLIC IIEARING, A COMMENT PERIOD liAS BEEN ESTABLISHED DURING WHICH ANY

INTERESTED PERSON MAY SEND COMMENTS CONCERNING THESE PROPOSED RULES. THIS .. I

COMMENT PERIOD WILL END ON '7/"'/'0 .. AT _J;QiLmn.......ONLYWRIHENCOMMENTSWILLBE

ACCEPTED AND ARE TO BE MAILED TO THE FOLLOWING ADDRESS:

..f,Q.fulLlQQ2.... ......__ ._..... , ( I ' r~ • Authorized Signature

ATrACH A JmIEESUMMARY OF YOUR PROPOSAL

JsJ->

~'(J

. Legal DiYiW..~ ..._......

~tU!IX Department

.. {;l!1II.le§iQ&WY...J.J:J24:1QQs

r1.4D

THE ISSUES TO BE HEARD SHALL BE

LIMITED TO THIS PROPOSED RULE.

. f;' .../ I <","'>;i,.'~'''" /.,~., ;0'\ -T--~"· ----~._--. _._.. Virgil 1:;flclton

Cabinet Secretary oflhe Department of Revenue

ATTACH A BRIEF SUMMARY OF YOUR PROPOSAL

Y:l
LEGISLATIVE

Do Not Mark In This Box

j('\' ,.~ C""J

ltV' ",U: L.

WEST VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION _~~#l.. I . " .. C

QQ:lI!ot MautIn this Box

1n~jJt~L-3 rn 3~35

WEST VIRGINIA

SECRETARY OF STATE

NATALIE TENNANT

ADMINISTRATIVE LAW DIVISION

Form #2

NOTICE OF A COMMENT PERIOD ON A PROPOSED RUI,E

AGENCY: __Sl!Jte Tal< Department ...... ...__ TITLE NUMBER: .lllL__

RULE TYPE: _J&gj§,!§:!i:I!!L._ CITE AUTHORHY _W· \I!..~liJJolQ.-2.~nQ~U1llil ..... _._

NOTICE OF AGENCY APPROVAL OF A PROPOSED RULE

AND

FILING WITJi THE~EGISLATIVE RULE·MAKING REVIEW COMMITTEE

lW./er €Sf)un

AGENCY: WVDepllltmentof viro"m.ntaITro~on.DWwM TITLENUMBER~

CITE AUTHORITY' w. Va. Codc§ 22-11-4(a)(16); §22-11-7b

If YES, SERIES NUMBER OF RULE BEING AMENDED: ..

TITLE Of RULE BEING AMENDED: Require"",n.. Goveming Water Qualily Standards

AMENDMENT TO AN EXISTING RULE: YES.. NO 1.L. __

IF YES, SERIES NUMBER OF RULE BEING AMENDED:

TITLE OF RULE BEING AMENDED:

~-~---,-_ .. ~~-_._--- .. - .-..._--

AMENDMENT TO AN EXISTING RULE: YES.2.. NO_

If NO, SERIES NUMBER Of RULE BEING PROPOSED: __ .... _2Q.E._.

TITLE OF RULE BEING PROPOSED: .Exchange oflnfQrma1jon Agt~m.l>~e S!a.lS.Tax Dep~!!.menl and

~Qfthe~W1mhl!h

IF NO, SERIES NUMBER Of RULE BEING PROPOSED: _

TITLE Of RULE BEING PROPOSEDI:..' _

--------------------------------------------~-

IN LIEU Of A PUBLIC HEARING, A COMMENT PERIOD HAS BEEN ESTABLISHED DURING WHICH ANY

INTERESTED PERSON MAY SEND COMMENTS CONCERNING THESE PROPOSED RULES. TillS

COMMENT PERIOD WILL END ON ?¥,QAT..2;QQ.ll!1L_. ONLY WRITI'EN COMMENTS WILL BE

ACCEPTED AND ARE TO BE MAILED TO THE FOLLOWING ADDRESS:

..J..wJ OivjsiQQ. ._

..s~T~lU1lnml! _

~~-----_._~_... -_.

_Charleston, WV 25324-1QOL_.... _~ ..__

---------.._--

THE ISSUES TO BE HEARD SHALL BE

LIMITED TO TillS PROPOSED RULE.

t

,-I' , / I

i ,. j 1/\ ,.'; 1./ 7""> !jl~_/;fof'_<_. >_:..~. .. _~<_._

.. Virgil T. lIelton

Cahinet Secretary ofthe Department ofRevenue

THE ABOVE PROPOSED LEGISLATIVERULE HAVING GONETOAPUBLIC HEARING ORA PUBLIC

COMMENT PERIOD IS HEREBY APPROVED BY THE PROMULGATING AGENCY FOR FILING WITH

THE SECRETARY OF STATE AND THE LEGISLATIVE RULE-MAKING REVIEW COMMITTEE FOR

THEIR REVIEW.

" -:"~-'\"",.­ ~~,~ .,,;:~.:sz\ '~__"--- ~~_--.:..::::L....

Authori~ Signature

ATI'ACH A BRIEF SUMMARY OF YOUR PROPOSAL

,,-/PO ·0'0 .~'\\-

'"

0\

U1
LEGISLATIVE

iiH.; ,;,c.: -l; r':110:: L

WEST 00 Not Mark In This Box VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION Form #1

------------------~-------- ~~ NOTICE OF;It PUBLIC HEARING ON A PROPOSED RULE

IA l-::rie£: Pes cv r-r A <:- AGENCY: w¥'D~enl ofE~~~nmental l'"ro'lectIMt:lJ"WWM TITLE NUMBER: 47

,,,t\li..

RULE TYPE: Legislative CITE AUTHORITY: w, Va, Code § 22.1 J-4(a){l6); § 22·11·7b

AMENDMENT TO AN EXISTING RULE: YES0 NO 0

IF YES, SERIES NUMBER OF RULE BEING AMENDED: 2

TITLE OF RULE BEING AMENDED- Beqlljrrmmlt5 GQyetDing Water QUi!Ijty Slund.rd,

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEING PROPOSED: _

DATE OF PUBLIC HEARING: July 19.2010 TIME: 6:00 p,m.

LOCATION OF PUBLIC HEARING: _CmoiUn~pce:rs:;R;';';o=ek::·T~ra~ii'iniii!nG~R~oo::m=;;n===_------ _ nWVOcpartmenl ofEn"ironmental Protection

601 57th Street SE

Charleston. WV 2$304

COMMENTS LlMITEDTO: ORALD WRITTEND BOTHI1D

Charleslon. WV 2l\104

Wat~ Quality StancLtrw. Program W-V-lJepanmern;1.rro1\~~

601 57th Street SE

T.indll R l{,.u,..1'

DATE WRITTEN COMMENT PERIOD ENDS: .;;,Ju"'ly:,..I.;;,9.:.;;2.;;,01.;;,0 _ TIME: Atend o[public hea;j

WRITTEN COMMENTS MAYBE MAILED TO:

The Department requests that persons wishing to make

comments at the hearing make an effort to submit wrinen

comments in order to facilitate the review ofthese comments.

The issues to be heard shaH be limited to the proposed rule,

ATfACH AJHY.EESUMMARY OF YOUR PROPOSAL

(:,~--

Authorill>d Si~re ~~

C1;)Q

,,'G-'

'"

Cl\

Cl\
Do Not Mark In This Box Filing Dale

'l.Ulij jlJH -1 Pl'\ \: 20

WEST VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION Fonn#7 zn,}.,,"

.,.;l.~1

v: SI/\1E

EMERGENCY

NO_

mLENUMBER: 1ST

--------------------------- I Effective Date

NOTICE OF AN EMERGENCY RULE

AGENCY: WV Ocparlment ofTransportation. Division ofHighways

CITEAUTHORITY: WVCodc 17-1,2"',4, 16,20,22. and 23

EMERGENCY AMENDMENT TO AN EXISTING RULE: YES

IF YES, SERIES NUMBER OF RULE BEING AMENDED: Six

Tm.E OF RULE BEING AMENDED' USC orSate Road RighI> O[WRV and Adjacen' Arc..

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEINOPROPOSED: _

THE ABOVE RULE IS BEINO FILED AS AN EMERGENCY RULE TO BECOME

EFFECTNE AFTER APPROVAL BY SECRETARY OF STATE OR 42ND DAY AFTER

FILING, WHICHEVER OCCURS FIRST.

THEFACTSANDCIRCUMSTANCESCONSTITUTINGTHEEMEROENCYARE

AS FOLLOWS:

Sc••tIlIch<:d page.

Use additional sheets ifnecessary

~y;

1.0

0\

.....
Orders Report

Docket Number Agency .. .... Respondent

09-2-8994-XlE Health Care Authority Joan C. Edwards School of Medicine at Marshall

University

10-2-9149-P Health Care Authority Logan Regional Medical Center

Decision Date

6/3/2010

6/3/2010

10-1-9125-X

2009-10-SMB

2010-02-SMB

2009-11-SMB

Health Care Authority

Surface Mine Board

Surface Mine Board

Surface Mine Board

Appalachian Regional Healthcare, Inc.

Richard M. and Janice Goodman

Greyeagle Coal Co.

Tommy Dale Powers and Raymond Cloney

6/4/2010

5/27/2010

5/27/2010

5/27/2010

Pagelofl

1.0

en

co
"'

WEST VIRGINIA ETHICS COMMISSION ADVISORY OPINIONS

NO. OPINION SOUGHT

2010-09 A member of a County Rescue Service, Inc. (CRS) asks whether the CRS is a public entity whose members andlor employees are

subject to the provisions of the Ethics Act.

2010-11 A State Legislator asks whether the Ethics Act prohibits him from accepting a door-prize he won at a public reception?

1.0

0'>

1.0
Grievance Report

Docket # Grievant Respondent Dec Date

07-DOH-003 Vivian Eichelberger Highways 5/21/2010

07-DOH-003 Vivian Eichelberger Transportation 5/21/2010

07-DOH-306 Vivian Eichelberger Highways 5/21/2010

07-DOH-306 Vivian Eichelberger Transportation 5/21/2010

07-DOH-310 Vivian Eichelberger Highways 5/21/2010

07-DOH-310 Vivian Eichelberger Transportation 5/21/2010

07-HE-349R2 Daniel Frost Bluefield State College 5/27/2010

200B-0033-DOT Vivian Eichelberger Highways 5/21/2010

200B-0033-DOT Vivian Eichelberger Transportation 5/21/2010

2009-0463-DOR Vickie Jo Marcum Insurance Commission 5/24/2010

2009-Q463-DOR Vickie Jo Marcum Personnel 5/24/2010

2009-0691-MU Philip Carter Marshall University 5/21/2010

2009-1276-CONS Richard Wood et al Personnel 5/24/2010

2009-1276-CONS Richard Wood et al Public Service Commission 5/24/2010

2010-0812-CONS John West Highways 5/24/2010

2010-0812-CONS Mark Jordan Highways 5/24/2010

201 0-1 042-DOT Walter Webster Elmore Jr Highways 5/26/2010

2010-1042-DOT Walter Webster Elmore Jr Transportation 5/26/2010

2010-1379-RanED Leslie Bennett Randolph Co BOE 5/27/2010

1.0

-..J

o
'!;lte of \YCst Virg.inio

DEPARTMENT OF AGRICULTUR~;gJl

(;us R. J)ouJllal'i'<, Cnrnmhtsinncl" Janet L. Fbber

OC'put) Cummissioltd

June 2, 2010

-7 AN 9: 5:.i

Slev,-: U~nlHlh

Ut!"pUl) ,:T~~ftni"'iionC!' ..

OTHER

Public Notice

2011 Proposed Rules

The West Virginia Division of Air Quality has scheduled a public hearing on July 12,2010 for

its 2011 proposed legislative rules, which will take place at the Division of Environmental

Protection's Charleston headquarters, 601 57th Street S.B., Charleston, WV 25304. Oral and

written comments will be limited to the proposed revisions and will be made a part of the

rulemaking record. Copies of the rules are available from the Secretary of State's office or from

the DEP at www.wvdep.org/201Irules. YOll may also obtain hardcopies of the informalion by

calling the phone number listed below.

Dear Ms. Cooper:

GRD:rlg

Thank you.

Ms. Judy Cooper, Manager

Administrative Law

Office ofthe Secretary of State

Building I, Suite 157-K

1900 Kanawha Blvd., East

Charleston, WV 25305

The public hearing for all air quality rules will take place beginning at 6 p.m. on July 12, 2010 in

the Dolly Sods Room. The comment period will begin on June 11.2010 and end at the

conclusion of the pUblic hearing on July 12,2010. Upon authorization and promulgation of

revisions to 45CSR8, 45CSRI4 and 45CSR19, the DAQ will submit the rules to the U.S.

Environmcntal Protection Agency (EPA) as revisions to the State Implementation Plan pursuant

to the federal Clean Air Act (CAM. Rules 45CSR16, 45CSR18, 45CSR25 and 45CSR34 will

also be submitted to EPA to fultill other federal obligations undcr the CAA, including

delcgations, plans and program approvals.

!;;;

;;;;

So:

;:~

For more information on an)' ofthe DAQ rules call 304-926-0475.

Division ofAir Quality

45CSR8 - Ambient Air Quality Standards

45CSRI4 - Permits for Construction and Major Modification of Ma,ior Stationary Sources of Air

Pollution for the Prevention of Significant Deterioration

45CSR16 - Standards of Perfoffilance for New Stationary Sources

45CSRI8 - Control of Air Pollution From Combustion of Solid Waste

45CSRI9 - Permits for Construction and Major Modification ofMajor Stationary Sources of Air

Pollution Which Cause or Contribute to Nonattainment

45CSR25 - Control of Air Pollution from Hazardous Waste Treatment. Storage and Disposal

Facilities

45CSR34 - Emission Standards for Hazardous Air Pollutants

Written comments may be submitted to the Public Information Office at the above address.

Comments may also be e-mailed to comments@wvdep.org. The hearing dates, locations and

comment deadlines are as follows:

Janet Fisher, Deputy Commissioner, WVDA

Bob Tabb, Deputy Commissioner, WVDA

Steve Miller, Assistant Commissioner, WVDA

Sandra Gillispie, Director, Administrative Services Division, WVDA

c:

ic;~~ Gus R. ;;;u;Yass

Commissioner

Please let this letter serve as my written authorization and notification that Bob

Tabb, Deputy Commissioner, has signatory authority to sign documents of behalf ofthe

West Virginia Department ofAgriculture.

I

l.O

::::

"""

§i

D

.r~~

State Capitol. 1900 Kanawha Boulevard. East. Charleston, WV 25305·0170. (304) 558-3550

<D

......
Public Notice

2011 Proposed Rules 2UW JL;'\ -9 Pf! 3: 5~

The West Virginia Department ofEnvironmental Protection has scheduled Rublic hearings fQr its

2011 proposed legislative rules. All hearings will take place at the DE~' s C~!es_ton " .;: },l"'- headquarters, 601 57'h StreetS.E., Charleston, WV 25304. Oral and written comments \VIU-oo't

limited to the proposed revisions and will be made a part ofthe rulemaking record. Copies of the

rules are available from the Secretary of State's office or from the DEP at www.wvdep.org. You

may also obtain printed eopie. of the infolmation by calling the phone numbers listed below.

Written comments may be submitted to the Public Information Office at the above address.

Comments may also be e-mailed to DEP.Comments@wv.gov. The hearing dates, locations and

comment deadlines are as follows:

Division ofAir Quality

45CSR8 - Ambient Air Quality Standards

45CSR14 - Permits for Construction aad Major Modification of M'\ior Stationary Sources of Air

Pollution for the Prevention ofSignificant Deterioration

45CSRl6 - Standards of Performance for New Stationary Sources

45CSRl8 - ConlIol of Air Pollution from Combustion of Solid Waste

45CSR19 - Permits for Construction and Major Modification of Major Stationary Sources of Air

Pollution Which Cause or Contribute to Nonattainment

45CSR25 - Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities

45CSR34 - Emission Standards for Hazardous Air Pollutants

The pUblic heariag for all Air Quality rules will begin at 6 p.m. on Monday, July 12, in the Dolly

Sods Room. The comment period will begin on June II, 2010 and end at the conclusion of the

public hearing on July 12. Upon authorization and promulgation ofrevisions to 45CSR8,

45CSRl4 and 45CSR19, the DAQ will submit the rules to the U.S. Environmental Protection

Agency (EPA) as revisions lo the State Implementation Plan pursuant to the federal Clean Air

Act (CAA). Rules 45CSR16, 45CSR18. 45CSR25 and 45CSR34 will also be submitted to EPA

to fulfill other federal obligations under the CAA, including delegations, plans and program approvals.

For more ilifomlatioll on any ofthe DAQ rules call 304-926-0475.

Division ofMining and Reclamation

38CSR2 - West Virginia Surface Mining Reclamation Rule

199CSRI - Surface Mining Blasting Rule

The public hearing for all Mining and Reclamation rules will begin at 6 p.m. on Tuesday, July

13, in the Coopers Rock Training Room. The comment period will end at the conclusion of the

hearing.

For more information on any ofthe DMR /'Illes caI/304-926-0490.

OTHER Division ofWater and Waste Management

33CSR20 - Hazardous Waste Management System

47CSRI2 - Requirements Governing Groundwater Standards

47CSR60 - Monitoring Well Design Standards

The public hearing for these rules will begin at6 p.m., Thursday, July 15 in the Coopers Rock

Training Room. The comment period will end at the conclusion of the hearing.

47CSR2 - Requirements Governing Water Quality Standards

The public hearing for this rule will begin at 6 p.m., Monday, July 19 in the Coopers Rock

Training Room. The comment period will end at the conclusion of the hearing.

For more ilifor/1Ultion on allY ofthe Water and Waste Management Rilles caI/304-926-0495.

Secretary's Office

GOCSR2 - Rules on Freedom of Information Act Requests

The pUblic hearing will begin al6 p.m., Thursday, July 15 in the Coopers Rock Training Room.

The comment period will end at the conclusion of the hearing.

For more information 011 Freedom ofbiformatioll Act rules call 304-926-0499, ext. 1331

u:>

-...I

IV
ij 06/08/2010 09: 15 WVllHHRBURFCiRl'EDSERV1CES ... 9131il4S~ NO.418 002 06/08/2010 110: 21 WVDH1RIlURF~EDSERVICES ... 913045S80900 NU.4.!::> l.'!C.!

PUBLIC NOTICE

ltib JU; -8 PH /: 09

WEST VIRGINIA MEDICAID PROGRAM

STATE PLAN AMI:NDMENT TO ~.

REVISE THE RESOURCE STANDARDF-OR

QUALIFIED MEDICARE BENEFICIARIES

OTHER

PUBLIC NOTICE

WEST VIRGINIA MEDICAID PROGRAM

STATE PLAN AMENDMENT

REGARDING

DEEMED NEWBORNS

ZUlU JU:; -8 PM I: 09

,,,,,.,,,,

)'iI.t

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 revise resource standards for

Qualified Medicare Beneficiaries. Specified LOW-Income Medicare Beneficiaries. and

Qualifying individuals.

The Bureau is amending its state plan to revise the resource standards for Qualified

MedIcare Beneficiaries. Specified Low-Income Medicare Beneficiaries, and Qualifying

Individuals. The amendment provides that the resource standards for these groups,

Qualified Medicare Beneficiaries, Specified LOW-Income Medicare Beneficiaries. and

Qualifying IndiViduals will be three times the resource standard for the 5S1 program and

will increase annually based on the increase [n the CPI-U. This provision Is effective

January 1.2010.

The purpose and rationale for this plan amendment is to comply With the MedIcare

Improvements for Patients and Provider Act of 2008 (MIPPA), Section 112.

This change in reimbursement is expected to be nominal.

DOCuments detailing lhese proposed actions will be available for public Inspection in

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

business hours. 8:30 a.m. to 4:30 p.m., beginning June 15,2010 to July 15, 2010 and on the web at: WWW.wvdhhr.org then medical services.

Written comments may be sent to the West Virginia Department of Health and Human

Resources, Bureau for Medical Services, 350 Capitol Slreet, Room 251,Charleslon, WV

25301-3706. Any written comments received will be available for reView at the above

address during normal business hours, 8:30 a.m. to 4:30 p.m., beginning June 15. 2010

through July 15,2010.

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 revise the qualfllcatlons for

deemed eligibility of children born to mothers covered by Medicaid for the date of the

child's birth.

This plan amendment eliminates the restriction that the neWborn, to remain Medicaid

eligible, must come home from the hospital to live with the mother and remain a

member of the mother's household and that the mother remain eligible for Medicaid or

would remain eligible if still pregnant. This provision Is effective April 1, 2009.

The purpose and rationale for this plan amendment is to comply with the Children's

Health Insurance Program Reauthorization Act of 2009 (CH1PRA), Section 113.

This change In reimbursement is expected to be nominal.

Documents detailing these proposed actions will be available for public inspection in

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

business hours, 8:30 a.m. to 4:30 p.m., beginning June 15, 2010 to July 15. 2010 and

on the web at: www.wvdhhr.org then medical services.

Written COmments may be sent to the West Virginia [)epartment of Health and Human

Resources. Bureau for Medical Services. 350 Capitol Sireet, Room 251.Charleslon, WV

25301·3706. Any written comments received will be available for review at the above

address during normal business hours, 8:30 a.m. to 4:30 p.m., beginning June 15, 2010

through July 15, 2010.

<D

'oJ

W
Sonia D. Chembers

Chair

Board Members

Sam G. Kapourales

Marilyo G. White

~:"~:~hinlll fe3

H' ARE ---------- Patsy A. Hardy, FACHE, MSN, MBA, Secretary A RITY Wesl Virginia Deparlment of

Health and Human Rasources

OTHER

Notice of Review

Page 2

June 1, 2010

The HE/alth Care Authority (Authority), Sonia D. Chambers, Chair, pursuant to the

Certificate of Need program, has declared complete and accepted for review the expedited

applications referenced below:

May 24,2010 - Fresenius Medical Care Ventures, LLC, FMS Cabell Huntington

Dialysis Centers, LLC d/b/a FMS Wayne County Dialysis, Eastover, North Carolina, CON

File #10·2·9145-R, for the establishment of a new 13 station dialysis facility in Wayne,

Wayne County; capital expenditure: $1.349,268.

May 26,2010 - Balance Counseling &Consulting, Buckhannon, Upshur County,

CON File #09-7-8953-X, for the development of an outpatient behavioral health counseling

program for adUlts in Upshur, Randolph. and Barbour Counties; no capital expenditure.

May 27,2010 - Monongalia General Hospital, Morgantown, Monongalia County.

CON File #1 0-6-9169-H, for the relocation and renovation ofoutpatient surgery, endoscopy

and infusion services; capital expenditure: $8,750,000.

May 28,2010 - Bluefield Hospital Company, LLC, Bluefield Clinic Company, LLC.

and Bluefield HBP Medical Group, LLC, Franklin, Tennessee, CON File #1 0-1-9186-A, for

the acquisition of Bluefield Regional Medical Center and any related health care facilities;

capital expenditure: $47,000.000.

An application that has been declared complete is one in which there is sufficient

information for the Authority to make an informed decision. It does not mean that the

approval of the application is warranted.

On or before June 15, 2010, any affected person may present reasons to the

Authority as to why the applicants of the projects should complete a standard application.

CORRECTED NOTICE OF REVIEW

FOR IMMEDIATE RELEASE

June 1, 2010

NEWS ITEM l' .,

~-;

<- C'"

,

...-

...,..,

c.c

If the Authority concludes that the standard application should be used on any

project, the review will be stopped and a new one begun using the standard application.

Also, by July 6, 2010, any affected person has the right to request that the Authority

hold a public hearing on the projects as part of the review. If a public hearing is conducted

during the course of the review. a "Notice of Public Hearing". specifying the date, time and

location of the hearing, will be issued to affected persons.

If no public hearing is requested. the file closing date will be July 7, 2010. Afterthat

date, no further information or evidence will be accepted by the Authority forthe remainder

of the review of the applications. and no further contact with the Authority regarding the

substance of the applications will be permitted.

The decisions on the projects referenced above will be issued by the Authority after

it has reviewed the contents of the case files of the projects, including the applications,

additional information submitted to the Authority during the review, and the record of any

Authority public hearing. If there is no request for public hearing, the decisions will be

issued on or before August 10, 2010.

A press release will be issued after the decisions are made. Anyone wishing to be

directly notified of the decisions should submit a written request to Timothy E. Adkins,

Director, Certificate of Need, Health Care Authority, 100 Dee Drive, Charleston, West

Virginia, 25311-1600. Further information on any project referenced in this news release

may be obtained by contacting the Certificate of Need office at telephone number (304)

5~7000 -

• ~.CM.?4J Health Care Authority

100 Dee DrillS • Charleston. West Virginia 25311-1600 • 304.558.7000 • 304.558.7001/Fax • 1.888.558.7002IT011 Free

www.hcawv.org

\J:)
DISTRIBUTION

Jim Swann, Director

Fresenius Medical Care

NC Regional Health Planning Office

Beth Wright Bragg, MA, LPC

Clinical Director

Balance Counseling & Consulting

Raymona A. Kinneberg

Blil J, Crouch & Associates, Inc.

The Honorable Natalie Tennant

Secretary of State

Dennis Garrison, Director, Consumer Advocacy Division

West Virginia Insurance Commission

Sonia D. Chambers, Chair

Health Care Authority

CON Analysts

SDC\ TEA\KM\VH\jc

,..,.......lIf.......,...'.JOtfI

OTHER

WEST VIRGINIA HEALTH CARE AUTHORITY·

CERTIFICATE OF NEED ," .~ At\ II: 01

100 Dee Drive lR\ll J:.,l; -0

Charleston, West Virginia 25311-1600

June 7, 2010

LEGAL NOTICE

Sonia D. Chambers, Chair, West Virginia Health Care Authority, announces the

following Certificate of Need activities for the week ending June 4, 2010.

LETTER OF INTENT FOR EXPEDITED RECEIVED

May 28, 2010 - City Hospital, Inc., Martinsburg, Berkeley County, CON File #1 0-9-

9197-H, for the provision of primary (emergency) percutaneous coronary intervention

("Primary PCI") and elective therapeutic cardiac catheterization services; capital

expenditure: $50,000.

APPLICATION FOR EXEMPTION RECEIVED

June 1, 2010 - Medical Services of America, Inc., Columbia, South Carolina, CON

File #10-1/4-9194-X, for the acquisition of Mountaineer Home Nursing, Inc; capital

expenditure: less than $2,000,000.

CORRECTED APPLICATIONS DECLARED COMPLETE AND UNDER REVIEW

An application declared complete is one in which there is sufficient information for

the Authority to make an informed decision. It does not mean that the approval of the

application is warranted.

EXPEDITED APPLICATIONS

May 24, 2010 - Fresenius Medical Care Ventures, LLC, FMS Cabell Huntington

Dialysis Centers, LLC d/b/a FMS Wayne County Dialysis, Eastover, North Carolina, CON

File #1 0-2-9145-R, for the establishment of a new 13 station dialysis facility in Wayne,

Wayne County; capital expenditure: $1,349,268.

May 26, 2010 - Balance Counseling & Consulting, Buckhannon, Upshur County,

CON File #09-7-8953-X, for the development of an outpatient behavioral health counseling

program for adults in Upshur, Randolph, and Barbour Counties; no capital expenditure.

May 27, 2010 - Monongalia General Hospital, Morgantown, Monongalia County,

CON File #1 0-S-9169-H, for the relocation and renovation of outpatient surgery, endoscopy

and infusion services; capital expenditure: $8,750,000.

May 28,2010 - Bluefield Hospital Company, LLC, Bluefield Clinic Company, LLC,

\D

....

VI
and Bluefield HBP Medical Group, LLC, Franklin, Tennessee, CON File #10-1-9186-A, for

the acquisition of Bluefield Regional Medical Center and any related health care facilities;

capital expenditure: $47,000,000.

The review cycle for the above-referenced projects is as follows:

June 5, 2010 - Review cycle begins;

June 15, 2010 - Last date for an affected person to present reasons why the

applicant should complete a standard application to the Authority;

July 6,2010 -last date for an affected person to request a public hearing on the

project. If a pUblic hearing is requested, notice of time and place will be given in the

Saturday editions of the Charleston Gazette and the Charleston Daily Mail, as well as the

State Register;

July 7,2010 - If no pUblic hearing is requested, the file will close and no further

information or evidence will be accepted by the Authority and no further contact with the

Authority regarding the substance of the application will be permitted;

August 10, 2010 - Decision on the project will be issued by the Authority.

PROJECT DETERMINED NOT REVIEWABLE

June 4, 2010 - Appalachian Regional Healthcare, Inc., Lexington, Kentucky, CON

File #1 0-1·9125-X, transfer of the 36-bed nursing unit from Summers county ARH Hospital

to West Virginia ARH; no capital expenditure.

CERTIFICATE OF NEED APPROVALS ISSUED

June 3, 2010 - Joan C. Edwards School of Medicine at Marshall University, CON

File #09-2·8994-XlE, for the acquisition of a 64 slice computed tomography (CT) scanner

to be located at the Erma Ora Byrd clinical Center at 1249 15th Street, Huntington, Cabell

County; capital expenditure: $1,750,000.

ORDER ISSUED

June 3, 2010 - Logan Regional Medical Center, Logan, Logan County, CON File

#10·2-9149·P, for the development of diagnostic services, including x-ray services,

ultrasound and laboratory services; capital expenditure: $300,000.

It is ORDERED that the file in this matter be reopened to accept the additional

information and that the case file be closed immediately upon receipt of the information.

Further information may be obtained on any of the above-referenced projects by

contacting Timothy E. Adkins, Director, Certificate of Need Division.

1t~~)i'lI1t,

OTHER

'"

-.,J

en
THE FOLLOWING ARE PUBLICATION DATES OF THE STATE REGISTER FOR 2010

DATES ARE THE DATES ALL FILINGS ARE TO BE RECEIVED IN THE

SECRETARY OF STATE'S OFFICE IN ORDER FOR THE MATERIAL TO APPEAR IN

THE STATE REGISTER PUBLISHED ON THE DATE LISTED.

Deadline Date Publication Date Meeting may be held

Deadline Date Publication Date Meeting may be held

on or after on or after

January 6,2010 January 5,2010 January 13, 2010 July 7, 2010 July 9, 2010 July 14,2010

January 13, 2010 January 15, 2010 January 20,2010 July 14, 2010 July 16, 2010 July 21, 2010

January 20,2010 January 22,2010 January 27,2010 July 21, 2010 July 23, 2010 July 28, 2010

January 27,2010 January 29,2010 February 3, 2010 July 28,2010 July 30,2010 August 4, 2010

February 3, 2010 February 5,2010 February 10, 2010 August4,2010 August6,2010 August 11, 2010

February 102010 February 12, 2010 February 17,2010 August 11, 2010 August 13,2010 August 18 2010

February 17, 2010 February 19, 2010 February 24, 2010 August 18,2010 August 20, 2010 August 25, 2010

February 24, 2010 February 26,2010 March 3, 2010 August25,2010 August 27, 2010 September 1,2010

March 3, 2010 March 5, 2010 March 10, 2010 September 1, 2010 September 3,2010 September 8, 2010

March 10,2010 March 12,2010 March 17, 2010 September 8,2010 September 10 2010 September 15, 2010

March 17,2010 March 19,2010 March 24, 2010 September 15, 2010 September 17, 2010 September 22, 2010

March 24, 2010 March 26, 2010 March 31, 2010 September 22, 2010 September 24,2010 September 29,2010

March 31, 2010 April 2, 2010 April 7, 2010 September 29,2010 October 1,2010 October 6, 2010

April 7, 2010 April 9, 2010 April 14, 2010 October 6, 2010 October 8,2010 October 13, 2010

April 14, 2010 April 16, 2010 April 21, 2010 October 13, 2010 October 15, 2010 October 20, 2010

April 21, 2010 April 23, 2010 April 28, 2010 October 20,2010 October 22,2010 October 27, 2010

April 28, 2010 April 30, 2010 May 5, 2010 October 27,2010 October 29,2010 November 3,2010

May 5,2010 May 7,2010 May 12,2010 November 3, 2010 November 5,2010 November 10, 2010

May 12, 2010 May 14, 2010 May 19,2010 November 9,2010 November 12, 2010 November 17, 2010

May 19, 2010 May 21,2010 May 26, 2010 November 17, 2010 November 19, 2010 November 24, 2010

May 26,2010 May 28,2010 June 2, 2010 November 22,2010 November 24,2010 November 29, 2010

June 2, 2010 June 4,2010 June 9, 2010 December 1, 2010 December 3, 2010 December 8, 2010

June 9,2010 June 11, 2010 June 16, 2010 December 8,2010 December 10, 2010 December 15, 2010

June 16, 2010 June 18, 2010 June 23, 2010 December 15, 2010 December 17, 2010 December 22, 2010

June 23, 2010 June 25, 2010 June 30,2010 December 21, 2010 December 23,2010 December 28, 2010

June 30, 2010 July 2,2010 JuIY?,2010 December 28,2010 December 30,2010 January 5, 2010

1

QUESTIONNAIRE

(Please include a copy of this form with each filing of your rule: Notice of Public Hearing or Comment Period; Proposed

Rule, and if needed, Emergency and Modified Rule.) 

DATE: 

TO: LEGISLATIVE RULE-MAKING REVIEW COMMITTEE 

FROM:(Agency Name, Address & Phone No.) 

LEGISLATIVE RULE TITLE: 

1. Authorizing statute(s) citation 

2. a. Date filed in State Register with Notice of Hearing or Public Comment Period:

b. What other notice, including advertising, did you give of the hearing?

c. Date of Public Hearing(s) or Public Comment Period ended:

d. Attach list of persons who appeared at hearing, comments received, amendments, reasons

for amendments.

Attached No comments received 
2

e. Date you filed in State Register the agency approved proposed Legislative Rule following

public hearing: (be exact)

f. Name, title, address and phone/fax/e-mail numbers of agency person(s) to receive

all written correspondence regarding this rule: (Please type)

g. IF DIFFERENT FROM ITEM ‘f’, please give Name, title, address and phone

number(s) of agency person(s) who wrote and/or has responsibility for the contents of this

rule: (Please type)

3. If the statute under which you promulgated the submitted rules requires certain findings and

determinations to be made as a condition precedent to their promulgation:

a. Give the date upon which you filed in the State Register a notice of the time and place

of a hearing for the taking of evidence and a general description of the issues to be

decided.
3

b. Date of hearing or comment period:

c. On what date did you file in the State Register the findings and determinations required

together with the reasons therefor?

d. Attach findings and determinations and reasons:

Attached 
dep

west virginia department of environmental protection

Executive Office

601 sr: Street SE

Charleston, WV 25304

Earl Ray Tomblin, Governor

Randy C. Huffman, Cabinet Secretary

www.dep.wv.gov

July 8, 2011

Mr. Shawn M. Garvin

Regional Administrator

U.S. EPA, Region III (3RAOO)

1650 Arch Street

Philadelphia, PA 19103-2029

Re: Revision to the West Virginia State Implementation Plan Pursuant to Non-Attainment

Area New Source Review - Request For Approval

Dear Administrator Garvin:

On behalf of the State of West Virginia, I am herein submitting the 2011 Legislative Rule 45CSR19

- Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution

Which Cause or Contribute to Non-Attainment, effective June 16, 2011, as a revision to the State

Implementation Plan (SIP). Included in this submittal is appropriate documentation, which validates

that proper state and federal administrative procedural rulemaking requirements have been fulfilled.

Also included with this submittal is an electronic copy on compact disk in searchable pdf format.

We certify that the enclosed electronic copy contains an exact duplicate of information contained

in the hard copy submission.

West Virginia requests that you approve this most recent version of 45CSR19 as a revision to the

SIP, replacing the current version of 45CSR19 approved by EPA on December 4, 2006 at

71FR64468. If you have any questions regarding this submittal or require additional information,

please contact John A. Benedict, Director of the Division of Air Quality, at (304) 926-0462.

Sincerely,

~~~

Randy C. Huffman

Cabinet Secretary

RCH/jlm

Enclosure

cc: Diana Esher (3APOO)

John A. Benedict, Director, WVDEP

Promoting a healthy environment.
WEST VIRGINIA 

SECRETARY OF STATE 

NATALIE E. TENNANT 

ADMINISTRATIVE LAW DIVISION 

Do Not Mark In This Box 

2010 JU j - g Af1 10: 110 

Form #1 - - - - - - - - - - - - - - - - - - - - - - - - - - - -L-----+' '''-,..-;r.",r--"mL-i-,;-·".J,i!f'1 ;RI;r:,;';f<J' :'1;' ''.-----

StC,L;i.,W OF STATE 

NOTICE OF A PUBLIC HEARING ON A PROPOSED RULE 

AGENCY: WV Department of Environmental Protection· Division of Air Quality TITLE NUMBER: 45 

RULE TYPE: Legislative CITE AUTHORITY: W_ V;L Code §22-5-4 

AMENDMENT TO AN EXISTING RULE: YES [8J NO D 

IF YES, SERIES NUMBER OF RULE BEING AMENDED: _...::45:..:C::.;SR::.;I.::...9 _ 

TITLE OF RULE BEING AMENDED: Penn its for Construction and Major Modification of Major Stationary Sources of Air 

Pollution Which Cause or Contribute to Nonattainment 

IF NO, SERIES NUMBER OF RULE BEfNG PROPOSED: ____ _ 

TITLE OF RULE BEING PROPOSED: __________________ _ 

-------------------------------------------

DA TE OF PUBLIC HEARfNG: ________ .::.:Ju~lyc.:I:..:2!...:, 2:.::0:..:10:...-__________ TIME: _...:6:::::0~OJ!;p.:!.!:m'__. __ 

LOCATION OF PUBLIC HEARfNG: __ W_V_D_e_pa_rt_m_e_nt_o_fE_'n_v_iro_n_m_e_nt_al_P_ro_te_ct_io_n _______________ _ 

Dolly Sods Conference Room 

60 I 57th Street, S.E. 

Charleston, WV 25304 

COMMENTS LIMITED TO: ORAd I WRITTEND BOTHpn 

DATE WRITTEN COMMENT PERIOD ENDS: _____ -=Ju::,:IY..,:I::!2,..:.20:.:1,::...0 _____ _ TIME: Close of Hearing 

WRITTEN COMMENTS MAY BE MAILED TO: 

The Department requests that persons wishing to make 

comments at the hearing make an effort to submit written 

comments in order to facilitate the review of these comments. 

The issues to be heard shall be limited to the proposed rule. 

ATTACH A BRIEF SUMMARY OF YOUR PROPOSAL 

Kathy Cosco. Public Infonnation Office 

WV Department of Environmental Protection 

Legislative Ru!e Mak,i _7_th_S_tr _t, _S._E. ________ _ 

Charleston, WV 25304 

JUN - 9 -

Review ornrnitt: L::~~~ ~~s;;:::::::=---
WEST VIRGINIA 

SECRETARY OF STATE 

NATALIE E. TENNANT 

Do Not Mark In Ihis Box 

ADMINISTRATIVE LAW DIVISION 

Fonn #3 

NOTICE OF AGENCY APPROVAL OF A PROPOSED RULE 

AND 

FILING WITH THE LEGISLATIVE RULE-MAKING REVIEW COMMITTEE 

AGENCY: WV Department of Environmental Protection - Division of Air Quality TITLE NUMBER: __ 4S_ 

CITE AUTHORlTY: _____ W_"_v_a_" C_o_de..:§_22_-S_-4 _________________ _ 

AMENDMENT TO AN EXISTING RULE: YES~ NO_ 

IF YES, SERIES NUMBER OF RULE BEING AMENDED:_-=4c:.;SC:;.:;S;:..:R;;.19_ 

TITLE OF RULE BEING AMENDED: Permits for Construction and Major Modification of Major Stationary 

Sources of Air Pollution Which Cause or Contribute to Nonattainment 

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: ____ _ 

TITLE OF RULE BEING PROPOSED: _________________ _ 

THE ABOVE PROPOSED LEGISLATIVE RULE HAVING GONE TO A PUBLIC HEARING OR A PUBLIC 

COMMENT PERlOD IS HEREBY APPROVED BY THE PROMULGATING AGENCY FOR FILING WITH 

THE SECRETARY OF STATE AND THE LEGISLATIVE RULE-MAKING REVIEW COMMITTEE FOR 

THEIR REVIEW" 

JUL 28 2010 
WEST VIRGINIA 

SECRETARY OF STATE 

NATALIE E. TENNANT 

Do Not Mark In This Box 

ZD II JUN 16 PI1 2: 12 

ADMINISTRATIVE LAW DIVISION { 

0: . 1 '"\, • 

0 p'-' .l,'Ct.'l .. iA v; ,d "OF STATE 

__Form __#6 ____________ _ ______ ___ _ --L __________ _ 

NOTICE OF FINAL FILING AND ADOPTION OF A LEGISLATIVE RULE AUTHORIZED 

BY THE WEST VIRGINIA LEGISLATURE 

AGENCY : WV Dept. of Environmental Protection - Div. of Air Quality TITLE NUMBER: 45 

AMENDMENT TO AN EXISTING RULE: YES ~ NO _ 

IF YES, SERIES NUMBER OF RULE BEING AMENDED: 45CSRI9 

TITLE OF RULE BEING AMENDED: Permits for Construction & Major Modification of 

Major Stationary Sources of Air Pollution Which Cause 

or Contribute to Nonattainment 

if NO, SEIUES NUMBER OF RULE BEING PROPOSED: ___ _ 

TITLE OF RULE BEING PROPOSED: _______________ _ 

THE ABOVE RULE HAS BEEN AUTHORIZED BY THE WEST VIRGINIA LEGISLATURE. 

AUTHORIZATION IS CITED IN (house or senate bill number) ____ ....;><.! 12""'1 ____ _ 

SECTION _--=§o.::. 6..:..4-..:.. 3....: -I""(g,,,,) ______ , PASSED ON __ --:.;M.:.:;ar""c""h....:;I"" 8,'-=2""0.=..;11=--__ _ 

TH IS RULE IS FILED WITH THE SECRETARY OF STATE. THIS RULE BECOMES EFFECTIVE ON THE 

FOLLOWING DATE: June 16, 2011 
1

ENVIRONMENTAL PROTECTION ADVISORY COUNCIL

MEETING MINUTES

June 3, 2010

I. CALL TO ORDER

Kristin A. Boggs, Ex Officio Chair designated by Secretary Randy Huffman, 

called to order a special meeting of the DEP Advisory Council at 1:40 p.m. on June 3

2010 at the headquarters of the West Virginia Department of Environmental 

Protection, 601 57th Street Southeast, Charleston, West Virginia. Agendas were 

distributed.

II. ROLL CALL

Members present: Lisa Dooley, Jackie Hallinan, Larry Harris, Karen Price, Bill 

Raney, and Rick Roberts. 

The meeting was also attended by the following DEP personnel: Randy C. Huffman, 

DEP Cabinet Secretary; Lisa McClung, DEP Deputy Cabinet Secretary; Kathy Cosco, 

DEP Chief Communication Officer; Daniel T. Arnold, Division of Water and Waste 

Management; Bill Timmermeyer, Division of Water and Waste Management; Charles 

Sturey, Division of Mining and Reclamation; Dave Vandelinde, Division of Mining 

and Reclamation, Office of Explosives and Blasting; Yvonne Anderson, Division of 

Mining and Reclamation; Ken Holliday, Division of Water and Waste Management; 

Yogesh Patel, Division of Water and Waste Management; Fred Durham, Division of 

Air Quality; Jim Mason, Division of Air Quality; Lewis Halstead, Division of Mining 

and Reclamation.

Also in attendance were: Don Garvin of the Ohio Valley Environmental Coalition; 

Katherine Crockett and Emily Moy of Spilman Thomas & Battle; and Lewis Baker of 

the West Virginia Rural Water Association.

III. OLD BUSINESS

Minutes of the May 27, 2010 Meeting. The minutes were emailed and provided to

Council in hard copy. Ms. Dooley moved for approval of the minutes, Mr. Raney

seconded the motion, and it was carried by acclamation of Council.

IV. PROPOSED 2011 LEGISLATIVE RULES

Because the Advisory Council had received summaries of the rule two weeks prior to 

the meeting, he suggested that Ms. Boggs simply read the title of the rule and allow 

Council members to ask questions, rather than read the summaries to Council. The 

suggestion was well taken. Summaries of the proposed rules are set forth herein for 

completeness of the record, and so the minutes will reflect the complete information 

provided to Council.
2

Division of Air Quality

 45 C.S.R. 8 – Ambient Air Quality Standards. Promulgated last in the 2010 Session. 

Revisions to the rule include a change in format to incorporation by reference, rather than 

reiterating the NAAQS in the rule. The rule now incorporates by reference the NAAQS 

promulgated by EPA under 40 C.F.R. § 50 and the ambient air monitoring reference 

methods and equivalent methods under 40 C.F.R. § 53, which become effective June 1, 

2010. EPA has established a new primary one-hour NO2 standard at a level of 100 parts 

per billion, based on the three-year average of the 98th percentile of the yearly 

distribution of one-hour daily maximum concentrations, to supplement the existing 

primary annual standard of 53 parts per million. This new NO2 primary standard is 

incorporated by reference in this rule.

Section 2, titled Anti-Degredation Policy, has been stricken for two reasons. First, the 

new incorporation by reference format incorporates the federal significant deterioration 

of air quality provisions under 40 C.F.R. § 50.2(c). Second, because West Virginia 

adopted the federal Prevention of Significant Deterioration program under 45 C.S.R. 14 

in the early 1980s, the State has more than satisfied the intent of the relic language in 

Section 2 to protect the air quality in areas that were in attainment of the NAAQS. 

Section 2 was authored in the early 1970s as a placeholder in anticipation of the future 

PSD program and its provisions for best available control technology.

 45 C.S.R. 14 – Permits for Construction and Major Modification of Major Stationary 

Sources of Air Pollution for the Prevention of Significant Deterioration. Promulgated 

last in the 2010 Session. Revisions to the rule include deletion of federally stayed 

provisions for fugitive emissions and clarification of affected facilities at large coal prep 

plants. EPA is now reconsidering inclusion of fugitive emissions and will issue a final 

rule in the future. Fugitive emissions from stockpiles (now an affected source under 40 

C.F.R. § 60, Subpart Y) are now counted for large coal prep plants (but haul roads are 

still excluded). Other minor revisions ensure consistency with federal counterpart 

language.

 45 C.S.R. 16 – Standards of Performance for New Stationary Sources. Promulgated last 

in the 2010 Session. Revisions to this rule are the annual incorporate-by-reference 

amendments to the NSPS, including Standards of Performance for Coal Preparation and 

Processing Plants. These final amendments include revisions to the emission limits for 

particulate matter and opacity standards for thermal dryers, pneumatic coal cleaning 

equipment, and coal handling equipment located at coal preparation and processing 

plants. 

 45 C.S.R. 18 – Combustion of Solid Waste. Promulgated last in the 2008 Session. 

Revisions to the rule include new federal emission guidelines for existing 

hospital/medical/infectious waste incinerators (HMIWI). The revised rule has been 

restructured to better comport to respective federal counterpart language. The stricken 

provisions in Section 12, Compliance Dates, have been moved to respective sections for 

existing HMIWI and commercial and industrial solid waste incinerators. The revisions 
3

strike obsolete language regarding repealed provisions, as well as add new definitions to 

the rule. Other miscellaneous revisions are included that improve the clarity and 

accuracy of existing rule language.

 45 C.S.R. 19 – Permits for Construction and Major Modification of Major Stationary 

Sources of Air Pollution Which Cause or Contribute to Nonattainment. Promulgated last 

in the 2010 Session. Revisions to the rule include a new subsection 1.5, which provides 

that references to the federal counterpart will be construed as the version that was in 

effect as of June 1, 2010. Also, the term “affected facilities” has been clarified. Fugitive 

emissions from stockpiles (now an affected facility under 40 C.F.R. § 60, Subpart Y) are 

now counted for large coal prep plants (but haul roads are still excluded). Other minor 

revisions ensure consistency with federal counterpart language to date.

 45 C.S.R. 25 – Control of Air Pollution from Hazardous Waste Treatment, Storage and 

Disposal Facilities. Promulgated last in the 2010 Session. Revisions to the rule include 

annual incorporation-by-reference updates. Definitions that are not used in the rule have 

been stricken and requirements pertaining to ignitable, reactive or incompatible wastes 

have been updated to reference a federal counterpart. The fee schedule for hazardous 

waste management facilities ahs been simplified.

 45 C.S.R. 34 – Emission Standards for Hazardous Air Pollutants. Promulgated last in 

the 2010 Session. Revisions to this rule include the annual incorporation-by-reference 

revisions to the Hazardous Air Pollutant rule that include the following source categories 

of new or revised NESHAP standards promulgated as of June 1, 2010 for non-major area 

sources: Chemical Manufacturing Area Sources. The revised rule also incorporates by 

reference the following source categories of new or revised NESHAP standards 

promulgated as of June 1, 2010 for major sources: Petroleum Refineries and 

Reciprocating Internal Combustion Engines.

 The following source categories of newly promulgated NESHAPS affecting non-major 

area sources of hazardous air pollutants are being excluded from incorporation by 

reference: Prepared Feeds Manufacturing; Aluminum, Copper, and Other Non-Ferrous 

Foundries; Asphalt Processing and Asphalt Roofing Manufacturing, Paints and Allied 

Products Manufacturing; and Chemical Preparations Industry. EPA has not provided any 

additional funding to implement these new federal area source air toxics rules. Further, 

DAQ considers these standards to be resource-intensive and costly to implement as a 

practical matter, without achieving commensurate air quality benefits. For these reasons, 

West Virginia is one of Several States in Region III that are adopting some, but not all, of 

these standards. EPA Regional Offices will be implementing those standards not adopted 

by the States, thereby providing a measure of regulatory certainty and consistency.

Division of Water & Waste Management

 33 C.S.R. 20 – Hazardous Waste Management System. Promulgated last in the 2010 

Session. Revisions to this rule include striking “Expansion to RCRA Comparable Fuel 

Exclusion” from exclusion from incorporation by reference of the federal rule.
4

 47 C.S.R. 12 – Requirements Governing Groundwater Standards. Promulgated last in 

the 2010 Session. The proposed revision to this rule is technical cleanup from last year’s 

revision. Last year’s amendment incorrectly set a numeric standard for radon, which the 

EPA proposed in draft language in 2009 but has not yet finalized. Therefore, West 

Virginia’s adoption of a radon standard for groundwater was premature.

 47 C.S.R. 60 – Monitoring Well Design Standards. Promulgated last in the 2010 Session. 

Revisions to this rule are needed to correct requirements for documentation submittals to 

DEP. The current version requires reporting of all borehole abandonment, which is 

unenforceable and unnecessary. Revisions to this rule will require abandonment 

documentation for “high risk” boreholes and permanent monitoring wells, as was the 

original intention of the 2010 amendments recommended by the Monitoring Well 

Advisory Council.

Secretary’s Office

 60 C.S.R. 2 – Rules on Freedom of Information Act Requests. Promulgated last in 1997. 

Revisions to this rule include changing the fee structure for searching for and reproducing 

requested records to bring it in line with other State agencies by setting a flat search fee 

of $20.00 per hour (or a quarter fraction thereof) for a Division’s time spent in locating, 

duplicating or compiling the requested records providing and a cost of $10.00 if the 

information is produced on diskette, tape or other storage media. 

Division of Mining & Reclamation

 38 C.S.R. 2 – West Virginia Surface Mining Reclamation Rule. Promulgated last in the 

2009 Session. In addition to the amendments discussed at the December 9, 2009 

meeting, which are currently in effect as an Emergency Rule, the proposed revisions 

include the following: (1) Clarification of the format and information necessary for 

complete application submittal and clarification on the renewal process to take into 

account DEP’s electronic filing processes; (2) Provision for advertisement of the 

application when it is technically complete, as opposed to administratively complete; (3) 

Provision for reopening of the public comment period; (4) Provision that pre-subsidence 

surveys shall be confidential and only used for evaluating damage relating to subsidence; 

(5) Clarification of when an operator is considered to be in compliance with applicable 

environmental performance standards; (6) Provision that the Secretary has the authority 

to initiate bond release in lieu of the permittee; (7) Clarification that bonding for a permit 

in inactive status shall remain in effect for the life of the operation; and (8) Provision that 

the Secretary shall provide email notice of the issuance of a show cause order to members 

of the public who have subscribed to the Secretary’s email notification service and 

otherwise provide notice to any person whose Citizen Complaint has resulted in the 

issuance of any violation that led to the issuance of a show cause order.
5

 199 C.S.R. 1 – Surface Mining Blasting Rule. Promulgated last in the 2008 Session 

Revisions to this rule include modifying the definitions of “other structure” and 

“structure” to provide for dams as defined in 38 C.S.R. 4 § 2.7 and to provide that those 

dams will be exempt from the maximum air blast and ground vibration standards of the 

rule.

V. COMMENTS FROM COUNCIL

Ms. Dooley moved that Council recommend to the Secretary that the Air Quality 

rules contain language in their sections entitled “Inconsistency Between Rules” to 

read as follows: “In the event of any inconsistency between this rule and any other 

rule of the West Virginia Department of Environmental Protection, the inconsistency 

shall be resolved by the determination of the Secretary and the determination shall be 

based upon the application of the more stringent provision, term, condition, method, 

or rule using sound scientific information.” See, 45 C.S.R. 8 proposed § 4.1. Ms. 

Dooley pointed out that DEP uses this language in some of its other Divisions’ rules 

and some states surrounding West Virginia also use this language or similar language. 

Mr. Raney seconded the motion and discussion ensued. Ms. Hallinan pointed out that 

the proposed language is vague and may cause Daubert-related problems for 

attorneys arguing before boards and the courts using these rules. A vote was taken, 

and Ms. Dooley’s motion passed by a majority vote of Council; Ms. Hallinan voted 

no and Dr. Harris abstained.

Regarding 45 C.S.R. 8, Dr. Harris asked about removing the anti-degredation section. 

He expressed concern about how many areas of the State are in attainment and asked 

if West Virginia does not still need the policy in order to stay in attainment. He was 

also concerned that removing the specific reference to “anti-degredation” might lead 

the public to believe that DEP does not enforce any such policy anymore. Mr. Mason 

explained that the anti-degredation was meant as a placeholder back when the rule 

was originally promulgated in the 1970s until the states could get their own programs 

up and running. Because West Virginia adopted the federal Prevention of Significant 

Deterioration program under 45 C.S.R. 14 in the early 1980s, the State has more than 

satisfied the intent of the relic “anti-degredation” language in Section 2 to protect the 

air quality in areas that were in attainment of the NAAQS. “Prevention of significant 

deterioration” in Rule 14 means the same thing as “anti-degredation.”

Regarding 45 C.S.R. 14, Dr. Harris inquired about the justification for the proposed 

changes to the rule. Mr. Mason explained why the rule is being amended and a 

discussion ensued about fugitive emissions.

In relation to 45 C.S.R. 25, Mr. Roberts asked how many hazardous waste treatment, 

storage, and disposal facilities are in West Virginia, and Mr. Mason advised Council 

that he would have to research those numbers and report back. 
6

Finally, regarding 45 C.S.R. 34, Dr. Harris asked for a definition of “area sources”

and whether the federal EPA would enforce those provisions. Mr. Mason explained 

what area sources are and that EPA will enforce those standards.

In relation to 33 C.S.R. 20, Ms. Dooley inquired whether hazardous waste fees were 

being changed, and Ms. Boggs explained that, while fees are regurgitated in this rule, 

the statutory authority to change the fees was set forth in the statute; there are no 

changes to the fee structure proposed in this rule.

Dr. Harris asked the record to reflect that the Groundwater Standards rule was not 

submitted by the deadline, so Council had not yet had an opportunity to review the 

text or a summary of the rule prior to the Council meeting. Mr. Timmermeyer was on 

hand and did answer questions regarding why the rule had to be promulgated this 

year.

Regarding 60 C.S.R. 2, Ms. Dooley inquired about the language “shall furnish 

copies,” and Ms. Boggs explained that the language for § 7.2 is in the disjunctive: the 

agency shall furnish copies or advise the requester when he or she can come in and 

review documents or deny the request. Ms. Dooley then inquired about the new 

exemptions, and Ms. Boggs explained that the exemptions mirror the West Virginia 

Freedom of Information Act, which is set forth at W. Va. Code 29B-1-1 et seq., and 

the federal Freedom of Information Act. Finally, Ms. Dooley asked whether the 

proposed fee changes would be sufficient to cover the agency’s costs in responding to 

FOIA requests, and Ms. Cosco affirmed that they would.

Finally, regarding 38 C.S.R. 2, Dr. Harris inquired about the provisions relating to the 

addition of a trust account as an approved form of bond. Specifically, he asked 

whether the proposed trust account would cover perpetual treatment. Mr. Clarke 

explained that the proposed trust account is intended to be another form of bonding, 

not be a replacement for the Special Reclamation Fund. Dr. Harris then inquired as to 

how the cost of perpetual treatment is calculated. Mr. Clarke explained that the 

federal Office of Surface Mining Reclamation & Enforcement (OSM) has developed 

a computer model that estimates cost by developing a formula based on a mechanism 

that allows treatment for 40 or more years.

VI. COMMENTS FROM THE PUBLIC

Mr. Garvin asked for clarification on the trust account proposed by the Division of 

Mining and Reclamation. Mr. Clarke answered his questions.

Mr. Garvin then had several questions for Mr. Mason and Mr. Durham regarding the 

proposed Air Quality rules, which were duly answered. 
7

VII. ADJOURNMENT

Mr. Raney moved that the meeting be adjourned, Ms. Dooley seconded the motion, 

and it carried by acclamation of Council. The meeting was adjourned at 3:05 p.m.
MEMORANDUM 

TO: Randy C. Huffman, Cabinet Secretary 

FROM: Environmental Protection Advisory Council 

RE: Recommendations for 2011 Legislative Rules 

DATE: June 7, 2010 

The purpose of this memorandum is to convey to you the recommendations of the Environmental 

Protection Advisory Council from its May 27 and June 3 meetings. 

1. Re: 47 C.S.R. 2 – Requirements Governing Water Quality Standards. Council 

recommends that the rule be revised to state that the TDS standard shall apply only at the 

point of intake for a public drinking water supply, not in all waters of the State, as 

currently proposed. Please note that Ms. Hallinan and Dr. Harris voted against this 

recommendation. 

2. Council also recommends that the Air Quality rules contain language in the sections 

entitled “Inconsistency Between Rules” to read as follows: “In the event of any 

inconsistency between this rule and any other rule of the West Virginia Department of 

Environmental Protection, the inconsistency shall be resolved by the determination of the 

Secretary and the determination shall be based upon the application of the more stringent 

provision, term, condition, method, or rule using sound scientific information.” Please 

note that Ms. Hallinan voted against this recommendation and Dr. Harris abstained from 

voting. 
45CSR19

TITLE 45

LEGISLATIVE RULE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

AIR QUALITY

SERIES 19

PERMITS FOR CONSTRUCTION AND MAJOR MODIFICATION OF

MAJOR STATIONARY SOURCES OF AIR POLLUTION WHICH

CAUSE OR CONTRIBUTE TO NONATTAINMENT

§45-19-1. General.

1.1. Scope.

1.1.a. It is the intent of the Secretary that all applications filed by any person to construct major new

or modified stationary air pollution sources, intending to locate in areas with air quality worse than the levels

set to protect the public health and welfare, or that might impact those areas, must adequately meet the preconstruction review procedures and conditions of the Clean Air Act as amended and this rule.

1.1.b. These conditions are designed to ensure that the major new or modified source's emissions will

be controlled to the greatest degree practicable; that more than equivalent offsetting emission reductions will

be obtained from existing sources; that there will be progress toward achievement of the National Ambient

Air Quality Standards; and that all applicable air pollution regulations adopted by the Secretary will be met.

1.2. Authority. -- W. Va. Code §22-5-4.

1.3. Filing Date. -- April 30, 2010.

1.4. Effective Date. -- June 1, 2010.

1.5. Federal Regulation. -- Unless otherwise indicated, where reference to a federal regulation or

standard appears in this rule, such regulation or standard will, for the purpose of this rule, be construed as

that version which was in effect as of June 1, 2010.

1.5. 1.6. Former Rules. -- This legislative rule amends 45CSR19 “Requirements for Pre-Construction

Review, Determination of Emission Offsets for Proposed New or Modified Stationary Sources of Air

Pollutants and Emission Trading for Intrasource Pollutants” which was filed May 20, 2005 April 30, 2010

and became effective June 1, 2005 June 1, 2010.

§45-19-2. Definitions.

2.1. “Actual Emissions” means the actual rate of emissions of a regulated NSR pollutant from an

emissions unit, as determined in accordance with subdivisions 2.1.a through 2.1.c, except that this definition

shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a

PAL under section 23. Instead, subsections 2.59 and 2.9 shall apply for those purposes.

2.1.a. In general, actual emissions as of a particular date shall equal the average rate, in tons per year,

1
45CSR19

at which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the

particular date and which is representative of normal source operation. The Secretary may allow the use of

a different time period upon a determination that it is more representative of normalsource operation. Actual

emissionsshall be calculated using the unit’s actual operating hours, production rates, and types of materials

processed, stored or combusted during the selected time period.

2.1.b. The Secretary may presume that source-specific allowable emissionsfor the unit are equivalent

to the actual emissions of the unit.

2.1.c. For any emissions unit that has not begun normal operations on the particular date, actual

emissions shall equal the potential to emit of the unit on that date.

2.2. “Actuals PAL” for a major stationary source means a PAL based on the baseline actual emissions

(as defined in subsection 2.9) of all emissions units (as defined in subsection 2.26) at the source, that emit

or have the potential to emit the PAL pollutant.

2.3. “Administrator” means the Administrator of the United States Environmental Protection Agency

or the Administrator’s duly authorized representative.

2.4. “Allowable emissions” means the emissions rate of a stationary source calculated using the

maximum rated capacity of the source (unless the source is subject to federally enforceable limits, limits

established by the Secretary pursuant to the Secretary’s rules which restrict the operating rate, or hours of

operation, or both) and the most stringent of the following: 

2.4.a. The applicable standards set forth in 40 CFR Part 60 or 61;

2.4.b. The applicable State of West Virginia emissions limitations or permit conditions, including

those with a future compliance date; or 

2.4.c. The applicable federallyenforceable emissionslimitations or permit conditions, including those

with a future compliance date.

2.5. “Applicable Regulations” means rules of the Secretary as promulgated pursuant to W. Va. Code

§22-5-4, and regulations of theEnvironmental Protection Agency promulgated pursuant to theClean Air Act.

2.6. “Applicant” means any person who makes application to the Secretary for a permit to construct,

modify or relocate a source in West Virginia under the provisions of this rule.

2.7. “Air Pollutants” means solids, liquids or gases which, if discharged into the air, may result in a

statutory air pollution.

2.8. “Air Pollution”, or “statutory air pollution”, hasthe meaning ascribed to it in W. Va. Code §22-5-2.

2.9. “Baseline actual emissions” means the rate of emissions, in tons per year, of a regulated NSR

pollutant, as determined in accordance with the following:

2.9.a. For any existing electric utility steam generating unit, baseline actual emissions means the

average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-

2
45CSR19

month period selected by the owner or operator within the 5-year period immediately preceding when the

owner or operator begins actual construction of the project. The Secretary shall allow the use of a different

time period upon a determination that it is more representative of normal source operation.

2.9.a.1. The average rate shall include fugitive emissionsto the extent quantifiable, and emissions

associated with startups, shutdowns, and malfunctions.

2.9.a.2. The average rate shall be adjusted downward to exclude any noncompliant emissionsthat

occurred while the source was operating above any emission limitation that was legally enforceable during

the consecutive 24-month period.

2.9.a.3. For a regulated NSR pollutant, when a project involves multiple emissions units, only

one consecutive 24-month period must be used to determine the baseline actual emissions for the emissions

units being changed. A different consecutive 24-month period can be used for each regulated NSR pollutant.

2.9.a.4. The average rate shall not be based on any consecutive 24-month period for which there

is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount

if required by paragraph 2.9.a.2.

2.9.b. For an existing emissions unit (other than an electric utility steam generating unit), baseline

actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the

pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year

period immediately preceding either the date the owner or operator begins actual construction of the project,

or the date a complete permit application is received by the Secretary for a permit required under this rule,

whichever is earlier, except that the 10-year period shall not include any period earlier than November 15,

1990.

2.9.b.1. The average rate shall include fugitive emissions tothe extent quantifiable, and emissions

associated with startups, shutdowns, and malfunctions.

2.9.b.2. The average rate shall be adjusted downward to exclude any noncompliant emissionsthat

occurred while the source was operating above an emission limitation that was legally enforceable during

the consecutive 24-month period.

2.9.b.3. The average rate shall be adjusted downward to exclude any emissions that would have

exceeded an emission limitation with which the major stationary source must currently comply, had such

major stationary source been required to comply with such limitations during the consecutive 24-month

period. However, if an emission limitation is part of a maximum achievable control technology standard that

the Administrator proposed or promulgated under part 63 of this chapter, the baseline actual emissions need

only be adjusted if the State has taken credit for such emissions reductions in an attainment demonstration

or maintenance plan consistent with the requirements of subsection 8.6.

2.9.b.4. For a regulated NSR pollutant, when a project involves multiple emissions units, only

one consecutive 24-month period must be used to determine the baseline actual emissions for the emissions

units being changed. A different consecutive 24-month period can be used for each regulated NSR pollutant.

2.9.b.5. The average rate shall not be based on any consecutive 24-month period for which there

is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount

3
45CSR19

if required by paragraphs 2.9.b.2 and 2.9.b.3.

2.9.c. For a new emissions unit, the baseline actual emissions for purposes of determining the

emissions increase that will result from the initial construction and operation of such unit shall equal zero;

and thereafter, for all other purposes, shall equal the unit’s potential to emit.

2.9.d. For a PAL for a major stationary source, the baseline actual emissions shall be calculated for

existing electric utility steam generating units in accordance with the procedures contained in subdivision

2.9.a, for other existing emissions units in accordance with the procedures contained in subdivision 2.9.b,

and for a new emissions unit in accordance with the procedures contained in subdivision 2.9.c.

2.10. “Begin actual construction” means in general, initiation of physical on-site construction activities

on an emissions unit which are of a permanent nature. Such activities include, but are not limited to,

installation of building supports and foundations, laying of underground pipework, and construction of

permanent storage structures. With respect to a change in method of operating this term refers to those onsite activities other than preparatory activities which mark the initiation of the change.

2.11. “Best available control technology” or “BACT” means an emissionslimitation (including a visible

emissions standard) based on the maximum degree of reduction for each regulated NSR pollutant which

would be emitted from any proposed major stationary source or major modification which the Secretary, on

a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs,

determines is achievable for such source or modification through application of production processes or

available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel

combustion techniques for control of such pollutant. In no event shall application of best available control

technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable

standard under 40 CFR Parts 60 or 61. If the Secretary determines that technological or economic limitations

on the application of measurement methodology to a particular emissions unit would make the imposition

of an emissionsstandard infeasible, a design, equipment, work practice, operational standard, or combination

thereof, may be prescribed instead to satisfy the requirement for the application of BACT. Such standard

shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design,

equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent

results.

2.12. “Building, structure, facility or installation” means all of the pollutant-emitting activities which

belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and

are under the control of the same person (or persons under common control) except the activities of any

vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong

to the same “Major Group” (i.e., which have the same two (2)-digit code) as described in the Standard

Industrial Classification Manual, 1987 (U.S. Government Printing Office stock number GPO 0-185-718:QL

3).

2.13. “CAA” means the Clean Air Act, 42 U.S.C. 7401, et seq., as amended by Pub. L. No. 101-549

(November 15, 1990).

2.14. “Clean coal technology” means any technology, including technologies applied at the

precombustion, combustion, or post combustion stage, at a new or existing facility which will achieve

significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization

of coal in the generation of electricity, or process steam which was not in widespread use as of November

4
45CSR19

15, 1990.

2.15. “Clean coal technologydemonstration project” means a project using funds appropriated under the

heading “Department of Energy-Clean Coal Technology,” up to a total amount of $2,500,000,000 for

commercial demonstration of clean coal technology, or similar projects funded through appropriations for

the Environmental Protection Agency. The Federal contribution for a qualifying project shall be at least 20

percent of the total cost of the demonstration project.

2.16. [Reserved.]

2.17. “Code” means principally W. Va. Code §22-5-1 et seq., and, where applicable, W. Va. Code §22-

18-1 et seq.

2.18. “Commence,” as applied to construction of a major stationary source or major modification, means

that the owner or operator has all necessary preconstruction approvals or permits and either has: 

2.18.a. Begun, or caused to begin, a continuous programof actual on-site construction of the source,

to be completed within a reasonable time; or

2.18.b. Entered into binding agreements or contractual obligations, which cannot be canceled or

modified without substantial loss to the owner or operator, to undertake a program of actual construction of

the source to be completed within a reasonable time.

2.19. “Construction” means any physical change or change in the method of operation (including

fabrication, erection, installation, demolition or modification of an emissions unit) that would result in a

change in emissions.

2.20. “Continuous emissions monitoring system” or “CEMS” means all of the equipment that may be

required to meet the data acquisition and availability requirements, to sample, condition (if applicable),

analyze, and provide a record of emissions on a continuous basis.

2.21. “Continuous emissionsrate monitoring system” or “CERMS” means the total equipment required

for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

2.22. “Continuous parameter monitoring system” or “CPMS” means all of the equipment necessary to

meet the data acquisition and availability requirements , to monitor process and control device operational

parameters (for example, control device secondary voltages and electric currents) and other information (for

example 2 2, gas flow rate, O or CO concentrations), and to record average operational parameter value(s) on

a continuous basis.

2.23. “Department of Environmental Protection” or “DEP” means the Department of Environmental

Protection which is created by the provisions of West Virginia Code §22-1-1, et seq.

2.24. “Electric utility steam generating unit” means any steam electric generating unit that is constructed

for the purpose of supplying more than one-third of its potential electric output capacity and more than 25

MW electrical output to any utility power distribution system for sale. Any steam supplied to a steam

distribution system for the purpose of providing steam to a steam-electric generator that would produce

electrical energy for sale is also considered in determining the electrical energy output capacity of the

5
45CSR19

affected facility.

2.25. “Emissions” refers to the release, escape, or discharge of air pollutants into the air.

2.26. “Emissions unit” means any part of a stationary source which emits or would have the potential

to emit any regulated NSR pollutant and includes an electric utility steam generating unit as defined in

subsection 2.24. For purposes of this rule, there are two types of emissions units as described in subdivisions

2.26.a and 2.26.b.

2.26.a. A new emissions unit is any emissions unit which is (or will be) newly constructed and

which has existed for less than 2 years from the date such emissions unit first operated.

2.26.b. An existing emissions unit is any emissions unit that does not meet the requirements in

subdivision 2.26.a. A replacement unit, as defined in subsection 2.62, is an existing emissions unit.

2.27. “Federal Land Manager” means, with respect to any lands in the United States, the Secretary of

the department with authority over such lands.

2.28. “Federally enforceable” means all limitations and conditions which are enforceable by the

Administrator including those requirements developed pursuant to 40 CFR Parts 60 and 61, rules and

regulations of the approved State Implementation Plan of the State of West Virginia, any permitrequirements

established pursuant to 40 CFR §52.21 or this rule, and any operating permits issued under a USEPAapproved program that is incorporated into the State Implementation Plan and expressly requires adherence

to any permit issued under such program.

2.29. “Fugitive emissions” means those emissions which could not reasonably pass through a stack,

chimney, vent or other functionally equivalent opening.

2.30. “Intrapollutant Emission Offsets” means that emission offsets may only be achieved for the same

air pollutants which have comparable physical and chemical characteristics and properties (e.g., VOC

2

increases may not be offset against SO reductions, or coke plant particulate matter may not be offset against

boi Xler fly ash, or NO may not be offset against VOC).

2.31. “Lowest achievable emission rate” or (LAER)” means, for any source, that rate of emissions based

on the following, whichever is more stringent: 

2.31.a. The most stringent emissions limitation which is contained in the implementation plan of

any State for such class or category of stationary source, unless the owner or operator of the proposed

stationary source demonstrates that such limitations are not achievable; or

2.31.b. The most stringent emissions limitation which is achieved in practice by such class or

category of stationary sources. This term when applied to a new or modified emissions unit, means the

lowest achievable emissions rate for such emissions units within the stationary source. In no event shall the

application of this term permit a proposed new or modified stationary source to emit any pollutant in excess

of the amount allowable under an applicable new source standard of performance.

2.32. “Major emissions unit” means:

6
45CSR19

2.32.a. Any emissions unit that emits or has the potential to emit 100 tons per year or more of the

PAL pollutant in an attainment area; or

2.32.b. Any emissions unit that emits or has the potential to emit the PAL pollutant in an amount

that is equal to or greater than the major source threshold for the PAL pollutant as defined by the CAA for

nonattainment areas. For example, in accordance with the definition of major stationary source in §182(c)

of the CAA, an emissions unit would be a major emissions unit for VOC if the emissions unit is located in

a serious ozone nonattainment area and it emits or has the potential to emit 50 or more tons of VOC per year.

2.33. Major Modification.

2.33.a. “Major modification” means any physical change in or change in the method of operation

of a major stationary source that would result in: 

2.33.a.1. A significant emissions increase of a regulated NSR pollutant (as defined in subsection

2.61.); and

2.33.a.2. A significant net emissions increase of that pollutant from the major stationary source.

2.33.b. Any significant emissionsincrease (as defined in subsection 2.67) from any emissions units

or net emissions increase (as defined in subsection 2.39) at a major stationary source that is significant for

volatile organic compounds shall be considered significant for ozone.

2.33.c. A physical change or change in the method of operation shall not include:

2.33.c.1. Routine maintenance, repair and replacement; 

2.33.c.2. Use of an alternative fuel or raw material by reason of an order under sections 2 (a) and

(b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or

by reason of a natural gas curtailment plan pursuant to the Federal Power Act;

2.33.c.3. Use of an alternative fuel by reason of an order or rule under §125 of the CAA;

2.33.c.4. Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated

from municipal solid waste;

2.33.c.5. Use of an alternative fuel or raw material by a stationary source which:

2.33.c.5.A. The sourcewas capable of accommodating before December 21, 1976, unless such

change would be prohibited under any federally enforceable permit condition which was established after

December 21, 1976 pursuant to 40 CFR §52.21 or under regulations approved pursuant to 40 CFR subpart

I or 40 CFR §51.166, or

2.33.c.5.B. The source is approved to use under any permit issued under this rule; 

2.33.c.6. An increase in the hours of operation or in the production rate, unless such change is

prohibited under any federally enforceable permit condition which was established after December 21, 1976

pursuant to 40 CFR §52.21 or regulations approved pursuant to 40 CFR Part 51 subpart I or 40 CFR §51.166.

7
45CSR19

2.33.c.7. Any change in ownership at a stationary source.

2.33.c.8. [Reserved.]

2.33.c.9. The installation, operation, cessation, or removal of a temporary clean coal technology

demonstration project, provided that the project complies with: 

2.33.c.9.A. The West Virginia State Implementation Plan, and 

2.33.c.9.B. Other requirements necessary to attain and maintain the National Ambient Air

Quality Standard during the project and after it is terminated.

2.33.d. This definition shall not apply with respect to a particular regulated NSR pollutant when the

major stationary source is complying with the requirements under section 23 for a PAL for that pollutant.

Instead, the definition at subsection 2.48 shall apply.

2.33.e. For the purpose of applying the requirements of subsection 17.6 to modifications at major

stationary sources of nitrogen oxides located in ozone nonattainment areas or in ozone transport regions,

whether or not subject to Title I, Part D, Subpart 2 of the CAA, any significant net emissions increase of

nitrogen oxides is considered significant for ozone.

2.33.f. Any physical change in, or change in the method of operation of, a major stationary source

of volatile organic compounds that results in any increase in emissions of volatile organic compounds from

any discrete operation, emissions unit, or other pollutant emitting activity at the source shall be considered

a significant net emissions increase and a major modification for ozone, if the major stationary source is

located in an extreme ozone nonattainment area that is subject to Title I, Part D, Subpart 2 of the CAA.

2.34 X. “Major Modification for Ozone” means a major modification for VOC and NO .

2.35. “Major Stationary Source” means:

2.35.a. Any stationary source of air pollutants which emits, or hasthe potential to emit 100 tons per

year or more of any regulated NSR pollutant, except that lower emissions thresholds shall apply in areas

subject to ozone nonattainment areas, carbon monoxide nonattainment areas, or particulate matter

nonattainment areas, in accordance with the following:

2.35.a.1. 50 tons per year of volatile organic compoundsin any serious ozone nonattainment area;

2.35.a.2. 50 tons per year of volatile organic compounds in an area within an ozone transport

region, except for any severe or extreme ozone nonattainment area;

2.35.a.3. 25 tons per year of volatile organic compounds in any severe ozone nonattainment area;

2.35.a.4. 10 tons per year of volatile organic compoundsin any extreme ozone nonattainment area;

2.35.a.5. 50 tons per year of carbon monoxide in any serious nonattainment area for carbon

monoxide, where stationary sources contribute significantly to carbon monoxide levels in the area (as

determined under rules issued by the Administrator); and

8
45CSR19

2.35 10 10.a.6. 70 tons per year of PM in any serious nonattainment area for PM ;

2.35.b. For the purposes of applying the requirements of subsection 17.6 to stationary sources of

nitrogen oxideslocated in an ozone nonattainment area or in an ozone transport region, any stationary source

which emits, or has the potential to emit, 100 tons per year or more of nitrogen oxides emissions, except that

the following emission thresholds shall apply in ozone nonattainment areas:

2.35.b.1. 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified

as marginal or moderate;

2.35.b.2. 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified

as a transitional, submarginal, or incomplete or no data area, when such area is located in an ozone transport

region;

2.35.b.3. 100 tons per year or more of nitrogen oxides in any area designated under §107(d) of the

CAA as attainment or unclassifiable for ozone that is located in an ozone transport region;

2.35.b.4. 50 tons per year or more of nitrogen oxides in any serious nonattainment area for ozone;

2.35.b.5. 25 tons per year or more of nitrogen oxides in any severe nonattainment area for ozone;

2.35.b.6. 10 tons per year or more of nitrogen oxidesin any extreme nonattainment area for ozone;

or

2.35.c. Any physical change that would occur at a stationary source not qualifying under

subdivisions 2.35.a and 2.35.b as a major stationary source, if the change would constitute a major stationary

source by itself.

2.35.d. A major stationary source that is major for volatile organic compounds shall be considered

major for ozone.

2.35.e. The fugitive emissions of a stationary source shall not be included in determining for any

of the purposes of this subsection whether it is a major stationary source, unless the source belongs to one

of the following categories of stationary sources:

2.35.e.1. Coal cleaning plants (with thermal dryers); 

2.35.e.2. Kraft pulp mills;

2.35.e.3. Portland cement plants;

2.35.e.4. Primary zinc smelters;

2.35.e.5. Iron and steel mills; 

2.35.e.6. Primary aluminum ore reduction plants;

2.35.e.7. Primary copper smelters; 

9
45CSR19

2.35.e.8. Municipal incinerators capable of charging more than 250 tons of refuse per day; 

2.35.e.9. Hydrofluoric, sulfuric, or nitric acid plants;

2.35.e.10. Petroleum refineries;

2.35.e.11. Lime plants; 

2.35.e.12. Phosphate rock processing plants;

2.35.e.13. Coke oven batteries;

2.35.e.14. Sulfur recovery plants;

2.35.e.15. Carbon black plants (furnace process); 

2.35.e.16. Primary lead smelters;

2.35.e.17. Fuel conversion plants;

2.35.e.18. Sintering plants; 

2.35.e.19. Secondary metal production plants; 

2.35.e.20. Chemical process plants -- The term chemical processing plant shall not include

ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193

or 312140;

2.35.e.21. Fossil-fuel boilers (or combination thereof) totaling more than 250 million British

thermal units per hour heat input; 

2.35.e.22. Petroleum storage and transfer units with a total storage capacity exceeding 300,000

barrels; 

2.35.e.23. Taconite ore processing plants; 

2.35.e.24. Glass fiber processing plants; 

2.35.e.25. Charcoal production plants;

2.35.e.26. Fossil fuel-fired steam electric plants of more than 250 million British thermal units

per hour heat input; and 

2.35.e.27. Any other stationary source category which, as of August 7, 1980, is being regulated

under §111 or 112 of the CAA.

2.35.f. In addition to those facilities covered under subdivision 2.35.e, all coal preparation plants

as defined under 40 CFR §60.251(a) which process more than 200 tons per day shall count fugitives fugitive

10
45CSR19

emissions from all “affected facilities” at the source, i.e., from all thermal dryers, pneumatic coal-cleaning

equipment (air tables), coal processing and conveying equipment (including breakers and crushers), coal

storage systems, and coal transfer and loading systems.

2.35.g. For the purpose of subdivision 2.35.f, the term “affected facilities” means those facilities

which are listed or identified as “affected facilities” in the applicable standard promulgated under §§111 or

112 of the CAA.”

2.36 X. “Major Stationary Source for Ozone” means a major stationary source of VOC or NO .

2.37. “National Ambient Air Quality Standard (NAAQS)” means the numerical standard specified by

the United States Environmental Protection Agency for each air pollutant for which air quality criteria have

been issued.

2.38. “Necessary preconstruction approvals or permits” means those permits or approvals required under

federal air quality control laws or regulations and air quality control laws and regulations of the State of West

Virginia. Where a consent order is required to be submitted to the USEPA for inclusion in the State

Implementation Plan, the applicant will not have all necessary pre-construction approvals or permits until

such time as the Administrator approves such consent order for inclusion in the State Implementation Plan.

2.39. “Net emissions increase” means, with respect to any regulated NSR pollutant emitted by a major

stationary source, the amount by which the sum of the following exceeds zero: 

2.39.a. Any increase in emissions from a particular physical change or change in the method of

operation at a stationary source as calculated pursuant to subsection 3.4.; and 

2.39.b. Any other increases and decreases in actual emissions at the major stationary source that are

contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for

calculating increases and decreases under this subdivision shall be determined as provided in subsection 2.9,

except that paragraphs 2.9.a.3 and 2.9.b.4 shall not apply.

2.39.b.1. An increase or decrease in actual emissions is contemporaneous with the increase from

the particular change only if it occurs before the date that the increase from the particular change occurs; 

2.39.b.2. An increase or decrease in actual emissions is creditable only if:

2.39.b.2.A. It occurs within a reasonable period to be specified by the Secretary; and 

2.39.b.2.B. The Secretary has not relied on the increase or decrease in issuing a permit for the

source under section 14, which permit is in effect when the increase in actual emissions from the particular

change occurs; and

2.39.b.3. An increase in actual emissionsis creditable only to the extent that the new level of actual

emissions exceeds the old level.

2.39.b.4. A decrease in actual emissions is creditable only to the extent that:

2.39.b.4.A. The old level of actual emission or the old level of allowable emissions whichever

11
45CSR19

is lower, exceeds the new level of actual emissions; 

2.39.b.4.B. It is federally enforceable and enforceable by the Secretary as a practical matter

at and after the time that actual construction on the particular change begins; and 

2.39.b.4.C. The Secretary has not relied on it in issuing any permit under this rule, in

demonstrating attainment of the NAAQS, or in a demonstration of reasonable further progress; and

2.39.b.4.D. It has approximatelythe same qualitative significance for public health and welfare

as that attributed to the increase from the particular change.

2.39.b.5. An increase that results from a physical change at a source occurs when the emissions

unit on which construction occurred becomes operational and beginsto emit a particular pollutant. Any new

unit that replaces an existing unit and requires shakedown becomes operational only after a reasonable

shakedown period, not to exceed one hundred eighty (180) days.

2.39.c. Subdivision 2.1.a shall not apply for determining creditable increases and decreases or after

a change.

2.40. “Nonattainment Area”means forthe purpose of this rule, those areas designated in accordance with

§107 of the CAA as not having attained NAAQS for specific air pollutants. Nonattainment areas for ozone,

carbon monox 10ide, and PM are divided into categories, which may have different major source size

definitions and offset ratio requirements than in previous regulations. These categories are as follows:

2.40.a. Ozone nonattainment areas may be designated as Marginal, Moderate, Serious, Severe, or

Extreme.

2.40.b. Carbon monoxide nonattainment areas may be designated as Moderate or Severe.

2.40 10.c. PM nonattainment areas may be designated as Moderate or Severe.

2.41. “Nonattainment major new source review (NSR) program” means a major source preconstruction

permit program that has been approved by the Administrator, or a program that implements 40 CFR Part 51,

appendix S, sections I through VI. Any permit issued under such a program is a major NSR permit.

2.42. “Offset” or “emission offset” means an emission reduction of a given pollutant achieved at an

existing source (or emissions unit within such source) that allows for the emission of such given pollutant

at a different proposed source (or emissions unit within such proposed source); provided that the amount of

reduction in emissions at the existing source (or emissions unit within such source), is greater, on a tons per

year basis, than one-to-one with respect to the proposed emissions from the different source (or emissions

unit within such source)so that total emissions from the source including all existing and proposed facilities

for a given pollutant shall be less than baseline emissions. This term also means an emission reduction of

a given pollutant achieved at a unit within an existing source that allows for the emission of such given

pollutant at a different unit within the same existing source. In addition to the above requirement that offset

ratios must be greater than one-to-one, the offset ratios in ozone nonattainment areas must equal or exceed:

2.42.a. In marginal ozone nonattainment areas, 1.1 to 1.

12
45CSR19

2.42.b. In moderate ozone nonattainment areas, 1.15 to 1.

2.42.c. In serious ozone nonattainment areas, 1.2 to 1.

2.42.d. In severe ozone nonattainment areas, 1.3 to 1.

2.42.e. In extreme ozone nonattainment areas, 1.5 to 1.

2.43. “Offset Ratio” means the ratio of total emission reductions to total emission increases, for any

specific pollutant.

2.44 10. “PM " means particulate matter with an aerodynamic diameter less than or equal to a nominal 10

micrometers as measured by a reference method described in Appendix J of 40 CFR Part 50.

2.45. “Particulate Matter” means any material, except uncombined water, that exists in a finely divided

form as a liquid or solid.

2.46. “PAL effective date” generally means the date of issuance of the PAL permit. However, the PAL

effective date for an increased PAL is the date any emissions unit which is part of the PAL major

modification becomes operational and begins to emit the PAL pollutant.

2.47. “PAL effective period” means the period beginning with the PAL effective date and ending 10

years later.

2.48. “PAL major modification” means, notwithstanding subsections 2.33 and 2.39 (the definitions for

major modification and net emissionsincrease), any physical change in or change in the method of operation

of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

2.49. “PAL permit” means the major NSR permit, the minor NSR permit, or the title V permit issued by

the Secretary that establishes a PAL for a major stationary source.

2.50. “PAL pollutant” means the pollutant for which a PAL is established at a major stationary source.

2.51. “Person” means any and all persons, natural or artificial, including the State of West Virginia or

any other state and all agencies or divisions thereof, any state political subdivision, the United States of

America, any municipal, statutory, public or private corporation or association organized or existing under

the law of this or any other state or country, and any firm, partnership or association of whatever nature.

2.52. “Plantwide applicability limitation” or “PAL” means an emission limitation expressed in tons per

year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established

source-wide in accordance with subsections 23.1 through 23.15.

2.53. [Reserved.]

2.54. “Pollution prevention” means any activity that through process changes, product reformulation or

redesign, or substitution of less polluting raw materials, eliminates or reduces the release of air pollutants

(including fugitive emissions) and other pollutants to the environment prior to recycling, treatment, or

disposal; it does not mean recycling (other than certain “in-process recycling” practices), energy recovery,

13
45CSR19

treatment or disposal.

2.55. “Potential to emit” means the maximum capacity of a stationary source to emit a pollutant under

its physical and operational design. Any physical or operational limitation on the capacity of the source to

emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the

type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the

limitation or the effect it would have on emissionsis federally enforceable or is enforceable by the Secretary

in any permit or consent order issued by the Administrator or by the Secretary. Secondary emissions do not

count in determining the potential to emit of a stationary source.

2.56. “Predictive emissions monitoring system” or “PEMS” means all of the equipment necessary to

monitor process and control device operational parameters (for example, control device secondary voltages

and elect 2 2ric currents) and other information (for example, gas flow rate, O or CO concentrations), and

calculate and record the mass emissions rate (for example, lb/hr) on a continuous basis.

2.57. “Prevention of Significant Deterioration (PSD) permit” means any permit that is issued under the

major source preconstruction permit program set forth in 45CSR14.

2.58. “Project” means a physical change in, or change in the method of operation of, an existing major

stationary source.

2.59. “Projected actual emissions” means, the maximum annual rate, in tons per year, at which an

existing emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years (12-month

period) following the date the unit resumes regular operation after the project, or in any one of the 10 years

following that date, if the project involves increasing the emissions unit’s design capacity or its potential to

emit of that regulated NSR pollutant and full utilization of the unit would result in a significant emissions

increase or a significant net emissions increase at the major stationary source. In determining the projected

actual emissions, before beginning actual construction, the owner or operator of the major stationary source:

2.59.a. Shall consider all relevant information, including but not limited to, historical operational

data, the company's own representations, the company's expected business activity and the company's highest

projections of business activity, the company's filings with the State or Federal regulatory authorities, and

compliance plans under the approved plan;

2.59.b. Shall include fugitive emissions to the extent quantifiable, and emissions associated with

startups, shutdowns, and malfunctions; and

2.59.c. Shall exclude, in calculating any increase in emissions that results from the particular

project, that portion of the unit’s emissions following the project that an existing unit could have

accommodated during the consecutive 24-month period used to establish the baseline actual emissions under

subsection 2.9 and that are also unrelated to the particular project, including any increased utilization due

to product demand growth; or.

2.59.d. In lieu of using the method set out in subdivisions 2.59.a through 2.59.c, may elect to use

the emissions unit’s potential to emit, in tons per year, as defined under subdivision 2.55.

2.60. “Reasonable Further Progress” means the annual reductions in emissions of pollutants in

nonattainment areas as are required pursuant to Part D of the 1990 Clean Air Act Amendments or which are

14
45CSR19

required by the Secretary or the Administrator for the purpose of ensuring attainment of NAAQS by the

applicable statutory deadline.

2.61. “Regulated NSR Pollutant” means the following: 

2.61.a. Any pollutant for which a National Ambient Air Quality Standard has been promulgated; 

2.61.b. Nitrogen oxides or any volatile organic compounds;

2.61.c. Any pollutant that is identified under this subdivision as a constituent or precursor of a

general pollutant listed under subdivisions 2.61.a or 2.61.b, provided that such constituent or precursor

pollutant may only be regulated under NSR as part of regulation of the general pollutant. Precursors

identified by the Administrator for purposes of NSR are the following:

2.61.c.1. Volatile organic compounds and nitrogen oxides are precursors to ozone in all ozone

nonattainment areas.

2.61 2.5 2.5.c.2. Sulfur dioxide is a precursor to PM in all PM nonattainment areas.

2.61 2.5 2.5.c.3. Nitrogen oxides are presumed to be precursors to PM in all PM nonattainment areas,

unlessthe Secretary demonstrates to the Administrator’ssatisfaction or USEPA demonstrates that emissions

of nitrogen oxides from sources in a specific area are not a significant contributor to that area’s ambient

PM2.5 concentrations.

2.61 2.5.c.4. Volatile organic compounds and ammonia are presumed not to be precursors to PM

2.5

in any PM nonattainment area, unless the Secretary demonstrates to the Administrator’s satisfaction or

USEPA demonstrates that emissions of volatile organic compounds or ammonia from sources in a specific

area are a 2.5 significant contributor to that area’s ambient PM concentrations.

2.61 2.5 10.d. PM emissions and PM emissions shall include gaseous emissions from a source or

activity which condense to formparticulate matter at ambient temperatures. On or after January 1, 2011, such

condensable particulate matter shall be accounted for in applicability determinations and in establishing

emissions 2.5 10limitations for PM and PM in nonattainment major NSR permits. Compliance with emissions

2.5 10

limitations for PM and PM issued prior to this date shall not be based on condensable particulate matter

unless required by the terms and conditions of the permit or the applicable implementation plan.

Applicability determinations made prior to this date without accounting for condensable particulate matter

shall not be considered in violation of this section unless the applicable implementation plan required

condensable particulate matter to be included.

2.62. “Replacement unit” means an emissions unit for which all the criteria listed in subdivisions 2.62.a

through 2.62.d are met. No creditable emission reductionsshall be generated fromshutting down the existing

emissions unit that is replaced.

2.62.a. The emissions unit is a reconstructed unit within the meaning of 40 CFR §60.15(b)(1), or

the emissions unit completely takes the place of an existing emissions unit;

2.62.b. The emissions unit is identical to or functionally equivalent to the replaced emissions unit;

15
45CSR19

2.62.c. The replacement does not change the basic design parameter(s) of the process unit; and

2.62.d. The replaced emissions unit is permanently removed from the major stationary source,

otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable as a

practical matter. If the replaced emissions unit is brought back into operation, it shall constitute a new

emissions unit.

2.63. “Reviewing authority” means the Secretary of the Department of Environmental Protection.

2.64. “Secondary emissions” means emissions which would occur as a result of the construction or

operation of a major stationary source or major modification, but do not come from the major stationary

source or major modification itself. Secondary emissions must be specific, well defined, quantifiable, and

impact the same general area as the stationary source or modification which causesthe secondary emissions. 

Secondary emissions include, but are not limited to emissions from any offsite support facility which would

not otherwise be constructed or increase its emissions except as a result of the construction or operation of

the major stationary source of major modification. Secondary emissions do not include any emissions which

come directly from a mobile source such as emissions from the tailpipe of a motor vehicle, a train, or from

a vessel.

2.65. “Secretary” means the Secretary of the Division of Environmental Protection or his or her

designated representative.

2.66. “Significant” means, in reference to a net emissions increase or the potential of a source to emit

any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

Pollutant and Pollutant Emission Rate

(tons per year)

Carbon monoxide: 100 tpy

Nitrogen oxides: 40 tpy

Sulfur dioxide: 40 tpy

Ozone: 40 tpy

of VOC or NOX

Lead: 0.6 tpy

PM10: 15 tpy

PM2.5: 10 tpy

of direct 2.5 PM emissions

PM2.5: 40 tpy

of SO2 emissions

16
45CSR19

PM2.5: 40 tpy

of NOX emissions

2.5

(unless demonstrated not to be a PM precursor under subsection 2.61).

2.66.a. Notwithstanding the significant emissions rate for ozone in subsection 2.66, significant

means, in reference to an emissions increase or a net emissions increase, any increase in actual emissions of

volatile organic compounds that would result from any physical change in, or change in the method of

operation of, a major stationary source locating in a serious or severe ozone nonattainment area that issubject

to Title I, Part D, Subpart 2 of the CAA, if such emissions increase of volatile organic compounds exceeds

25 tons per year.

2.66.b. For the purposes of applying the requirements of subsection 17.6 to modifications at major

stationary sources of nitrogen oxideslocated in an ozone nonattainment area or in an ozone transport region,

the significant emission rates and other requirements for volatile organic compounds in subsection 2.66,

subdivisions 2.66.a and 2.66.d shall apply to nitrogen oxides emissions.

2.66.c. Notwithstanding the significant emissions rate for carbon monoxide under subsection 2.66,

significant means, in reference to an emissions increase or a net emissions increase, any increase in actual

emissions of carbon monoxide that would result from any physical change in, or change in the method of

operation of, a major stationary source in a serious nonattainment area for carbon monoxide if such increase

equals or exceeds 50 tons per year, provided the Administrator has determined that stationary sources

contribute significantly to carbon monoxide levels in that area.

2.66.d. Notwithstanding the significant emissions rates for ozone under subsection 2.66 and

subdivision 2.66.a, any increase in actual emissions of volatile organic compounds from any emissions unit

at a major stationary source of volatile organic compounds located in an extreme ozone nonattainment area

that is subject to Title I, Part D, Subpart 2 of the CAA shall be considered a significant net emissions

increase.

2.67. “Significant emissions increase” means, for a regulated NSR pollutant, an increase in emissions

that is significant for that pollutant.

2.68. “Significant emissions unit” means an emissions unit that emits or has the potential to emit a PAL

pollutant in an amount that is equal to or greater than the significant level, as defined in subsection 2.66 or

the CAA, whichever is lower, for that PAL pollutant, but less than the amount that would qualify the unit

as a major emissions unit.

2.69. “Significant Impact” means an increase in the ambient air concentration for a particular pollutant

as follows:

Averaging time (hours)

Annual 24 8 3 1

Ambient Air Concentration Increase (ìg/m )

3

SO2 1.0 5.0 25.0

17
45CSR19

PM10 1.0 5.0

NO2 1.0

TSP 1.0 5.0

Ambient Air Concentration Increase (mg/m )

3

CO 0.5 2.0

2.70. “Small emissions unit” means an emissions unit that emits or has the potential to emit the PAL

pollutant in an amount less than the significant level for that PAL pollutant, as defined in subsection 2.66

or the CAA, whichever is lower.

2.71. “Source, Stationary Source” means any building, structure, facility or installation which emits or

may emit any regulated air pollutant.

2.72. “Temporary clean coal technology demonstration project” means a clean coal technology

demonstration project that is operated for a period of 5 years or less, and which complies with the State

Implementation Plan for the State in which the project is located and other requirements necessary to attain

and maintain the National Ambient Air Quality Standards during the project and after it is terminated.

2.73. “Temporary Source” or “sources of temporary emissions”, means for a source located in a

nonattainment area and subject to this rule, those emissions occurring for a period of time less than two

years.

2.74. “TSP” or “Total Suspended Particulate Matter” means particulate matter as measured by the

method described in Appendix B of 40 CFR Part 50.

2.75. “USEPA” means the United States Environmental Protection Agency.

2.76. “Volatile organic compounds (VOC)” are as defined in 40 CFR §51.100(s).

2.77. Other words and phrases used in this rule, unless otherwise indicated, have the meaning ascribed

to them in W. Va. Code §22-5-2.

§45-19-3. Applicability.

3.1. Preconstruction Permit Program In Nonattainment Areas. -- The preconstruction permit program

requirements apply to the construction of any new major stationary source or major modification that is

major for the pollutant for which the area is designated nonattainment under 40 CFR Part 81, Subpart C if

the stationary source or modification would locate anywhere in the designated nonattainment area.

3.2. Preconstruction Permit Program In Attainment Areas. -- The preconstruction permit program

requirements also apply to any proposed major stationary source and to any major modification to such

source in an area designated as attainment or unclassifiable for any National Ambient Air Quality Standard

(NAAQS) pursuant to section 107 of the CAA when it would cause or contribute to a violation of a NAAQS.

18
45CSR19

3.3. Significance levels.

3.3.a. A major source or major modification will be considered to cause or contribute to a violation

of a NAAQS when such source or modification would, at a minimum, exceed the significance levels set forth

in Table 45-19B at any locality that does not or would not meet the applicable national standard.

3.3.b. A proposed major source or major modification subject to subsection 3.2 may reduce the impact

of its emissions upon air quality by obtaining sufficient emission reductions to, at a minimum, compensate

for its adverse ambient impact where the major source or major modification would otherwise cause or

contribute to a violation of any NAAQS.

3.4. Determination of major modification. -- The determination as to whether or not a proposed project

is a major modification for a regulated NSR pollutant shall be determined in accordance with the specific

provisions set forth in subdivisions 3.4.a through 3.4.f.

3.4.a. Except as otherwise provided in subsections 3.5 and 3.6, and consistent with the definition of

major modification, a proposed project is a major modification for a regulated NSR pollutant if it causestwo

types of emissions increases -- a significant emissions increase (as defined in subsection 2.67), and a

significant net emissions increase (as defined in subsections 2.66 and 2.39). The proposed project is not a

major modification if it does not cause a significant emissions increase. If the project causes a significant

emissions increase, then the project is a major modification only if it also results in a significant net

emissions increase.

3.4.b. The procedure for calculating, before beginning actual construction, whether a significant

emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units

being modified, according to subdivisions 3.4.c through 3.4.f. The procedure for calculating, before

beginning actual construction, whether a significant net emissionsincrease will occur at the major stationary

source (i.e., the second step of the process) is contained in the definition in subsection 2.39. Regardless of

any such preconstruction projections, a major modification results if the project causes a significant

emissions increase and a significant net emissions increase.

3.4.c. Actual-to-projected-actual applicability test for proposed projects that only involve existing

emissions units. -- A significant emissions increase of a regulated NSR pollutant is projected to occur if the

sum of the difference between the projected actual emissions and the baseline actual emissions (as defined

in subdivisions 2.9.a and 2.9.b, as applicable), for each existing emissions unit, equals or exceeds the

significant amount for that pollutant.

3.4.d. Actual-to-potential test for proposed projects that only involve construction of a new emissions

unit(s). -- A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of

the difference between the potential to emit from each new emissions unit following completion of the

proposed project and the baseline actual emissions of these units before the project equals or exceeds the

significant amount for that pollutant.

3.4.e. [Reserved.]

3.4.f. Hybrid testfor projects that involve multiple types of emissions units. --A significant emissions

increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each

emissions unit, using the method specified in subdivisions 3.4.c through 3.4.d as applicable with respect to

19
45CSR19

each emissions unit, for each type of emissions unit equals or exceeds the significant amount for that

pollutant.

3.5. For any major stationary source subject to a PAL for a regulated NSR pollutant, the major

stationary source shall comply with the requirements under section 23.

3.6. [Reserved.]

3.7. Exemption.

3.7.a. A source or modification shall not be considered a major stationary source or major

modification only if fugitive emission to the extent quantifiable are considered in calculating the potential

to emit of the stationary source or modification and the source does not belong to any of the following

categories:

3.7.a.1. Coal cleaning plants (with thermal dryers);

3.7.a.2. Kraft pulp mills;

3.7.a.3. Portland cement plants;

3.7.a.4. Primary zinc smelters;

3.7.a.5. Iron and steel mills;

3.7.a.6. Primary aluminum ore reduction plants;

3.7.a.7. Primary copper smelters;

3.7.a.8. Municipal incinerators capable of charging more than 250 tons of refuse per day;

3.7.a.9. Hydrofluoric, sulfuric, or citric acid plants;

3.7.a.10. Petroleum refineries;

3.7.a.11. Lime plants;

3.7.a.12. Phosphate rock processing plants;

3.7.a.13. Coke oven batteries;

3.7.a.14. Sulfur recovery plants;

3.7.a.15. Carbon black plants (furnace process);

3.7.a.16. Primary lead smelters;

3.7.a.17. Fuel conversion plants;

20
45CSR19

3.7.a.18. Sintering plants;

3.7.a.19. Secondary metal production plants;

3.7.a.20. Chemical process plants -- The term chemical processing plant shall not include ethanol

production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or

312140;

3.7.a.21. Fossil-fuel boilers (or combination thereof)totaling more than 250 million British thermal

units per hour heat input;

3.7.a.22. Petroleum storage and transfer units with a total storage capacity exceeding 300,000

barrels;

3.7.a.23. Taconite ore processing plants;

3.7.a.24. Glass fiber processing plants;

3.7.a.25. Charcoal production plants;

3.7.a.26. Fossil fuel-fired steam electric plants of more than 250 million British thermal units per

hour heat input; and

3.7.a.27. Any other stationary source category which, as of August 7, 1980, is being regulated

under section 111 or 112 of the CAA.

3.7.b. In addition to the facilities covered under subdivision 3.7.a, all coal preparation plants as

defined under 40 CFR §60.251(a) which process more than 200 tons per day shall count fugitives fugitive

emissions from all “affected facilities” at the source, i.e., from all thermal dryers, pneumatic coal-cleaning

equipment (air tables), coal processing and conveying equipment (including breakers and crushers), coal

storage systems, and coal transfer and loading systems.

3.7.c. For the purpose of subdivision 3.7.b, the term “affected facilities” means those facilities which

are listed or identified as “affected facilities” in the applicable standard promulgated under §§111 or 112 of

the CAA.”

§45-19-4. Conditions for a Permit Approval for Proposed Major Sources That Would Contribute

to a Violation of NAAQS.

4.1. Upon determination by the Secretary that a proposed new major stationary source or major

modification will locate within a nonattainment area, or that a proposed new major stationary source or major

modification to be built outside a nonattainment area will have a significant impact on pollutant

concentrations in a nonattainment area, as of such source's proposed start-up date, permit approval may be

granted only if the applicant agrees within its permit application and permit (if approved), to meet the

following conditions:

4.1.a. The proposed major stationary source or major modification is required to meet the lowest

achievable emission rate (LAER) for such source;

21
45CSR19

4.1.b. The applicant must certify that all existing sources owned or operated by the applicant (or any

entity controlling, controlled by, or under common control of the applicant) in West Virginia are in

compliance with the CAA and W.Va. Code §22-5-4, or the applicable regulations, or is in compliance with

a compliance program or a court decree which is federally enforceable and enforceable by the Secretary;

4.1.c. More than equivalent emission offsets fromexisting sources in the nonattainment area impacted

by the proposed new major stationary source or major modification (whether or not under the same

ownership) are required such that there will be reasonable further progress toward attainment of the

app Xlicable NAAQS. For sources locating in ozone nonattainment areas, the offset ratios for VOC and NO

must equal or exceed those specified in subsection 2.42. Only intrapollutant emission offsets are acceptable;

and

4.1.d. The emission offsets will provide a positive net air quality benefit in the affected nonattainment

area. Atmosphe Xric simulation modeling for ozone impacts is not necessary for VOC and NO . Compliance

with subdivision 4.1.c and subsection 8.2 will be adequate to meet this condition.

4.2. Upon determination by the Secretary that technological or economic limitations on the application

of measurement methodology to a particular source or class of sources would make the imposition of an

enforceable numerical emission standard infeasible, the applicant may, by petition, request that the Secretary

approve an appropriate design, operational or equipment standard. In the event that the applicant's proposed

design, operational or equipment standard is unacceptable to the Secretary, the Secretary shall determine an

appropriate measurement methodology or design, operational or equipment standard and shall incorporate

such determinations and requirements within the permit.

4.3. For phased construction projects, the determination of the lowest achievable emission rate shall

be reviewed and modified as appropriate at the latest reasonable time which occurs no later than 18 months

prior to commencement of construction of each independent phase of the project. At such time, the owner

or operator of the applicable stationary source may be required to demonstrate the adequacy of any previous

determination of the lowest achievable emission rate for the source.

4.4. Control Technology Information. -- The Secretary shall, for each new major source and major

modification, submit to the Administrator, within 60 days of issuance of the construction permit, all

information on the emissions prevention or control technology for the new major source or major

modification for the purpose of making such information available through the RACT/BACT/LAER

clearinghouse to other states and to the general public.

4.5. Rocket Engines or Motors. -- The Secretary may allow a source to offset by alternative or

innovative means emission increases fromrocket engine and motor firing, and cleaning related to such firing,

at an existing or modified source that tests rocket engines or motors under the following conditions:

4.5.a. Any modification proposed is solely for the purpose of expanding the testing of rocket engines

or motors at an existing source that was permitted to test such engines as of November 15, 1990;

4.5.b. The source demonstrates to the satisfaction of the Secretary that it has used all reasonablemeans

to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable

levels, that all available offsets are being used, and that sufficient offsets are not available to the source;

4.5.c. The source has obtained a written finding from the Department of Defense, Department of

22
45CSR19

Transportation, National Aeronautics and Space Administration or other appropriate Federal agency, that

the testing of rocket motors or engines at the facility is required for a program essential to national security;

and

4.5.d. The source shall comply with an alternative measure, imposed by the Secretary, designed to

offset any emission increases beyond permitted levels not directly offset by the source. In lieu of imposing

any alternative offset measures, the Secretary may impose any emissions fee which shall be an amount no

greater than 1.5 times the average cost of stationary source control measures adopted in that area during the

previous three (3) years. The Secretary shall utilize the fees in a manner that maximizes reductions in that

area.

§45-19-5. Conditions for Permit Approval for Sources Locating in Attainment or Unclassifiable

Areas That Would Cause a New Violation of a NAAQS.

5.1. Upon determination by the Secretary that the emissions from a proposed new major stationary

source or major modification locating in attainment or unclassified areas would cause a new violation of a

NAAQS, permit approval may be granted only ifthe applicant agrees within its permit application and permit

(if approved) to meet a more stringent emission limitation and/or limit emissions of existing sources below

levels allowed by the applicable regulations so that the proposed source will not cause a new violation of any

NAAQS. Only intrapollutant emission offsets are acceptable.

5.2. If the proposed major source or major modification does not obtain the emission reductions

specified in subsection 3.2 the Secretary shall deny the proposed construction.

5.3. The requirements of subsections 3.2 and 5.2 shall not apply to a major stationary source or major

modification with respect to a particular pollutant if the owner or operator demonstrates that, as to that

pollutant, the source or modification is located in an area designated as nonattainment pursuant to section

107 of the CAA.

§45-19-6. [Reserved.]

§45-19-7. Baseline for Determining Credit for Emission Offsets.

7.1. For major stationary sources and major modifications subject to subsections 3.1 and 3.2 the

baseline for determining credit for emissions reductions is the emission limit in effect at the time the

application for a permit to construct under section 14 is filed, except that the offset baseline shall be the

actual emissions of the source from which the offset credit is obtained where:

7.1.a. The demonstration of reasonable further progress and attainment of ambient air quality

standards is based upon the actual emissions of sources located within a designated nonattainment area; or

7.1.b. The applicable regulation does not contain an emission limitation for a source or source

category, the emission offset baseline involving such sources shall be the actual emissions.

7.2. Where the applicable regulation emission limit allows greater emissionsthan the potential emission

rate of the source, emission offset credit will be allowed only for control below the potential emission rate.

7.3. For an existing fuel combustion source, credit shall be based on the allowable emissions for the

23
45CSR19

type of fuel being burned at the time the permit to construct application under section 14 is filed. If the

existing source commits to switch to a cleaner fuel at some future date, emission offset credit based on the

allowable or actual emissions for the fuels involved is not acceptable, unless the permit is conditioned to

require use of a specified alternative control measure which would achieve the same degree of emissions

reduction should the source switch back to a dirtier fuel at some later date. The applicant shall ensure that

adequate long-term supplies of the new fuel are available before emission offset credit for fuel switches may

be granted.

7.4. Emissionsreductions achieved by shutting down an existing emission unit or curtailing production

or operating hours may be generally credited for offsets if they meet the following requirements:

7.4.a. Such reductions are permanent, quantifiable, federally enforceable.

7.4.b. The shutdown or curtailment occurred on or after the date specified in the attainment plan, and

ifsuch date is on or after the date of the mostrecent emission inventory used in the attainment demonstration. 

Where the plan does not specify a cutoff date for shutdown credits, the date of the most recent emissions

inventory or attainment demonstration shall apply. However, no may credit be given for shutdowns which

occurred prior to August 7, 1977.

7.5. Emissionsreductions achieved by shutting down an existing emissions unit or curtailing production

or operating hours and that do not meet the requirements in subdivision 7.4.b may be generally credited only

if:

7.5.a. The shutdown or curtailment occurred on or after the date the construction permit application

is filed, or

7.5.b. The applicant can establish that the proposed new emissions unit is a replacement for the

shutdown or curtailed emissions unit, and the emissions reductions achieved by the shutdown or curtailment

met the requirements of subdivision 7.4.a.

7.6. No emissions credit may be allowed for replacing one hydrocarbon compound with another of

lesser reactivity, except for those compounds listed in Table 1 of USEPA’s “Recommended Policy on

Control of Volatile Organic Compounds” (42 FR 35314, July 8, 1977).

7.7. All emission reductions claimed as offset credit shall be federally enforceable.

§45-19-8. Location of Emissions Offsets.

8.1. Emissions offsets shall be obtained from sources located as close to the proposed major stationary

or major modified source site as possible. Except for ozone nonattainment areas, these emissions offsets

must be obtained from the same nonattainment area as the proposed major source or major modification.

8.2. The Secretary, by petition, may allow emissions offsets from sources located at greater distances

from the proposed major stationary source or major modification provided that an adequate demonstration

that nearby offsets were investigated and reasonable alternatives which provide a positive net air quality

benefit are not available is submitted by the applicant, subject to the following provisions:

8.2.a X. Emission offsets for VOC or NO will generally be acceptable from sources located within the

24
45CSR19

same ozone nonattainment area or from other ozone nonattainment areas of equal or higher classification

which can be shown to cause or significantly contribute to the ozone problem at the proposed new or

modified source location; and

8.2.b 2. Emission offsets for sources of sulfur dioxide (SO ), and total suspended particulate (TSP),

should be obtained from an existing or shutdown facility, on the same premises or in the immediate vicinity

of the proposed source.

8.3. If such allowance is granted, as provided for in subsection 8.2, the Secretary may increase the ratio

of the required offsets for such source.

8.4. In order to ensure that the emission offsets will provide a positive net air quality benefit, the

Secretary may performthe necessary analysis or require the applicant to submit appropriate modeling results

for review.

8.5. The appropriate modeling referred to in subsection 8.4 is as follows:

8.5.a 2. For SO and TSP, the source's allowable emissionsshould be used in an atmospheric simulation

model to ensure that the emission offsets provide a positive net air quality benefit. It may, however, be

assumed that if the emission offsets are obtained from an existing or shutdown source on the same premises

or in the immediate vicinity of the proposed major stationary source or major modification and the pollutants

disperse from substantially the same effective stack height, the air quality test of subdivision 4.1.d will be

met without the necessity of modeling. Thus, when stack emissions are offset against a ground level source

at the same time, modeling would be required.

8.5.b. Atmospheric simulation modeling for ozone impacts is not necessary for volatile organic

compounds and NOX. For such pollutants, meeting the requirements of subdivisions 4.1.c and 8.2.a will be

adequate.

8.5.c X. Proposed sources of VOC or NO locating in a designated nonattainment area for ozone shall

be subject to the provisions of section 4.

8.5.d X. Proposed VOC or NO sources locating within thirty-six (36) hours travel time (under wind

conditions associated with concentrations exceeding the NAAQS for ozone) of a nonattainment monitor are

subject to section 4.

8.6. Credit for an emissions reduction can be claimed to the extent that the Secretary has not relied on

it in issuing any permit under 45CSR14 or 45CSR19 and the Secretary has not relied on it in a demonstration

of attainment or reasonable further progress.

8.7. The total amount of increased emissions, in tons per year, resulting from a major modification that

must be offset shall be determined by summing the difference between the allowable emissions after the

modification and the actual emissions before the modification for each emissions unit.

§45-19-9. Administrative Procedures for Emission Offset Proposals.

9.1. Emission offsets may be proposed by the applicant for the proposed major stationary source or

major modification, the local community or the Secretary.

25
45CSR19

9.1.a. The emission offsets committed to must be accomplished by the applicant's proposed start-up

date, except when such proposed source is a replacement for a source that is being shut down in order to

provide the necessary benefits; in such cases the Secretary may allow up to one hundred eighty (180) days

for shakedown of the new source before the existing source is required to cease operation. Such an

allowance must be requested by the applicant and contained, if granted, within the construction permit.

9.1.b. If the emission reductions which are to be used as offset credit for a proposed major stationary

source or major modification are to be obtained in a State that neighbors West Virginia, or from another

source at another site not controlled by the applicant, the offsets committed to must be embodied in a USEPA

approved State Implementation Plan revision in the neighboring State and must be federally enforceable and

enforceable by both such neighboring State and the Secretary and at all participating sources.

9.2. The applicant may propose emission offsets which involve:

9.2.a. Reductions from sources controlled by the applicant; or

9.2.b. Reductions from neighboring sources not controlled by the applicant.

9.3. A state or local community which desires that a major stationary source or major modification

locate in its area may commit to reducing emissions from existing sources to sufficiently offset the impact

of such proposed source.

9.4. Anyemission offset proposal described in subsection 9.2 must be embodied either in the applicant's

permit application and permit if such offsets are directly controlled by the applicant or if from neighboring

sources located in the State not controlled by the applicant, in a consent order as provided in W. Va. Code

§22-5-5, which such consent ordershall be submitted to the USEPA for inclusion in the State Implementation

Plan.

§45-19-10. [Reserved.]

§45-19-11. [Reserved.]

§45-19-12. Reasonable Further Progress.

12.1. By the time the proposed major source or major modification isto commence operation, sufficient

offsetting emissionsreductionsshall be in effectsuch that the total allowable emissionsfromexisting sources

in the area, from new or modified sources which are not major sources and from the proposed source will

be sufficiently less than total emissions from existing sources prior to the application for the permit to

construct or modify so as to represent, when considered together with the plan provisions required under

section 172 of the act (42 USC 7502), reasonable further progress.

12.2. For the purposes of satisfying the requirements of subsection 12.1:

12.2.a. The determination of total emissions at both the time prior to the application for a permit

subject to the requirements of this chapter and the time the permitted source or modification would

commence operation, shall be made in a manner consistent with the assumptions in the applicable state

implementation plan approved by the administrator concerning baseline emissions for the demonstration of

reasonable further progress and attainment of the National Ambient Air Quality Standards for the particular

26
45CSR19

pollutant subject to review under this chapter; and

12.2.b. To demonstrate reasonable further progress a new or modified source subject to review

under this rule shall obtain offsets in an amount equal to or greater than the amount specified by the

applicable offset ratio. If an offset ratio is not specified, the offset ratio shall be at least 1 to 1.

§45-19-13. Source Impact Analysis.

13.1. The applicant for a preconstruction permit shall demonstrate to the satisfaction of the Secretary

that all of the following conditions are met:

13.1.a. The emissions offsets required under subdivision 4.1.c,when considered in conjunction with

the proposed emissions increase, will have a net air quality benefit in the affected area, as required under

subdivision 4.1.d;

13.1.b. The emissionsfromthe proposed new major source or major modification, when considered

in conjunction with the emissions offsets required under section 4, will not contribute to nonattainment in,

or interfere with maintenance by, any other state with respect to any national primary or secondary ambient

air quality standard;

13.1.c. The emissionsfromthe proposed new major source or major modification, when considered

in conjunction with the emissions offsets required under section 4, will not interfere with measures required

to be included in the applicable implementation plan for any other state under a program for the prevention

of significant deterioration or for the protection of visibility; and

13.1.d. An analysis of alternative sites, sizes, production processes, and environmental control

techniques for the proposed source demonstrates the benefits of the proposed source significantly outweigh

the environmental and social costs imposed as a result of its location, construction or modification.

§45-19-14. Permit Requirements for Major Stationary Sources and Major Modifications.

14.1. Permit Application.

14.1.a. No person shall cause, suffer, allow, or permit the construction or relocation of any major

stationary source or a major modification to be commenced in any area designated as nonattainment under

§107 of the CAA, without notifying the Secretary of such intent, and obtaining prior to commencement of

construction, modification, or relocation, a permit(s) to so construct, modify or relocate the major stationary

source or major modification.

14.1.b. No person shall cause, suffer, allow or permit the construction or relocation of any major

stationary source or major modification to be commenced anywhere in the state, ifthe emissions would cause

a violation of a NAAQS or would cause a significant impact on air quality in a designated nonattainment

area, without notifying the Secretary of such intent and obtaining, prior to commencement of construction,

modification or relocation, all necessary preconstruction approvals or permits to so construct, modify or

relocate the major stationary source or major modification.

14.2. The owner or operator of the source shall file with the Secretary a timely and complete permit

application containing sufficient information as, in the judgement of the Secretary, will enable the Secretary

27
45CSR19

to determine whether such source construction, modification or relocation will be in conformance with the

provisions of any rules promulgated by the Secretary and with the requirements of this rule. Such

information may include, but not be limited to:

14.2.a. A description of the nature, location, design capacity and typical operating schedule of the

source or modification, including specifications and drawings showing its design and plant layout;

14.2.b. A detailed schedule for construction of the source or modification;

14.2.c. A detailed description as to what system of continuous emission reduction is planned by the

source or modification, emission estimates, and any other information as necessary to determine that the

requirement for lowest achievable emission rate as applicable would be met;

14.2.d. The air quality impact of the source or modification, including meteorological and

topographical data necessary to estimate such impact; and

14.2.e. A detailed description of any emission offsets proposed by the applicant.

14.3. Each permit application shall be signed by the owner or operator of the major stationary source or

major modification, and such signature shall constitute an agreement that the applicant will assume

responsibility for the construction, modification, or relocation, and operation of the major stationary source

or major modification in accordance with applicable rules and regulations of the Secretary, the permit

application and any permit issued pursuant to this rule.

14.4. Permit Review.

14.4.a. Within thirty (30) days of the receipt of a permit application for construction or relocation

of a major stationary source or for a major modification, the Secretary shall determine if the application is

complete or if there exists any deficiency in the application or information submitted, and shall notify the

applicant of all such deficiencies, if any. In the event of such a deficiency, the date of receipt of the

application shall be the date on which the Secretary received all required information.

14.4.b. After completing the review of a complete application, the Secretary shall make a

preliminary determination whether a permit should be approved, approved with conditions or disapproved.

14.4.c. After the public participation requirements specified in section 15 have been satisfied, the

Secretary shall notify the applicant in writing of the final determination.

14.5. Permit Issuance or Denial.

14.5.a. Within six (6) months of the receipt of a complete permit application for construction or

relocation of a major stationary source or for a major modification, the Secretary shall issue such a permit

unless the Secretary determines that the proposed major stationary source or major modification has not

satisfied the requirements of this rule, will violate applicable emission standards, will interfere with the

attainment or maintenance of applicable ambient air quality standards, or will be inconsistent with the intent

and purpose of this rule, in which case the Secretary shall issue an order for the prevention of such

construction, modification, or relocation.

28
45CSR19

14.5.b. If the Secretary denies a permit application for the proposed construction or relocation of

any major stationary source or major modification, the order shall set forth the Secretary's reasons with

reasonable specificity.

14.6. ReasonableConditions. --The Secretary may impose any reasonable conditions as part of a granted

construction, modification or relocation permit. Such conditions may include, but not be limited to, the

submission of periodic progress or operation reports, the provisions of a suitable sampling site, the

installation of pollutant monitoring devices, and the operation and maintenance of ambient air quality

monitoring stations.

§45-19-15. Public Review Procedures.

15.1. At the time that an application for a construction or modification is filed, the applicant shall also

place a Class I legal advertisement in a newspaper of general circulation in the area where the source is or

will be located. No such permit shall be issued to any applicant until at least thirty (30) days notice has been

provided to the public. The advertisement shall contain at a minimum, the name of the applicant, the type

and location of the source, the type and amount of air pollutants that will be discharged, the nature of the

permit being sought, the proposed start-up date for the source and a contact telephone number for more

information.

15.2. The Secretary shall make available in at least one location in the region in which the proposed

source would be constructed a copy of all materials the applicant submitted (excluding data entitled to

protection as confidential information under the Code and any rules pursuant thereto), a copy of the

preliminary determination, and a copy or summary of other materials, if any, considered in making the

preliminary determination.

15.3. The Secretary shall place a Class I legal advertisement in a paper of general circulation in the area

where the proposed source would be constructed, modified, or relocated. The advertisement shall contain,

as a minimum, the name of the applicant, the type and location of the source, the proposed start-up date, the

preliminary determination, notification of the opportunity for written public comment, provisions for

requesting a public meeting, details concerning the time and place of such a meeting if one has already been

scheduled, and notification of the opportunity for comment at a public meeting if such meeting is to be

conducted. A public comment period of thirty (30) days shall be provided and so stated in the advertisement.

15.4. The Secretary shall send a copy of the advertisement to the applicant, to USEPA, and to officials

and agencies having cognizance over the location where the proposed construction would occur as follows:

any other State or local air pollution control agencies, the chief executives of the city and county where the

source would be located; any comprehensive regional land use planning agency, any State, and any Federal

Land Manager, whose lands may be affected by emissions from the source or modification.

15.5. Public comments submitted within thirty (30) days after the Secretary’s public notification of an

opportunity for comment upon a proposed construction or relocation of a major stationary source or major

modification and comments submitted within a specified period not to exceed fifteen (15) days after any

public meeting to receive comment on such proposed construction, modification, or relocation shall be

considered by the Secretary before making a final decision on the approvability of the application. The

Secretary shall make copies of all comments available for public inspection in the same locations where the

Secretary made available preconstruction information relating to the proposed source or modification.

29
45CSR19

15.6. The Secretary shallmake a final determination whether construction should be approved, approved

with conditions, or disapproved.

15.7. The Secretary shall notify the applicant in writing of the final determination and make a copy of

such notification available for public inspection at the same location where the Secretary made available

preconstruction information and public comments relating to the proposed source or modification.

§45-19-16. Public Meetings.

16.1. Public meetings to receive comments on permit applications shall be held when the Secretary

deems it appropriate or when substantial interest is expressed, in writing, by persons who might reasonably

be expected to be affected by the proposed major source or major modification.

16.2. The Secretary or the Secretary 's designee shall preside over such meetings and ensure that all

interested parties have ample opportunity to present comments. Such meetings shall be held at a convenient

place as near as practicable to the location of the proposed major source or major modification.

16.3. At a reasonable time prior to such meetings, the Secretary shall provide appropriate information

to news media in the area where the proposed source or modification is to be located.

§45-19-17. Permit Transfer, Cancellation and Responsibility.

17.1. Permit Transfer. -- A permittee may petition the Secretary for a transfer of a permit previously

issued under 45CSR19. The Secretary shall approve such permit transfer provided the following conditions

are met:

17.1.a. The permittee, in the petition, describes the reasons for the requested permit transfer and

certifies that the subject source is in compliance with all the provisions and requirements of its permit, and

17.1.b. The transferee provides written acknowledgment that it accepts and will comply with all the

requirements, terms, and conditions as contained in the subject permit.

17.2. Permit Cancellation.

17.2.a. The Secretary shall cancel or suspend a permit if, after eighteen (18) months from the date

of issuance the holder of the permit cannot provide the Secretary, at the Secretary’s request, with written

proof of a good faith effort that such construction, modification or relocation has commenced and remains

ongoing. Such proof shall be provided not later than thirty (30) days after the Secretary’s request.

17.2.b. The Secretary may cancel or suspend the permit if the plans and specifications upon which

the approval was based or the conditions established in the permit are not adhered to. Upon notice of the

Secretary’s intent to suspend, modify or revoke a permit, the permit holder may request a conference with

the Secretary in accordance with the provisions of W.Va. Code §22-5-5 to show cause why the permitshould

not be suspended, modified or revoked.

17.3. Responsibility.

17.3.a. Possession of a permit does not relieve any person of the responsibility of complying with

30
45CSR19

any and all rules of the Secretary or W.Va. Code §22-1-1 et seq. and any other requirements under local,

State or Federal law.

17.3.b. A source which has not operated at least five hundred (500) hours in one 12-month period

within the past previous five-year time period may be considered permanently shutdown, unlesssuch source

can provide to the Secretary, with reasonable specificity, information to the contrary. All permits may be

modified or revoked and/or reapplication or application for new permits may be required for any source

determined to be permanently shutdown.

17.3.c. Any person who owns or operates any particular source or modification which becomes a

major stationary source or major modification solely by virtue of a relaxation in any limitation, enforceable

by the Administrator or the Secretary, on the capacity of the source or modification otherwise to emit a

pollutant (such as a restriction on hours of operation), shall become subject to the requirements of this rule

as though construction had not yet commenced on the source or modification.

17.3.d. Any owner or operator who constructs, modifies or operates a stationary source not in

accordance with the permit application submitted or with the terms of any approval to construct, or any

owner or operator of a stationary source or modification subject to this rule who commences construction

without applying for and receiving permit approval from the Secretary, shall be subject to appropriate

enforcement action in accordance with the W.Va. Code.

17.4. Except as otherwise provided in subdivision 17.4.f, the following specific provisions apply with

respect to any regulated NSR pollutant emitted from projects at existing emissions units at a major stationary

source, other than projects at a source with a PAL, in circumstances where there is a reasonable possibility,

within the meaning of subdivision 17.4.f, that a project that is not a part of a major modification may result

in a significant emissions increase of such pollutant, and the owner or operator elects to use the method

specified in subdivisions 2.59.a through 2.59.c for calculating projected actual emissions:

17.4.a. Before beginning actual construction of the project, the owner or operator shall document

and maintain a record of all of the following:

17.4.a.1. A description of the project;

17.4.a.2. Identification of the emissions unit or units whose emissions of a regulated NSR air

pollutant could be affected by the project; and

17.4.a.3. A description of the applicability test used to determine that the project is not a major

modification for any regulated NSR air pollutant, including the baseline actual emissions, the projected

actual emissions, the amount of emissions excluded under subdivision 2.59.c and an explanation why the

amount was excluded, and any netting calculations, if applicable;

17.4.b. If the emissions unit is an existing electric utility steam generating unit, before beginning

actual construction, the owner or operatorshall provide a copy of the information required under subdivision

17.4.a to the Secretary. Nothing in this subdivision shall be construed to require the owner or operator of

the a unit to obtain any determination from the department before beginning actual construction.

17.4.c. The owner or operatorshallmonitor the emissions of any regulated NSR pollutant that could

increase as a result of the project and that is emitted by any emissions unit identified in subdivision 17.4.b. 

31
45CSR19

The owner or operator shall calculate and maintain a record of the annual emissions, in tons per year on a

calendar year basis, for a period of 5 years following resumption of regular operations after the change, or

for a period of 10 years following resumption of regular operations after the change if the project increases

the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit.

17.4.d. If the emissions unit is an existing electric utility steam generating unit, the owner or

operator shall submit a report to the Secretary within 60 days after the end of each year during which records

must be generated under subdivision 17.4.c setting out the unit’s annual emissions, as monitored pursuant

to subdivision 17.4.c, during the calendar year that preceded submission of the report.

17.4.e. If the emissions unit is an existing unit other than an electric utility steam generating unit,

the owner or operator shall submit a report to the department if the annual emissions, in tons per year, from

the project identified in subdivision 17.4.a, exceed the baseline actual emissions, as documented and

maintained pursuant to subdivision 17.4.c, by a significant amount for that regulated NSR air pollutant, and

if the emissions differ from the preconstruction projection that was provided to the department pursuant to

subdivision 17.4.b. The report shall be submitted to the Secretary within 60 days after the end of the year. 

The report shall contain the following information:

17.4.e.1. The name, address and telephone number of the major stationary source;

17.4.e.2. The annual emissions as calculated pursuant to paragraph 17.4.a.3; and

17.4.e.3. Any other information that the owner or operator wishes to include in the report, e.g., an

explanation as to why the emissions differ from the preconstruction projection.

17.4.f. A “reasonable possibility” under subsection 17.4 occurs when the owner or operator

calculates the project to result in either:

17.4.f.1. A projected actual emissions increase of at least 50 percent of the amount that is a

“significant emissions increase,” as defined under subsection 2.67 (without reference to the amount that is

a significant net emissions increase), for the regulated NSR pollutant; or

17.4.f.2. A projected actual emissions increase that, added to the amount of emissions excluded

under subdivision 2.59.c, sums to at least 50 percent of the amount that is a “significant emissionsincrease,”

as defined under subsection 2.67 (without reference to the amount that is a significant net emissions

increase), for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only

within the meaning of this paragraph, and not also within the meaning of paragraph 17.4.f.1, then provisions

under subdivisions 17.4.b through 17.4.e do not apply to the project.

17.5. The owner or operator of the source shall make the information required to be documented and

maintained pursuant to subsection 17.4 available for review upon request for inspection by the Secretary or

the public.

17.6. The requirements of this rule applicable to major stationary sources and major modifications of

volatile organic compounds shall apply to nitrogen oxides emissionsfrommajor stationary sources andmajor

modifications of nitrogen oxides in an ozone transport region or in any ozone nonattainment area, except in

ozone nonattainment areas or in portions of an ozone transport region where the Administrator has granted

a NOX waiver applying the standards set forth under section 182(f) of the CAA and the waiver continues to

32
45CSR19

apply.

17.7. Emission Offset Ratios.

17.7.a. In meeting the emissions offset requirements of subsection 7.1, the ratio of total actual

emissions reductions to the emissions increase shall be at least 1:1 unless an alternative ratio is provided for

the applicable nonattainment area in subdivisions 17.7.b through 17.7.d.

17.7.b. In meeting the emissions offsetrequirements of subsection 7.1 for ozone nonattainment areas

that are subject to Title I, Part D, Subpart 2 of the CAA, the ratio of total actual emissionsreductions of VOC

to the emissions increase of VOC shall be as follows:

17.7.b.1. In any marginal nonattainment area for ozone -- at least 1.1:1;

17.7.b.2. In any moderate nonattainment area for ozone -- at least 1.15:1;

17.7.b.3. In any serious nonattainment area for ozone -- at least 1.2:1;

17.7.b.4. In any severe nonattainment area for ozone -- at least 1.3:1 (except that the ratio may be

at least 1.2:1 if the approved plan also requires all existing major sources in such nonattainment area to use

BACT for the control of VOC); and

17.7.b.5. In any extreme nonattainment area for ozone -- at least 1.5:1 (except that the ratio may

be at least 1.2:1 if the approved plan also requires all existing major sources in such nonattainment area to

use BACT for the control of VOC); and

17.7.c. Notwithstanding the requirements of subdivision 17.7.b for meeting the requirements of

subsection 7.1, the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall

be at least 1.15:1 for all areas within an ozone transport region that is subject to Title I, Part D, Subpart 2 of

the CAA, except for serious, severe, and extreme ozone nonattainment areas that are subject to Title I, Part

D, Subpart 2 of the CAA.

17.7.d. In meeting the emissions offsetrequirements of subsection 7.1 for ozone nonattainment areas

that are subject to Title I, Part D, Subpart 1 of the CAA (but are not subject to Title I, Part D, Subpart 2 of

the CAA, including 8-hour ozone nonattainment areas subject to 40 CFR 51.902(b)), the ratio of total actual

emissions reductions of VOC to the emissions increase of VOC shall be at least 1:1.

17.8. The requirements of this rule applicable to major stationary sources and major modifications of

PM10 10shall also apply to major stationary sources and major modifications of PM precursors, except where

10

the Administrator determines that such sources do not contribute significantly to PM levels that exceed the

PM10 ambient standards in the area.

17.9. In meeting the emissions offset requirements of section 7, the emissions offsets obtained shall be

for the same regulated NSR pollutant unless interprecursor offsetting is permitted for a particular pollutant

as 2.5specified in this subsection. The offset requirements in section 7 for direct PM emissions or emissions

of precur 2.5 2.5sors of PM may be satisfied by offsetting reductionsin direct PM emissions or emissions of any

PM2.5 precursor identified under subdivision 2.61.c if such offsets comply with the following interprecursor

trading ratios:

33
45CSR19

17.9 X 2.5 X 2.5.a. NO to primary PM -- 200 tons of NO for 1 ton of PM ; and 

17.9 2 2.5 2 2.5.b. SO to primary PM -- 40 tons of SO for 1 ton of PM .

§45-19-18. Disposition of Permits.

18.1. In the event that the Secretary promulgates revisions to this rule, or in the event of a redesignation

of an attainment or non-attainment area (in accordance with section §107 of the CAA) prior to final

disposition of a permit, the Secretary shall make final disposition of the permit application in accordance

with such newly promulgated standards or redesignation.

§45-19-19. Requirements for Air Quality Models.

19.1. All estimates of ambient concentrations required under this rule shall be based on the applicable

air quality models, data bases, and other requirements specified in 40 CFR Part 51, Appendix W (Guideline

on Air Quality Models).

19.2. Where an air quality impact model specified in 40 CFR Part 51, Appendix W (Guideline on Air

Quality Models)isinappropriate, the model may be modified or another model substituted, provided that said

modification or substitution is approved in writing by the Administrator.

§45-19-20. [Reserved.]

§45-19-21. [Reserved.]

§45-19-22. [Reserved.]

§45-19-23. Actuals PAL.

23.1. Applicability.

23.1.a. The Secretary may approve the use of an actuals PAL for any existing major stationary

source, except as provided in subdivision 23.1.b, if the PAL meets the requirements in subsections 23.1

through 23.15. The term “PAL” shall mean “actuals PAL” throughout section 23.

23.1 X.b. The Secretary shall not allow an actuals PAL for VOC or NO for any major stationary

source located in an extreme ozone nonattainment area.

23.1.c. Any physical change in or change in the method of operation of a major stationary source

that maintains its total source-wide emissions below the PAL level, meets the requirements in subsections

23.1 through 23.15, and complies with the PAL permit:

23.1.c.1. Is not a major modification for the PAL pollutant;

23.1.c.2. Does not have to be approved through the plan's nonattainment major NSR program; and

23.1.c.3. Is notsubject to the provisions in subdivision 17.3.c (restrictions on relaxing enforceable

emission limitations that the major stationary source used to avoid applicability of the nonattainment major

34
45CSR19

NSR program).

23.1.d. Except as provided under paragraph 23.1.c.3, a major stationary source shall continue to

comply with all applicable Federal or State requirements, emission limitations, and work practice

requirements that were established prior to the effective date of the PAL.

23.2. Definitions.

23.2.a. Allowable emissions means “allowable emissions” as defined in subsection 2.4, except as

this definition is modified according to paragraphs 23.2.a.1 through 23.2.a.2.

23.2.a.1. The allowable emissions for any emissions unit shall be calculated considering any

emission limitations that are enforceable as a practical matter on the emissions unit’s potential to emit.

23.2.a.2. An emissions unit’s potential to emit shall be determined using the definition in

subsection 2.55, except that the words “or enforceable as a practical matter” should be added after “federally

enforceable.”

23.3. Permit application requirements. -- As part of a permit application submitted pursuant to 45CSR13

requesting a PAL, the owner or operator of a major stationary source shall submit the following information

to the Secretary for approval:

23.3.a. A list of all emissions units at the source designated as small, significant or major based on

their potential to emit. In addition, the owner or operator of the source shall indicate which, if any, Federal

or State applicable requirements, emission limitations or work practices apply to each unit.

23.3.b. Calculations of the baseline actual emissions, with supporting documentation. Baseline

actual emissions are to include emissions associated not only with operation of the unit, but also emissions

associated with startup, shutdown and malfunction.

23.3.c. The calculation procedures that the major stationary source owner or operator proposes to

use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month

rolling total for each month as required by subdivision 23.11.a.

23.4. General requirements for establishing PALs.

23.4.a. The Secretary may establish a PAL at a major stationary source, provided that at a minimum,

the requirements in paragraphs 23.4.a.1 through 23.4.a.7 are met.

23.4.a.1. The PAL shall impose an annual emission limitation in tons per year, that is enforceable

as a practical matter, for the entire major stationary source. For each month during the PAL effective period

after the first 12 months of establishing a PAL, the major stationary source owner or operator shall show that

the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive

months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11

months from the PAL effective date, the major stationary source owner or operator shall show that the sum

of the preceding monthly emissions from the PAL effective date for each emissions unit under the PAL is

less than the PAL.

35
45CSR19

23.4.a.2. The PAL shall be established in a PAL permit that meets the public participation

requirements in subsection 23.5.

23.4.a.3. The PAL permit shall contain all the requirements of subsection 23.7.

23.4.a.4. The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions

units that emit or have the potential to emit the PAL pollutant at the major stationary source.

23.4.a.5. Each PAL shall regulate emissions of only one pollutant.

23.4.a.6. Each PAL shall have a PAL effective period of 10 years.

23.4.a.7. The owner or operator of the major stationary source with a PAL shall comply with the

monitoring, recordkeeping, and reporting requirements provided in subsections 23.12 through 23.14 for each

emissions unit under the PAL through the PAL effective period.

23.4.b. At no time (during or after the PAL effective period) are emissions reductions of a PAL

pollutant, which occur during the PAL effective period, creditable as decreases for purposes of offsets under

subsections 7.2 through 7.6, 8.1 through 8.2 and 8.6 through 8.9 unless the level of the PAL is reduced by

the amount of such emissions reductions and such reductions would be creditable in the absence of the PAL.

23.5. Public participation requirement for PALs. -- PALs for existing major stationary sources shall be

established, renewed, or increased through a procedure that is consistent with 40 CFR §§ 51.160 and 51.161. 

The Secretary shall provide the public with notice of the proposed approval of a PAL permit and at least a

30-day period for submittal of public comment. The Secretary must address all material comments before

taking final action on the permit.

23.6. Setting the 10-year actuals PAL level.

23.6.a. Except as provided in subdivision 23.6.b, actuals PAL level for a major stationary source

shall be established as the sum of the baseline actual emissions (as defined in subsection 2.52.) of the PAL

pollutant for each emissions unit at the source; plus an amount equal to the applicable significant level for

the PAL pollutant under subsection 2.66 or under the CAA, whichever is lower. When establishing the

actuals PAL level, for a PAL pollutant, only one consecutive 24-month period must be used to determine the

baseline actual emissionsfor all existing emissions units. However, a different consecutive 24-month period

may be used for each different PAL pollutant. Emissions associated with units that were permanently

shutdown after this 24-month period must be subtracted from the PAL level. Emissionsfrom units on which

actual construction began after the 24-month period must be added to the PAL level in an amount equal to

the potential to emit of the units. The Secretary shall specify a reduced PAL level(s) (in tons/yr) in the PAL

permit to become effective on the future compliance date(s) of any applicable Federal or State regulatory

requirement(s) that the Secretary is aware of prior to issuance of the PAL permit. For instance, if the source

owner or operator will be required to reduce emissionsfromindustrial boilersin half frombaseline emissions

of 60 ppm NOX to a new rule limit of 30 ppm, then the permit shall contain a future effective PAL level that

is equal to the current PAL level reduced by half of the original baseline emissions of such unit(s).

23.6.b. For newly constructed units(which do not include modifications to existing units) on which

actual construction began after the 24-month period, in lieu of adding the baseline actual emissions as

specified in subdivision 23.6.a, the emissions must be added to the PAL level in an amount equal to the

36
45CSR19

potential to emit of the units.

23.7. Contents of the PAL permit. -- The PAL permit shall contain, at a minimum, the information in

subdivisions 23.7.a through 23.7.j.

23.7.a. The PAL pollutant and the applicable source-wide emission limitation in tons per year.

23.7.b. The PAL permit effective date and the expiration date of the PAL (PAL effective period).

23.7.c. Specification in the PAL permit that if a major stationary source owner or operator applies

to renew a PAL in accordance with subsection 23.10 before the end of the PAL effective period, then the

PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a revised PAL

permit is issued by the Secretary.

23.7.d. A requirement that emission calculations for compliance purposes include emissions from

startups, shutdowns and malfunctions.

23.7.e. A requirement that, once the PAL expires, the major stationary source is subject to the

requirements of subsection 23.9.

23.7.f. The calculation procedures that the major stationary source owner or operator shall use to

convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling

total for each month as required by subdivision 23.13.a.

23.7.g. A requirement that the major stationary source owner or operatormonitor all emissions units

in accordance with the provisions under subsection 23.12.

23.7.h. A requirement to retain the records required under subsection 23.3 on site. Such records may

be retained in an electronic format.

23.7.i. A requirement to submit the reports required under subsection 23.14 by the required

deadlines.

23.7.j. Any other requirements that the Secretary deems necessary to implement and enforce the

PAL.

23.8. PAL effective period and reopening of the PAL permit.

23.8.a. PAL effective period. -- The Secretary shall specify a PAL effective period of 10 years.

23.8.b. Reopening of the PAL permit.

23.8.b.1. During the PAL effective period, the Secretary shall reopen the PAL permit to:

23.8.b.1.A. Correct typographical or calculation errors made in setting the PAL or reflect a

more accurate determination of emissions used to establish the PAL.

23.8.b.1.B. Reduce the PAL if the owner or operator of the major stationary source creates

37
45CSR19

creditable emissions reductions for use as offsets under subsections 7.2 through 7.6, 8.1 through 8.2 and 8.6

through 8.9.

23.8.b.1.C. Revise the PAL to reflect an increase in the PAL as provided under subsection

23.11.

23.8.b.2. The Secretary may reopen the PAL permit for the following:

23.8.b.2.A. Reduce the PAL to reflect newly applicable Federal requirements (for example,

NSPS) with compliance dates after the PAL effective date.

23.8.b.2.B. Reduce the PAL consistent with any other requirement, that is enforceable as a

practical matter, and that the State may impose on the major stationary source under the plan.

23.8.b.2.C. Reduce the PAL if the Secretary determines that a reduction is necessary to avoid

causing or contributing to a NAAQS or PSD increment violation, or to an adverse impact on an air quality

related value that has been identified for a Federal Class I area by a Federal Land Manager and for which

information is available to the general public.

23.8.b.3. Except for the permit reopening in subparagraph 23.8.b.1.A for the correction of

typographical/calculation errors that do not increase the PAL level, all other reopenings shall be carried out

in accordance with the public participation requirements of subsection 23.5.

23.9. Expiration of a PAL. -- Any PAL which is not renewed in accordance with the procedures in

subsection 23.10 shall expire at the end of the PAL effective period, and the requirements in subdivision

23.9.a through 23.9.e shall apply.

23.9.a. Each emissions unit (or each group of emissions units) that existed under the PAL shall

comply with an allowable emission limitation under a revised permit established according to the procedures

in paragraphs 23.9.a.1 through 23.9.a.2.

23.9.a.1. Within the time frame specified for PAL renewals in subdivision 23.10.b, the major

stationary source shall submit a proposed allowable emission limitation for each emissions unit (or each

group of emissions units, if such a distribution is more appropriate as decided by the Secretary) by

distributing the PAL allowable emissions for the major stationary source among each of the emissions units

that existed under the PAL. If the PAL had not yet been adjusted for an applicable requirement that became

effective during the PAL effective period, as required under subdivision 23.10.e, such distribution shall be

made as if the PAL had been adjusted.

23.9.a.2. The Secretary shall decide whether and how the PAL allowable emissions will be

distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group

of emissions units, as the Secretary determines is appropriate.

23.9.b. Each emissions unit(s) shall comply with the allowable emission limitation on a 12-month

rolling basis. The Secretary may approve the use of monitoring systems (source testing, emission factors,

etc.) other than CEMS, CERMS, PEMS or CPMS to demonstrate compliance with the allowable emission

limitation.

23.9.c. Until the Secretary issues the revised permit incorporating allowable limits for each

38
45CSR19

emissions unit, or each group of emissions units, as required under paragraph 23.9.a.1, the source shall

continue to comply with a source-wide, multi-unit emissions cap equivalent to the level of the PAL emission

limitation.

23.9.d. Any physical change or change in the method of operation at themajor stationary source will

be subject to the nonattainment major NSR requirements if such change meets the definition of major

modification in subdivision 2.33.

23.9.e. The major stationary source owner or operator shall continue to comply with any State or

Federal applicable requirements (BACT, RACT, NSPS, etc.) that may have applied either during the PAL

effective period or prior to the PAL effective period except for those emission limitations that had been

established pursuant to subdivision 17.3.c, but were eliminated by the PAL in accordance with the provisions

in paragraph 23.1.c.3.

23.10. Renewal of a PAL.

23.10.a. The Secretary shall follow the procedures specified in subsection 23.5 in approving any

request to renew a PAL for a major stationary source, and shall provide both the proposed PAL level and a

written rationale for the proposed PAL level to the public for review and comment. During such public

review, any person may propose a PAL level for the source for consideration by the Secretary.

23.10.b. Application deadline. -- The owner or operator of a major stationary source shall submit a

timely application to the Secretary to request renewal of a PAL. A timely application is one that issubmitted

at least 6 months prior to, but not earlier than 18 months from, the date of permit expiration. This deadline

for application submittal is to ensure that the permit will not expire before the permit is renewed. If the

owner or operator of a major stationary source submits a complete application to renew the PAL within this

time period, then the PAL shall continue to be effective until the revised permit with the renewed PAL is

issued.

23.10.c. Application requirements. -- The application to renew a PAL permit shall contain the

information required in paragraphs 23.10.c.1 through 23.10.c.4.

23.10.c.1. The information required in subdivisions 23.3.a through 23.3.c.

23.10.c.2. A proposed PAL level.

23.10.c.3. The sum of the potential to emit of all emissions units under the PAL (with supporting

documentation).

23.10.c.4. Any other information the owner or operator wishes the Secretary to consider in

determining the appropriate level for renewing the PAL.

23.10.d. PAL adjustment. -- In determining whether and how to adjust the PAL, the Secretary shall

consider the options outlined in paragraphs 23.10.d.1 and 23.10.d.2. However, in no case may any such

adjustment fail to comply with paragraph 23.10.d.3.

23.10.d.1. If the emissions level calculated in accordance with subsection 23.6 is equal to or

greater than 80 percent of the PAL level, the Secretary may renew the PAL at the same level without

39
45CSR19

considering the factors set forth in paragraph 23.10.d.2.; or 

23.10.d.2. The Secretary may set the PAL at a level that it determines to be more representative

of the source's baseline actual emissions, or that it determines to be appropriate considering air quality needs,

advances in control technology, anticipated economic growth in the area, desire to reward or encourage the

source's voluntary emissions reductions, or other factors as specifically identified by the Secretary in its

written rationale.

23.10.d.3. Notwithstanding paragraphs 23.10.d.1 and 23.10.d.2,

23.10.d.3.A. If the potential to emit of the major stationary source is less than the PAL, the

Secretary shall adjust the PAL to a level no greater than the potential to emit of the source; and

23.10.d.3.B. The Secretary shall not approve a renewed PAL level higherthan the current PAL,

unless the major stationary source has complied with the provisions of subsection 23.11 (increasing a PAL).

23.10.e. If the compliance date for a State or Federal requirement that applies to the PAL source

occurs during the PAL effective period, and if the Secretary has not already adjusted for such requirement,

the PAL shall be adjusted at the time of PAL permit renewal or title V permit renewal, whichever occurs

first.

23.11. Increasing a PAL during the PAL effective period.

23.11.a. The Secretary may increase a PAL emission limitation only if the major stationary source

complies with the provisions in paragraphs 23.11.a.1 through 23.11.a.4.

23.11.a.1. The owner or operator of the major stationary source shall submit a complete

application to request an increase in the PAL limit for a PAL major modification. Such application shall

identify the emissions unit(s) contributing to the increase in emissions so as to cause the major stationary

source's emissions to equal or exceed its PAL.

23.11.a.2. As part of this application, the major stationary source owner or operator shall

demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of the

baseline actual emissions of the significant and major emissions units assuming application of BACT

equivalent controls, plus the sum of the allowable emissions of the new or modified emissions unit(s)

exceeds the PAL. The level of control that would result from BACT equivalent controls on each significant

or major emissions unit shall be determined by conducting a new BACT analysis at the time the application

is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement

that was established within the preceding 10 years. In such a case, the assumed control level for that

emissions unit shall be equal to the level of BACT or LAER with which that emissions unit must currently

comply.

23.11.a.3. The owner or operator obtains a major NSR permit for all emissions unit(s) identified

in paragraph 23.11.a.1, regardless of the magnitude of the emissions increase resulting from them (that is,

no significant levels apply). These emissions unit(s)shall comply with any emissionsrequirements resulting

from the nonattainment major NSR program process (for example, LAER), even though they have also

become subject to the PAL or continue to be subject to the PAL.

40
45CSR19

23.11.a.4. The PAL permit shall require that the increased PAL level shall be effective on the

day any emissions unit that is part of the PAL major modification becomes operational and begins to emit

the PAL pollutant.

23.11.b. The Secretary shall calculate the new PAL as the sum of the allowable emissions for each

modified or new emissions unit, plus the sum of the baseline actual emissions of the significant and major

emissions units (assuming application of BACT equivalent controls as determined in accordance with

paragraph 23.11.a.2), plus the sum of the baseline actual emissions of the small emissions units.

23.11.c. The PAL permit shall be revised to reflect the increased PAL level pursuant to the public

notice requirements of subsection 23.5.

23.12. Monitoring requirements for PALs.

23.12.a. General requirements.

23.12.a.1. Each PAL permit must contain enforceable requirements for the monitoring system

that accurately determines plantwide emissions of the PAL pollutant in terms of mass per unit of time. Any

monitoring system authorized for use in the PAL permit must be based on sound science and meet generally

acceptable scientific procedures for data quality and manipulation. Additionally, the information generated

by such system must meet minimum legal requirements for admissibility in a judicial proceeding to enforce

the PAL permit.

23.12.a.2. The PAL monitoring systemmust employ one or more of the four general monitoring

approaches meeting the minimumrequirements set forth in paragraphs 23.12.b.1 through 23.12.b.4 and must

be approved by the Secretary.

23.12.a.3. Notwithstanding paragraph 23.12.a.2, you may also employ an alternative monitoring

approach that meets paragraph 23.12.a.1 if approved by the Secretary.

23.12.a.4. Failure to use a monitoring systemthat meets the requirements of this rule rendersthe

PAL invalid.

23.12.b. MinimumPerformanceRequirementsfor Approved Monitoring Approaches. The following

are acceptable generalmonitoringapproaches when conducted in accordance with theminimumrequirements

in subdivisions 23.12.c through 23.12.i:

23.12.b.1. Mass balance calculations for activities using coatings or solvents;

23.12.b.2. CEMS;

23.12.b.3. CPMS or PEMS; and 

23.12.b.4. Emission Factors.

23.12.c. Mass Balance Calculations. An owner or operator using mass balance calculations to

monitor PAL pollutant emissions from activities using coating or solvents shall meet the following

requirements:

41
45CSR19

23.12.c.1. Provide a demonstrated means of validating the published content of the PAL

pollutant that is contained in or created by all materials used in or at the emissions unit;

23.12.c.2. Assume that the emissions unit emits all of the PAL pollutant that is contained in or

created by any raw material or fuel used in or at the emissions unit, if it cannot otherwise be accounted for

in the process; and

23.12.c.3. Where the vendor of a material or fuel, which is used in or at the emissions unit,

publishes a range of pollutant content from such material, the owner or operator must use the highest value

of the range to calculate the PAL pollutant emissions unless the Secretary determines there is site-specific

data or a site-specific monitoring program to support another content within the range.

23.12.d. CEMS. An owner or operator using CEMS to monitor PAL pollutant emissions shall meet

the following requirements:

23.12.d.1. CEMSmust complywith applicablePerformance Specifications found in 40 CFR Part

60, appendix B; and

23.12.d.2. CEMS must sample, analyze and record data at least every 15 minutes while the

emissions unit is operating.

23.12.e. CPMS or PEMS. An owner or operator using CPMS or PEMS to monitor PAL pollutant

emissions shall meet the following requirements:

23.12.e.1. The CPMS or the PEMS must be based on current site-specific data demonstrating

a correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of

operation of the emissions unit; and

23.12.e.2. Each CPMS or PEMS must sample, analyze, and record data at least every 15 minutes,

or at another less frequent interval approved by the Secretary while the emissions unit is operating.

23.12.f. Emission factors. An owner or operator using emission factors to monitor PAL pollutant

emissions shall meet the following requirements:

23.12.f.1. All emission factors shall be adjusted, if appropriate, to account for the degree of

uncertainty or limitations in the factors' development;

23.12.f.2. The emissions unit shall operate within the designated range of use for the emission

factor, if applicable; and

23.12.f.3. If technically practicable, the owner or operator of a significant emissions unit that

relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to

determine a site-specific emission factor within 6 months of PAL permit issuance, unless the Secretary

determines that testing is not required.

23.12.g. A source owner or operator must record and report maximum potential emissions without

considering enforceable emission limitations or operational restrictions for an emissions unit during any

period of time that there is no monitoring data, unless another method for determining emissions during such

42
45CSR19

periods is specified in the PAL permit.

23.12.h. Notwithstanding the requirements in subdivisions 23.12.c through 23.12.g, where an owner

or operator of an emissions unit cannot demonstrate a correlation between the monitored parameter(s) and

the PAL pollutant emissions rate at all operating points of the emissions unit, the Secretary shall, at the time

of permit issuance:

23.12.h.1. Establish default value(s) for determining compliance with the PAL based on the

highest potential emissions reasonably estimated at such operating point(s); or

23.12.h.2. Determine that operation of the emissions unit during operating conditions when there

is no correlation between monitored parameter(s) and the PAL pollutant emissionsis a violation of the PAL.

23.12.i. Re-validation. All data used to establish the PAL pollutant must be re-validated through

performance testing or other scientifically valid means approved by the Secretary. Such testing must occur

at least once every 5 years after issuance of the PAL.

23.13. Recordkeeping requirements.

23.13.a. The PAL permit shall require an owner or operator to retain a copy of all records necessary

to determine compliance with any requirement of section 23 and of the PAL, including a determination of

each emissions unit’s 12-month rolling total emissions, for 5 years from the date of such record.

23.13.b. The PAL permit shall require an owner or operator to retain a copy of the following records

for the duration of the PAL effective period plus 5 years:

23.13.b.1. A copy of the PAL permit application and any applications for revisions to the PAL;

and

23.13.b.2. Each annual certification of compliance pursuant to title V and the data relied on in

certifying the compliance.

23.14. Reporting and notification requirements. -- The owner or operator shall submit semi-annual

monitoring reports and prompt deviation reports to the Secretary in accordance with the applicable title V

operating permit program. The reports shall meet the requirements in subdivisions 23.14.a through 23.14.c.

23.14.a. Semi-Annual Report. -- The semi-annual report shall be submitted to the Secretary within

30 days of the end of each reporting period. Thisreport shall contain the information required in paragraphs

23.14.a.1 through 23.14.a.7.

23.14.a.1. The identification of owner and operator and the permit number.

23.14.a.2. Total annual emissions (tons/year) based on a 12-month rolling total for each month

in the reporting period recorded pursuant to subdivision 23.13.a.

23.14.a.3. All data relied upon, including, but not limited to, any Quality Assurance or Quality

Control data, in calculating the monthly and annual PAL pollutant emissions.

43
45CSR19

23.14.a.4. A list of any emissions units modified or added to the major stationary source during

the preceding 6-month period.

23.14.a.5. The number, duration, and cause of any deviations or monitoring malfunctions, other

than the time associated with zero and span calibration checks, and any corrective action taken.

23.14.a.6. A notification of a shutdown of any monitoring system, whether the shutdown was

permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will

be fully operational or replaced with another monitoring system, and whether the emissions unit monitored

by the monitoring system continued to operate, and the calculation of the emissions of the pollutant or the

number determined by method included in the permit, as provided by subdivision 23.12.g.

23.14.a.7. A signed statement by the responsible official (as defined by the applicable title V

operating permit program) certifying the truth, accuracy, and completeness of the information provided in

the report.

23.14.b. Deviation report. -- The major stationary source owner or operator shall promptly submit

reports of any deviations or exceedance of the PAL requirements, including periods where no monitoring

is available. A report submitted pursuant to 45CSR30-5.1.c.3 shall satisfy this reporting requirement. The

deviation reportsshall be submitted within the time limits prescribed by 45CSR30-5.1.c.3. The reportsshall

contain the following information:

23.14.b.1. The identification of owner and operator and the permit number;

23.14.b.2. The PAL requirement that experienced the deviation or that was exceeded;

23.14.b.3. Emissions resulting from the deviation or the exceedance; and

23.14.b.4. A signed statement by the responsible official (as defined by 45CSR30) certifying the

truth, accuracy, and completeness of the information provided in the report.

23.14.c. Re-validation results. -- The owner or operator shall submit to the Secretary the results of

any re-validation test or method within 3 months after completion of such test or method.

23.15. Transition requirements.

23.15.a. The Secretary shall not issue a PAL that does not comply with the requirements in

subsections 23.1 through 23.15 after the Administrator has approved regulations incorporating these

requirements into the WV State Implementation Plan (SIP).

23.15.b. The Secretary may supersede any PAL which was established prior to the date of approval

of this rule by the Administrator with a PAL that complies with the requirements of subsections 23.1 through

23.15.

§45-19-24. Conflict with Other Permitting Rules.

24.1. For sources required to obtain a permit under this rule, the provisions of 45CSR13 and 45CSR14

requiring a permit do not apply, so that only a single permit is required; provided however, that:

44
45CSR19

24.1.a. The base permit application fee of $1,000 pursuant to 45CSR22, subdivision 3.4.a shall

apply to such sources in addition to other applicable fees; and

24.1.b. Any permit issued under this rule includes conditions that ensure compliance with the

provisions of 45CSR13 and 45CSR19 to the extent applicable to any regulated NSR pollutant not otherwise

covered under this rule.

24.2. For sources that may be subject to 45CSR13, 45CSR14 and/or 45CSR19, the more stringent

provisions of each applicable rule shall apply.

§45-19-25. Inconsistency Between Rules.

25.1. In the event of any inconsistency between this rule and any other rule of the West Virginia

Department of Environmental Protection, such inconsistency shall be resolved by the determination of the

Secretary and such determination shall be based upon the application of the more stringent provision, term,

condition, method or rule.

45
Bouldincomments 

From: Cosco, Kathy on behalf of DEP comments 

Sent: Tuesday, July 13, 2010 9:06 AM 

TO: Mason, James L 

subject: FW: comments re Division of Air Quality proposed Rules 

From: Nancy Bouldin [mailto:nancy_bouldin@hotmail.com] Sent: Thursday, July 08, 2010 12:13 PM 

TO: DEP comments 

Subject: comments re Division of Air Quality proposed Rules 

TO: West virginia Department of Environmental protection FROM: Nancy Bouldin, Greenville, Monroe County, WV 24945 

DATE: July 8, 2010 

Comments Re: Division of Air Quality proposed Rules 

[public Comment Period: June 11, 2010 - July 12, 2010 at conclusion of public hearing meeting] 

45cSR8 - Ambient Air Quality standards 

Comment: I strongly urge the WVDEP to enact and enforce air quality standards under 

45cSR8 that 

meet OR EXCEED federal air quality standards. protecting the air quality of West 

virginia is essential 

to the state's human and economic well-being, now and into the future. With 

increasing activity related 

to Marcellus Shale deep-gas drilling added to ongoing coal and other industrial 

operations, the WVDEP 

(west virginia Department of Environmental protection) MUST act in the interests of 

the residents of 

the state and fulfill your mission to truly PROTECT our air, water, and other 

environmental resources 

from being sacrificed to the interests of others. Air quality may not seem like the 

worst problem that 

comes with deep-gas drilling, but ask the residents of Wetzel County, WV how their 

air quality has 

deteriorated due to constant over-sized truck hauling, degraded roads, dust, gravel, flares, and 

chemical pollutants. we need adequate safeguards for our communities and farmlands. 

Re §45-8-4 - Inconsistency Between Rules - I support the proposed statement 7.1 that 

in the event of 

inconsistency between rules "the determination shall be based upon the application of the more stringent provision, term, condition, method or rule." 

45cSR14 - permits for construction and Major Modification of Major stationary Sources of Air 

pollution for the Prevention of significant Deterioration 

comment: I strongly urge the WVDEP to enact and enforce standards under 45CSR14 that 

meet OR 

EXCEED federal standards. 

45CSR16 - Standards of Performance for New stationary Sources 

comment: I strongly urge the WVDEP to enact and enforce standards under 45CSR16 that 

meet OR 

EXCEED federal standards. 

45CSR18 - control of Air pollution from combustion of solid Waste 

Comment: I strongly urge the WVOEP to enact and enforce standards under 45cSR18 that 

meet OR 

EXCEED federal standards. 

page 1 
Bouldincomments 

45cSR19 - Permits for construction and Major Modification of Major stationary Sources of Air 

pollution which Cause or Contribute to Nonattainment 

Comment: I strongly urge the WVDEP to enact and enforce standards for permits under 

45CSR19 that 

meet OR EXCEED federal standards. 

45CSR25 - Control of Air pollution from Hazardous Waste Treatment, storage and 

Disposal 

Facilities 

Comment: I strongly urge the WVDEP to enact and enforce standards under 45CSR25 that 

meet OR 

EXCEED federal standards. 

45CSR34 - Emission Standards for Hazardous Air Pollutants 

Comment: I strongly urge the WVDEP to enact and enforce standards under 45CSR34 that 

meet OR 

EXCEED federal standards. In particular, under §45-34-4 - Adoption of standards 

I object to the fact 

that it appears that West virginia intends to exclude provisions contained in the 

federal EPA standards, 

thereby making west virginia more susceptible to practices that would pollute our 

air. 

Many counties in west virginia have suffered over the years from mining, timbering, and other interests 

that bring MINIMAL true value to residents, economically or otherwise, and do 

MAXIMUM damage to 

the state's environment. with the next "gold-rush" in deep well drillling, we need 

all the protection we 

can get. with minimal regulation or authority in place at the local and county level 

in West virginia, our 

counties desperately need to have a strong DEP at the state level with the 

regulations, enforcement 

resources, and will-power to protect our precious -- and vulnerable -- natural 

resources. 

Respectfully, 

Nancy Bouldin 

Greenville, WV 

The New Busy is not the too busy. combine all your e-mail accounts with Hotmail. Get 

busy. 

Page 2 
DEPARTMENT OF ENVIRONMENTAL PROTECTION

DIVISION OF AIR QUALITY

BRIEFING DOCUMENT

Rule Title: 45CSR19 - “Permits for Construction and Major Modification of Major

Stationary Sources of Air Pollution Which Cause or Contribute to

Nonattainment”

A. AUTHORITY: W.Va. Code §22-5-4

B. SUMMARY OF RULE:

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

Clean Air Act’s Title I program and implementing regulations at 40 CFR §51.165, “Permit

Requirements.” 45CSR19 is part of the State Implementation Plan and sets forth the criteria

and procedures for major stationary sources to obtain a permit to construct, operate and/or

modify a major source located in a nonattainment area or impacting a nonattainment area.

C. STATEMENT OF CIRCUMSTANCES WHICH REQUIRE RULE:

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

Modifications,” this rule adopts criteria and procedures, consistent with the governing federal

regulation at 40 CFR §51.165, for permitting construction of major new or modified sources

locating in areas with air quality worse than the levels set to protect the public health and

welfare, or that might impact those areas, while ensuring that the source’s emissions will be

controlled to the greatest degree possible, and that there will be progress toward achievement

of National Ambient Air Quality Standards. Promulgation of this rule by the Legislature is

necessary for the State to fulfill its responsibilities under 40 CFR Part 51 and the CAA, as

amended.

Revisions to the rule include a new subsection 1.5, which provides that references to

the federal counterpart will be construed as the version which was in effect as of June 1,

2010. Also, the term “affected facilities” has been clarified. Other minor revisions ensure

consistency with federal counterpart language. The DAQ will submit final rule 45CSR19

as a revision to the State Implementation Plan.
Briefing Document

45CSR19

Page 2

D. FEDERAL COUNTERPART REGULATIONS - INCORPORATION BY

REFERENCE/DETERMINATION OF STRINGENCY:

A federal counterpart to this proposed rule exists. Because proposed revisions make

the rule conform to the federal counterpart rule, no determination of stringency is required.

E. CONSTITUTIONAL TAKINGS DETERMINATION:

In accordance with W.Va. Code §§22-1A-1 and 3(c), the Secretary has determined

that this rule will not result in taking of private property within the meaning of the

Constitutions of West Virginia and the United States of America.

F. CONSULTATION WITH THE ENVIRONMENTAL PROTECTION

ADVISORY COUNCIL:

At its June 3, 2010 meeting, the Environmental Protection Advisory Council

reviewed and discussed this proposed rule. (See attached minutes for Council’s discussion).
Public Notice 

2011 Proposed Rules 

The West Virginia Division of Air Quality has scheduled a public hearing on July 12, 2010 for 

its 2011 proposed legislative rules, which will take place at the Division of Environmental 

Protection’s Charleston headquarters, 601 57th Street S.E., Charleston, WV 25304. Oral and 

written comments will be limited to the proposed revisions and will be made a part of the 

rulemaking record. Copies of the rules are available from the Secretary of State’s office or from 

the DEP at www.wvdep.org/2011rules. You may also obtain hardcopies of the information by 

calling the phone number listed below. 

Written comments may be submitted to the Public Information Office at the above address. 

Comments may also be e-mailed to comments@wvdep.org. The hearing dates, locations and 

comment deadlines are as follows: 

Division of Air Quality 

45CSR8 – Ambient Air Quality Standards 

45CSR14 – Permits for Construction and Major Modification of Major Stationary Sources of Air 

Pollution for the Prevention of Significant Deterioration 

45CSR16 – Standards of Performance for New Stationary Sources 

45CSR18 – Control of Air Pollution From Combustion of Solid Waste 

45CSR19 – Permits for Construction and Major Modification of Major Stationary Sources of Air 

Pollution Which Cause or Contribute to Nonattainment 

45CSR25 – Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal 

Facilities 

45CSR34 – Emission Standards for Hazardous Air Pollutants 

The public hearing for all air quality rules will take place beginning at 6 p.m. on July 12, 2010 in 

the Dolly Sods Room. The comment period will begin on June 11, 2010 and end at the 

conclusion of the public hearing on July 12, 2010. Upon authorization and promulgation of 

revisions to 45CSR8, 45CSR14 and 45CSR19, the DAQ will submit the rules to the U.S. 

Environmental Protection Agency (EPA) as revisions to the State Implementation Plan pursuant 

to the federal Clean Air Act (CAA). Rules 45CSR16, 45CSR18, 45CSR25 and 45CSR34 will 

also be submitted to EPA to fulfill other federal obligations under the CAA, including 

delegations, plans and program approvals. 

For more information on any of the DAQ rules call 304-926-0475. 
Emrichcomments 

From: Cosco, Kathy on behalf of DEP comments 

Sent: Tuesday, July 13, 2010 9:08 AM 

TO: Mason, James L 

Subject: FW: 45cSR19 11a. 

Kathy Cosco 

Communications Director 

wv Department of Environmental Protection 

601 57th St. SE 

Charleston, wv 25304 

Office 304-926-0499, ext. 1331 

cell 304-561-8996 

From: Henry Deare [mailto:spreadingchestnut@yahoo.com] Sent: Monday, July 12, 2010 5:25 PM 

To: DEP Comments 

subject: 45cSR19 11a. 

The construction of major sources of air pollution should no longer be permitted. Our 

economy must retool with renewable, non polluting resources, instead of wasting time 

and 

energy by constructing new facilities that are obsolete when permitted. 

llb. 

Major stationary sources of air pollution which presently exisit would do well to 

modify 

for compliance with the air quality standards set forth in the Clean Air Act as a 

fi rst 

priority and with all haste. 

Renewable resources is homeland security. 

protect our regenerating life supporting 

ecosystems. 

Emri ch 

G 

springs, w.v. 

24962 

page 1 

Oxygen for life! 

Linda Lee E. 

HC 73 BOX 59 

pence 
June 9, 2010

Ms. Diana Esher, Director

Air Protection Division

USEPA Region III

1650 Arch Street (3AP00)

Philadelphia, PA 19103-2029

RE: Proposed Air Quality Rules for 2011 Legislative Session

Dear Ms. Esher:

Enclosed is a notice of public comment period and public hearings, and a copy of seven (7)

proposed air quality rules: 45CSR8, 45CSR14, 45CSR16, 45CSR18, 45CSR19, 45CSR25 and

45CSR34 for the West Virginia Department of Environmental Protection, Division of Air Quality

(DAQ). Once these rules have been authorized and promulgated by the West Virginia Legislature,

the DAQ is proposing to adopt them in the Spring of 2011.

Please note the DAQ will accept written comments on the proposed rules up to and including

July 12, 2010. In addition, the agency will receive oral comments at a public hearing to be held on

July 12, 2010, beginning at 6:00 p.m.

The attached public notice describes which rules the agency is proposing and what action the

DAQ intends to request of the U.S. Environmental Protection Agency upon the authorization and

promulgation of the rules in the Spring of 2011.

Please submit any written comments to my attention at the above address, or feel free to call me

with any questions regarding this matter at (304) 926-0462.

Sincerely,

John A. Benedict

Director

JAB/jlm

Enclosures

west virginia department of environmental protection

Joe Manchin III, Governor

Randy C. Huffman, Cabinet Secretary

www.dep.wv.gov

Division of Air Quality

601 57 Street SE

th

Charleston, WV 25304

Phone 304/926-0475 • FAX: 304/926-0479

Promoting a healthy environment.
45CSR19

TITLE 45

LEGISLATIVE RULE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

AIR QUALITY

SERIES 19

PERMITS FOR CONSTRUCTION AND MAJOR MODIFICATION OF

MAJOR STATIONARY SOURCES OF AIR POLLUTION WHICH

CAUSE OR CONTRIBUTE TO NONATTAINMENT

§45-19-1. General.

1.1. Scope.

1.1.a. It is the intent of the Secretary that all applications filed by any person to construct major new

or modified stationary air pollution sources, intending to locate in areas with air quality worse than the levels

set to protect the public health and welfare, or that might impact those areas, must adequately meet the preconstruction review procedures and conditions of the Clean Air Act as amended and this rule.

1.1.b. These conditions are designed to ensure that the major new or modified source's emissions will

be controlled to the greatest degree practicable; that more than equivalent offsetting emission reductions will

be obtained from existing sources; that there will be progress toward achievement of the National Ambient

Air Quality Standards; and that all applicable air pollution regulations adopted by the Secretary will be met.

1.2. Authority. -- W. Va. Code §22-5-4.

1.3. Filing Date. -- June 16, 2011.

1.4. Effective Date. -- June 16, 2011.

1.5. Federal Regulation. -- Unless otherwise indicated, where reference to a federal regulation or

standard appears in this rule, such regulation or standard will, for the purpose of this rule, be construed as

that version which was in effect as of June 1, 2010.

 1.6. Former Rules. -- This legislative rule amends 45CSR19 “Requirements for Pre-Construction

Review, Determination of Emission Offsets for Proposed New or Modified Stationary Sources of Air

Pollutants and Emission Trading for Intrasource Pollutants” which was filed April 30, 2010 and became

effective June 1, 2010.

§45-19-2. Definitions.

2.1. “Actual Emissions” means the actual rate of emissions of a regulated NSR pollutant from an

emissions unit, as determined in accordance with subdivisions 2.1.a through 2.1.c, except that this definition

shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a

PAL under section 23. Instead, subsections 2.59 and 2.9 shall apply for those purposes.

2.1.a. In general, actual emissions as of a particular date shall equal the average rate, in tons per year,

1
45CSR19

at which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the

particular date and which is representative of normal source operation. The Secretary may allow the use of

a different time period upon a determination that it is more representative of normalsource operation. Actual

emissionsshall be calculated using the unit’s actual operating hours, production rates, and types of materials

processed, stored or combusted during the selected time period.

2.1.b. The Secretary may presume that source-specific allowable emissionsfor the unit are equivalent

to the actual emissions of the unit.

2.1.c. For any emissions unit that has not begun normal operations on the particular date, actual

emissions shall equal the potential to emit of the unit on that date.

2.2. “Actuals PAL” for a major stationary source means a PAL based on the baseline actual emissions

(as defined in subsection 2.9) of all emissions units (as defined in subsection 2.26) at the source, that emit

or have the potential to emit the PAL pollutant.

2.3. “Administrator” means the Administrator of the United States Environmental Protection Agency

or the Administrator’s duly authorized representative.

2.4. “Allowable emissions” means the emissions rate of a stationary source calculated using the

maximum rated capacity of the source (unless the source is subject to federally enforceable limits, limits

established by the Secretary pursuant to the Secretary’s rules which restrict the operating rate, or hours of

operation, or both) and the most stringent of the following: 

2.4.a. The applicable standards set forth in 40 CFR Part 60 or 61;

2.4.b. The applicable State of West Virginia emissions limitations or permit conditions, including

those with a future compliance date; or 

2.4.c. The applicable federallyenforceable emissionslimitations or permit conditions, including those

with a future compliance date.

2.5. “Applicable Regulations” means rules of the Secretary as promulgated pursuant to W. Va. Code

§22-5-4, and regulations of theEnvironmental Protection Agency promulgated pursuant to theClean Air Act.

2.6. “Applicant” means any person who makes application to the Secretary for a permit to construct,

modify or relocate a source in West Virginia under the provisions of this rule.

2.7. “Air Pollutants” means solids, liquids or gases which, if discharged into the air, may result in a

statutory air pollution.

2.8. “Air Pollution”, or “statutory air pollution”, hasthe meaning ascribed to it in W. Va. Code §22-5-2.

2.9. “Baseline actual emissions” means the rate of emissions, in tons per year, of a regulated NSR

pollutant, as determined in accordance with the following:

2.9.a. For any existing electric utility steam generating unit, baseline actual emissions means the

average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-

2
45CSR19

month period selected by the owner or operator within the 5-year period immediately preceding when the

owner or operator begins actual construction of the project. The Secretary shall allow the use of a different

time period upon a determination that it is more representative of normal source operation.

2.9.a.1. The average rate shall include fugitive emissionsto the extent quantifiable, and emissions

associated with startups, shutdowns, and malfunctions.

2.9.a.2. The average rate shall be adjusted downward to exclude any noncompliant emissionsthat

occurred while the source was operating above any emission limitation that was legally enforceable during

the consecutive 24-month period.

2.9.a.3. For a regulated NSR pollutant, when a project involves multiple emissions units, only

one consecutive 24-month period must be used to determine the baseline actual emissions for the emissions

units being changed. A different consecutive 24-month period can be used for each regulated NSR pollutant.

2.9.a.4. The average rate shall not be based on any consecutive 24-month period for which there

is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount

if required by paragraph 2.9.a.2.

2.9.b. For an existing emissions unit (other than an electric utility steam generating unit), baseline

actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the

pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year

period immediately preceding either the date the owner or operator begins actual construction of the project,

or the date a complete permit application is received by the Secretary for a permit required under this rule,

whichever is earlier, except that the 10-year period shall not include any period earlier than November 15,

1990.

2.9.b.1. The average rate shall include fugitive emissions tothe extent quantifiable, and emissions

associated with startups, shutdowns, and malfunctions.

2.9.b.2. The average rate shall be adjusted downward to exclude any noncompliant emissionsthat

occurred while the source was operating above an emission limitation that was legally enforceable during

the consecutive 24-month period.

2.9.b.3. The average rate shall be adjusted downward to exclude any emissions that would have

exceeded an emission limitation with which the major stationary source must currently comply, had such

major stationary source been required to comply with such limitations during the consecutive 24-month

period. However, if an emission limitation is part of a maximum achievable control technology standard that

the Administrator proposed or promulgated under part 63 of this chapter, the baseline actual emissions need

only be adjusted if the State has taken credit for such emissions reductions in an attainment demonstration

or maintenance plan consistent with the requirements of subsection 8.6.

2.9.b.4. For a regulated NSR pollutant, when a project involves multiple emissions units, only

one consecutive 24-month period must be used to determine the baseline actual emissions for the emissions

units being changed. A different consecutive 24-month period can be used for each regulated NSR pollutant.

2.9.b.5. The average rate shall not be based on any consecutive 24-month period for which there

is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount

3
45CSR19

if required by paragraphs 2.9.b.2 and 2.9.b.3.

2.9.c. For a new emissions unit, the baseline actual emissions for purposes of determining the

emissions increase that will result from the initial construction and operation of such unit shall equal zero;

and thereafter, for all other purposes, shall equal the unit’s potential to emit.

2.9.d. For a PAL for a major stationary source, the baseline actual emissions shall be calculated for

existing electric utility steam generating units in accordance with the procedures contained in subdivision

2.9.a, for other existing emissions units in accordance with the procedures contained in subdivision 2.9.b,

and for a new emissions unit in accordance with the procedures contained in subdivision 2.9.c.

2.10. “Begin actual construction” means in general, initiation of physical on-site construction activities

on an emissions unit which are of a permanent nature. Such activities include, but are not limited to,

installation of building supports and foundations, laying of underground pipework, and construction of

permanent storage structures. With respect to a change in method of operating this term refers to those onsite activities other than preparatory activities which mark the initiation of the change.

2.11. “Best available control technology” or “BACT” means an emissionslimitation (including a visible

emissions standard) based on the maximum degree of reduction for each regulated NSR pollutant which

would be emitted from any proposed major stationary source or major modification which the Secretary, on

a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs,

determines is achievable for such source or modification through application of production processes or

available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel

combustion techniques for control of such pollutant. In no event shall application of best available control

technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable

standard under 40 CFR Parts 60 or 61. If the Secretary determines that technological or economic limitations

on the application of measurement methodology to a particular emissions unit would make the imposition

of an emissionsstandard infeasible, a design, equipment, work practice, operational standard, or combination

thereof, may be prescribed instead to satisfy the requirement for the application of BACT. Such standard

shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design,

equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent

results.

2.12. “Building, structure, facility or installation” means all of the pollutant-emitting activities which

belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and

are under the control of the same person (or persons under common control) except the activities of any

vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong

to the same “Major Group” (i.e., which have the same two (2)-digit code) as described in the Standard

Industrial Classification Manual, 1987 (U.S. Government Printing Office stock number GPO 0-185-718:QL

3).

2.13. “CAA” means the Clean Air Act, 42 U.S.C. 7401, et seq., as amended by Pub. L. No. 101-549

(November 15, 1990).

2.14. “Clean coal technology” means any technology, including technologies applied at the

precombustion, combustion, or post combustion stage, at a new or existing facility which will achieve

significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization

of coal in the generation of electricity, or process steam which was not in widespread use as of November

4
45CSR19

15, 1990.

2.15. “Clean coal technologydemonstration project” means a project using funds appropriated under the

heading “Department of Energy-Clean Coal Technology,” up to a total amount of $2,500,000,000 for

commercial demonstration of clean coal technology, or similar projects funded through appropriations for

the Environmental Protection Agency. The Federal contribution for a qualifying project shall be at least 20

percent of the total cost of the demonstration project.

2.16. [Reserved.]

2.17. “Code” means principally W. Va. Code §22-5-1 et seq., and, where applicable, W. Va. Code §22-

18-1 et seq.

2.18. “Commence,” as applied to construction of a major stationary source or major modification, means

that the owner or operator has all necessary preconstruction approvals or permits and either has: 

2.18.a. Begun, or caused to begin, a continuous programof actual on-site construction of the source,

to be completed within a reasonable time; or

2.18.b. Entered into binding agreements or contractual obligations, which cannot be canceled or

modified without substantial loss to the owner or operator, to undertake a program of actual construction of

the source to be completed within a reasonable time.

2.19. “Construction” means any physical change or change in the method of operation (including

fabrication, erection, installation, demolition or modification of an emissions unit) that would result in a

change in emissions.

2.20. “Continuous emissions monitoring system” or “CEMS” means all of the equipment that may be

required to meet the data acquisition and availability requirements, to sample, condition (if applicable),

analyze, and provide a record of emissions on a continuous basis.

2.21. “Continuous emissionsrate monitoring system” or “CERMS” means the total equipment required

for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

2.22. “Continuous parameter monitoring system” or “CPMS” means all of the equipment necessary to

meet the data acquisition and availability requirements , to monitor process and control device operational

parameters (for example, control device secondary voltages and electric currents) and other information (for

example 2 2, gas flow rate, O or CO concentrations), and to record average operational parameter value(s) on

a continuous basis.

2.23. “Department of Environmental Protection” or “DEP” means the Department of Environmental

Protection which is created by the provisions of West Virginia Code §22-1-1, et seq.

2.24. “Electric utility steam generating unit” means any steam electric generating unit that is constructed

for the purpose of supplying more than one-third of its potential electric output capacity and more than 25

MW electrical output to any utility power distribution system for sale. Any steam supplied to a steam

distribution system for the purpose of providing steam to a steam-electric generator that would produce

electrical energy for sale is also considered in determining the electrical energy output capacity of the

5
45CSR19

affected facility.

2.25. “Emissions” refers to the release, escape, or discharge of air pollutants into the air.

2.26. “Emissions unit” means any part of a stationary source which emits or would have the potential

to emit any regulated NSR pollutant and includes an electric utility steam generating unit as defined in

subsection 2.24. For purposes of this rule, there are two types of emissions units as described in subdivisions

2.26.a and 2.26.b.

2.26.a. A new emissions unit is any emissions unit which is (or will be) newly constructed and

which has existed for less than 2 years from the date such emissions unit first operated.

2.26.b. An existing emissions unit is any emissions unit that does not meet the requirements in

subdivision 2.26.a. A replacement unit, as defined in subsection 2.62, is an existing emissions unit.

2.27. “Federal Land Manager” means, with respect to any lands in the United States, the Secretary of

the department with authority over such lands.

2.28. “Federally enforceable” means all limitations and conditions which are enforceable by the

Administrator including those requirements developed pursuant to 40 CFR Parts 60 and 61, rules and

regulations of the approved State Implementation Plan of the State of West Virginia, any permitrequirements

established pursuant to 40 CFR §52.21 or this rule, and any operating permits issued under a USEPAapproved program that is incorporated into the State Implementation Plan and expressly requires adherence

to any permit issued under such program.

2.29. “Fugitive emissions” means those emissions which could not reasonably pass through a stack,

chimney, vent or other functionally equivalent opening.

2.30. “Intrapollutant Emission Offsets” means that emission offsets may only be achieved for the same

air pollutants which have comparable physical and chemical characteristics and properties (e.g., VOC

2

increases may not be offset against SO reductions, or coke plant particulate matter may not be offset against

boi Xler fly ash, or NO may not be offset against VOC).

2.31. “Lowest achievable emission rate” or (LAER)” means, for any source, that rate of emissions based

on the following, whichever is more stringent: 

2.31.a. The most stringent emissions limitation which is contained in the implementation plan of

any State for such class or category of stationary source, unless the owner or operator of the proposed

stationary source demonstrates that such limitations are not achievable; or

2.31.b. The most stringent emissions limitation which is achieved in practice by such class or

category of stationary sources. This term when applied to a new or modified emissions unit, means the

lowest achievable emissions rate for such emissions units within the stationary source. In no event shall the

application of this term permit a proposed new or modified stationary source to emit any pollutant in excess

of the amount allowable under an applicable new source standard of performance.

2.32. “Major emissions unit” means:

6
45CSR19

2.32.a. Any emissions unit that emits or has the potential to emit 100 tons per year or more of the

PAL pollutant in an attainment area; or

2.32.b. Any emissions unit that emits or has the potential to emit the PAL pollutant in an amount

that is equal to or greater than the major source threshold for the PAL pollutant as defined by the CAA for

nonattainment areas. For example, in accordance with the definition of major stationary source in §182(c)

of the CAA, an emissions unit would be a major emissions unit for VOC if the emissions unit is located in

a serious ozone nonattainment area and it emits or has the potential to emit 50 or more tons of VOC per year.

2.33. Major Modification.

2.33.a. “Major modification” means any physical change in or change in the method of operation

of a major stationary source that would result in: 

2.33.a.1. A significant emissions increase of a regulated NSR pollutant (as defined in subsection

2.61.); and

2.33.a.2. A significant net emissions increase of that pollutant from the major stationary source.

2.33.b. Any significant emissionsincrease (as defined in subsection 2.67) from any emissions units

or net emissions increase (as defined in subsection 2.39) at a major stationary source that is significant for

volatile organic compounds shall be considered significant for ozone.

2.33.c. A physical change or change in the method of operation shall not include:

2.33.c.1. Routine maintenance, repair and replacement; 

2.33.c.2. Use of an alternative fuel or raw material by reason of an order under sections 2 (a) and

(b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or

by reason of a natural gas curtailment plan pursuant to the Federal Power Act;

2.33.c.3. Use of an alternative fuel by reason of an order or rule under §125 of the CAA;

2.33.c.4. Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated

from municipal solid waste;

2.33.c.5. Use of an alternative fuel or raw material by a stationary source which:

2.33.c.5.A. The sourcewas capable of accommodating before December 21, 1976, unless such

change would be prohibited under any federally enforceable permit condition which was established after

December 21, 1976 pursuant to 40 CFR §52.21 or under regulations approved pursuant to 40 CFR subpart

I or 40 CFR §51.166, or

2.33.c.5.B. The source is approved to use under any permit issued under this rule; 

2.33.c.6. An increase in the hours of operation or in the production rate, unless such change is

prohibited under any federally enforceable permit condition which was established after December 21, 1976

pursuant to 40 CFR §52.21 or regulations approved pursuant to 40 CFR Part 51 subpart I or 40 CFR §51.166.

7
45CSR19

2.33.c.7. Any change in ownership at a stationary source.

2.33.c.8. [Reserved.]

2.33.c.9. The installation, operation, cessation, or removal of a temporary clean coal technology

demonstration project, provided that the project complies with: 

2.33.c.9.A. The West Virginia State Implementation Plan, and 

2.33.c.9.B. Other requirements necessary to attain and maintain the National Ambient Air

Quality Standard during the project and after it is terminated.

2.33.d. This definition shall not apply with respect to a particular regulated NSR pollutant when the

major stationary source is complying with the requirements under section 23 for a PAL for that pollutant.

Instead, the definition at subsection 2.48 shall apply.

2.33.e. For the purpose of applying the requirements of subsection 17.6 to modifications at major

stationary sources of nitrogen oxides located in ozone nonattainment areas or in ozone transport regions,

whether or not subject to Title I, Part D, Subpart 2 of the CAA, any significant net emissions increase of

nitrogen oxides is considered significant for ozone.

2.33.f. Any physical change in, or change in the method of operation of, a major stationary source

of volatile organic compounds that results in any increase in emissions of volatile organic compounds from

any discrete operation, emissions unit, or other pollutant emitting activity at the source shall be considered

a significant net emissions increase and a major modification for ozone, if the major stationary source is

located in an extreme ozone nonattainment area that is subject to Title I, Part D, Subpart 2 of the CAA.

2.34 X. “Major Modification for Ozone” means a major modification for VOC and NO .

2.35. “Major Stationary Source” means:

2.35.a. Any stationary source of air pollutants which emits, or hasthe potential to emit 100 tons per

year or more of any regulated NSR pollutant, except that lower emissions thresholds shall apply in areas

subject to ozone nonattainment areas, carbon monoxide nonattainment areas, or particulate matter

nonattainment areas, in accordance with the following:

2.35.a.1. 50 tons per year of volatile organic compoundsin any serious ozone nonattainment area;

2.35.a.2. 50 tons per year of volatile organic compounds in an area within an ozone transport

region, except for any severe or extreme ozone nonattainment area;

2.35.a.3. 25 tons per year of volatile organic compounds in any severe ozone nonattainment area;

2.35.a.4. 10 tons per year of volatile organic compoundsin any extreme ozone nonattainment area;

2.35.a.5. 50 tons per year of carbon monoxide in any serious nonattainment area for carbon

monoxide, where stationary sources contribute significantly to carbon monoxide levels in the area (as

determined under rules issued by the Administrator); and

8
45CSR19

2.35 10 10.a.6. 70 tons per year of PM in any serious nonattainment area for PM ;

2.35.b. For the purposes of applying the requirements of subsection 17.6 to stationary sources of

nitrogen oxideslocated in an ozone nonattainment area or in an ozone transport region, any stationary source

which emits, or has the potential to emit, 100 tons per year or more of nitrogen oxides emissions, except that

the following emission thresholds shall apply in ozone nonattainment areas:

2.35.b.1. 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified

as marginal or moderate;

2.35.b.2. 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified

as a transitional, submarginal, or incomplete or no data area, when such area is located in an ozone transport

region;

2.35.b.3. 100 tons per year or more of nitrogen oxides in any area designated under §107(d) of the

CAA as attainment or unclassifiable for ozone that is located in an ozone transport region;

2.35.b.4. 50 tons per year or more of nitrogen oxides in any serious nonattainment area for ozone;

2.35.b.5. 25 tons per year or more of nitrogen oxides in any severe nonattainment area for ozone;

2.35.b.6. 10 tons per year or more of nitrogen oxidesin any extreme nonattainment area for ozone;

or

2.35.c. Any physical change that would occur at a stationary source not qualifying under

subdivisions 2.35.a and 2.35.b as a major stationary source, if the change would constitute a major stationary

source by itself.

2.35.d. A major stationary source that is major for volatile organic compounds shall be considered

major for ozone.

2.35.e. The fugitive emissions of a stationary source shall not be included in determining for any

of the purposes of this subsection whether it is a major stationary source, unless the source belongs to one

of the following categories of stationary sources:

2.35.e.1. Coal cleaning plants (with thermal dryers); 

2.35.e.2. Kraft pulp mills;

2.35.e.3. Portland cement plants;

2.35.e.4. Primary zinc smelters;

2.35.e.5. Iron and steel mills; 

2.35.e.6. Primary aluminum ore reduction plants;

2.35.e.7. Primary copper smelters; 

9
45CSR19

2.35.e.8. Municipal incinerators capable of charging more than 250 tons of refuse per day; 

2.35.e.9. Hydrofluoric, sulfuric, or nitric acid plants;

2.35.e.10. Petroleum refineries;

2.35.e.11. Lime plants; 

2.35.e.12. Phosphate rock processing plants;

2.35.e.13. Coke oven batteries;

2.35.e.14. Sulfur recovery plants;

2.35.e.15. Carbon black plants (furnace process); 

2.35.e.16. Primary lead smelters;

2.35.e.17. Fuel conversion plants;

2.35.e.18. Sintering plants; 

2.35.e.19. Secondary metal production plants; 

2.35.e.20. Chemical process plants -- The term chemical processing plant shall not include

ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193

or 312140;

2.35.e.21. Fossil-fuel boilers (or combination thereof) totaling more than 250 million British

thermal units per hour heat input; 

2.35.e.22. Petroleum storage and transfer units with a total storage capacity exceeding 300,000

barrels; 

2.35.e.23. Taconite ore processing plants; 

2.35.e.24. Glass fiber processing plants; 

2.35.e.25. Charcoal production plants;

2.35.e.26. Fossil fuel-fired steam electric plants of more than 250 million British thermal units

per hour heat input; and 

2.35.e.27. Any other stationary source category which, as of August 7, 1980, is being regulated

under §111 or 112 of the CAA.

2.35.f. In addition to those facilities covered under subdivision 2.35.e, all coal preparation plants

as defined under 40 CFR §60.251(a) which process more than 200 tons per day shall count fugitive emissions

10
45CSR19

from all “affected facilities” at the source.

2.35.g. For the purpose of subdivision 2.35.f, the term “affected facilities” means those facilities

which are listed or identified as “affected facilities” in the applicable standard promulgated under §§111 or

112 of the CAA.”

2.36 X. “Major Stationary Source for Ozone” means a major stationary source of VOC or NO .

2.37. “National Ambient Air Quality Standard (NAAQS)” means the numerical standard specified by

the United States Environmental Protection Agency for each air pollutant for which air quality criteria have

been issued.

2.38. “Necessarypreconstruction approvals or permits” means those permits or approvals required under

federal air quality control laws or regulations and air quality control laws and regulations of the State of West

Virginia. Where a consent order is required to be submitted to the USEPA for inclusion in the State

Implementation Plan, the applicant will not have all necessary pre-construction approvals or permits until

such time as the Administrator approves such consent order for inclusion in the State Implementation Plan.

2.39. “Net emissions increase” means, with respect to any regulated NSR pollutant emitted by a major

stationary source, the amount by which the sum of the following exceeds zero: 

2.39.a. Any increase in emissions from a particular physical change or change in the method of

operation at a stationary source as calculated pursuant to subsection 3.4.; and 

2.39.b. Any other increases and decreases in actual emissions at the major stationary source that are

contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for

calculating increases and decreases under this subdivision shall be determined as provided in subsection 2.9,

except that paragraphs 2.9.a.3 and 2.9.b.4 shall not apply.

2.39.b.1. An increase or decrease in actual emissions is contemporaneous with the increase from

the particular change only if it occurs before the date that the increase from the particular change occurs; 

2.39.b.2. An increase or decrease in actual emissions is creditable only if:

2.39.b.2.A. It occurs within a reasonable period to be specified by the Secretary; and 

2.39.b.2.B. The Secretary has not relied on the increase or decrease in issuing a permit for the

source under section 14, which permit is in effect when the increase in actual emissions from the particular

change occurs; and

2.39.b.3. An increase in actual emissionsis creditable only to the extent that the new level of actual

emissions exceeds the old level.

2.39.b.4. A decrease in actual emissions is creditable only to the extent that:

2.39.b.4.A. The old level of actual emission or the old level of allowable emissions whichever

is lower, exceeds the new level of actual emissions; 

11
45CSR19

2.39.b.4.B. It is federally enforceable and enforceable by the Secretary as a practical matter

at and after the time that actual construction on the particular change begins; and 

2.39.b.4.C. The Secretary has not relied on it in issuing any permit under this rule, in

demonstrating attainment of the NAAQS, or in a demonstration of reasonable further progress; and

2.39.b.4.D. It has approximately the same qualitative significance for public health and welfare

as that attributed to the increase from the particular change.

2.39.b.5. An increase that results from a physical change at a source occurs when the emissions

unit on which construction occurred becomes operational and beginsto emit a particular pollutant. Any new

unit that replaces an existing unit and requires shakedown becomes operational only after a reasonable

shakedown period, not to exceed one hundred eighty (180) days.

2.39.c. Subdivision 2.1.a shall not apply for determining creditable increases and decreases or after

a change.

2.40. “Nonattainment Area” means forthe purpose of this rule, those areas designated in accordance with

§107 of the CAA as not having attained NAAQS for specific air pollutants. Nonattainment areas for ozone,

carbon monox 10ide, and PM are divided into categories, which may have different major source size

definitions and offset ratio requirements than in previous regulations. These categories are as follows:

2.40.a. Ozone nonattainment areas may be designated as Marginal, Moderate, Serious, Severe, or

Extreme.

2.40.b. Carbon monoxide nonattainment areas may be designated as Moderate or Severe.

2.40 10.c. PM nonattainment areas may be designated as Moderate or Severe.

2.41. “Nonattainment major new source review (NSR) program” means a major source preconstruction

permit program that has been approved by the Administrator, or a program that implements 40 CFR Part 51,

appendix S, sections I through VI. Any permit issued under such a program is a major NSR permit.

2.42. “Offset” or “emission offset” means an emission reduction of a given pollutant achieved at an

existing source (or emissions unit within such source) that allows for the emission of such given pollutant

at a different proposed source (or emissions unit within such proposed source); provided that the amount of

reduction in emissions at the existing source (or emissions unit within such source), is greater, on a tons per

year basis, than one-to-one with respect to the proposed emissions from the different source (or emissions

unit within such source) so that total emissions from the source including all existing and proposed facilities

for a given pollutant shall be less than baseline emissions. This term also means an emission reduction of

a given pollutant achieved at a unit within an existing source that allows for the emission of such given

pollutant at a different unit within the same existing source. In addition to the above requirement that offset

ratios must be greater than one-to-one, the offset ratios in ozone nonattainment areas must equal or exceed:

2.42.a. In marginal ozone nonattainment areas, 1.1 to 1.

2.42.b. In moderate ozone nonattainment areas, 1.15 to 1.

12
45CSR19

2.42.c. In serious ozone nonattainment areas, 1.2 to 1.

2.42.d. In severe ozone nonattainment areas, 1.3 to 1.

2.42.e. In extreme ozone nonattainment areas, 1.5 to 1.

2.43. “Offset Ratio” means the ratio of total emission reductions to total emission increases, for any

specific pollutant.

2.44 10. “PM " means particulate matter with an aerodynamic diameter less than or equal to a nominal 10

micrometers as measured by a reference method described in Appendix J of 40 CFR Part 50.

2.45. “Particulate Matter” means any material, except uncombined water, that exists in a finely divided

form as a liquid or solid.

2.46. “PAL effective date” generally means the date of issuance of the PAL permit. However, the PAL

effective date for an increased PAL is the date any emissions unit which is part of the PAL major

modification becomes operational and begins to emit the PAL pollutant.

2.47. “PAL effective period” means the period beginning with the PAL effective date and ending 10

years later.

2.48. “PAL major modification” means, notwithstanding subsections 2.33 and 2.39 (the definitions for

major modification and net emissionsincrease), any physical change in or change in the method of operation

of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

2.49. “PAL permit” means the major NSR permit, the minor NSR permit, or the title V permit issued by

the Secretary that establishes a PAL for a major stationary source.

2.50. “PAL pollutant” means the pollutant for which a PAL is established at a major stationary source.

2.51. “Person” means any and all persons, natural or artificial, including the State of West Virginia or

any other state and all agencies or divisions thereof, any state political subdivision, the United States of

America, any municipal, statutory, public or private corporation or association organized or existing under

the law of this or any other state or country, and any firm, partnership or association of whatever nature.

2.52. “Plantwide applicability limitation” or “PAL” means an emission limitation expressed in tons per

year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established

source-wide in accordance with subsections 23.1 through 23.15.

2.53. [Reserved.]

2.54. “Pollution prevention” means any activity that through process changes, product reformulation or

redesign, or substitution of less polluting raw materials, eliminates or reduces the release of air pollutants

(including fugitive emissions) and other pollutants to the environment prior to recycling, treatment, or

disposal; it does not mean recycling (other than certain “in-process recycling” practices), energy recovery,

treatment or disposal.

13
45CSR19

2.55. “Potential to emit” means the maximum capacity of a stationary source to emit a pollutant under

its physical and operational design. Any physical or operational limitation on the capacity of the source to

emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the

type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the

limitation or the effect it would have on emissionsis federally enforceable or is enforceable by the Secretary

in any permit or consent order issued by the Administrator or by the Secretary. Secondary emissions do not

count in determining the potential to emit of a stationary source.

2.56. “Predictive emissions monitoring system” or “PEMS” means all of the equipment necessary to

monitor process and control device operational parameters (for example, control device secondary voltages

and elect 2 2ric currents) and other information (for example, gas flow rate, O or CO concentrations), and

calculate and record the mass emissions rate (for example, lb/hr) on a continuous basis.

2.57. “Prevention of Significant Deterioration (PSD) permit” means any permit that is issued under the

major source preconstruction permit program set forth in 45CSR14.

2.58. “Project” means a physical change in, or change in the method of operation of, an existing major

stationary source.

2.59. “Projected actual emissions” means, the maximum annual rate, in tons per year, at which an

existing emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years (12-month

period) following the date the unit resumes regular operation after the project, or in any one of the 10 years

following that date, if the project involves increasing the emissions unit’s design capacity or its potential to

emit of that regulated NSR pollutant and full utilization of the unit would result in a significant emissions

increase or a significant net emissions increase at the major stationary source. In determining the projected

actual emissions, before beginning actual construction, the owner or operator of the major stationary source:

2.59.a. Shall consider all relevant information, including but not limited to, historical operational

data, the company's own representations, the company's expected business activity and the company's highest

projections of business activity, the company's filings with the State or Federal regulatory authorities, and

compliance plans under the approved plan;

2.59.b. Shall include fugitive emissions to the extent quantifiable, and emissions associated with

startups, shutdowns, and malfunctions; and

2.59.c. Shall exclude, in calculating any increase in emissions that results from the particular

project, that portion of the unit’s emissions following the project that an existing unit could have

accommodated during the consecutive 24-month period used to establish the baseline actual emissions under

subsection 2.9 and that are also unrelated to the particular project, including any increased utilization due

to product demand growth.

2.59.d. In lieu of using the method set out in subdivisions 2.59.a through 2.59.c, may elect to use

the emissions unit’s potential to emit, in tons per year, as defined under subdivision 2.55.

2.60. “Reasonable Further Progress” means the annual reductions in emissions of pollutants in

nonattainment areas as are required pursuant to Part D of the 1990 Clean Air Act Amendments or which are

required by the Secretary or the Administrator for the purpose of ensuring attainment of NAAQS by the

applicable statutory deadline.

14
45CSR19

2.61. “Regulated NSR Pollutant” means the following: 

2.61.a. Any pollutant for which a National Ambient Air Quality Standard has been promulgated; 

2.61.b. Nitrogen oxides or any volatile organic compounds;

2.61.c. Any pollutant that is identified under this subdivision as a constituent or precursor of a

general pollutant listed under subdivisions 2.61.a or 2.61.b, provided that such constituent or precursor

pollutant may only be regulated under NSR as part of regulation of the general pollutant. Precursors

identified by the Administrator for purposes of NSR are the following:

2.61.c.1. Volatile organic compounds and nitrogen oxides are precursors to ozone in all ozone

nonattainment areas.

2.61 2.5 2.5.c.2. Sulfur dioxide is a precursor to PM in all PM nonattainment areas.

2.61 2.5 2.5.c.3. Nitrogen oxides are presumed to be precursors to PM in all PM nonattainment areas,

unlessthe Secretary demonstrates to the Administrator’ssatisfaction or USEPA demonstrates that emissions

of nitrogen oxides from sources in a specific area are not a significant contributor to that area’s ambient

PM2.5 concentrations.

2.61 2.5.c.4. Volatile organic compounds and ammonia are presumed not to be precursors to PM

2.5

in any PM nonattainment area, unless the Secretary demonstrates to the Administrator’s satisfaction or

USEPA demonstrates that emissions of volatile organic compounds or ammonia from sources in a specific

area are a 2.5 significant contributor to that area’s ambient PM concentrations.

2.61 2.5 10.d. PM emissions and PM emissions shall include gaseous emissions from a source or

activity which condense to formparticulate matter at ambient temperatures. On or after January 1, 2011, such

condensable particulate matter shall be accounted for in applicability determinations and in establishing

emissions 2.5 10limitations for PM and PM in nonattainment major NSR permits. Compliance with emissions

2.5 10

limitations for PM and PM issued prior to this date shall not be based on condensable particulate matter

unless required by the terms and conditions of the permit or the applicable implementation plan.

Applicability determinations made prior to this date without accounting for condensable particulate matter

shall not be considered in violation of this section unless the applicable implementation plan required

condensable particulate matter to be included.

2.62. “Replacement unit” means an emissions unit for which all the criteria listed in subdivisions 2.62.a

through 2.62.d are met. No creditable emission reductionsshall be generated fromshutting down the existing

emissions unit that is replaced.

2.62.a. The emissions unit is a reconstructed unit within the meaning of 40 CFR §60.15(b)(1), or

the emissions unit completely takes the place of an existing emissions unit;

2.62.b. The emissions unit is identical to or functionally equivalent to the replaced emissions unit;

2.62.c. The replacement does not change the basic design parameter(s) of the process unit; and

15
45CSR19

2.62.d. The replaced emissions unit is permanently removed from the major stationary source,

otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable as a

practical matter. If the replaced emissions unit is brought back into operation, it shall constitute a new

emissions unit.

2.63. “Reviewing authority” means the Secretary of the Department of Environmental Protection.

2.64. “Secondary emissions” means emissions which would occur as a result of the construction or

operation of a major stationary source or major modification, but do not come from the major stationary

source or major modification itself. Secondary emissions must be specific, well defined, quantifiable, and

impact the same general area as the stationary source or modification which causesthe secondary emissions. 

Secondary emissions include, but are not limited to emissions from any offsite support facility which would

not otherwise be constructed or increase its emissions except as a result of the construction or operation of

the major stationary source of major modification. Secondary emissions do not include any emissions which

come directly from a mobile source such as emissions from the tailpipe of a motor vehicle, a train, or from

a vessel.

2.65. “Secretary” means the Secretary of the Division of Environmental Protection or his or her

designated representative.

2.66. “Significant” means, in reference to a net emissions increase or the potential of a source to emit

any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

Pollutant and Pollutant Emission Rate

(tons per year)

Carbon monoxide: 100 tpy

Nitrogen oxides: 40 tpy

Sulfur dioxide: 40 tpy

Ozone: 40 tpy

of VOC or NOX

Lead: 0.6 tpy

PM10: 15 tpy

PM2.5: 10 tpy

of direct 2.5 PM emissions

PM2.5: 40 tpy

of SO2 emissions

PM2.5: 40 tpy

of NOX emissions

2.5

(unless demonstrated not to be a PM precursor under subsection 2.61).

16
45CSR19

2.66.a. Notwithstanding the significant emissions rate for ozone in subsection 2.66, significant

means, in reference to an emissions increase or a net emissions increase, any increase in actual emissions of

volatile organic compounds that would result from any physical change in, or change in the method of

operation of, a major stationary source locating in a serious or severe ozone nonattainment area that issubject

to Title I, Part D, Subpart 2 of the CAA, if such emissions increase of volatile organic compounds exceeds

25 tons per year.

2.66.b. For the purposes of applying the requirements of subsection 17.6 to modifications at major

stationary sources of nitrogen oxideslocated in an ozone nonattainment area or in an ozone transport region,

the significant emission rates and other requirements for volatile organic compounds in subsection 2.66,

subdivisions 2.66.a and 2.66.d shall apply to nitrogen oxides emissions.

2.66.c. Notwithstanding the significant emissionsrate for carbon monoxide under subsection 2.66,

significant means, in reference to an emissions increase or a net emissions increase, any increase in actual

emissions of carbon monoxide that would result from any physical change in, or change in the method of

operation of, a major stationary source in a serious nonattainment area for carbon monoxide if such increase

equals or exceeds 50 tons per year, provided the Administrator has determined that stationary sources

contribute significantly to carbon monoxide levels in that area.

2.66.d. Notwithstanding the significant emissions rates for ozone under subsection 2.66 and

subdivision 2.66.a, any increase in actual emissions of volatile organic compounds from any emissions unit

at a major stationary source of volatile organic compounds located in an extreme ozone nonattainment area

that is subject to Title I, Part D, Subpart 2 of the CAA shall be considered a significant net emissions

increase.

2.67. “Significant emissions increase” means, for a regulated NSR pollutant, an increase in emissions

that is significant for that pollutant.

2.68. “Significant emissions unit” means an emissions unit that emits or has the potential to emit a PAL

pollutant in an amount that is equal to or greater than the significant level, as defined in subsection 2.66 or

the CAA, whichever is lower, for that PAL pollutant, but less than the amount that would qualify the unit

as a major emissions unit.

2.69. “Significant Impact” means an increase in the ambient air concentration for a particular pollutant

as follows:

Averaging time (hours)

Annual 24 8 3 1

Ambient Air Concentration Increase (ìg/m )

3

SO2 1.0 5.0 25.0

PM10 1.0 5.0

NO2 1.0

TSP 1.0 5.0

17
45CSR19

Ambient Air Concentration Increase (mg/m )

3

CO 0.5 2.0

2.70. “Small emissions unit” means an emissions unit that emits or has the potential to emit the PAL

pollutant in an amount less than the significant level for that PAL pollutant, as defined in subsection 2.66

or the CAA, whichever is lower.

2.71. “Source, Stationary Source” means any building, structure, facility or installation which emits or

may emit any regulated air pollutant.

2.72. “Temporary clean coal technology demonstration project” means a clean coal technology

demonstration project that is operated for a period of 5 years or less, and which complies with the State

Implementation Plan for the State in which the project is located and other requirements necessary to attain

and maintain the National Ambient Air Quality Standards during the project and after it is terminated.

2.73. “Temporary Source” or “sources of temporary emissions”, means for a source located in a

nonattainment area and subject to this rule, those emissions occurring for a period of time less than two

years.

2.74. “TSP” or “Total Suspended Particulate Matter” means particulate matter as measured by the

method described in Appendix B of 40 CFR Part 50.

2.75. “USEPA” means the United States Environmental Protection Agency.

2.76. “Volatile organic compounds (VOC)” are as defined in 40 CFR §51.100(s).

2.77. Other words and phrases used in this rule, unless otherwise indicated, have the meaning ascribed

to them in W. Va. Code §22-5-2.

§45-19-3. Applicability.

3.1. Preconstruction Permit Program In Nonattainment Areas. -- The preconstruction permit program

requirements apply to the construction of any new major stationary source or major modification that is

major for the pollutant for which the area is designated nonattainment under 40 CFR Part 81, Subpart C if

the stationary source or modification would locate anywhere in the designated nonattainment area.

3.2. Preconstruction Permit Program In Attainment Areas. -- The preconstruction permit program

requirements also apply to any proposed major stationary source and to any major modification to such

source in an area designated as attainment or unclassifiable for any National Ambient Air Quality Standard

(NAAQS) pursuant to section 107 of the CAA when it would cause or contribute to a violation of a NAAQS.

3.3. Significance levels.

3.3.a. A major source or major modification will be considered to cause or contribute to a violation

of a NAAQS when such source or modification would, at a minimum, exceed the significance levels set forth

in Table 45-19B at any locality that does not or would not meet the applicable national standard.

18
45CSR19

3.3.b. A proposed major source or major modification subject to subsection 3.2 may reduce the impact

of its emissions upon air quality by obtaining sufficient emission reductions to, at a minimum, compensate

for its adverse ambient impact where the major source or major modification would otherwise cause or

contribute to a violation of any NAAQS.

3.4. Determination of major modification. -- The determination as to whether or not a proposed project

is a major modification for a regulated NSR pollutant shall be determined in accordance with the specific

provisions set forth in subdivisions 3.4.a through 3.4.f.

3.4.a. Except as otherwise provided in subsections 3.5 and 3.6, and consistent with the definition of

major modification, a proposed project is a major modification for a regulated NSR pollutant if it causestwo

types of emissions increases -- a significant emissions increase (as defined in subsection 2.67), and a

significant net emissions increase (as defined in subsections 2.66 and 2.39). The proposed project is not a

major modification if it does not cause a significant emissions increase. If the project causes a significant

emissions increase, then the project is a major modification only if it also results in a significant net

emissions increase.

3.4.b. The procedure for calculating, before beginning actual construction, whether a significant

emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units

being modified, according to subdivisions 3.4.c through 3.4.f. The procedure for calculating, before

beginning actual construction, whether a significant net emissionsincrease will occur at the major stationary

source (i.e., the second step of the process) is contained in the definition in subsection 2.39. Regardless of

any such preconstruction projections, a major modification results if the project causes a significant

emissions increase and a significant net emissions increase.

3.4.c. Actual-to-projected-actual applicability test for proposed projects that only involve existing

emissions units. -- A significant emissions increase of a regulated NSR pollutant is projected to occur if the

sum of the difference between the projected actual emissions and the baseline actual emissions (as defined

in subdivisions 2.9.a and 2.9.b, as applicable), for each existing emissions unit, equals or exceeds the

significant amount for that pollutant.

3.4.d. Actual-to-potential test for proposed projects that only involve construction of a new emissions

unit(s). -- A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of

the difference between the potential to emit from each new emissions unit following completion of the

proposed project and the baseline actual emissions of these units before the project equals or exceeds the

significant amount for that pollutant.

3.4.e. [Reserved.]

3.4.f. Hybrid testfor projects that involve multiple types of emissions units. --A significant emissions

increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each

emissions unit, using the method specified in subdivisions 3.4.c through 3.4.d as applicable with respect to

each emissions unit, for each type of emissions unit equals or exceeds the significant amount for that

pollutant.

3.5. For any major stationary source subject to a PAL for a regulated NSR pollutant, the major

stationary source shall comply with the requirements under section 23.

19
45CSR19

3.6. [Reserved.]

3.7. Exemption.

3.7.a. A source or modification shall not be considered a major stationary source or major

modification only if fugitive emission to the extent quantifiable are considered in calculating the potential

to emit of the stationary source or modification and the source does not belong to any of the following

categories:

3.7.a.1. Coal cleaning plants (with thermal dryers);

3.7.a.2. Kraft pulp mills;

3.7.a.3. Portland cement plants;

3.7.a.4. Primary zinc smelters;

3.7.a.5. Iron and steel mills;

3.7.a.6. Primary aluminum ore reduction plants;

3.7.a.7. Primary copper smelters;

3.7.a.8. Municipal incinerators capable of charging more than 250 tons of refuse per day;

3.7.a.9. Hydrofluoric, sulfuric, or citric acid plants;

3.7.a.10. Petroleum refineries;

3.7.a.11. Lime plants;

3.7.a.12. Phosphate rock processing plants;

3.7.a.13. Coke oven batteries;

3.7.a.14. Sulfur recovery plants;

3.7.a.15. Carbon black plants (furnace process);

3.7.a.16. Primary lead smelters;

3.7.a.17. Fuel conversion plants;

3.7.a.18. Sintering plants;

3.7.a.19. Secondary metal production plants;

3.7.a.20. Chemical process plants -- The term chemical processing plant shall not include ethanol

20
45CSR19

production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or

312140;

3.7.a.21. Fossil-fuel boilers (or combination thereof)totaling more than 250 million British thermal

units per hour heat input;

3.7.a.22. Petroleum storage and transfer units with a total storage capacity exceeding 300,000

barrels;

3.7.a.23. Taconite ore processing plants;

3.7.a.24. Glass fiber processing plants;

3.7.a.25. Charcoal production plants;

3.7.a.26. Fossil fuel-fired steam electric plants of more than 250 million British thermal units per

hour heat input; and

3.7.a.27. Any other stationary source category which, as of August 7, 1980, is being regulated

under section 111 or 112 of the CAA.

3.7.b. In addition to the facilities covered under subdivision 3.7.a, all coal preparation plants as

defined under 40 CFR §60.251(a) which process more than 200 tons per day shall count fugitive emissions

from all “affected facilities” at the source.

3.7.c. For the purpose of subdivision 3.7.b, the term “affected facilities” means those facilities which

are listed or identified as “affected facilities” in the applicable standard promulgated under §§111 or 112 of

the CAA.”

§45-19-4. Conditions for a Permit Approval for Proposed Major Sources That Would Contribute

to a Violation of NAAQS.

4.1. Upon determination by the Secretary that a proposed new major stationary source or major

modification will locate within a nonattainment area, or that a proposed new major stationary source or major

modification to be built outside a nonattainment area will have a significant impact on pollutant

concentrations in a nonattainment area, as of such source's proposed start-up date, permit approval may be

granted only if the applicant agrees within its permit application and permit (if approved), to meet the

following conditions:

4.1.a. The proposed major stationary source or major modification is required to meet the lowest

achievable emission rate (LAER) for such source;

4.1.b. The applicant must certify that all existing sources owned or operated by the applicant (or any

entity controlling, controlled by, or under common control of the applicant) in West Virginia are in

compliance with the CAA and W.Va. Code §22-5-4, or the applicable regulations, or is in compliance with

a compliance program or a court decree which is federally enforceable and enforceable by the Secretary;

4.1.c. More than equivalent emission offsets fromexisting sources in the nonattainment area impacted

21
45CSR19

by the proposed new major stationary source or major modification (whether or not under the same

ownership) are required such that there will be reasonable further progress toward attainment of the

app Xlicable NAAQS. For sources locating in ozone nonattainment areas, the offset ratios for VOC and NO

must equal or exceed those specified in subsection 2.42. Only intrapollutant emission offsets are acceptable;

and

4.1.d. The emission offsets will provide a positive net air quality benefit in the affected nonattainment

area. Atmosphe Xric simulation modeling for ozone impacts is not necessary for VOC and NO . Compliance

with subdivision 4.1.c and subsection 8.2 will be adequate to meet this condition.

4.2. Upon determination by the Secretary that technological or economic limitations on the application

of measurement methodology to a particular source or class of sources would make the imposition of an

enforceable numerical emission standard infeasible, the applicant may, by petition, request that the Secretary

approve an appropriate design, operational or equipment standard. In the event that the applicant's proposed

design, operational or equipment standard is unacceptable to the Secretary, the Secretary shall determine an

appropriate measurement methodology or design, operational or equipment standard and shall incorporate

such determinations and requirements within the permit.

4.3. For phased construction projects, the determination of the lowest achievable emission rate shall

be reviewed and modified as appropriate at the latest reasonable time which occurs no later than 18 months

prior to commencement of construction of each independent phase of the project. At such time, the owner

or operator of the applicable stationary source may be required to demonstrate the adequacy of any previous

determination of the lowest achievable emission rate for the source.

4.4. Control Technology Information. -- The Secretary shall, for each new major source and major

modification, submit to the Administrator, within 60 days of issuance of the construction permit, all

information on the emissions prevention or control technology for the new major source or major

modification for the purpose of making such information available through the RACT/BACT/LAER

clearinghouse to other states and to the general public.

4.5. Rocket Engines or Motors. -- The Secretary may allow a source to offset by alternative or

innovative means emission increases fromrocket engine and motor firing, and cleaning related to such firing,

at an existing or modified source that tests rocket engines or motors under the following conditions:

4.5.a. Any modification proposed is solely for the purpose of expanding the testing of rocket engines

or motors at an existing source that was permitted to test such engines as of November 15, 1990;

4.5.b. The source demonstrates to the satisfaction of the Secretary that it has used all reasonablemeans

to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable

levels, that all available offsets are being used, and that sufficient offsets are not available to the source;

4.5.c. The source has obtained a written finding from the Department of Defense, Department of

Transportation, National Aeronautics and Space Administration or other appropriate Federal agency, that

the testing of rocket motors or engines at the facility is required for a program essential to national security;

and

4.5.d. The source shall comply with an alternative measure, imposed by the Secretary, designed to

offset any emission increases beyond permitted levels not directly offset by the source. In lieu of imposing

22
45CSR19

any alternative offset measures, the Secretary may impose any emissions fee which shall be an amount no

greater than 1.5 times the average cost of stationary source control measures adopted in that area during the

previous three (3) years. The Secretary shall utilize the fees in a manner that maximizes reductions in that

area.

§45-19-5. Conditions for Permit Approval for Sources Locating in Attainment or Unclassifiable

Areas That Would Cause a New Violation of a NAAQS.

5.1. Upon determination by the Secretary that the emissions from a proposed new major stationary

source or major modification locating in attainment or unclassified areas would cause a new violation of a

NAAQS, permit approval may be granted only ifthe applicant agrees within its permit application and permit

(if approved) to meet a more stringent emission limitation and/or limit emissions of existing sources below

levels allowed by the applicable regulations so that the proposed source will not cause a new violation of any

NAAQS. Only intrapollutant emission offsets are acceptable.

5.2. If the proposed major source or major modification does not obtain the emission reductions

specified in subsection 3.2 the Secretary shall deny the proposed construction.

5.3. The requirements of subsections 3.2 and 5.2 shall not apply to a major stationary source or major

modification with respect to a particular pollutant if the owner or operator demonstrates that, as to that

pollutant, the source or modification is located in an area designated as nonattainment pursuant to section

107 of the CAA.

§45-19-6. [Reserved.]

§45-19-7. Baseline for Determining Credit for Emission Offsets.

7.1. For major stationary sources and major modifications subject to subsections 3.1 and 3.2 the

baseline for determining credit for emissions reductions is the emission limit in effect at the time the

application for a permit to construct under section 14 is filed, except that the offset baseline shall be the

actual emissions of the source from which the offset credit is obtained where:

7.1.a. The demonstration of reasonable further progress and attainment of ambient air quality

standards is based upon the actual emissions of sources located within a designated nonattainment area; or

7.1.b. The applicable regulation does not contain an emission limitation for a source or source

category, the emission offset baseline involving such sources shall be the actual emissions.

7.2. Where the applicable regulation emission limit allows greater emissionsthan the potential emission

rate of the source, emission offset credit will be allowed only for control below the potential emission rate.

7.3. For an existing fuel combustion source, credit shall be based on the allowable emissions for the

type of fuel being burned at the time the permit to construct application under section 14 is filed. If the

existing source commits to switch to a cleaner fuel at some future date, emission offset credit based on the

allowable or actual emissions for the fuels involved is not acceptable, unless the permit is conditioned to

require use of a specified alternative control measure which would achieve the same degree of emissions

reduction should the source switch back to a dirtier fuel at some later date. The applicant shall ensure that

adequate long-term supplies of the new fuel are available before emission offset credit for fuel switches may

23
45CSR19

be granted.

7.4. Emissionsreductions achieved by shutting down an existing emission unit or curtailing production

or operating hours may be generally credited for offsets if they meet the following requirements:

7.4.a. Such reductions are permanent, quantifiable, federally enforceable.

7.4.b. The shutdown or curtailment occurred on or after the date specified in the attainment plan, and

ifsuch date is on or after the date of the mostrecent emission inventory used in the attainment demonstration. 

Where the plan does not specify a cutoff date for shutdown credits, the date of the most recent emissions

inventory or attainment demonstration shall apply. However, no may credit be given for shutdowns which

occurred prior to August 7, 1977.

7.5. Emissionsreductions achieved by shutting down an existingemissions unit or curtailing production

or operating hours and that do not meet the requirements in subdivision 7.4.b may be generally credited only

if:

7.5.a. The shutdown or curtailment occurred on or after the date the construction permit application

is filed, or

7.5.b. The applicant can establish that the proposed new emissions unit is a replacement for the

shutdown or curtailed emissions unit, and the emissionsreductions achieved by the shutdown or curtailment

met the requirements of subdivision 7.4.a.

7.6. No emissions credit may be allowed for replacing one hydrocarbon compound with another of

lesser reactivity, except for those compounds listed in Table 1 of USEPA’s “Recommended Policy on

Control of Volatile Organic Compounds” (42 FR 35314, July 8, 1977).

7.7. All emission reductions claimed as offset credit shall be federally enforceable.

§45-19-8. Location of Emissions Offsets.

8.1. Emissions offsets shall be obtained from sources located as close to the proposed major stationary

or major modified source site as possible. Except for ozone nonattainment areas, these emissions offsets

must be obtained from the same nonattainment area as the proposed major source or major modification.

8.2. The Secretary, by petition, may allow emissions offsets from sources located at greater distances

from the proposed major stationary source or major modification provided that an adequate demonstration

that nearby offsets were investigated and reasonable alternatives which provide a positive net air quality

benefit are not available is submitted by the applicant, subject to the following provisions:

8.2.a X. Emission offsets for VOC or NO will generally be acceptable from sources located within the

same ozone nonattainment area or from other ozone nonattainment areas of equal or higher classification

which can be shown to cause or significantly contribute to the ozone problem at the proposed new or

modified source location; and

8.2.b 2. Emission offsets for sources of sulfur dioxide (SO ), and total suspended particulate (TSP),

should be obtained from an existing or shutdown facility, on the same premises or in the immediate vicinity

24
45CSR19

of the proposed source.

8.3. If such allowance is granted, as provided for in subsection 8.2, the Secretary may increase the ratio

of the required offsets for such source.

8.4. In order to ensure that the emission offsets will provide a positive net air quality benefit, the

Secretary may performthe necessary analysis or require the applicant to submit appropriate modeling results

for review.

8.5. The appropriate modeling referred to in subsection 8.4 is as follows:

8.5.a 2. For SO and TSP, the source's allowable emissionsshould be used in an atmospheric simulation

model to ensure that the emission offsets provide a positive net air quality benefit. It may, however, be

assumed that if the emission offsets are obtained from an existing or shutdown source on the same premises

or in the immediate vicinity of the proposed major stationary source or major modification and the pollutants

disperse from substantially the same effective stack height, the air quality test of subdivision 4.1.d will be

met without the necessity of modeling. Thus, when stack emissions are offset against a ground level source

at the same time, modeling would be required.

8.5.b. Atmospheric simulation modeling for ozone impacts is not necessary for volatile organic

compounds and NOX. For such pollutants, meeting the requirements of subdivisions 4.1.c and 8.2.a will be

adequate.

8.5.c X. Proposed sources of VOC or NO locating in a designated nonattainment area for ozone shall

be subject to the provisions of section 4.

8.5.d X. Proposed VOC or NO sources locating within thirty-six (36) hours travel time (under wind

conditions associated with concentrations exceeding the NAAQS for ozone) of a nonattainment monitor are

subject to section 4.

8.6. Credit for an emissions reduction can be claimed to the extent that the Secretary has not relied on

it in issuing any permit under 45CSR14 or 45CSR19 and the Secretary has not relied on it in a demonstration

of attainment or reasonable further progress.

8.7. The total amount of increased emissions, in tons per year, resulting froma major modification that

must be offset shall be determined by summing the difference between the allowable emissions after the

modification and the actual emissions before the modification for each emissions unit.

§45-19-9. Administrative Procedures for Emission Offset Proposals.

9.1. Emission offsets may be proposed by the applicant for the proposed major stationary source or

major modification, the local community or the Secretary.

9.1.a. The emission offsets committed to must be accomplished by the applicant's proposed start-up

date, except when such proposed source is a replacement for a source that is being shut down in order to

provide the necessary benefits; in such cases the Secretary may allow up to one hundred eighty (180) days

for shakedown of the new source before the existing source is required to cease operation. Such an

allowance must be requested by the applicant and contained, if granted, within the construction permit.

25
45CSR19

9.1.b. If the emission reductions which are to be used as offset credit for a proposed major stationary

source or major modification are to be obtained in a State that neighbors West Virginia, or from another

source at another site not controlled by the applicant, the offsets committed to must be embodied in a USEPA

approved State Implementation Plan revision in the neighboring State and must be federally enforceable and

enforceable by both such neighboring State and the Secretary and at all participating sources.

9.2. The applicant may propose emission offsets which involve:

9.2.a. Reductions from sources controlled by the applicant; or

9.2.b. Reductions from neighboring sources not controlled by the applicant.

9.3. A state or local community which desires that a major stationary source or major modification

locate in its area may commit to reducing emissions from existing sources to sufficiently offset the impact

of such proposed source.

9.4. Any emission offset proposal described in subsection 9.2 must be embodied either in the applicant's

permit application and permit if such offsets are directly controlled by the applicant or if from neighboring

sources located in the State not controlled by the applicant, in a consent order as provided in W. Va. Code

§22-5-5, which such consent ordershall be submitted to the USEPA for inclusion in the State Implementation

Plan.

§45-19-10. [Reserved.]

§45-19-11. [Reserved.]

§45-19-12. Reasonable Further Progress.

12.1. By the time the proposed major source or major modification isto commence operation, sufficient

offsetting emissionsreductionsshall be in effectsuch that the total allowable emissionsfromexisting sources

in the area, from new or modified sources which are not major sources and from the proposed source will

be sufficiently less than total emissions from existing sources prior to the application for the permit to

construct or modify so as to represent, when considered together with the plan provisions required under

section 172 of the act (42 USC 7502), reasonable further progress.

12.2. For the purposes of satisfying the requirements of subsection 12.1:

12.2.a. The determination of total emissions at both the time prior to the application for a permit

subject to the requirements of this chapter and the time the permitted source or modification would

commence operation, shall be made in a manner consistent with the assumptions in the applicable state

implementation plan approved by the administrator concerning baseline emissions for the demonstration of

reasonable further progress and attainment of the National Ambient Air Quality Standards for the particular

pollutant subject to review under this chapter; and

12.2.b. To demonstrate reasonable further progress a new or modified source subject to review

under this rule shall obtain offsets in an amount equal to or greater than the amount specified by the

applicable offset ratio. If an offset ratio is not specified, the offset ratio shall be at least 1 to 1.

26
45CSR19

§45-19-13. Source Impact Analysis.

13.1. The applicant for a preconstruction permit shall demonstrate to the satisfaction of the Secretary

that all of the following conditions are met:

13.1.a. The emissions offsets required under subdivision 4.1.c, when considered in conjunction with

the proposed emissions increase, will have a net air quality benefit in the affected area, as required under

subdivision 4.1.d;

13.1.b. The emissionsfromthe proposed new major source or major modification, when considered

in conjunction with the emissions offsets required under section 4, will not contribute to nonattainment in,

or interfere with maintenance by, any other state with respect to any national primary or secondary ambient

air quality standard;

13.1.c. The emissionsfromthe proposed new major source or major modification, when considered

in conjunction with the emissions offsets required under section 4, will not interfere with measures required

to be included in the applicable implementation plan for any other state under a program for the prevention

of significant deterioration or for the protection of visibility; and

13.1.d. An analysis of alternative sites, sizes, production processes, and environmental control

techniques for the proposed source demonstrates the benefits of the proposed source significantly outweigh

the environmental and social costs imposed as a result of its location, construction or modification.

§45-19-14. Permit Requirements for Major Stationary Sources and Major Modifications.

14.1. Permit Application.

14.1.a. No person shall cause, suffer, allow, or permit the construction or relocation of any major

stationary source or a major modification to be commenced in any area designated as nonattainment under

§107 of the CAA, without notifying the Secretary of such intent, and obtaining prior to commencement of

construction, modification, or relocation, a permit(s) to so construct, modify or relocate the major stationary

source or major modification.

14.1.b. No person shall cause, suffer, allow or permit the construction or relocation of any major

stationary source or major modification to be commenced anywhere in the state, ifthe emissions would cause

a violation of a NAAQS or would cause a significant impact on air quality in a designated nonattainment

area, without notifying the Secretary of such intent and obtaining, prior to commencement of construction,

modification or relocation, all necessary preconstruction approvals or permits to so construct, modify or

relocate the major stationary source or major modification.

14.2. The owner or operator of the source shall file with the Secretary a timely and complete permit

application containing sufficient information as, in the judgement of the Secretary, will enable the Secretary

to determine whether such source construction, modification or relocation will be in conformance with the

provisions of any rules promulgated by the Secretary and with the requirements of this rule. Such

information may include, but not be limited to:

14.2.a. A description of the nature, location, design capacity and typical operating schedule of the

source or modification, including specifications and drawings showing its design and plant layout;

27
45CSR19

14.2.b. A detailed schedule for construction of the source or modification;

14.2.c. A detailed description as to what system of continuous emission reduction is planned by the

source or modification, emission estimates, and any other information as necessary to determine that the

requirement for lowest achievable emission rate as applicable would be met;

14.2.d. The air quality impact of the source or modification, including meteorological and

topographical data necessary to estimate such impact; and

14.2.e. A detailed description of any emission offsets proposed by the applicant.

14.3. Each permit application shall be signed by the owner or operator of the major stationary source or

major modification, and such signature shall constitute an agreement that the applicant will assume

responsibility for the construction, modification, or relocation, and operation of the major stationary source

or major modification in accordance with applicable rules and regulations of the Secretary, the permit

application and any permit issued pursuant to this rule.

14.4. Permit Review.

14.4.a. Within thirty (30) days of the receipt of a permit application for construction or relocation

of a major stationary source or for a major modification, the Secretary shall determine if the application is

complete or if there exists any deficiency in the application or information submitted, and shall notify the

applicant of all such deficiencies, if any. In the event of such a deficiency, the date of receipt of the

application shall be the date on which the Secretary received all required information.

14.4.b. After completing the review of a complete application, the Secretary shall make a

preliminary determination whether a permit should be approved, approved with conditions or disapproved.

14.4.c. After the public participation requirements specified in section 15 have been satisfied, the

Secretary shall notify the applicant in writing of the final determination.

14.5. Permit Issuance or Denial.

14.5.a. Within six (6) months of the receipt of a complete permit application for construction or

relocation of a major stationary source or for a major modification, the Secretary shall issue such a permit

unless the Secretary determines that the proposed major stationary source or major modification has not

satisfied the requirements of this rule, will violate applicable emission standards, will interfere with the

attainment or maintenance of applicable ambient air quality standards, or will be inconsistent with the intent

and purpose of this rule, in which case the Secretary shall issue an order for the prevention of such

construction, modification, or relocation.

14.5.b. If the Secretary denies a permit application for the proposed construction or relocation of

any major stationary source or major modification, the order shall set forth the Secretary's reasons with

reasonable specificity.

14.6. ReasonableConditions. --The Secretary may impose any reasonable conditions as part of a granted

construction, modification or relocation permit. Such conditions may include, but not be limited to, the

submission of periodic progress or operation reports, the provisions of a suitable sampling site, the

28
45CSR19

installation of pollutant monitoring devices, and the operation and maintenance of ambient air quality

monitoring stations.

§45-19-15. Public Review Procedures.

15.1. At the time that an application for a construction or modification is filed, the applicant shall also

place a Class I legal advertisement in a newspaper of general circulation in the area where the source is or

will be located. No such permit shall be issued to any applicant until at least thirty (30) days notice has been

provided to the public. The advertisement shall contain at a minimum, the name of the applicant, the type

and location of the source, the type and amount of air pollutants that will be discharged, the nature of the

permit being sought, the proposed start-up date for the source and a contact telephone number for more

information.

15.2. The Secretary shall make available in at least one location in the region in which the proposed

source would be constructed a copy of all materials the applicant submitted (excluding data entitled to

protection as confidential information under the Code and any rules pursuant thereto), a copy of the

preliminary determination, and a copy or summary of other materials, if any, considered in making the

preliminary determination.

15.3. The Secretary shall place a Class I legal advertisement in a paper of general circulation in the area

where the proposed source would be constructed, modified, or relocated. The advertisement shall contain,

as a minimum, the name of the applicant, the type and location of the source, the proposed start-up date, the

preliminary determination, notification of the opportunity for written public comment, provisions for

requesting a public meeting, details concerning the time and place of such a meeting if one has already been

scheduled, and notification of the opportunity for comment at a public meeting if such meeting is to be

conducted. A public comment period of thirty (30) days shall be provided and so stated in the advertisement.

15.4. The Secretary shall send a copy of the advertisement to the applicant, to USEPA, and to officials

and agencies having cognizance over the location where the proposed construction would occur as follows:

any other State or local air pollution control agencies, the chief executives of the city and county where the

source would be located; any comprehensive regional land use planning agency, any State, and any Federal

Land Manager, whose lands may be affected by emissions from the source or modification.

15.5. Public comments submitted within thirty (30) days after the Secretary’s public notification of an

opportunity for comment upon a proposed construction or relocation of a major stationary source or major

modification and comments submitted within a specified period not to exceed fifteen (15) days after any

public meeting to receive comment on such proposed construction, modification, or relocation shall be

considered by the Secretary before making a final decision on the approvability of the application. The

Secretary shall make copies of all comments available for public inspection in the same locations where the

Secretary made available preconstruction information relating to the proposed source or modification.

15.6. The Secretary shallmake a final determination whether construction should be approved, approved

with conditions, or disapproved.

15.7. The Secretary shall notify the applicant in writing of the final determination and make a copy of

such notification available for public inspection at the same location where the Secretary made available

preconstruction information and public comments relating to the proposed source or modification.

29
45CSR19

§45-19-16. Public Meetings.

16.1. Public meetings to receive comments on permit applications shall be held when the Secretary

deems it appropriate or when substantial interest is expressed, in writing, by persons who might reasonably

be expected to be affected by the proposed major source or major modification.

16.2. The Secretary or the Secretary 's designee shall preside over such meetings and ensure that all

interested parties have ample opportunity to present comments. Such meetings shall be held at a convenient

place as near as practicable to the location of the proposed major source or major modification.

16.3. At a reasonable time prior to such meetings, the Secretary shall provide appropriate information

to news media in the area where the proposed source or modification is to be located.

§45-19-17. Permit Transfer, Cancellation and Responsibility.

17.1. Permit Transfer. -- A permittee may petition the Secretary for a transfer of a permit previously

issued under 45CSR19. The Secretary shall approve such permit transfer provided the following conditions

are met:

17.1.a. The permittee, in the petition, describes the reasons for the requested permit transfer and

certifies that the subject source is in compliance with all the provisions and requirements of its permit, and

17.1.b. The transferee provides written acknowledgment that it accepts and will comply with all the

requirements, terms, and conditions as contained in the subject permit.

17.2. Permit Cancellation.

17.2.a. The Secretary shall cancel or suspend a permit if, after eighteen (18) months from the date

of issuance the holder of the permit cannot provide the Secretary, at the Secretary’s request, with written

proof of a good faith effort that such construction, modification or relocation has commenced and remains

ongoing. Such proof shall be provided not later than thirty (30) days after the Secretary’s request.

17.2.b. The Secretary may cancel or suspend the permit if the plans and specifications upon which

the approval was based or the conditions established in the permit are not adhered to. Upon notice of the

Secretary’s intent to suspend, modify or revoke a permit, the permit holder may request a conference with

the Secretary in accordance with the provisions of W.Va. Code §22-5-5 to show cause why the permitshould

not be suspended, modified or revoked.

17.3. Responsibility.

17.3.a. Possession of a permit does not relieve any person of the responsibility of complying with

any and all rules of the Secretary or W.Va. Code §22-1-1 et seq. and any other requirements under local,

State or Federal law.

17.3.b. A source which has not operated at least five hundred (500) hours in one 12-month period

within the past previous five-year time period may be considered permanently shutdown, unlesssuch source

can provide to the Secretary, with reasonable specificity, information to the contrary. All permits may be

modified or revoked and/or reapplication or application for new permits may be required for any source

30
45CSR19

determined to be permanently shutdown.

17.3.c. Any person who owns or operates any particular source or modification which becomes a

major stationary source or major modification solely by virtue of a relaxation in any limitation, enforceable

by the Administrator or the Secretary, on the capacity of the source or modification otherwise to emit a

pollutant (such as a restriction on hours of operation), shall become subject to the requirements of this rule

as though construction had not yet commenced on the source or modification.

17.3.d. Any owner or operator who constructs, modifies or operates a stationary source not in

accordance with the permit application submitted or with the terms of any approval to construct, or any

owner or operator of a stationary source or modification subject to this rule who commences construction

without applying for and receiving permit approval from the Secretary, shall be subject to appropriate

enforcement action in accordance with the W.Va. Code.

17.4. Except as otherwise provided in subdivision 17.4.f, the following specific provisions apply with

respect to any regulated NSR pollutant emitted fromprojects at existing emissions units at a major stationary

source, other than projects at a source with a PAL, in circumstances where there is a reasonable possibility,

within the meaning of subdivision 17.4.f, that a project that is not a part of a major modification may result

in a significant emissions increase of such pollutant, and the owner or operator elects to use the method

specified in subdivisions 2.59.a through 2.59.c for calculating projected actual emissions:

17.4.a. Before beginning actual construction of the project, the owner or operator shall document

and maintain a record of all of the following:

17.4.a.1. A description of the project;

17.4.a.2. Identification of the emissions unit or units whose emissions of a regulated NSR air

pollutant could be affected by the project; and

17.4.a.3. A description of the applicability test used to determine that the project is not a major

modification for any regulated NSR air pollutant, including the baseline actual emissions, the projected

actual emissions, the amount of emissions excluded under subdivision 2.59.c and an explanation why the

amount was excluded, and any netting calculations, if applicable;

17.4.b. If the emissions unit is an existing electric utility steam generating unit, before beginning

actual construction, the owner or operatorshall provide a copy of the information required under subdivision

17.4.a to the Secretary. Nothing in this subdivision shall be construed to require the owner or operator of

the a unit to obtain any determination from the department before beginning actual construction.

17.4.c. The owner or operatorshallmonitor the emissions of any regulated NSR pollutant that could

increase as a result of the project and that is emitted by any emissions unit identified in subdivision 17.4.b. 

The owner or operator shall calculate and maintain a record of the annual emissions, in tons per year on a

calendar year basis, for a period of 5 years following resumption of regular operations after the change, or

for a period of 10 years following resumption of regular operations after the change if the project increases

the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit.

17.4.d. If the emissions unit is an existing electric utility steam generating unit, the owner or

operator shall submit a report to the Secretary within 60 days after the end of each year during which records

31
45CSR19

must be generated under subdivision 17.4.c setting out the unit’s annual emissions during the calendar year

that preceded submission of the report.

17.4.e. If the emissions unit is an existing unit other than an electric utility steam generating unit,

the owner or operator shall submit a report to the department if the annual emissions, in tons per year, from

the project identified in subdivision 17.4.a, exceed the baseline actual emissions, as documented and

maintained pursuant to subdivision 17.4.c, by a significant amount for that regulated NSR air pollutant, and

if the emissions differ from the preconstruction projection that was provided to the department pursuant to

subdivision 17.4.b. The report shall be submitted to the Secretary within 60 days after the end of the year. 

The report shall contain the following information:

17.4.e.1. The name, address and telephone number of the major stationary source;

17.4.e.2. The annual emissions as calculated pursuant to paragraph 17.4.a.3; and

17.4.e.3. Any other information that the owner or operator wishes to include in the report, e.g., an

explanation as to why the emissions differ from the preconstruction projection.

17.4.f. A “reasonable possibility” under subsection 17.4 occurs when the owner or operator

calculates the project to result in either:

17.4.f.1. A projected actual emissions increase of at least 50 percent of the amount that is a

“significant emissions increase,” as defined under subsection 2.67 (without reference to the amount that is

a significant net emissions increase), for the regulated NSR pollutant; or

17.4.f.2. A projected actual emissions increase that, added to the amount of emissions excluded

under subdivision 2.59.c, sums to at least 50 percent of the amount that is a “significant emissions increase,”

as defined under subsection 2.67 (without reference to the amount that is a significant net emissions

increase), for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only

within the meaning of this paragraph, and not also within the meaning of paragraph 17.4.f.1, then provisions

under subdivisions 17.4.b through 17.4.e do not apply to the project.

17.5. The owner or operator of the source shall make the information required to be documented and

maintained pursuant to subsection 17.4 available for review upon request for inspection by the Secretary or

the public.

17.6. The requirements of this rule applicable to major stationary sources and major modifications of

volatile organic compounds shall apply to nitrogen oxides emissionsfrommajor stationary sources andmajor

modifications of nitrogen oxides in an ozone transport region or in any ozone nonattainment area, except in

ozone nonattainment areas or in portions of an ozone transport region where the Administrator has granted

a NOX waiver applying the standards set forth under section 182(f) of the CAA and the waiver continues to

apply.

17.7. Emission Offset Ratios.

17.7.a. In meeting the emissions offset requirements of subsection 7.1, the ratio of total actual

emissions reductions to the emissions increase shall be at least 1:1 unless an alternative ratio is provided for

the applicable nonattainment area in subdivisions 17.7.b through 17.7.d.

32
45CSR19

17.7.b. In meeting the emissions offsetrequirements ofsubsection 7.1 for ozone nonattainment areas

that are subject to Title I, Part D, Subpart 2 of the CAA, the ratio of total actual emissionsreductions of VOC

to the emissions increase of VOC shall be as follows:

17.7.b.1. In any marginal nonattainment area for ozone -- at least 1.1:1;

17.7.b.2. In any moderate nonattainment area for ozone -- at least 1.15:1;

17.7.b.3. In any serious nonattainment area for ozone -- at least 1.2:1;

17.7.b.4. In any severe nonattainment area for ozone -- at least 1.3:1 (except that the ratio may be

at least 1.2:1 if the approved plan also requires all existing major sources in such nonattainment area to use

BACT for the control of VOC); and

17.7.b.5. In any extreme nonattainment area for ozone -- at least 1.5:1 (except that the ratio may

be at least 1.2:1 if the approved plan also requires all existing major sources in such nonattainment area to

use BACT for the control of VOC); and

17.7.c. Notwithstanding the requirements of subdivision 17.7.b for meeting the requirements of

subsection 7.1, the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall

be at least 1.15:1 for all areas within an ozone transport region that is subject to Title I, Part D, Subpart 2 of

the CAA, except for serious, severe, and extreme ozone nonattainment areas that are subject to Title I, Part

D, Subpart 2 of the CAA.

17.7.d. In meeting the emissions offsetrequirements ofsubsection 7.1 for ozone nonattainment areas

that are subject to Title I, Part D, Subpart 1 of the CAA (but are not subject to Title I, Part D, Subpart 2 of

the CAA, including 8-hour ozone nonattainment areas subject to 40 CFR 51.902(b)), the ratio of total actual

emissions reductions of VOC to the emissions increase of VOC shall be at least 1:1.

17.8. The requirements of this rule applicable to major stationary sources and major modifications of

PM10 10shall also apply to major stationary sources and major modifications of PM precursors, except where

10

the Administrator determines that such sources do not contribute significantly to PM levels that exceed the

PM10 ambient standards in the area.

17.9. In meeting the emissions offset requirements of section 7, the emissions offsets obtained shall be

for the same regulated NSR pollutant unless interprecursor offsetting is permitted for a particular pollutant

as 2.5specified in this subsection. The offset requirements in section 7 for direct PM emissions or emissions

of precur 2.5 2.5sors of PM may be satisfied by offsetting reductionsin direct PM emissions or emissions of any

PM2.5 precursor identified under subdivision 2.61.c if such offsets comply with the following interprecursor

trading ratios:

17.9 X 2.5 X 2.5.a. NO to primary PM -- 200 tons of NO for 1 ton of PM ; and 

17.9 2 2.5 2 2.5.b. SO to primary PM -- 40 tons of SO for 1 ton of PM .

§45-19-18. Disposition of Permits.

18.1. In the event that the Secretary promulgates revisions to this rule, or in the event of a redesignation

33
45CSR19

of an attainment or non-attainment area (in accordance with section §107 of the CAA) prior to final

disposition of a permit, the Secretary shall make final disposition of the permit application in accordance

with such newly promulgated standards or redesignation.

§45-19-19. Requirements for Air Quality Models.

19.1. All estimates of ambient concentrations required under this rule shall be based on the applicable

air quality models, data bases, and other requirements specified in 40 CFR Part 51, Appendix W (Guideline

on Air Quality Models).

19.2. Where an air quality impact model specified in 40 CFR Part 51, Appendix W (Guideline on Air

Quality Models)isinappropriate, themodel may be modified or another model substituted, provided that said

modification or substitution is approved in writing by the Administrator.

§45-19-20. [Reserved.]

§45-19-21. [Reserved.]

§45-19-22. [Reserved.]

§45-19-23. Actuals PAL.

23.1. Applicability.

23.1.a. The Secretary may approve the use of an actuals PAL for any existing major stationary

source, except as provided in subdivision 23.1.b, if the PAL meets the requirements in subsections 23.1

through 23.15. The term “PAL” shall mean “actuals PAL” throughout section 23.

23.1 X.b. The Secretary shall not allow an actuals PAL for VOC or NO for any major stationary

source located in an extreme ozone nonattainment area.

23.1.c. Any physical change in or change in the method of operation of a major stationary source

that maintains its total source-wide emissions below the PAL level, meets the requirements in subsections

23.1 through 23.15, and complies with the PAL permit:

23.1.c.1. Is not a major modification for the PAL pollutant;

23.1.c.2. Does not have to be approved through the plan's nonattainment major NSR program; and

23.1.c.3. Is notsubject to the provisions in subdivision 17.3.c (restrictions on relaxing enforceable

emission limitations that the major stationary source used to avoid applicability of the nonattainment major

NSR program).

23.1.d. Except as provided under paragraph 23.1.c.3, a major stationary source shall continue to

comply with all applicable Federal or State requirements, emission limitations, and work practice

requirements that were established prior to the effective date of the PAL.

23.2. Definitions.

34
45CSR19

23.2.a. Allowable emissions means “allowable emissions” as defined in subsection 2.4, except as

this definition is modified according to paragraphs 23.2.a.1 through 23.2.a.2.

23.2.a.1. The allowable emissions for any emissions unit shall be calculated considering any

emission limitations that are enforceable as a practical matter on the emissions unit’s potential to emit.

23.2.a.2. An emissions unit’s potential to emit shall be determined using the definition in

subsection 2.55, except that the words “or enforceable as a practical matter” should be added after “federally

enforceable.”

23.3. Permit application requirements. -- As part of a permit application submitted pursuant to 45CSR13

requesting a PAL, the owner or operator of a major stationary source shall submit the following information

to the Secretary for approval:

23.3.a. A list of all emissions units at the source designated as small, significant or major based on

their potential to emit. In addition, the owner or operator of the source shall indicate which, if any, Federal

or State applicable requirements, emission limitations or work practices apply to each unit.

23.3.b. Calculations of the baseline actual emissions, with supporting documentation. Baseline

actual emissions are to include emissions associated not only with operation of the unit, but also emissions

associated with startup, shutdown and malfunction.

23.3.c. The calculation procedures that the major stationary source owner or operator proposes to

use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month

rolling total for each month as required by subdivision 23.11.a.

23.4. General requirements for establishing PALs.

23.4.a. The Secretary may establish a PAL at a major stationary source, provided that at a minimum,

the requirements in paragraphs 23.4.a.1 through 23.4.a.7 are met.

23.4.a.1. The PAL shall impose an annual emission limitation in tons per year, that is enforceable

as a practical matter, for the entire major stationary source. For each month during the PAL effective period

after the first 12 months of establishing a PAL, the major stationary source owner or operator shall show that

the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive

months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11

months from the PAL effective date, the major stationary source owner or operator shall show that the sum

of the preceding monthly emissions from the PAL effective date for each emissions unit under the PAL is

less than the PAL.

23.4.a.2. The PAL shall be established in a PAL permit that meets the public participation

requirements in subsection 23.5.

23.4.a.3. The PAL permit shall contain all the requirements of subsection 23.7.

23.4.a.4. The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions

units that emit or have the potential to emit the PAL pollutant at the major stationary source.

35
45CSR19

23.4.a.5. Each PAL shall regulate emissions of only one pollutant.

23.4.a.6. Each PAL shall have a PAL effective period of 10 years.

23.4.a.7. The owner or operator of the major stationary source with a PAL shall comply with the

monitoring, recordkeeping, and reporting requirements provided in subsections 23.12 through 23.14 for each

emissions unit under the PAL through the PAL effective period.

23.4.b. At no time (during or after the PAL effective period) are emissions reductions of a PAL

pollutant, which occur during the PAL effective period, creditable as decreases for purposes of offsets under

subsections 7.2 through 7.6, 8.1 through 8.2 and 8.6 through 8.9 unless the level of the PAL is reduced by

the amount of such emissionsreductions and such reductions would be creditable in the absence of the PAL.

23.5. Public participation requirement for PALs. -- PALs for existing major stationary sources shall be

established, renewed, or increased through a procedure that is consistent with 40 CFR §§ 51.160 and 51.161. 

The Secretary shall provide the public with notice of the proposed approval of a PAL permit and at least a

30-day period for submittal of public comment. The Secretary must address all material comments before

taking final action on the permit.

23.6. Setting the 10-year actuals PAL level.

23.6.a. Except as provided in subdivision 23.6.b, actuals PAL level for a major stationary source

shall be established as the sum of the baseline actual emissions (as defined in subsection 2.52.) of the PAL

pollutant for each emissions unit at the source; plus an amount equal to the applicable significant level for

the PAL pollutant under subsection 2.66 or under the CAA, whichever is lower. When establishing the

actuals PAL level, for a PAL pollutant, only one consecutive 24-month period must be used to determine the

baseline actual emissionsfor all existing emissions units. However, a different consecutive 24-month period

may be used for each different PAL pollutant. Emissions associated with units that were permanently

shutdown after this 24-month period must be subtracted from the PAL level. Emissionsfrom units on which

actual construction began after the 24-month period must be added to the PAL level in an amount equal to

the potential to emit of the units. The Secretary shall specify a reduced PAL level(s) (in tons/yr) in the PAL

permit to become effective on the future compliance date(s) of any applicable Federal or State regulatory

requirement(s) that the Secretary is aware of prior to issuance of the PAL permit. For instance, if the source

owner or operator will be required to reduce emissionsfromindustrial boilersin half frombaseline emissions

of 60 ppm NOX to a new rule limit of 30 ppm, then the permit shall contain a future effective PAL level that

is equal to the current PAL level reduced by half of the original baseline emissions of such unit(s).

23.6.b. For newly constructed units(which do not include modifications to existing units) on which

actual construction began after the 24-month period, in lieu of adding the baseline actual emissions as

specified in subdivision 23.6.a, the emissions must be added to the PAL level in an amount equal to the

potential to emit of the units.

23.7. Contents of the PAL permit. -- The PAL permit shall contain, at a minimum, the information in

subdivisions 23.7.a through 23.7.j.

23.7.a. The PAL pollutant and the applicable source-wide emission limitation in tons per year.

23.7.b. The PAL permit effective date and the expiration date of the PAL (PAL effective period).

36
45CSR19

23.7.c. Specification in the PAL permit that if a major stationary source owner or operator applies

to renew a PAL in accordance with subsection 23.10 before the end of the PAL effective period, then the

PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a revised PAL

permit is issued by the Secretary.

23.7.d. A requirement that emission calculations for compliance purposes include emissions from

startups, shutdowns and malfunctions.

23.7.e. A requirement that, once the PAL expires, the major stationary source is subject to the

requirements of subsection 23.9.

23.7.f. The calculation procedures that the major stationary source owner or operator shall use to

convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling

total for each month as required by subdivision 23.13.a.

23.7.g. A requirement that themajor stationary source owner or operatormonitor all emissions units

in accordance with the provisions under subsection 23.12.

23.7.h. A requirement to retain the records required under subsection 23.3 on site. Such records may

be retained in an electronic format.

23.7.i. A requirement to submit the reports required under subsection 23.14 by the required

deadlines.

23.7.j. Any other requirements that the Secretary deems necessary to implement and enforce the

PAL.

23.8. PAL effective period and reopening of the PAL permit.

23.8.a. PAL effective period. -- The Secretary shall specify a PAL effective period of 10 years.

23.8.b. Reopening of the PAL permit.

23.8.b.1. During the PAL effective period, the Secretary shall reopen the PAL permit to:

23.8.b.1.A. Correct typographical or calculation errors made in setting the PAL or reflect a

more accurate determination of emissions used to establish the PAL.

23.8.b.1.B. Reduce the PAL if the owner or operator of the major stationary source creates

creditable emissions reductions for use as offsets under subsections 7.2 through 7.6, 8.1 through 8.2 and 8.6

through 8.9.

23.8.b.1.C. Revise the PAL to reflect an increase in the PAL as provided under subsection

23.11.

23.8.b.2. The Secretary may reopen the PAL permit for the following:

23.8.b.2.A. Reduce the PAL to reflect newly applicable Federal requirements (for example,

37
45CSR19

NSPS) with compliance dates after the PAL effective date.

23.8.b.2.B. Reduce the PAL consistent with any other requirement, that is enforceable as a

practical matter, and that the State may impose on the major stationary source under the plan.

23.8.b.2.C. Reduce the PAL if the Secretary determines that a reduction is necessary to avoid

causing or contributing to a NAAQS or PSD increment violation, or to an adverse impact on an air quality

related value that has been identified for a Federal Class I area by a Federal Land Manager and for which

information is available to the general public.

23.8.b.3. Except for the permit reopening in subparagraph 23.8.b.1.A for the correction of

typographical/calculation errors that do not increase the PAL level, all other reopenings shall be carried out

in accordance with the public participation requirements of subsection 23.5.

23.9. Expiration of a PAL. -- Any PAL which is not renewed in accordance with the procedures in

subsection 23.10 shall expire at the end of the PAL effective period, and the requirements in subdivision

23.9.a through 23.9.e shall apply.

23.9.a. Each emissions unit (or each group of emissions units) that existed under the PAL shall

comply with an allowable emission limitation under a revised permit established according to the procedures

in paragraphs 23.9.a.1 through 23.9.a.2.

23.9.a.1. Within the time frame specified for PAL renewals in subdivision 23.10.b, the major

stationary source shall submit a proposed allowable emission limitation for each emissions unit (or each

group of emissions units, if such a distribution is more appropriate as decided by the Secretary) by

distributing the PAL allowable emissions for the major stationary source among each of the emissions units

that existed under the PAL. If the PAL had not yet been adjusted for an applicable requirement that became

effective during the PAL effective period, as required under subdivision 23.10.e, such distribution shall be

made as if the PAL had been adjusted.

23.9.a.2. The Secretary shall decide whether and how the PAL allowable emissions will be

distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group

of emissions units, as the Secretary determines is appropriate.

23.9.b. Each emissions unit(s) shall comply with the allowable emission limitation on a 12-month

rolling basis. The Secretary may approve the use of monitoring systems (source testing, emission factors,

etc.) other than CEMS, CERMS, PEMS or CPMS to demonstrate compliance with the allowable emission

limitation.

23.9.c. Until the Secretary issues the revised permit incorporating allowable limits for each

emissions unit, or each group of emissions units, as required under paragraph 23.9.a.1, the source shall

continue to comply with a source-wide, multi-unit emissions cap equivalent to the level of the PAL emission

limitation.

23.9.d. Any physical change or change in themethod of operation at themajor stationary source will

be subject to the nonattainment major NSR requirements if such change meets the definition of major

modification in subdivision 2.33.

23.9.e. The major stationary source owner or operator shall continue to comply with any State or

38
45CSR19

Federal applicable requirements (BACT, RACT, NSPS, etc.) that may have applied either during the PAL

effective period or prior to the PAL effective period except for those emission limitations that had been

established pursuant to subdivision 17.3.c, but were eliminated by the PAL in accordance with the provisions

in paragraph 23.1.c.3.

23.10. Renewal of a PAL.

23.10.a. The Secretary shall follow the procedures specified in subsection 23.5 in approving any

request to renew a PAL for a major stationary source, and shall provide both the proposed PAL level and a

written rationale for the proposed PAL level to the public for review and comment. During such public

review, any person may propose a PAL level for the source for consideration by the Secretary.

23.10.b. Application deadline. -- The owner or operator of a major stationary source shall submit a

timely application to the Secretary to request renewal of a PAL. A timely application is one that issubmitted

at least 6 months prior to, but not earlier than 18 months from, the date of permit expiration. This deadline

for application submittal is to ensure that the permit will not expire before the permit is renewed. If the

owner or operator of a major stationary source submits a complete application to renew the PAL within this

time period, then the PAL shall continue to be effective until the revised permit with the renewed PAL is

issued.

23.10.c. Application requirements. -- The application to renew a PAL permit shall contain the

information required in paragraphs 23.10.c.1 through 23.10.c.4.

23.10.c.1. The information required in subdivisions 23.3.a through 23.3.c.

23.10.c.2. A proposed PAL level.

23.10.c.3. The sum of the potential to emit of all emissions units under the PAL (with supporting

documentation).

23.10.c.4. Any other information the owner or operator wishes the Secretary to consider in

determining the appropriate level for renewing the PAL.

23.10.d. PAL adjustment. -- In determining whether and how to adjust the PAL, the Secretary shall

consider the options outlined in paragraphs 23.10.d.1 and 23.10.d.2. However, in no case may any such

adjustment fail to comply with paragraph 23.10.d.3.

23.10.d.1. If the emissions level calculated in accordance with subsection 23.6 is equal to or

greater than 80 percent of the PAL level, the Secretary may renew the PAL at the same level without

considering the factors set forth in paragraph 23.10.d.2.; or 

23.10.d.2. The Secretary may set the PAL at a level that it determines to be more representative

of the source's baseline actual emissions, or that it determines to be appropriate considering air quality needs,

advances in control technology, anticipated economic growth in the area, desire to reward or encourage the

source's voluntary emissions reductions, or other factors as specifically identified by the Secretary in its

written rationale.

23.10.d.3. Notwithstanding paragraphs 23.10.d.1 and 23.10.d.2,

39
45CSR19

23.10.d.3.A. If the potential to emit of the major stationary source is less than the PAL, the

Secretary shall adjust the PAL to a level no greater than the potential to emit of the source; and

23.10.d.3.B. The Secretary shall not approve a renewed PAL level higherthan the current PAL,

unless the major stationary source has complied with the provisions of subsection 23.11 (increasing a PAL).

23.10.e. If the compliance date for a State or Federal requirement that applies to the PAL source

occurs during the PAL effective period, and if the Secretary has not already adjusted for such requirement,

the PAL shall be adjusted at the time of PAL permit renewal or title V permit renewal, whichever occurs

first.

23.11. Increasing a PAL during the PAL effective period.

23.11.a. The Secretary may increase a PAL emission limitation only if the major stationary source

complies with the provisions in paragraphs 23.11.a.1 through 23.11.a.4.

23.11.a.1. The owner or operator of the major stationary source shall submit a complete

application to request an increase in the PAL limit for a PAL major modification. Such application shall

identify the emissions unit(s) contributing to the increase in emissions so as to cause the major stationary

source's emissions to equal or exceed its PAL.

23.11.a.2. As part of this application, the major stationary source owner or operator shall

demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of the

baseline actual emissions of the significant and major emissions units assuming application of BACT

equivalent controls, plus the sum of the allowable emissions of the new or modified emissions unit(s)

exceeds the PAL. The level of control that would result from BACT equivalent controls on each significant

or major emissions unit shall be determined by conducting a new BACT analysis at the time the application

is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement

that was established within the preceding 10 years. In such a case, the assumed control level for that

emissions unit shall be equal to the level of BACT or LAER with which that emissions unit must currently

comply.

23.11.a.3. The owner or operator obtains a major NSR permit for all emissions unit(s) identified

in paragraph 23.11.a.1, regardless of the magnitude of the emissions increase resulting from them (that is,

no significant levels apply). These emissions unit(s)shall comply with any emissionsrequirements resulting

from the nonattainment major NSR program process (for example, LAER), even though they have also

become subject to the PAL or continue to be subject to the PAL.

23.11.a.4. The PAL permit shall require that the increased PAL level shall be effective on the

day any emissions unit that is part of the PAL major modification becomes operational and begins to emit

the PAL pollutant.

23.11.b. The Secretary shall calculate the new PAL as the sum of the allowable emissions for each

modified or new emissions unit, plus the sum of the baseline actual emissions of the significant and major

emissions units (assuming application of BACT equivalent controls as determined in accordance with

paragraph 23.11.a.2), plus the sum of the baseline actual emissions of the small emissions units.

23.11.c. The PAL permit shall be revised to reflect the increased PAL level pursuant to the public

40
45CSR19

notice requirements of subsection 23.5.

23.12. Monitoring requirements for PALs.

23.12.a. General requirements.

23.12.a.1. Each PAL permit must contain enforceable requirements for the monitoring system

that accurately determines plantwide emissions of the PAL pollutant in terms of mass per unit of time. Any

monitoring system authorized for use in the PAL permit must be based on sound science and meet generally

acceptable scientific procedures for data quality and manipulation. Additionally, the information generated

by such system must meet minimum legal requirements for admissibility in a judicial proceeding to enforce

the PAL permit.

23.12.a.2. The PAL monitoring systemmust employ one or more of the four general monitoring

approaches meeting the minimum requirements set forth in paragraphs 23.12.b.1 through 23.12.b.4 and must

be approved by the Secretary.

23.12.a.3. Notwithstanding paragraph 23.12.a.2, you may also employ an alternative monitoring

approach that meets paragraph 23.12.a.1 if approved by the Secretary.

23.12.a.4. Failure to use a monitoring systemthat meets the requirements of this rule rendersthe

PAL invalid.

23.12.b. MinimumPerformanceRequirementsfor Approved Monitoring Approaches. The following

are acceptable general monitoring approaches when conducted in accordancewith the minimumrequirements

in subdivisions 23.12.c through 23.12.i:

23.12.b.1. Mass balance calculations for activities using coatings or solvents;

23.12.b.2. CEMS;

23.12.b.3. CPMS or PEMS; and 

23.12.b.4. Emission Factors.

23.12.c. Mass Balance Calculations. An owner or operator using mass balance calculations to

monitor PAL pollutant emissions from activities using coating or solvents shall meet the following

requirements:

23.12.c.1. Provide a demonstrated means of validating the published content of the PAL

pollutant that is contained in or created by all materials used in or at the emissions unit;

23.12.c.2. Assume that the emissions unit emits all of the PAL pollutant that is contained in or

created by any raw material or fuel used in or at the emissions unit, if it cannot otherwise be accounted for

in the process; and

23.12.c.3. Where the vendor of a material or fuel, which is used in or at the emissions unit,

publishes a range of pollutant content from such material, the owner or operator must use the highest value

41
45CSR19

of the range to calculate the PAL pollutant emissions unless the Secretary determines there is site-specific

data or a site-specific monitoring program to support another content within the range.

23.12.d. CEMS. An owner or operator using CEMS to monitor PAL pollutant emissions shall meet

the following requirements:

23.12.d.1. CEMSmust complywith applicable Performance Specifications found in 40 CFRPart

60, appendix B; and

23.12.d.2. CEMS must sample, analyze and record data at least every 15 minutes while the

emissions unit is operating.

23.12.e. CPMS or PEMS. An owner or operator using CPMS or PEMS to monitor PAL pollutant

emissions shall meet the following requirements:

23.12.e.1. The CPMS or the PEMS must be based on current site-specific data demonstrating

a correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of

operation of the emissions unit; and

23.12.e.2. Each CPMS or PEMS mustsample, analyze, and record data at least every 15 minutes,

or at another less frequent interval approved by the Secretary while the emissions unit is operating.

23.12.f. Emission factors. An owner or operator using emission factors to monitor PAL pollutant

emissions shall meet the following requirements:

23.12.f.1. All emission factors shall be adjusted, if appropriate, to account for the degree of

uncertainty or limitations in the factors' development;

23.12.f.2. The emissions unit shall operate within the designated range of use for the emission

factor, if applicable; and

23.12.f.3. If technically practicable, the owner or operator of a significant emissions unit that

relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to

determine a site-specific emission factor within 6 months of PAL permit issuance, unless the Secretary

determines that testing is not required.

23.12.g. A source owner or operator must record and report maximum potential emissions without

considering enforceable emission limitations or operational restrictions for an emissions unit during any

period of time that there is no monitoring data, unless another method for determining emissions during such

periods is specified in the PAL permit.

23.12.h. Notwithstanding the requirements in subdivisions 23.12.c through 23.12.g, where an owner

or operator of an emissions unit cannot demonstrate a correlation between the monitored parameter(s) and

the PAL pollutant emissions rate at all operating points of the emissions unit, the Secretary shall, at the time

of permit issuance:

23.12.h.1. Establish default value(s) for determining compliance with the PAL based on the

highest potential emissions reasonably estimated at such operating point(s); or

42
45CSR19

23.12.h.2. Determine that operation of the emissions unit during operatingconditionswhen there

is no correlation between monitored parameter(s) and the PAL pollutant emissionsis a violation of the PAL.

23.12.i. Re-validation. All data used to establish the PAL pollutant must be re-validated through

performance testing or other scientifically valid means approved by the Secretary. Such testing must occur

at least once every 5 years after issuance of the PAL.

23.13. Recordkeeping requirements.

23.13.a. The PAL permit shall require an owner or operator to retain a copy of all records necessary

to determine compliance with any requirement of section 23 and of the PAL, including a determination of

each emissions unit’s 12-month rolling total emissions, for 5 years from the date of such record.

23.13.b. The PAL permitshall require an owner or operator to retain a copy of the following records

for the duration of the PAL effective period plus 5 years:

23.13.b.1. A copy of the PAL permit application and any applications for revisions to the PAL;

and

23.13.b.2. Each annual certification of compliance pursuant to title V and the data relied on in

certifying the compliance.

23.14. Reporting and notification requirements. -- The owner or operator shall submit semi-annual

monitoring reports and prompt deviation reports to the Secretary in accordance with the applicable title V

operating permit program. The reports shall meet the requirements in subdivisions 23.14.a through 23.14.c.

23.14.a. Semi-Annual Report. -- The semi-annual report shall be submitted to the Secretary within

30 days of the end of each reporting period. Thisreport shall contain the information required in paragraphs

23.14.a.1 through 23.14.a.7.

23.14.a.1. The identification of owner and operator and the permit number.

23.14.a.2. Total annual emissions (tons/year) based on a 12-month rolling total for each month

in the reporting period recorded pursuant to subdivision 23.13.a.

23.14.a.3. All data relied upon, including, but not limited to, any Quality Assurance or Quality

Control data, in calculating the monthly and annual PAL pollutant emissions.

23.14.a.4. A list of any emissions units modified or added to the major stationary source during

the preceding 6-month period.

23.14.a.5. The number, duration, and cause of any deviations or monitoring malfunctions, other

than the time associated with zero and span calibration checks, and any corrective action taken.

23.14.a.6. A notification of a shutdown of any monitoring system, whether the shutdown was

permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will

be fully operational or replaced with another monitoring system, and whether the emissions unit monitored

by the monitoring system continued to operate, and the calculation of the emissions of the pollutant or the

43
45CSR19

number determined by method included in the permit, as provided by subdivision 23.12.g.

23.14.a.7. A signed statement by the responsible official (as defined by the applicable title V

operating permit program) certifying the truth, accuracy, and completeness of the information provided in

the report.

23.14.b. Deviation report. -- The major stationary source owner or operator shall promptly submit

reports of any deviations or exceedance of the PAL requirements, including periods where no monitoring

is available. A report submitted pursuant to 45CSR30-5.1.c.3 shall satisfy this reporting requirement. The

deviation reportsshall be submitted within the time limits prescribed by 45CSR30-5.1.c.3. The reportsshall

contain the following information:

23.14.b.1. The identification of owner and operator and the permit number;

23.14.b.2. The PAL requirement that experienced the deviation or that was exceeded;

23.14.b.3. Emissions resulting from the deviation or the exceedance; and

23.14.b.4. A signed statement by the responsible official (as defined by 45CSR30) certifying the

truth, accuracy, and completeness of the information provided in the report.

23.14.c. Re-validation results. -- The owner or operator shall submit to the Secretary the results of

any re-validation test or method within 3 months after completion of such test or method.

23.15. Transition requirements.

23.15.a. The Secretary shall not issue a PAL that does not comply with the requirements in

subsections 23.1 through 23.15 after the Administrator has approved regulations incorporating these

requirements into the WV State Implementation Plan (SIP).

23.15.b. The Secretary may supersede any PAL which was established prior to the date of approval

of this rule by the Administrator with a PAL that complies with the requirements of subsections 23.1 through

23.15.

§45-19-24. Conflict with Other Permitting Rules.

24.1. For sources required to obtain a permit under this rule, the provisions of 45CSR13 and 45CSR14

requiring a permit do not apply, so that only a single permit is required; provided however, that:

24.1.a. The base permit application fee of $1,000 pursuant to 45CSR22, subdivision 3.4.a shall

apply to such sources in addition to other applicable fees; and

24.1.b. Any permit issued under this rule includes conditions that ensure compliance with the

provisions of 45CSR13 and 45CSR19 to the extent applicable to any regulated NSR pollutant not otherwise

covered under this rule.

24.2. For sources that may be subject to 45CSR13, 45CSR14 and/or 45CSR19, the more stringent

provisions of each applicable rule shall apply.

44
45CSR19

§45-19-25. Inconsistency Between Rules.

25.1. In the event of any inconsistency between this rule and any other rule of the West Virginia

Department of Environmental Protection, such inconsistency shall be resolved by the determination of the

Secretary and such determination shall be based upon the application of the more stringent provision, term,

condition, method or rule.

45
APPENDIX B

FISCAL NOTE FOR PROPOSED RULES

Rule Title: 45CSR19 – “Permits for Construction and Major Modification of Major 

Stationary Sources of Air Pollution Which Cause or Contribute to 

Nonattainment ” 

Type of Rule: X Legislative Interpretive Procedural 

Agency: Division of Air Quality 

Address: 601 57th Street SE 

 Charleston, WV 2530 4 

Phone Number: (304)926-047 Email: tammy.l.mowrer@wv.gov

Fiscal Note Summary 

Summarize in a clear and concise manner what impact this measure 

will have on costs and revenues of state government. 

No impact above that resulting from currently applicable federal emission standards.

Fiscal Note Detail

Show over-all effect in Item 1 and 2 and, in Item 3, give an explanation of 

Breakdown by fiscal year, including long-range effect. 

FISCAL YEAR 

Effect of Proposal 

2011 

Increase/Decrease 

(use "-") 

2012 

Increase/Decrease 

(use "-") 

Fiscal Year 

(Upon Full Implementation)

1. Estimated Total Cost $ 0 $ 0 $ 0 

Personal Services 0 0 0 

Current Expenses 0 0 0 

Repairs & Alterations 0 0 0 

Assets 0 0 0 

Equipment 0 0 0 

Other 0 0 0 

2. Estimated Total Revenues 0 0 0 
Rule Title: 45CSR19 –“Permits for Construction and Major Modification of Major 

Stationary Sources of Air Pollution Which Cause or Contribute to 

Nonattainment” 

3. Explanation of above estimates (including long-range effect): 

Please include any increase or decrease in fees in your estimated total revenues. 

Costs anticipated to be incurred by revision to this rule are included in prior cost 

estimates prepared for state implementation of Title V of the Clean Air Act, as 

amended, under 45CSR30. Full Title V program approval was issued by the U.S. 

Environmental Protection Agency on November 19, 2001. 

MEMORANDUM

Please identify any areas of vagueness, technical defects, reasons the proposed 

rule would not have a fiscal impact, and/or any special issues not captured elsewhere on 

this form. 
WEST VIRGINIA LEGISLATURE 

Legislative Rule-Making Review Committee 

Senator Joseph Minard, Cochair 

Delegate Bonnie Brown, Cochair 

Debra A. Graham, Chief Counsel 

Rita A. Pauley, Associate Counsel 

Brian Skinner, Associate Counsel 

Charles Roskovensky, Associate Counsel 

Felisha N. Sutherland, Administrative Assistant Jay Lazell, Associate Counsel 

January 9, 2011 

NOTICE OF ACTION TAKEN BY THE LEGISLATIVE RULE-MAKING REVIEW COMMITTEE 

Proposed Rule: 

Natalie E. Tennant, Secretary of State, State Register 

John A. Benedict, Director 

DEP - Air Quality 

601 57th Street, SE 

Charleston, WV 25304 

Legislative Rule-Making Review Committee 

Permits for Construction and Major Modification of Major 

Stationary Sources of Air Pollution Which Cause or 

Contribute to, 45CSR19 

The Legislative Rule-Making Review Committee Recommends that the West Virginia 

Legislature: 

1. Authorize the agency to promulgate the Legislative rule: 

IA) as originally filed 

IB) as modified by the agency 

2. Authorize the agency to promulgate part of the Legislative rule; 

a statement of reasons for such recommendation is attached. 

3. Authorize the agency to promulgate the Legislative rule with 

certain amendments; amendments and a statement of reasons for 

such recommendation is attached. 

4. Authorize the agency to promulgate the Legislative rule as 

modified with certain amendments; amendments and a statement 

of reasons for such recommendation is attached. 

5. Recommends that the Legislature rule be withdrawn; a statement 

of reasons for such recommendation is attached. 

Building 1, Room MB-49 

Phone: (304) 347-4840 

1900 Kanawha Boulevard, East Charleston, WV 25305 

Fax: (304) 347-4901 email: felishas@mail.wvnet.edu 
• dep 

west virginia department of environmental protection SIGN-IN SHEET 

Public Hearing on the Division of Air Quality Rules 45CSR8, 45CSR14, 45CSR16, 45CSR18, 45CSR19, 45CSR25 and 45CSR34 

July 12, 2010, 6:00 p.m. 

The Department of Environmental Protection asks for the information below so that agency staff may provide responses and information about 

decisions to you. The information you voluntarily provide on this sheet becomes part ofthe public record related to this topic and may be released if 

requested under the Freedom ofInformation Act. 

Name (please print) Address Organization Phone E-mail Comment 

YIN 

Ji 

_\~ \.: ~~ ~ \ WUPcP - - - _. -

Promoting a healthy environment. 
BEFORE THE WEST VIRGINIA DEPARTMENT 

OF ENVIRONMENTAL PROTECTION 

DIVISION OF AIR QUALITY 

IN THE MATTER OF: 

PROPOSED 2011 RULES 

45CSR19 - Permits for Construction and 

Major Modification of Major Stationary 

Sources of Air Pollution Which Cause 

or Contribute to Nonattainment 

TRANSCRIPT OF PROCEEDINGS had or testimony 

adduced in the above-entitled matter, on the 12th day of 

July, 2010, commencing at 6:20 p.m. and concluding at 6:21 

p.m., in the Dolly Sods Room, at 601 57 th Street, S.E., 

Charleston, Kanawha County, West Virginia, pursuant to 

notice to all interested parties. 

BEFORE: WILLIAM F. DURHAM, Deputy Director 

Assistant Director, Planning 

Division of Air Quality 

NANCY MCNEALY 

CERTIFIED COURT REPORTER 

Post Office Box 13415 

Charleston, West Virginia 25360-0415 

(304) 988-2873 FAX (304) 988-1419 
2 

I N D E X 

Reporter's Certificate .... ................ . Page 5 
Proceedings 3 

1 MR. DURHAM: This public hearing will now come 

2 to order on this 12th day of July, 2010, at the West 

3 Virginia Department of Environmental Protection 

4 Headquarters. Comments and testimony will be accepted 

5 until the close of the hearing and will be made part of the 

6 rule-making record. Any question regarding revisions to 

7 the rules will be included with your comments, and any such 

8 question will be answered as part of the response to 

9 comments in the rule-making record. 

10 The purpose of this public hearing is to 

11 satisfy state rule-making requirements by accepting 

12 comments on proposed revisions to rule 45CSR19 - Permits 

13 for Construction and Major Modification of Major Stationary 

14 Sources of Air Pollution Which Cause or Contribute to 

15 Nonattainment. 

16 This rule establishes a state construction permit 

17 program consistent with the federal Clean Air Act's Title I 

18 program and implementing regulations at 40 CFR §51.165, 

19 "Permit Requirements." 45CSR19 is part of the State 

20 Implementation Plan and sets forth the criteria and 

21 procedures for major stationary sources to obtain a permit 

22 to construct, operate and/or modify a major source located 

23 in a nonattainment area or impacting a nonattainment area. 

24 Revisions to the rule include a new subsection 
Proceedings 

1 1.5, which provides that references to the federal 

2 counterpart will be construed as the version which was in 

3 effect as of June 1, 2010. Also, the term ftaffected 

4 facilities" has been clarified. Other minor revisions 

5 ensure consistency with the federal counterpart language. 

6 Upon authorization and promulgation of 45CSR19, the 

7 Division will submit he rule to the U.S. Environmental 

4 

8 Protection Agency as a revision to the State Implementation 

9 Plan pursuant to the federal Clean Air Act. The floor is 

10 now open for comments. 

11 (No comments were made.) 

12 MR. DURHAM: There being nothing further, this 

13 public hearing for proposed 45CSR19 is concluded. 

14 (WHEREUPON, the hearing was concluded.) 
BEFORE THE WEST VIRGINIA 

DEPARTMENT OF ENVIRONMENTAL PROTECTION 

DIVISION OF AIR QUALITY 

STATE OF WEST VIRGINIA, 

COUNTY OF KANAWHA, to wit: 

I, NANCY MCNEALY, Certified Verbatim Court 

Reporter and Commissioner of West Virginia, do hereby 

certify that the foregoing is, to the best of my skill and 

ability, a true and accurate transcript of all the 

proceedings as set forth in the caption hereof. 

2010. 

Given under my hand this 13th day of July, 

My commission expires November 26, 2010 . 

• ,

Verbatim R 

Commissioner of West Virginia 

5 

Public Notice ,2011 Proposed Rules 

The West Virginia Division of Air Quality has 

scheduled a public hearing 'on July 12, 2010 for its 

2011 proposed ' legislative rules, which will take 

place at the Division of 

Environmental Pmtection's Charleston headquarters, '601 57th Street 

S.E., Charleston, WV 

25304. Oral and written 

comments will be limited 

to the proposed revisions 

and will be 'made a part,of 

the rulemaking record. 

Copies of the rules are- available from the Secretary of State's office or from the DEP at www.wvdep.org/2011rules , ' You may also .obtain 

The Charleston Gazette, Friday, Jl 

LEGAl 

ADVERTISEMENT 

hardcopies of the information by calling the phone number listed below: 

Written comments may be submitted ,to the Public 

I nformation Office at the 

above address: Comments 

may also be e.mailed to 

comments@wvdep.org. 

The heaflng dates, locations and comment deadlines are as follows: 

Division,of Air Qualify 

45CSR8 - ' Ambient Air 

Quality Standards 

45CSR14 -Permits for 

Construction and Maior 

Modification of Maior Stationary, Sources of Air Pollution for the Prevention of Significant Deterioration " _ 45CSR16 ~ Standards of 

Performance for New StationarY Sources > 45CSR18 - Control of Air 

Pollution From Combustion of Solid Waste 

4.5CSR19 - Permits for , Construction ' and Maior 

Modification of Maior Stationary Sources of Air Pollution Which' Cause or Contribute ' to 

Nonottainment 

45CSR25 - Control of Air 'Pollution from Hazardous 

Waste Treatment, Storage and Disposal Facilities ' 

45CSR34 , . Emission 

Standards for Hazardous 

Air Pollutants 

The public hearing for, all air quality rules will 

take place beginning at 6 

p.m. on July 12, 2010 in the 'Dolly Sods Room. The 

comment period will begin on June 11, 2010 and end at 

the concfusion of the pub- lic ,hearing on Ju,ly .. 12, 

LEGAL , 

ADVERTISEMENT 

2010. Upon authorization 

and promulgation of revisions to 45CSR8, 45CSR14 

and 45CSR19; the DAQ will 

submit the rules to the 

U.S: Environmental Protection Agency (EPA) as revisions to the State I m- plementation Plan pursuant ,to the federal Clean Air Act (CAA) . Rules 45CSR16, 45CSR18, 45CSR25 and 45CSR34 will 

also be submitted to EPA 

to ful.fill ,other federal obligations under the CAA, in- cluding delegations, plans and program approvals. 

For more information on any of the DAQ rules call 

304-926-0475. 

(428048) 
3ILLED 

TO 

L 

CHARLESTON NEWSPAPERS 

P.o . Box 2993 

Charleston, West Virginia 25330 

Billing 348-4898 

Classified 348-4848 

\-800-WVA-NEWS 

WVDEP AIR QUALITY 

SANDRA ADKINS 

601 57TH ST., SE 

CHARLESTON WV 

I NVOICE DATE 

ACCOUNT NBR 

SALES REP I D 

INVOICE NBR 

25304 USA 

Please return thi s portion with y our p ayment. 

Make checks payable to: Charleston Newspapers 

AMOUNT PAID : 

CHARLESTON NEWSPAPERS I NVOI CE DATE 

P.O. Box 2993 ACCOUNT NBR 

Charleston, West Virginia 25330 

Billing 348-4898 SALES REP I D 

Classified 348-4848 '--_-=I...,NV-"-:.:. O""I C""E"--"N""B"-' R __ "--_________ --' 

l-800-WVA-NEWS Legal pricing is based upon 63 words per column inch. 

FEIN 55-0676079 Each successive insertion is discounted by 25 % of the first insertion rate. 

the Charleston Gazette rate is $.14 word, and the Metro Putnam rate is $.13 word. 

M 

8 .8 2 7 7.1 8 77 .1 8 

06 / 11 LEG - 2011 

TOTAL INVOICE AMOUNT 

State of West Virginia, AFFIDAVIT OF PUBLICATION 

( J 

I, dntK/UL (~~< THE CHARLESON GAZETTE , v 

THE DAILY MAIL, 

do solemnly swear that the legal notice of: 

Public notice - 20 11 pro 

8.19 

of 

71.66 71 . 66 

148.84 

OFFICIAL SEAL 

NOTARY PUBLIC 

STATE OF WEST VIRGINIA 

JILL S. TOTTEN PO BOX 362 

POWELLTON, WV 25161 

My commission expires May 6, 2018 

was dul y published in said newspaper(s) at the stated price for the respective newspaper(s) and during the dates listed below: 

~ 06 / 11 / 10-06 / 11 / 10 

Subscribed and sworn to before me this j ei day of '------ _--'-'-t~ C L.-< <J.I..--~ ' J . /it{U/ -'" 

Notary . 

il 
45CSR19

TITLE 45

LEGISLATIVE RULE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

AIR QUALITY

SERIES 19

PERMITS FOR CONSTRUCTION AND MAJOR MODIFICATION OF

MAJOR STATIONARY SOURCES OF AIR POLLUTION WHICH

CAUSE OR CONTRIBUTE TO NONATTAINMENT

§45-19-1. General.

1.1. Scope.

1.1.a. It is the intent of the Secretary that all applications filed by any person to construct major new

or modified stationary air pollution sources, intending to locate in areas with air quality worse than the levels

set to protect the public health and welfare, or that might impact those areas, must adequately meet the preconstruction review procedures and conditions of the Clean Air Act as amended and this rule.

1.1.b. These conditions are designed to ensure that the major new or modified source's emissions will

be controlled to the greatest degree practicable; that more than equivalent offsetting emission reductions will

be obtained from existing sources; that there will be progress toward achievement of the National Ambient

Air Quality Standards; and that all applicable air pollution regulations adopted by the Secretary will be met.

1.2. Authority. -- W. Va. Code §22-5-4.

1.3. Filing Date. -- April 30, 2010.

1.4. Effective Date. -- June 1, 2010.

1.5. Federal Regulation. -- Unless otherwise indicated, where reference to a federal regulation or

standard appears in this rule, such regulation or standard will, for the purpose of this rule, be construed as that

version which was in effect as of June 1, 2010.

1.5. 1.6. Former Rules. -- This legislative rule amends 45CSR19 “Requirements for Pre-Construction

Review, Determination of Emission Offsets for Proposed New or Modified Stationary Sources of Air

Pollutants and Emission Trading for Intrasource Pollutants” which was filed May 20, 2005 April 30, 2010

and became effective June 1, 2005 June 1, 2010.

§45-19-2. Definitions.

2.1. “Actual Emissions” means the actual rate of emissions of a regulated NSR pollutant from an

emissions unit, as determined in accordance with subdivisions 2.1.a through 2.1.c, except that this definition

shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a

PAL under section 23. Instead, subsections 2.59 and 2.9 shall apply for those purposes.

2.1.a. In general, actual emissions as of a particular date shall equal the average rate, in tons per year,

1
45CSR19

at which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the

particular date and which is representative of normal source operation. The Secretary may allow the use of

a different time period upon a determination that it is more representative of normal source operation. Actual

emissions shall be calculated using the unit’s actual operating hours, production rates, and types of materials

processed, stored or combusted during the selected time period.

2.1.b. The Secretary may presume that source-specific allowable emissions for the unit are equivalent

to the actual emissions of the unit.

2.1.c. For any emissions unit that has not begun normal operations on the particular date, actual

emissions shall equal the potential to emit of the unit on that date.

2.2. “Actuals PAL” for a major stationary source means a PAL based on the baseline actual emissions

(as defined in subsection 2.9) of all emissions units (as defined in subsection 2.26) at the source, that emit

or have the potential to emit the PAL pollutant.

2.3. “Administrator” means the Administrator of the United States Environmental Protection Agency

or the Administrator’s duly authorized representative.

2.4. “Allowable emissions” means the emissions rate of a stationary source calculated using the

maximum rated capacity of the source (unless the source is subject to federally enforceable limits, limits

established by the Secretary pursuant to the Secretary’s rules which restrict the operating rate, or hours of

operation, or both) and the most stringent of the following: 

2.4.a. The applicable standards set forth in 40 CFR Part 60 or 61;

2.4.b. The applicable State of West Virginia emissions limitations or permit conditions, including those

with a future compliance date; or 

2.4.c. The applicable federally enforceable emissions limitations or permit conditions, including those

with a future compliance date.

2.5. “Applicable Regulations” means rules of the Secretary as promulgated pursuant to W. Va. Code

§22-5-4, and regulations of the Environmental Protection Agency promulgated pursuant to the Clean Air Act.

2.6. “Applicant” means any person who makes application to the Secretary for a permit to construct,

modify or relocate a source in West Virginia under the provisions of this rule.

2.7. “Air Pollutants” means solids, liquids or gases which, if discharged into the air, may result in a

statutory air pollution.

2.8. “Air Pollution”, or “statutory air pollution”, has the meaning ascribed to it in W. Va. Code §22-5-2.

2.9. “Baseline actual emissions” means the rate of emissions, in tons per year, of a regulated NSR

pollutant, as determined in accordance with the following:

2.9.a. For any existing electric utility steam generating unit, baseline actual emissions means the

average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-

month period selected by the owner or operator within the 5-year period immediately preceding when the

2
45CSR19

owner or operator begins actual construction of the project. The Secretary shall allow the use of a different

time period upon a determination that it is more representative of normal source operation.

2.9.a.1. The average rate shall include fugitive emissions to the extent quantifiable, and emissions

associated with startups, shutdowns, and malfunctions.

2.9.a.2. The average rate shall be adjusted downward to exclude any noncompliant emissions that

occurred while the source was operating above any emission limitation that was legally enforceable during

the consecutive 24-month period.

2.9.a.3. For a regulated NSR pollutant, when a project involves multiple emissions units, only one

consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units

being changed. A different consecutive 24-month period can be used for each regulated NSR pollutant.

2.9.a.4. The average rate shall not be based on any consecutive 24-month period for which there

is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount

if required by paragraph 2.9.a.2.

2.9.b. For an existing emissions unit (other than an electric utility steam generating unit), baseline

actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the

pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year period

immediately preceding either the date the owner or operator begins actual construction of the project, or the

date a complete permit application is received by the Secretary for a permit required under this rule,

whichever is earlier, except that the 10-year period shall not include any period earlier than November 15,

1990.

2.9.b.1. The average rate shall include fugitive emissions to the extent quantifiable, and emissions

associated with startups, shutdowns, and malfunctions.

2.9.b.2. The average rate shall be adjusted downward to exclude any noncompliant emissions that

occurred while the source was operating above an emission limitation that was legally enforceable during the

consecutive 24-month period.

2.9.b.3. The average rate shall be adjusted downward to exclude any emissions that would have

exceeded an emission limitation with which the major stationary source must currently comply, had such

major stationary source been required to comply with such limitations during the consecutive 24-month

period. However, if an emission limitation is part of a maximum achievable control technology standard that

the Administrator proposed or promulgated under part 63 of this chapter, the baseline actual emissions need

only be adjusted if the State has taken credit for such emissions reductions in an attainment demonstration

or maintenance plan consistent with the requirements of subsection 8.6.

2.9.b.4. For a regulated NSR pollutant, when a project involves multiple emissions units, only one

consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units

being changed. A different consecutive 24-month period can be used for each regulated NSR pollutant.

2.9.b.5. The average rate shall not be based on any consecutive 24-month period for which there

is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount

if required by paragraphs 2.9.b.2 and 2.9.b.3.

3
45CSR19

2.9.c. For a new emissions unit, the baseline actual emissions for purposes of determining the

emissions increase that will result from the initial construction and operation of such unit shall equal zero;

and thereafter, for all other purposes, shall equal the unit’s potential to emit.

2.9.d. For a PAL for a major stationary source, the baseline actual emissions shall be calculated for

existing electric utility steam generating units in accordance with the procedures contained in subdivision

2.9.a, for other existing emissions units in accordance with the procedures contained in subdivision 2.9.b, and

for a new emissions unit in accordance with the procedures contained in subdivision 2.9.c.

2.10. “Begin actual construction” means in general, initiation of physical on-site construction activities

on an emissions unit which are of a permanent nature. Such activities include, but are not limited to,

installation of building supports and foundations, laying of underground pipework, and construction of

permanent storage structures. With respect to a change in method of operating this term refers to those on-site

activities other than preparatory activities which mark the initiation of the change.

2.11. “Best available control technology” or “BACT” means an emissions limitation (including a visible

emissions standard) based on the maximum degree of reduction for each regulated NSR pollutant which

would be emitted from any proposed major stationary source or major modification which the Secretary, on

a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs,

determines is achievable for such source or modification through application of production processes or

available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel

combustion techniques for control of such pollutant. In no event shall application of best available control

technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable

standard under 40 CFR Parts 60 or 61. If the Secretary determines that technological or economic limitations

on the application of measurement methodology to a particular emissions unit would make the imposition

of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination

thereof, may be prescribed instead to satisfy the requirement for the application of BACT. Such standard

shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design,

equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent

results.

2.12. “Building, structure, facility or installation” means all of the pollutant-emitting activities which

belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are

under the control of the same person (or persons under common control) except the activities of any vessel. 

Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the

same “Major Group” (i.e., which have the same two (2)-digit code) as described in the Standard Industrial

Classification Manual, 1987 (U.S. Government Printing Office stock number GPO 0-185-718:QL 3).

2.13. “CAA” means the Clean Air Act, 42 U.S.C. 7401, et seq., as amended by Pub. L. No. 101-549

(November 15, 1990).

2.14. “Clean coal technology” means any technology, including technologies applied at the

precombustion, combustion, or post combustion stage, at a new or existing facility which will achieve

significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization

of coal in the generation of electricity, or process steam which was not in widespread use as of November 15,

1990.

2.15. “Clean coal technology demonstration project” means a project using funds appropriated under the

heading “Department of Energy-Clean Coal Technology,” up to a total amount of $2,500,000,000 for

4
45CSR19

commercial demonstration of clean coal technology, or similar projects funded through appropriations for

the Environmental Protection Agency. The Federal contribution for a qualifying project shall be at least 20

percent of the total cost of the demonstration project.

2.16. [Reserved.]

2.17. “Code” means principally W. Va. Code §22-5-1 et seq., and, where applicable, W. Va. Code §22-

18-1 et seq.

2.18. “Commence,” as applied to construction of a major stationary source or major modification, means

that the owner or operator has all necessary preconstruction approvals or permits and either has: 

2.18.a. Begun, or caused to begin, a continuous program of actual on-site construction of the source,

to be completed within a reasonable time; or 

2.18.b. Entered into binding agreements or contractual obligations, which cannot be canceled or

modified without substantial loss to the owner or operator, to undertake a program of actual construction of

the source to be completed within a reasonable time.

2.19. “Construction” means any physical change or change in the method of operation (including

fabrication, erection, installation, demolition or modification of an emissions unit) that would result in a

change in emissions.

2.20. “Continuous emissions monitoring system” or “CEMS” means all of the equipment that may be

required to meet the data acquisition and availability requirements, to sample, condition (if applicable),

analyze, and provide a record of emissions on a continuous basis.

2.21. “Continuous emissions rate monitoring system” or “CERMS” means the total equipment required

for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

2.22. “Continuous parameter monitoring system” or “CPMS” means all of the equipment necessary to

meet the data acquisition and availability requirements , to monitor process and control device operational

parameters (for example, control device secondary voltages and electric currents) and other information (for

example, gas flow rate, O2 or CO2 concentrations), and to record average operational parameter value(s) on

a continuous basis.

2.23. “Department of Environmental Protection” or “DEP” means the Department of Environmental

Protection which is created by the provisions of West Virginia Code §22-1-1, et seq.

2.24. “Electric utility steam generating unit” means any steam electric generating unit that is constructed

for the purpose of supplying more than one-third of its potential electric output capacity and more than 25

MW electrical output to any utility power distribution system for sale. Any steam supplied to a steam

distribution system for the purpose of providing steam to a steam-electric generator that would produce

electrical energy for sale is also considered in determining the electrical energy output capacity of the affected

facility.

2.25. “Emissions” refers to the release, escape, or discharge of air pollutants into the air.

2.26. “Emissions unit” means any part of a stationary source which emits or would have the potential to

5
45CSR19

emit any regulated NSR pollutant and includes an electric utility steam generating unit as defined in

subsection 2.24. For purposes of this rule, there are two types of emissions units as described in subdivisions

2.26.a and 2.26.b.

2.26.a. A new emissions unit is any emissions unit which is (or will be) newly constructed and which

has existed for less than 2 years from the date such emissions unit first operated.

2.26.b. An existing emissions unit is any emissions unit that does not meet the requirements in

subdivision 2.26.a. A replacement unit, as defined in subsection 2.62, is an existing emissions unit.

2.27. “Federal Land Manager” means, with respect to any lands in the United States, the Secretary of the

department with authority over such lands.

2.28. “Federally enforceable” means all limitations and conditions which are enforceable by the

Administrator including those requirements developed pursuant to 40 CFR Parts 60 and 61, rules and

regulations of the approved State Implementation Plan of the State of West Virginia, any permit requirements

established pursuant to 40 CFR §52.21 or this rule, and any operating permits issued under a USEPAapproved program that is incorporated into the State Implementation Plan and expressly requires adherence

to any permit issued under such program.

2.29. “Fugitive emissions” means those emissions which could not reasonably pass through a stack,

chimney, vent or other functionally equivalent opening.

2.30. “Intrapollutant Emission Offsets” means that emission offsets may only be achieved for the same

air pollutants which have comparable physical and chemical characteristics and properties (e.g., VOC

increases may not be offset against SO2 reductions, or coke plant particulate matter may not be offset against

boiler fly ash, or NOX may not be offset against VOC).

2.31. “Lowest achievable emission rate” or (LAER)” means, for any source, that rate of emissions based

on the following, whichever is more stringent: 

2.31.a. The most stringent emissions limitation which is contained in the implementation plan of any

State for such class or category of stationary source, unless the owner or operator of the proposed stationary

source demonstrates that such limitations are not achievable; or 

2.31.b. The most stringent emissions limitation which is achieved in practice by such class or

category of stationary sources. This term when applied to a new or modified emissions unit, means the lowest

achievable emissions rate for such emissions units within the stationary source. In no event shall the

application of this term permit a proposed new or modified stationary source to emit any pollutant in excess

of the amount allowable under an applicable new source standard of performance.

2.32. “Major emissions unit” means: 

2.32.a. Any emissions unit that emits or has the potential to emit 100 tons per year or more of the

PAL pollutant in an attainment area; or 

2.32.b. Any emissions unit that emits or has the potential to emit the PAL pollutant in an amount that

is equal to or greater than the major source threshold for the PAL pollutant as defined by the CAA for

nonattainment areas. For example, in accordance with the definition of major stationary source in §182(c)

6
45CSR19

of the CAA, an emissions unit would be a major emissions unit for VOC if the emissions unit is located in

a serious ozone nonattainment area and it emits or has the potential to emit 50 or more tons of VOC per year.

2.33. Major Modification.

2.33.a. “Major modification” means any physical change in or change in the method of operation

of a major stationary source that would result in: 

2.33.a.1. A significant emissions increase of a regulated NSR pollutant (as defined in subsection

2.61.); and 

2.33.a.2. A significant net emissions increase of that pollutant from the major stationary source.

2.33.b. Any significant emissions increase (as defined in subsection 2.67) from any emissions units

or net emissions increase (as defined in subsection 2.39) at a major stationary source that is significant for

volatile organic compounds shall be considered significant for ozone.

2.33.c. A physical change or change in the method of operation shall not include: 

2.33.c.1. Routine maintenance, repair and replacement; 

2.33.c.2. Use of an alternative fuel or raw material by reason of an order under sections 2 (a) and

(b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or

by reason of a natural gas curtailment plan pursuant to the Federal Power Act;

2.33.c.3. Use of an alternative fuel by reason of an order or rule under §125 of the CAA; 

2.33.c.4. Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated

from municipal solid waste; 

2.33.c.5. Use of an alternative fuel or raw material by a stationary source which:

2.33.c.5.A. The source was capable of accommodating before December 21, 1976, unless such

change would be prohibited under any federally enforceable permit condition which was established after

December 21, 1976 pursuant to 40 CFR §52.21 or under regulations approved pursuant to 40 CFR subpart

I or 40 CFR §51.166, or 

2.33.c.5.B. The source is approved to use under any permit issued under this rule; 

2.33.c.6. An increase in the hours of operation or in the production rate, unless such change is

prohibited under any federally enforceable permit condition which was established after December 21, 1976

pursuant to 40 CFR §52.21 or regulations approved pursuant to 40 CFR Part 51 subpart I or 40 CFR §51.166.

2.33.c.7. Any change in ownership at a stationary source.

2.33.c.8. [Reserved.]

2.33.c.9. The installation, operation, cessation, or removal of a temporary clean coal technology

demonstration project, provided that the project complies with: 

7
45CSR19

2.33.c.9.A. The West Virginia State Implementation Plan, and 

2.33.c.9.B. Other requirements necessary to attain and maintain the National Ambient Air

Quality Standard during the project and after it is terminated.

2.33.d. This definition shall not apply with respect to a particular regulated NSR pollutant when the

major stationary source is complying with the requirements under section 23 for a PAL for that pollutant. 

Instead, the definition at subsection 2.48 shall apply.

2.33.e. For the purpose of applying the requirements of subsection 17.6 to modifications at major

stationary sources of nitrogen oxides located in ozone nonattainment areas or in ozone transport regions,

whether or not subject to Title I, Part D, Subpart 2 of the CAA, any significant net emissions increase of

nitrogen oxides is considered significant for ozone.

2.33.f. Any physical change in, or change in the method of operation of, a major stationary source

of volatile organic compounds that results in any increase in emissions of volatile organic compounds from

any discrete operation, emissions unit, or other pollutant emitting activity at the source shall be considered

a significant net emissions increase and a major modification for ozone, if the major stationary source is

located in an extreme ozone nonattainment area that is subject to Title I, Part D, Subpart 2 of the CAA.

2.34. “Major Modification for Ozone” means a major modification for VOC and NOX.

2.35. “Major Stationary Source” means: 

2.35.a. Any stationary source of air pollutants which emits, or has the potential to emit 100 tons per

year or more of any regulated NSR pollutant, except that lower emissions thresholds shall apply in areas

subject to ozone nonattainment areas, carbon monoxide nonattainment areas, or particulate matter

nonattainment areas, in accordance with the following:

2.35.a.1. 50 tons per year of volatile organic compounds in any serious ozone nonattainment area;

2.35.a.2. 50 tons per year of volatile organic compounds in an area within an ozone transport

region, except for any severe or extreme ozone nonattainment area;

2.35.a.3. 25 tons per year of volatile organic compounds in any severe ozone nonattainment area;

2.35.a.4. 10 tons per year of volatile organic compounds in any extreme ozone nonattainment area;

2.35.a.5. 50 tons per year of carbon monoxide in any serious nonattainment area for carbon

monoxide, where stationary sources contribute significantly to carbon monoxide levels in the area (as

determined under rules issued by the Administrator); and

2.35.a.6. 70 tons per year of PM10 in any serious nonattainment area for PM10;

2.35.b. For the purposes of applying the requirements of subsection 17.6 to stationary sources of

nitrogen oxides located in an ozone nonattainment area or in an ozone transport region, any stationary source

which emits, or has the potential to emit, 100 tons per year or more of nitrogen oxides emissions, except that

the following emission thresholds shall apply in ozone nonattainment areas:

8
45CSR19

2.35.b.1. 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified

as marginal or moderate;

2.35.b.2. 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified

as a transitional, submarginal, or incomplete or no data area, when such area is located in an ozone transport

region;

2.35.b.3. 100 tons per year or more of nitrogen oxides in any area designated under §107(d) of the

CAA as attainment or unclassifiable for ozone that is located in an ozone transport region;

2.35.b.4. 50 tons per year or more of nitrogen oxides in any serious nonattainment area for ozone;

2.35.b.5. 25 tons per year or more of nitrogen oxides in any severe nonattainment area for ozone;

2.35.b.6. 10 tons per year or more of nitrogen oxides in any extreme nonattainment area for ozone;

or

2.35.c. Any physical change that would occur at a stationary source not qualifying under

subdivisions 2.35.a and 2.35.b as a major stationary source, if the change would constitute a major stationary

source by itself.

2.35.d. A major stationary source that is major for volatile organic compounds shall be considered

major for ozone.

2.35.e. The fugitive emissions of a stationary source shall not be included in determining for any

of the purposes of this subsection whether it is a major stationary source, unless the source belongs to one

of the following categories of stationary sources: 

2.35.e.1. Coal cleaning plants (with thermal dryers); 

2.35.e.2. Kraft pulp mills; 

2.35.e.3. Portland cement plants; 

2.35.e.4. Primary zinc smelters; 

2.35.e.5. Iron and steel mills; 

2.35.e.6. Primary aluminum ore reduction plants; 

2.35.e.7. Primary copper smelters; 

2.35.e.8. Municipal incinerators capable of charging more than 250 tons of refuse per day; 

2.35.e.9. Hydrofluoric, sulfuric, or nitric acid plants; 

2.35.e.10. Petroleum refineries; 

2.35.e.11. Lime plants; 

9
45CSR19

2.35.e.12. Phosphate rock processing plants; 

2.35.e.13. Coke oven batteries; 

2.35.e.14. Sulfur recovery plants; 

2.35.e.15. Carbon black plants (furnace process); 

2.35.e.16. Primary lead smelters; 

2.35.e.17. Fuel conversion plants;

2.35.e.18. Sintering plants; 

2.35.e.19. Secondary metal production plants; 

2.35.e.20. Chemical process plants -- The term chemical processing plant shall not include

ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193

or 312140;

2.35.e.21. Fossil-fuel boilers (or combination thereof) totaling more than 250 million British

thermal units per hour heat input; 

2.35.e.22. Petroleum storage and transfer units with a total storage capacity exceeding 300,000

barrels; 

2.35.e.23. Taconite ore processing plants; 

2.35.e.24. Glass fiber processing plants; 

2.35.e.25. Charcoal production plants; 

2.35.e.26. Fossil fuel-fired steam electric plants of more than 250 million British thermal units

per hour heat input; and 

2.35.e.27. Any other stationary source category which, as of August 7, 1980, is being regulated

under §111 or 112 of the CAA.

2.35.f. In addition to those facilities covered under subdivision 2.35.e, all coal preparation plants

as defined under 40 CFR §60.251(a) which process more than 200 tons per day shall count fugitives fugitive

emissions from all “affected facilities” at the source, i.e., from all thermal dryers, pneumatic coal-cleaning

equipment (air tables), coal processing and conveying equipment (including breakers and crushers), coal

storage systems, and coal transfer and loading systems.

2.35.g. For the purpose of subdivision 2.35.f, the term “affected facilities” means those facilities

which are listed or identified as “affected facilities” in the applicable standard promulgated under §§111 or

112 of the CAA.”

2.36. “Major Stationary Source for Ozone” means a major stationary source of VOC or NOX.

10
45CSR19

2.37. “National Ambient Air Quality Standard (NAAQS)” means the numerical standard specified by the

United States Environmental Protection Agency for each air pollutant for which air quality criteria have been

issued.

2.38. “Necessary preconstruction approvals or permits” means those permits or approvals required under

federal air quality control laws or regulations and air quality control laws and regulations of the State of West

Virginia. Where a consent order is required to be submitted to the USEPA for inclusion in the State

Implementation Plan, the applicant will not have all necessary pre-construction approvals or permits until

such time as the Administrator approves such consent order for inclusion in the State Implementation Plan.

2.39. “Net emissions increase” means, with respect to any regulated NSR pollutant emitted by a major

stationary source, the amount by which the sum of the following exceeds zero: 

2.39.a. Any increase in emissions from a particular physical change or change in the method of

operation at a stationary source as calculated pursuant to subsection 3.4.; and 

2.39.b. Any other increases and decreases in actual emissions at the major stationary source that are

contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for

calculating increases and decreases under this subdivision shall be determined as provided in subsection 2.9,

except that paragraphs 2.9.a.3 and 2.9.b.4 shall not apply.

2.39.b.1. An increase or decrease in actual emissions is contemporaneous with the increase from

the particular change only if it occurs before the date that the increase from the particular change occurs; 

2.39.b.2. An increase or decrease in actual emissions is creditable only if: 

2.39.b.2.A. It occurs within a reasonable period to be specified by the Secretary; and 

2.39.b.2.B. The Secretary has not relied on the increase or decrease in issuing a permit for the

source under section 14, which permit is in effect when the increase in actual emissions from the particular

change occurs; and

2.39.b.3. An increase in actual emissions is creditable only to the extent that the new level of actual

emissions exceeds the old level.

2.39.b.4. A decrease in actual emissions is creditable only to the extent that: 

2.39.b.4.A. The old level of actual emission or the old level of allowable emissions whichever

is lower, exceeds the new level of actual emissions; 

2.39.b.4.B. It is federally enforceable and enforceable by the Secretary as a practical matter

at and after the time that actual construction on the particular change begins; and 

2.39.b.4.C. The Secretary has not relied on it in issuing any permit under this rule, in

demonstrating attainment of the NAAQS, or in a demonstration of reasonable further progress; and

2.39.b.4.D. It has approximately the same qualitative significance for public health and welfare

as that attributed to the increase from the particular change.

11
45CSR19

2.39.b.5. An increase that results from a physical change at a source occurs when the emissions unit

on which construction occurred becomes operational and begins to emit a particular pollutant. Any new unit

that replaces an existing unit and requires shakedown becomes operational only after a reasonable shakedown

period, not to exceed one hundred eighty (180) days.

2.39.c. Subdivision 2.1.a shall not apply for determining creditable increases and decreases or after

a change.

2.40. “Nonattainment Area” means for the purpose of this rule, those areas designated in accordance with

§107 of the CAA as not having attained NAAQS for specific air pollutants. Nonattainment areas for ozone,

carbon monoxide, and PM10 are divided into categories, which may have different major source size

definitions and offset ratio requirements than in previous regulations. These categories are as follows:

2.40.a. Ozone nonattainment areas may be designated as Marginal, Moderate, Serious, Severe, or

Extreme.

2.40.b. Carbon monoxide nonattainment areas may be designated as Moderate or Severe.

2.40.c. PM10 nonattainment areas may be designated as Moderate or Severe.

2.41. “Nonattainment major new source review (NSR) program” means a major source preconstruction

permit program that has been approved by the Administrator, or a program that implements 40 CFR Part 51,

appendix S, sections I through VI. Any permit issued under such a program is a major NSR permit.

2.42. “Offset” or “emission offset” means an emission reduction of a given pollutant achieved at an

existing source (or emissions unit within such source) that allows for the emission of such given pollutant at

a different proposed source (or emissions unit within such proposed source); provided that the amount of

reduction in emissions at the existing source (or emissions unit within such source), is greater, on a tons per

year basis, than one-to-one with respect to the proposed emissions from the different source (or emissions

unit within such source) so that total emissions from the source including all existing and proposed facilities

for a given pollutant shall be less than baseline emissions. This term also means an emission reduction of a

given pollutant achieved at a unit within an existing source that allows for the emission of such given

pollutant at a different unit within the same existing source. In addition to the above requirement that offset

ratios must be greater than one-to-one, the offset ratios in ozone nonattainment areas must equal or exceed:

2.42.a. In marginal ozone nonattainment areas, 1.1 to 1.

2.42.b. In moderate ozone nonattainment areas, 1.15 to 1.

2.42.c. In serious ozone nonattainment areas, 1.2 to 1.

2.42.d. In severe ozone nonattainment areas, 1.3 to 1.

2.42.e. In extreme ozone nonattainment areas, 1.5 to 1.

2.43. “Offset Ratio” means the ratio of total emission reductions to total emission increases, for any

specific pollutant.

2.44. “PM10" means particulate matter with an aerodynamic diameter less than or equal to a nominal 10

12
45CSR19

micrometers as measured by a reference method described in Appendix J of 40 CFR Part 50.

2.45. “Particulate Matter” means any material, except uncombined water, that exists in a finely divided

form as a liquid or solid.

2.46. “PAL effective date” generally means the date of issuance of the PAL permit. However, the PAL

effective date for an increased PAL is the date any emissions unit which is part of the PAL major

modification becomes operational and begins to emit the PAL pollutant.

2.47. “PAL effective period” means the period beginning with the PAL effective date and ending 10 years

later.

2.48. “PAL major modification” means, notwithstanding subsections 2.33 and 2.39 (the definitions for

major modification and net emissions increase), any physical change in or change in the method of operation

of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

2.49. “PAL permit” means the major NSR permit, the minor NSR permit, or the title V permit issued by

the Secretary that establishes a PAL for a major stationary source.

2.50. “PAL pollutant” means the pollutant for which a PAL is established at a major stationary source.

2.51. “Person” means any and all persons, natural or artificial, including the State of West Virginia or

any other state and all agencies or divisions thereof, any state political subdivision, the United States of

America, any municipal, statutory, public or private corporation or association organized or existing under

the law of this or any other state or country, and any firm, partnership or association of whatever nature.

2.52. “Plantwide applicability limitation” or “PAL” means an emission limitation expressed in tons per

year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established

source-wide in accordance with subsections 23.1 through 23.15.

2.53. [Reserved.]

2.54. “Pollution prevention” means any activity that through process changes, product reformulation or

redesign, or substitution of less polluting raw materials, eliminates or reduces the release of air pollutants

(including fugitive emissions) and other pollutants to the environment prior to recycling, treatment, or

disposal; it does not mean recycling (other than certain “in-process recycling” practices), energy recovery,

treatment or disposal.

2.55. “Potential to emit” means the maximum capacity of a stationary source to emit a pollutant under

its physical and operational design. Any physical or operational limitation on the capacity of the source to

emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the

type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the

limitation or the effect it would have on emissions is federally enforceable or is enforceable by the Secretary

in any permit or consent order issued by the Administrator or by the Secretary. Secondary emissions do not

count in determining the potential to emit of a stationary source.

2.56. “Predictive emissions monitoring system” or “PEMS” means all of the equipment necessary to

monitor process and control device operational parameters (for example, control device secondary voltages

and electric currents) and other information (for example, gas flow rate, O2 or CO2 concentrations), and

13
45CSR19

calculate and record the mass emissions rate (for example, lb/hr) on a continuous basis.

2.57. “Prevention of Significant Deterioration (PSD) permit” means any permit that is issued under the

major source preconstruction permit program set forth in 45CSR14.

2.58. “Project” means a physical change in, or change in the method of operation of, an existing major

stationary source.

2.59. “Projected actual emissions” means, the maximum annual rate, in tons per year, at which an existing

emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years (12-month period)

following the date the unit resumes regular operation after the project, or in any one of the 10 years following

that date, if the project involves increasing the emissions unit’s design capacity or its potential to emit of that

regulated NSR pollutant and full utilization of the unit would result in a significant emissions increase or a

significant net emissions increase at the major stationary source. In determining the projected actual

emissions, before beginning actual construction, the owner or operator of the major stationary source: 

2.59.a. Shall consider all relevant information, including but not limited to, historical operational

data, the company's own representations, the company's expected business activity and the company's highest

projections of business activity, the company's filings with the State or Federal regulatory authorities, and

compliance plans under the approved plan;

2.59.b. Shall include fugitive emissions to the extent quantifiable, and emissions associated with

startups, shutdowns, and malfunctions; and

2.59.c. Shall exclude, in calculating any increase in emissions that results from the particular project,

that portion of the unit’s emissions following the project that an existing unit could have accommodated

during the consecutive 24-month period used to establish the baseline actual emissions under subsection 2.9

and that are also unrelated to the particular project, including any increased utilization due to product demand

growth; or.

2.59.d. In lieu of using the method set out in subdivisions 2.59.a through 2.59.c, may elect to use

the emissions unit’s potential to emit, in tons per year, as defined under subdivision 2.55.

2.60. “Reasonable Further Progress” means the annual reductions in emissions of pollutants in

nonattainment areas as are required pursuant to Part D of the 1990 Clean Air Act Amendments or which are

required by the Secretary or the Administrator for the purpose of ensuring attainment of NAAQS by the

applicable statutory deadline.

2.61. “Regulated NSR Pollutant” means the following: 

2.61.a. Any pollutant for which a National Ambient Air Quality Standard has been promulgated; 

2.61.b. Nitrogen oxides or any volatile organic compounds;

2.61.c. Any pollutant that is identified under this subdivision as a constituent or precursor of a

general pollutant listed under subdivisions 2.61.a or 2.61.b, provided that such constituent or precursor

pollutant may only be regulated under NSR as part of regulation of the general pollutant. Precursors

identified by the Administrator for purposes of NSR are the following:

14
45CSR19

2.61.c.1. Volatile organic compounds and nitrogen oxides are precursors to ozone in all ozone

nonattainment areas.

2.61.c.2. Sulfur dioxide is a precursor to PM2.5 in all PM2.5 nonattainment areas.

2.61.c.3. Nitrogen oxides are presumed to be precursors to PM2.5 in all PM2.5 nonattainment areas,

unless the Secretary demonstrates to the Administrator’s satisfaction or USEPA demonstrates that emissions

of nitrogen oxides from sources in a specific area are not a significant contributor to that area’s ambient PM2.5

concentrations.

2.61.c.4. Volatile organic compounds and ammonia are presumed not to be precursors to PM2.5 in

any PM2.5 nonattainment area, unless the Secretary demonstrates to the Administrator’s satisfaction or USEPA

demonstrates that emissions of volatile organic compounds or ammonia from sources in a specific area are

a significant contributor to that area’s ambient PM2.5 concentrations.

2.61.d. PM2.5 emissions and PM10 emissions shall include gaseous emissions from a source or activity

which condense to form particulate matter at ambient temperatures. On or after January 1, 2011, such

condensable particulate matter shall be accounted for in applicability determinations and in establishing

emissions limitations for PM2.5 and PM10 in nonattainment major NSR permits. Compliance with emissions

limitations for PM2.5 and PM10 issued prior to this date shall not be based on condensable particulate matter

unless required by the terms and conditions of the permit or the applicable implementation plan. Applicability

determinations made prior to this date without accounting for condensable particulate matter shall not be

considered in violation of this section unless the applicable implementation plan required condensable

particulate matter to be included.

2.62. “Replacement unit” means an emissions unit for which all the criteria listed in subdivisions 2.62.a

through 2.62.d are met. No creditable emission reductions shall be generated from shutting down the existing

emissions unit that is replaced.

2.62.a. The emissions unit is a reconstructed unit within the meaning of 40 CFR §60.15(b)(1), or

the emissions unit completely takes the place of an existing emissions unit;

2.62.b. The emissions unit is identical to or functionally equivalent to the replaced emissions unit;

2.62.c. The replacement does not change the basic design parameter(s) of the process unit; and

2.62.d. The replaced emissions unit is permanently removed from the major stationary source,

otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable as a

practical matter. If the replaced emissions unit is brought back into operation, it shall constitute a new

emissions unit.

2.63. “Reviewing authority” means the Secretary of the Department of Environmental Protection.

2.64. “Secondary emissions” means emissions which would occur as a result of the construction or

operation of a major stationary source or major modification, but do not come from the major stationary

source or major modification itself. Secondary emissions must be specific, well defined, quantifiable, and

impact the same general area as the stationary source or modification which causes the secondary emissions. 

Secondary emissions include, but are not limited to emissions from any offsite support facility which would

not otherwise be constructed or increase its emissions except as a result of the construction or operation of

15
45CSR19

the major stationary source of major modification. Secondary emissions do not include any emissions which

come directly from a mobile source such as emissions from the tailpipe of a motor vehicle, a train, or from

a vessel.

2.65. “Secretary” means the Secretary of the Division of Environmental Protection or his or her

designated representative.

2.66. “Significant” means, in reference to a net emissions increase or the potential of a source to emit any

of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

Pollutant and Pollutant Emission Rate

(tons per year)

Carbon monoxide: 100 tpy

Nitrogen oxides: 40 tpy

Sulfur dioxide: 40 tpy

Ozone: 40 tpy

of VOC or NOX

Lead: 0.6 tpy

PM10: 15 tpy

PM2.5: 10 tpy

of direct PM2.5 emissions

PM2.5: 40 tpy

of SO2 emissions

PM2.5: 40 tpy

of NOX emissions

(unless demonstrated not to be a PM2.5 precursor under subsection 2.61).

2.66.a. Notwithstanding the significant emissions rate for ozone in subsection 2.66, significant

means, in reference to an emissions increase or a net emissions increase, any increase in actual emissions of

volatile organic compounds that would result from any physical change in, or change in the method of

operation of, a major stationary source locating in a serious or severe ozone nonattainment area that is subject

to Title I, Part D, Subpart 2 of the CAA, if such emissions increase of volatile organic compounds exceeds

25 tons per year.

2.66.b. For the purposes of applying the requirements of subsection 17.6 to modifications at major

stationary sources of nitrogen oxides located in an ozone nonattainment area or in an ozone transport region,

the significant emission rates and other requirements for volatile organic compounds in subsection 2.66,

subdivisions 2.66.a and 2.66.d shall apply to nitrogen oxides emissions.

2.66.c. Notwithstanding the significant emissions rate for carbon monoxide under subsection 2.66,

significant means, in reference to an emissions increase or a net emissions increase, any increase in actual

16
45CSR19

emissions of carbon monoxide that would result from any physical change in, or change in the method of

operation of, a major stationary source in a serious nonattainment area for carbon monoxide if such increase

equals or exceeds 50 tons per year, provided the Administrator has determined that stationary sources

contribute significantly to carbon monoxide levels in that area.

2.66.d. Notwithstanding the significant emissions rates for ozone under subsection 2.66 and

subdivision 2.66.a, any increase in actual emissions of volatile organic compounds from any emissions unit

at a major stationary source of volatile organic compounds located in an extreme ozone nonattainment area

that is subject to Title I, Part D, Subpart 2 of the CAA shall be considered a significant net emissions increase.

2.67. “Significant emissions increase” means, for a regulated NSR pollutant, an increase in emissions that

is significant for that pollutant.

2.68. “Significant emissions unit” means an emissions unit that emits or has the potential to emit a PAL

pollutant in an amount that is equal to or greater than the significant level, as defined in subsection 2.66 or

the CAA, whichever is lower, for that PAL pollutant, but less than the amount that would qualify the unit as

a major emissions unit.

2.69. “Significant Impact” means an increase in the ambient air concentration for a particular pollutant

as follows:

Averaging time (hours)

Annual 24 8 3 1

Ambient Air Concentration Increase (μg/m3

)

SO2 1.0 5.0 25.0

PM10 1.0 5.0

NO2 1.0

TSP 1.0 5.0

Ambient Air Concentration Increase (mg/m3

)

CO 0.5 2.0

2.70. “Small emissions unit” means an emissions unit that emits or has the potential to emit the PAL

pollutant in an amount less than the significant level for that PAL pollutant, as defined in subsection 2.66 or

the CAA, whichever is lower.

2.71. “Source, Stationary Source” means any building, structure, facility or installation which emits or

may emit any regulated air pollutant.

2.72. “Temporary clean coal technology demonstration project” means a clean coal technology

demonstration project that is operated for a period of 5 years or less, and which complies with the State

Implementation Plan for the State in which the project is located and other requirements necessary to attain

and maintain the National Ambient Air Quality Standards during the project and after it is terminated.

17
45CSR19

2.73. “Temporary Source” or “sources of temporary emissions”, means for a source located in a

nonattainment area and subject to this rule, those emissions occurring for a period of time less than two years.

2.74. “TSP” or “Total Suspended Particulate Matter” means particulate matter as measured by the method

described in Appendix B of 40 CFR Part 50.

2.75. “USEPA” means the United States Environmental Protection Agency.

2.76. “Volatile organic compounds (VOC)” are as defined in 40 CFR §51.100(s).

2.77. Other words and phrases used in this rule, unless otherwise indicated, have the meaning ascribed

to them in W. Va. Code §22-5-2.

§45-19-3. Applicability.

3.1. Preconstruction Permit Program In Nonattainment Areas. -- The preconstruction permit program

requirements apply to the construction of any new major stationary source or major modification that is major

for the pollutant for which the area is designated nonattainment under 40 CFR Part 81, Subpart C if the

stationary source or modification would locate anywhere in the designated nonattainment area.

3.2. Preconstruction Permit Program In Attainment Areas. -- The preconstruction permit program

requirements also apply to any proposed major stationary source and to any major modification to such source

in an area designated as attainment or unclassifiable for any National Ambient Air Quality Standard

(NAAQS) pursuant to section 107 of the CAA when it would cause or contribute to a violation of a NAAQS.

3.3. Significance levels.

3.3.a. A major source or major modification will be considered to cause or contribute to a violation

of a NAAQS when such source or modification would, at a minimum, exceed the significance levels set forth

in Table 45-19B at any locality that does not or would not meet the applicable national standard.

3.3.b. A proposed major source or major modification subject to subsection 3.2 may reduce the impact

of its emissions upon air quality by obtaining sufficient emission reductions to, at a minimum, compensate

for its adverse ambient impact where the major source or major modification would otherwise cause or

contribute to a violation of any NAAQS.

3.4. Determination of major modification. -- The determination as to whether or not a proposed project

is a major modification for a regulated NSR pollutant shall be determined in accordance with the specific

provisions set forth in subdivisions 3.4.a through 3.4.f.

3.4.a. Except as otherwise provided in subsections 3.5 and 3.6, and consistent with the definition of

major modification, a proposed project is a major modification for a regulated NSR pollutant if it causes two

types of emissions increases -- a significant emissions increase (as defined in subsection 2.67), and a

significant net emissions increase (as defined in subsections 2.66 and 2.39). The proposed project is not a

major modification if it does not cause a significant emissions increase. If the project causes a significant

emissions increase, then the project is a major modification only if it also results in a significant net emissions

increase.

3.4.b. The procedure for calculating, before beginning actual construction, whether a significant

18
45CSR19

emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units

being modified, according to subdivisions 3.4.c through 3.4.f. The procedure for calculating, before

beginning actual construction, whether a significant net emissions increase will occur at the major stationary

source (i.e., the second step of the process) is contained in the definition in subsection 2.39. Regardless of

any such preconstruction projections, a major modification results if the project causes a significant emissions

increase and a significant net emissions increase.

3.4.c. Actual-to-projected-actual applicability test for proposed projects that only involve existing

emissions units. -- A significant emissions increase of a regulated NSR pollutant is projected to occur if the

sum of the difference between the projected actual emissions and the baseline actual emissions (as defined

in subdivisions 2.9.a and 2.9.b, as applicable), for each existing emissions unit, equals or exceeds the

significant amount for that pollutant.

3.4.d. Actual-to-potential test for proposed projects that only involve construction of a new emissions

unit(s). -- A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of

the difference between the potential to emit from each new emissions unit following completion of the

proposed project and the baseline actual emissions of these units before the project equals or exceeds the

significant amount for that pollutant.

3.4.e. [Reserved.]

3.4.f. Hybrid test for projects that involve multiple types of emissions units. -- A significant emissions

increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each

emissions unit, using the method specified in subdivisions 3.4.c through 3.4.d as applicable with respect to

each emissions unit, for each type of emissions unit equals or exceeds the significant amount for that

pollutant.

3.5. For any major stationary source subject to a PAL for a regulated NSR pollutant, the major stationary

source shall comply with the requirements under section 23.

3.6. [Reserved.]

3.7. Exemption.

3.7.a. A source or modification shall not be considered a major stationary source or major

modification only if fugitive emission to the extent quantifiable are considered in calculating the potential

to emit of the stationary source or modification and the source does not belong to any of the following

categories:

3.7.a.1. Coal cleaning plants (with thermal dryers);

3.7.a.2. Kraft pulp mills;

3.7.a.3. Portland cement plants;

3.7.a.4. Primary zinc smelters;

3.7.a.5. Iron and steel mills;

19
45CSR19

3.7.a.6. Primary aluminum ore reduction plants;

3.7.a.7. Primary copper smelters;

3.7.a.8. Municipal incinerators capable of charging more than 250 tons of refuse per day;

3.7.a.9. Hydrofluoric, sulfuric, or citric acid plants;

3.7.a.10. Petroleum refineries;

3.7.a.11. Lime plants;

3.7.a.12. Phosphate rock processing plants;

3.7.a.13. Coke oven batteries;

3.7.a.14. Sulfur recovery plants;

3.7.a.15. Carbon black plants (furnace process);

3.7.a.16. Primary lead smelters;

3.7.a.17. Fuel conversion plants;

3.7.a.18. Sintering plants;

3.7.a.19. Secondary metal production plants;

3.7.a.20. Chemical process plants -- The term chemical processing plant shall not include ethanol

production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or

312140;

3.7.a.21. Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal

units per hour heat input;

3.7.a.22. Petroleum storage and transfer units with a total storage capacity exceeding 300,000

barrels;

3.7.a.23. Taconite ore processing plants;

3.7.a.24. Glass fiber processing plants;

3.7.a.25. Charcoal production plants;

3.7.a.26. Fossil fuel-fired steam electric plants of more than 250 million British thermal units per

hour heat input; and

3.7.a.27. Any other stationary source category which, as of August 7, 1980, is being regulated

under section 111 or 112 of the CAA.

20
45CSR19

3.7.b. In addition to the facilities covered under subdivision 3.7.a, all coal preparation plants as defined

under 40 CFR §60.251(a) which process more than 200 tons per day shall count fugitives fugitive emissions

from all “affected facilities” at the source, i.e., from all thermal dryers, pneumatic coal-cleaning equipment

(air tables), coal processing and conveying equipment (including breakers and crushers), coal storage systems,

and coal transfer and loading systems.

3.7.c. For the purpose of subdivision 3.7.b, the term “affected facilities” means those facilities which

are listed or identified as “affected facilities” in the applicable standard promulgated under §§111 or 112 of

the CAA.”

§45-19-4. Conditions for a Permit Approval for Proposed Major Sources That Would Contribute

to a Violation of NAAQS.

4.1. Upon determination by the Secretary that a proposed new major stationary source or major

modification will locate within a nonattainment area, or that a proposed new major stationary source or major

modification to be built outside a nonattainment area will have a significant impact on pollutant

concentrations in a nonattainment area, as of such source's proposed start-up date, permit approval may be

granted only if the applicant agrees within its permit application and permit (if approved), to meet the

following conditions:

4.1.a. The proposed major stationary source or major modification is required to meet the lowest

achievable emission rate (LAER) for such source;

4.1.b. The applicant must certify that all existing sources owned or operated by the applicant (or any

entity controlling, controlled by, or under common control of the applicant) in West Virginia are in

compliance with the CAA and W.Va. Code §22-5-4, or the applicable regulations, or is in compliance with

a compliance program or a court decree which is federally enforceable and enforceable by the Secretary;

4.1.c. More than equivalent emission offsets from existing sources in the nonattainment area impacted

by the proposed new major stationary source or major modification (whether or not under the same

ownership) are required such that there will be reasonable further progress toward attainment of the applicable

NAAQS. For sources locating in ozone nonattainment areas, the offset ratios for VOC and NOX must equal

or exceed those specified in subsection 2.42. Only intrapollutant emission offsets are acceptable; and

4.1.d. The emission offsets will provide a positive net air quality benefit in the affected nonattainment

area. Atmospheric simulation modeling for ozone impacts is not necessary for VOC and NOX. Compliance

with subdivision 4.1.c and subsection 8.2 will be adequate to meet this condition.

4.2. Upon determination by the Secretary that technological or economic limitations on the application

of measurement methodology to a particular source or class of sources would make the imposition of an

enforceable numerical emission standard infeasible, the applicant may, by petition, request that the Secretary

approve an appropriate design, operational or equipment standard. In the event that the applicant's proposed

design, operational or equipment standard is unacceptable to the Secretary, the Secretary shall determine an

appropriate measurement methodology or design, operational or equipment standard and shall incorporate

such determinations and requirements within the permit.

4.3. For phased construction projects, the determination of the lowest achievable emission rate shall be

reviewed and modified as appropriate at the latest reasonable time which occurs no later than 18 months prior

to commencement of construction of each independent phase of the project. At such time, the owner or

21
45CSR19

operator of the applicable stationary source may be required to demonstrate the adequacy of any previous

determination of the lowest achievable emission rate for the source.

4.4. Control Technology Information. -- The Secretary shall, for each new major source and major

modification, submit to the Administrator, within 60 days of issuance of the construction permit, all

information on the emissions prevention or control technology for the new major source or major

modification for the purpose of making such information available through the RACT/BACT/LAER

clearinghouse to other states and to the general public.

4.5. Rocket Engines or Motors. -- The Secretary may allow a source to offset by alternative or

innovative means emission increases from rocket engine and motor firing, and cleaning related to such firing,

at an existing or modified source that tests rocket engines or motors under the following conditions:

4.5.a. Any modification proposed is solely for the purpose of expanding the testing of rocket engines

or motors at an existing source that was permitted to test such engines as of November 15, 1990;

4.5.b. The source demonstrates to the satisfaction of the Secretary that it has used all reasonable means

to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable

levels, that all available offsets are being used, and that sufficient offsets are not available to the source;

4.5.c. The source has obtained a written finding from the Department of Defense, Department of

Transportation, National Aeronautics and Space Administration or other appropriate Federal agency, that the

testing of rocket motors or engines at the facility is required for a program essential to national security; and

4.5.d. The source shall comply with an alternative measure, imposed by the Secretary, designed to

offset any emission increases beyond permitted levels not directly offset by the source. In lieu of imposing

any alternative offset measures, the Secretary may impose any emissions fee which shall be an amount no

greater than 1.5 times the average cost of stationary source control measures adopted in that area during the

previous three (3) years. The Secretary shall utilize the fees in a manner that maximizes reductions in that

area.

§45-19-5. Conditions for Permit Approval for Sources Locating in Attainment or Unclassifiable

Areas That Would Cause a New Violation of a NAAQS.

5.1. Upon determination by the Secretary that the emissions from a proposed new major stationary

source or major modification locating in attainment or unclassified areas would cause a new violation of a

NAAQS, permit approval may be granted only if the applicant agrees within its permit application and permit

(if approved) to meet a more stringent emission limitation and/or limit emissions of existing sources below

levels allowed by the applicable regulations so that the proposed source will not cause a new violation of any

NAAQS. Only intrapollutant emission offsets are acceptable.

5.2. If the proposed major source or major modification does not obtain the emission reductions

specified in subsection 3.2 the Secretary shall deny the proposed construction.

5.3. The requirements of subsections 3.2 and 5.2 shall not apply to a major stationary source or major

modification with respect to a particular pollutant if the owner or operator demonstrates that, as to that

pollutant, the source or modification is located in an area designated as nonattainment pursuant to section 107

of the CAA.

22
45CSR19

§45-19-6. [Reserved.]

§45-19-7. Baseline for Determining Credit for Emission Offsets.

7.1. For major stationary sources and major modifications subject to subsections 3.1 and 3.2 the baseline

for determining credit for emissions reductions is the emission limit in effect at the time the application for

a permit to construct under section 14 is filed, except that the offset baseline shall be the actual emissions of

the source from which the offset credit is obtained where:

7.1.a. The demonstration of reasonable further progress and attainment of ambient air quality standards

is based upon the actual emissions of sources located within a designated nonattainment area; or

7.1.b. The applicable regulation does not contain an emission limitation for a source or source

category, the emission offset baseline involving such sources shall be the actual emissions.

7.2. Where the applicable regulation emission limit allows greater emissions than the potential emission

rate of the source, emission offset credit will be allowed only for control below the potential emission rate.

7.3. For an existing fuel combustion source, credit shall be based on the allowable emissions for the type

of fuel being burned at the time the permit to construct application under section 14 is filed. If the existing

source commits to switch to a cleaner fuel at some future date, emission offset credit based on the allowable

or actual emissions for the fuels involved is not acceptable, unless the permit is conditioned to require use

of a specified alternative control measure which would achieve the same degree of emissions reduction should

the source switch back to a dirtier fuel at some later date. The applicant shall ensure that adequate long-term

supplies of the new fuel are available before emission offset credit for fuel switches may be granted.

7.4. Emissions reductions achieved by shutting down an existing emission unit or curtailing production

or operating hours may be generally credited for offsets if they meet the following requirements:

7.4.a. Such reductions are permanent, quantifiable, federally enforceable.

7.4.b. The shutdown or curtailment occurred on or after the date specified in the attainment plan, and

if such date is on or after the date of the most recent emission inventory used in the attainment demonstration. 

Where the plan does not specify a cutoff date for shutdown credits, the date of the most recent emissions

inventory or attainment demonstration shall apply. However, no may credit be given for shutdowns which

occurred prior to August 7, 1977.

7.5. Emissions reductions achieved by shutting down an existing emissions unit or curtailing production

or operating hours and that do not meet the requirements in subdivision 7.4.b may be generally credited only

if:

7.5.a. The shutdown or curtailment occurred on or after the date the construction permit application

is filed, or

7.5.b. The applicant can establish that the proposed new emissions unit is a replacement for the

shutdown or curtailed emissions unit, and the emissions reductions achieved by the shutdown or curtailment

met the requirements of subdivision 7.4.a.

7.6. No emissions credit may be allowed for replacing one hydrocarbon compound with another of

23
45CSR19

lesser reactivity, except for those compounds listed in Table 1 of USEPA’s “Recommended Policy on Control

of Volatile Organic Compounds” (42 FR 35314, July 8, 1977).

7.7. All emission reductions claimed as offset credit shall be federally enforceable.

§45-19-8. Location of Emissions Offsets.

8.1. Emissions offsets shall be obtained from sources located as close to the proposed major stationary

or major modified source site as possible. Except for ozone nonattainment areas, these emissions offsets must

be obtained from the same nonattainment area as the proposed major source or major modification.

8.2. The Secretary, by petition, may allow emissions offsets from sources located at greater distances

from the proposed major stationary source or major modification provided that an adequate demonstration

that nearby offsets were investigated and reasonable alternatives which provide a positive net air quality

benefit are not available is submitted by the applicant, subject to the following provisions:

8.2.a. Emission offsets for VOC or NOX will generally be acceptable from sources located within the

same ozone nonattainment area or from other ozone nonattainment areas of equal or higher classification

which can be shown to cause or significantly contribute to the ozone problem at the proposed new or

modified source location; and

8.2.b. Emission offsets for sources of sulfur dioxide (SO2), and total suspended particulate (TSP),

should be obtained from an existing or shutdown facility, on the same premises or in the immediate vicinity

of the proposed source.

8.3. If such allowance is granted, as provided for in subsection 8.2, the Secretary may increase the ratio

of the required offsets for such source.

8.4. In order to ensure that the emission offsets will provide a positive net air quality benefit, the

Secretary may perform the necessary analysis or require the applicant to submit appropriate modeling results

for review.

8.5. The appropriate modeling referred to in subsection 8.4 is as follows:

8.5.a. For SO2 and TSP, the source's allowable emissions should be used in an atmospheric simulation

model to ensure that the emission offsets provide a positive net air quality benefit. It may, however, be

assumed that if the emission offsets are obtained from an existing or shutdown source on the same premises

or in the immediate vicinity of the proposed major stationary source or major modification and the pollutants

disperse from substantially the same effective stack height, the air quality test of subdivision 4.1.d will be met

without the necessity of modeling. Thus, when stack emissions are offset against a ground level source at

the same time, modeling would be required.

8.5.b. Atmospheric simulation modeling for ozone impacts is not necessary for volatile organic

compounds and NOX. For such pollutants, meeting the requirements of subdivisions 4.1.c and 8.2.a will be

adequate.

8.5.c. Proposed sources of VOC or NOX locating in a designated nonattainment area for ozone shall

be subject to the provisions of section 4.

24
45CSR19

8.5.d. Proposed VOC or NOX sources locating within thirty-six (36) hours travel time (under wind

conditions associated with concentrations exceeding the NAAQS for ozone) of a nonattainment monitor are

subject to section 4.

8.6. Credit for an emissions reduction can be claimed to the extent that the Secretary has not relied on

it in issuing any permit under 45CSR14 or 45CSR19 and the Secretary has not relied on it in a demonstration

of attainment or reasonable further progress.

8.7. The total amount of increased emissions, in tons per year, resulting from a major modification that

must be offset shall be determined by summing the difference between the allowable emissions after the

modification and the actual emissions before the modification for each emissions unit.

§45-19-9. Administrative Procedures for Emission Offset Proposals.

9.1. Emission offsets may be proposed by the applicant for the proposed major stationary source or

major modification, the local community or the Secretary.

9.1.a. The emission offsets committed to must be accomplished by the applicant's proposed start-up

date, except when such proposed source is a replacement for a source that is being shut down in order to

provide the necessary benefits; in such cases the Secretary may allow up to one hundred eighty (180) days

for shakedown of the new source before the existing source is required to cease operation. Such an allowance

must be requested by the applicant and contained, if granted, within the construction permit.

9.1.b. If the emission reductions which are to be used as offset credit for a proposed major stationary

source or major modification are to be obtained in a State that neighbors West Virginia, or from another

source at another site not controlled by the applicant, the offsets committed to must be embodied in a USEPA

approved State Implementation Plan revision in the neighboring State and must be federally enforceable and

enforceable by both such neighboring State and the Secretary and at all participating sources.

9.2. The applicant may propose emission offsets which involve:

9.2.a. Reductions from sources controlled by the applicant; or

9.2.b. Reductions from neighboring sources not controlled by the applicant.

9.3. A state or local community which desires that a major stationary source or major modification

locate in its area may commit to reducing emissions from existing sources to sufficiently offset the impact

of such proposed source.

9.4. Any emission offset proposal described in subsection 9.2 must be embodied either in the applicant's

permit application and permit if such offsets are directly controlled by the applicant or if from neighboring

sources located in the State not controlled by the applicant, in a consent order as provided in W. Va. Code

§22-5-5, which such consent order shall be submitted to the USEPA for inclusion in the State Implementation

Plan.

§45-19-10. [Reserved.]

§45-19-11. [Reserved.]

25
45CSR19

§45-19-12. Reasonable Further Progress.

12.1. By the time the proposed major source or major modification is to commence operation, sufficient

offsetting emissions reductions shall be in effect such that the total allowable emissions from existing sources

in the area, from new or modified sources which are not major sources and from the proposed source will be

sufficiently less than total emissions from existing sources prior to the application for the permit to construct

or modify so as to represent, when considered together with the plan provisions required under section 172

of the act (42 USC 7502), reasonable further progress.

12.2. For the purposes of satisfying the requirements of subsection 12.1:

12.2.a. The determination of total emissions at both the time prior to the application for a permit

subject to the requirements of this chapter and the time the permitted source or modification would commence

operation, shall be made in a manner consistent with the assumptions in the applicable state implementation

plan approved by the administrator concerning baseline emissions for the demonstration of reasonable further

progress and attainment of the National Ambient Air Quality Standards for the particular pollutant subject

to review under this chapter; and

12.2.b. To demonstrate reasonable further progress a new or modified source subject to review under

this rule shall obtain offsets in an amount equal to or greater than the amount specified by the applicable

offset ratio. If an offset ratio is not specified, the offset ratio shall be at least 1 to 1.

§45-19-13. Source Impact Analysis.

13.1. The applicant for a preconstruction permit shall demonstrate to the satisfaction of the Secretary that

all of the following conditions are met:

13.1.a. The emissions offsets required under subdivision 4.1.c, when considered in conjunction with

the proposed emissions increase, will have a net air quality benefit in the affected area, as required under

subdivision 4.1.d;

13.1.b. The emissions from the proposed new major source or major modification, when considered

in conjunction with the emissions offsets required under section 4, will not contribute to nonattainment in,

or interfere with maintenance by, any other state with respect to any national primary or secondary ambient

air quality standard;

13.1.c. The emissions from the proposed new major source or major modification, when considered

in conjunction with the emissions offsets required under section 4, will not interfere with measures required

to be included in the applicable implementation plan for any other state under a program for the prevention

of significant deterioration or for the protection of visibility; and

13.1.d. An analysis of alternative sites, sizes, production processes, and environmental control

techniques for the proposed source demonstrates the benefits of the proposed source significantly outweigh

the environmental and social costs imposed as a result of its location, construction or modification.

§45-19-14. Permit Requirements for Major Stationary Sources and Major Modifications.

14.1. Permit Application.

26
45CSR19

14.1.a. No person shall cause, suffer, allow, or permit the construction or relocation of any major

stationary source or a major modification to be commenced in any area designated as nonattainment under

§107 of the CAA, without notifying the Secretary of such intent, and obtaining prior to commencement of

construction, modification, or relocation, a permit(s) to so construct, modify or relocate the major stationary

source or major modification.

14.1.b. No person shall cause, suffer, allow or permit the construction or relocation of any major

stationary source or major modification to be commenced anywhere in the state, if the emissions would cause

a violation of a NAAQS or would cause a significant impact on air quality in a designated nonattainment area,

without notifying the Secretary of such intent and obtaining, prior to commencement of construction,

modification or relocation, all necessary preconstruction approvals or permits to so construct, modify or

relocate the major stationary source or major modification.

14.2. The owner or operator of the source shall file with the Secretary a timely and complete permit

application containing sufficient information as, in the judgement of the Secretary, will enable the Secretary

to determine whether such source construction, modification or relocation will be in conformance with the

provisions of any rules promulgated by the Secretary and with the requirements of this rule. Such information

may include, but not be limited to:

14.2.a. A description of the nature, location, design capacity and typical operating schedule of the

source or modification, including specifications and drawings showing its design and plant layout;

14.2.b. A detailed schedule for construction of the source or modification;

14.2.c. A detailed description as to what system of continuous emission reduction is planned by the

source or modification, emission estimates, and any other information as necessary to determine that the

requirement for lowest achievable emission rate as applicable would be met;

14.2.d. The air quality impact of the source or modification, including meteorological and

topographical data necessary to estimate such impact; and

14.2.e. A detailed description of any emission offsets proposed by the applicant.

14.3. Each permit application shall be signed by the owner or operator of the major stationary source or

major modification, and such signature shall constitute an agreement that the applicant will assume

responsibility for the construction, modification, or relocation, and operation of the major stationary source

or major modification in accordance with applicable rules and regulations of the Secretary, the permit

application and any permit issued pursuant to this rule.

14.4. Permit Review.

14.4.a. Within thirty (30) days of the receipt of a permit application for construction or relocation

of a major stationary source or for a major modification, the Secretary shall determine if the application is

complete or if there exists any deficiency in the application or information submitted, and shall notify the

applicant of all such deficiencies, if any. In the event of such a deficiency, the date of receipt of the

application shall be the date on which the Secretary received all required information.

14.4.b. After completing the review of a complete application, the Secretary shall make a preliminary

determination whether a permit should be approved, approved with conditions or disapproved.

27
45CSR19

14.4.c. After the public participation requirements specified in section 15 have been satisfied, the

Secretary shall notify the applicant in writing of the final determination.

14.5. Permit Issuance or Denial.

14.5.a. Within six (6) months of the receipt of a complete permit application for construction or

relocation of a major stationary source or for a major modification, the Secretary shall issue such a permit

unless the Secretary determines that the proposed major stationary source or major modification has not

satisfied the requirements of this rule, will violate applicable emission standards, will interfere with the

attainment or maintenance of applicable ambient air quality standards, or will be inconsistent with the intent

and purpose of this rule, in which case the Secretary shall issue an order for the prevention of such

construction, modification, or relocation.

14.5.b. If the Secretary denies a permit application for the proposed construction or relocation of any

major stationary source or major modification, the order shall set forth the Secretary's reasons with reasonable

specificity.

14.6. Reasonable Conditions. -- The Secretary may impose any reasonable conditions as part of a granted

construction, modification or relocation permit. Such conditions may include, but not be limited to, the

submission of periodic progress or operation reports, the provisions of a suitable sampling site, the installation

of pollutant monitoring devices, and the operation and maintenance of ambient air quality monitoring stations.

§45-19-15. Public Review Procedures.

15.1. At the time that an application for a construction or modification is filed, the applicant shall also

place a Class I legal advertisement in a newspaper of general circulation in the area where the source is or

will be located. No such permit shall be issued to any applicant until at least thirty (30) days notice has been

provided to the public. The advertisement shall contain at a minimum, the name of the applicant, the type

and location of the source, the type and amount of air pollutants that will be discharged, the nature of the

permit being sought, the proposed start-up date for the source and a contact telephone number for more

information.

15.2. The Secretary shall make available in at least one location in the region in which the proposed

source would be constructed a copy of all materials the applicant submitted (excluding data entitled to

protection as confidential information under the Code and any rules pursuant thereto), a copy of the

preliminary determination, and a copy or summary of other materials, if any, considered in making the

preliminary determination.

15.3. The Secretary shall place a Class I legal advertisement in a paper of general circulation in the area

where the proposed source would be constructed, modified, or relocated. The advertisement shall contain,

as a minimum, the name of the applicant, the type and location of the source, the proposed start-up date, the

preliminary determination, notification of the opportunity for written public comment, provisions for

requesting a public meeting, details concerning the time and place of such a meeting if one has already been

scheduled, and notification of the opportunity for comment at a public meeting if such meeting is to be

conducted. A public comment period of thirty (30) days shall be provided and so stated in the advertisement.

15.4. The Secretary shall send a copy of the advertisement to the applicant, to USEPA, and to officials

and agencies having cognizance over the location where the proposed construction would occur as follows:

any other State or local air pollution control agencies, the chief executives of the city and county where the

28
45CSR19

source would be located; any comprehensive regional land use planning agency, any State, and any Federal

Land Manager, whose lands may be affected by emissions from the source or modification.

15.5. Public comments submitted within thirty (30) days after the Secretary’s public notification of an

opportunity for comment upon a proposed construction or relocation of a major stationary source or major

modification and comments submitted within a specified period not to exceed fifteen (15) days after any

public meeting to receive comment on such proposed construction, modification, or relocation shall be

considered by the Secretary before making a final decision on the approvability of the application. The

Secretary shall make copies of all comments available for public inspection in the same locations where the

Secretary made available preconstruction information relating to the proposed source or modification.

15.6. The Secretary shall make a final determination whether construction should be approved, approved

with conditions, or disapproved.

15.7. The Secretary shall notify the applicant in writing of the final determination and make a copy of

such notification available for public inspection at the same location where the Secretary made available

preconstruction information and public comments relating to the proposed source or modification.

§45-19-16. Public Meetings.

16.1. Public meetings to receive comments on permit applications shall be held when the Secretary deems

it appropriate or when substantial interest is expressed, in writing, by persons who might reasonably be

expected to be affected by the proposed major source or major modification.

16.2. The Secretary or the Secretary 's designee shall preside over such meetings and ensure that all

interested parties have ample opportunity to present comments. Such meetings shall be held at a convenient

place as near as practicable to the location of the proposed major source or major modification.

16.3. At a reasonable time prior to such meetings, the Secretary shall provide appropriate information

to news media in the area where the proposed source or modification is to be located.

§45-19-17. Permit Transfer, Cancellation and Responsibility.

17.1. Permit Transfer. -- A permittee may petition the Secretary for a transfer of a permit previously

issued under 45CSR19. The Secretary shall approve such permit transfer provided the following conditions

are met:

17.1.a. The permittee, in the petition, describes the reasons for the requested permit transfer and

certifies that the subject source is in compliance with all the provisions and requirements of its permit, and

17.1.b. The transferee provides written acknowledgment that it accepts and will comply with all the

requirements, terms, and conditions as contained in the subject permit.

17.2. Permit Cancellation.

17.2.a. The Secretary shall cancel or suspend a permit if, after eighteen (18) months from the date

of issuance the holder of the permit cannot provide the Secretary, at the Secretary’s request, with written

proof of a good faith effort that such construction, modification or relocation has commenced and remains

ongoing. Such proof shall be provided not later than thirty (30) days after the Secretary’s request.

29
45CSR19

17.2.b. The Secretary may cancel or suspend the permit if the plans and specifications upon which

the approval was based or the conditions established in the permit are not adhered to. Upon notice of the

Secretary’s intent to suspend, modify or revoke a permit, the permit holder may request a conference with

the Secretary in accordance with the provisions of W.Va. Code §22-5-5 to show cause why the permit should

not be suspended, modified or revoked.

17.3. Responsibility.

17.3.a. Possession of a permit does not relieve any person of the responsibility of complying with

any and all rules of the Secretary or W.Va. Code §22-1-1 et seq. and any other requirements under local, State

or Federal law.

17.3.b. A source which has not operated at least five hundred (500) hours in one 12-month period

within the past previous five-year time period may be considered permanently shutdown, unless such source

can provide to the Secretary, with reasonable specificity, information to the contrary. All permits may be

modified or revoked and/or reapplication or application for new permits may be required for any source

determined to be permanently shutdown.

17.3.c. Any person who owns or operates any particular source or modification which becomes a

major stationary source or major modification solely by virtue of a relaxation in any limitation, enforceable

by the Administrator or the Secretary, on the capacity of the source or modification otherwise to emit a

pollutant (such as a restriction on hours of operation), shall become subject to the requirements of this rule

as though construction had not yet commenced on the source or modification.

17.3.d. Any owner or operator who constructs, modifies or operates a stationary source not in

accordance with the permit application submitted or with the terms of any approval to construct, or any owner

or operator of a stationary source or modification subject to this rule who commences construction without

applying for and receiving permit approval from the Secretary, shall be subject to appropriate enforcement

action in accordance with the W.Va. Code.

17.4. Except as otherwise provided in subdivision 17.4.f, the following specific provisions apply with

respect to any regulated NSR pollutant emitted from projects at existing emissions units at a major stationary

source, other than projects at a source with a PAL, in circumstances where there is a reasonable possibility,

within the meaning of subdivision 17.4.f, that a project that is not a part of a major modification may result

in a significant emissions increase of such pollutant, and the owner or operator elects to use the method

specified in subdivisions 2.59.a through 2.59.c for calculating projected actual emissions:

17.4.a. Before beginning actual construction of the project, the owner or operator shall document

and maintain a record of all of the following:

17.4.a.1. A description of the project;

17.4.a.2. Identification of the emissions unit or units whose emissions of a regulated NSR air

pollutant could be affected by the project; and

17.4.a.3. A description of the applicability test used to determine that the project is not a major

modification for any regulated NSR air pollutant, including the baseline actual emissions, the projected actual

emissions, the amount of emissions excluded under subdivision 2.59.c and an explanation why the amount

was excluded, and any netting calculations, if applicable;

30
45CSR19

17.4.b. If the emissions unit is an existing electric utility steam generating unit, before beginning

actual construction, the owner or operator shall provide a copy of the information required under subdivision

17.4.a to the Secretary. Nothing in this subdivision shall be construed to require the owner or operator of the

a unit to obtain any determination from the department before beginning actual construction.

17.4.c. The owner or operator shall monitor the emissions of any regulated NSR pollutant that could

increase as a result of the project and that is emitted by any emissions unit identified in subdivision 17.4.b. 

The owner or operator shall calculate and maintain a record of the annual emissions, in tons per year on a

calendar year basis, for a period of 5 years following resumption of regular operations after the change, or

for a period of 10 years following resumption of regular operations after the change if the project increases

the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit.

17.4.d. If the emissions unit is an existing electric utility steam generating unit, the owner or operator

shall submit a report to the Secretary within 60 days after the end of each year during which records must be

generated under subdivision 17.4.c setting out the unit’s annual emissions, as monitored pursuant to

subdivision 17.4.c, during the calendar year that preceded submission of the report.

17.4.e. If the emissions unit is an existing unit other than an electric utility steam generating unit,

the owner or operator shall submit a report to the department if the annual emissions, in tons per year, from

the project identified in subdivision 17.4.a, exceed the baseline actual emissions, as documented and

maintained pursuant to subdivision 17.4.c, by a significant amount for that regulated NSR air pollutant, and

if the emissions differ from the preconstruction projection that was provided to the department pursuant to

subdivision 17.4.b. The report shall be submitted to the Secretary within 60 days after the end of the year. 

The report shall contain the following information:

17.4.e.1. The name, address and telephone number of the major stationary source;

17.4.e.2. The annual emissions as calculated pursuant to paragraph 17.4.a.3; and

17.4.e.3. Any other information that the owner or operator wishes to include in the report, e.g., an

explanation as to why the emissions differ from the preconstruction projection.

17.4.f. A “reasonable possibility” under subsection 17.4 occurs when the owner or operator

calculates the project to result in either:

17.4.f.1. A projected actual emissions increase of at least 50 percent of the amount that is a

“significant emissions increase,” as defined under subsection 2.67 (without reference to the amount that is

a significant net emissions increase), for the regulated NSR pollutant; or

17.4.f.2. A projected actual emissions increase that, added to the amount of emissions excluded

under subdivision 2.59.c, sums to at least 50 percent of the amount that is a “significant emissions increase,”

as defined under subsection 2.67 (without reference to the amount that is a significant net emissions increase),

for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only within the

meaning of this paragraph, and not also within the meaning of paragraph 17.4.f.1, then provisions under

subdivisions 17.4.b through 17.4.e do not apply to the project.

17.5. The owner or operator of the source shall make the information required to be documented and

maintained pursuant to subsection 17.4 available for review upon request for inspection by the Secretary or

the public.

31
45CSR19

17.6. The requirements of this rule applicable to major stationary sources and major modifications of

volatile organic compounds shall apply to nitrogen oxides emissions from major stationary sources and major

modifications of nitrogen oxides in an ozone transport region or in any ozone nonattainment area, except in

ozone nonattainment areas or in portions of an ozone transport region where the Administrator has granted

a NOX waiver applying the standards set forth under section 182(f) of the CAA and the waiver continues to

apply.

17.7. Emission Offset Ratios.

17.7.a. In meeting the emissions offset requirements of subsection 7.1, the ratio of total actual

emissions reductions to the emissions increase shall be at least 1:1 unless an alternative ratio is provided for

the applicable nonattainment area in subdivisions 17.7.b through 17.7.d.

17.7.b. In meeting the emissions offset requirements of subsection 7.1 for ozone nonattainment areas

that are subject to Title I, Part D, Subpart 2 of the CAA, the ratio of total actual emissions reductions of VOC

to the emissions increase of VOC shall be as follows:

17.7.b.1. In any marginal nonattainment area for ozone -- at least 1.1:1;

17.7.b.2. In any moderate nonattainment area for ozone -- at least 1.15:1;

17.7.b.3. In any serious nonattainment area for ozone -- at least 1.2:1;

17.7.b.4. In any severe nonattainment area for ozone -- at least 1.3:1 (except that the ratio may be

at least 1.2:1 if the approved plan also requires all existing major sources in such nonattainment area to use

BACT for the control of VOC); and

17.7.b.5. In any extreme nonattainment area for ozone -- at least 1.5:1 (except that the ratio may

be at least 1.2:1 if the approved plan also requires all existing major sources in such nonattainment area to

use BACT for the control of VOC); and

17.7.c. Notwithstanding the requirements of subdivision 17.7.b for meeting the requirements of

subsection 7.1, the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall

be at least 1.15:1 for all areas within an ozone transport region that is subject to Title I, Part D, Subpart 2 of

the CAA, except for serious, severe, and extreme ozone nonattainment areas that are subject to Title I, Part

D, Subpart 2 of the CAA.

17.7.d. In meeting the emissions offset requirements of subsection 7.1 for ozone nonattainment areas

that are subject to Title I, Part D, Subpart 1 of the CAA (but are not subject to Title I, Part D, Subpart 2 of

the CAA, including 8-hour ozone nonattainment areas subject to 40 CFR 51.902(b)), the ratio of total actual

emissions reductions of VOC to the emissions increase of VOC shall be at least 1:1.

17.8. The requirements of this rule applicable to major stationary sources and major modifications of

PM10 shall also apply to major stationary sources and major modifications of PM10 precursors, except where

the Administrator determines that such sources do not contribute significantly to PM10 levels that exceed the

PM10 ambient standards in the area.

17.9. In meeting the emissions offset requirements of section 7, the emissions offsets obtained shall be

for the same regulated NSR pollutant unless interprecursor offsetting is permitted for a particular pollutant

32
45CSR19

as specified in this subsection. The offset requirements in section 7 for direct PM2.5 emissions or emissions

of precursors of PM2.5 may be satisfied by offsetting reductions in direct PM2.5 emissions or emissions of any

PM2.5 precursor identified under subdivision 2.61.c if such offsets comply with the following interprecursor

trading ratios:

17.9.a. NOX to primary PM2.5 -- 200 tons of NOX for 1 ton of PM2.5; and 

17.9.b. SO2 to primary PM2.5 -- 40 tons of SO2 for 1 ton of PM2.5.

§45-19-18. Disposition of Permits.

18.1. In the event that the Secretary promulgates revisions to this rule, or in the event of a redesignation

of an attainment or non-attainment area (in accordance with section §107 of the CAA) prior to final

disposition of a permit, the Secretary shall make final disposition of the permit application in accordance with

such newly promulgated standards or redesignation.

§45-19-19. Requirements for Air Quality Models.

19.1. All estimates of ambient concentrations required under this rule shall be based on the applicable

air quality models, data bases, and other requirements specified in 40 CFR Part 51, Appendix W (Guideline

on Air Quality Models).

19.2. Where an air quality impact model specified in 40 CFR Part 51, Appendix W (Guideline on Air

Quality Models) is inappropriate, the model may be modified or another model substituted, provided that said

modification or substitution is approved in writing by the Administrator.

§45-19-20. [Reserved.]

§45-19-21. [Reserved.]

§45-19-22. [Reserved.]

§45-19-23. Actuals PAL.

23.1. Applicability.

23.1.a. The Secretary may approve the use of an actuals PAL for any existing major stationary

source, except as provided in subdivision 23.1.b, if the PAL meets the requirements in subsections 23.1

through 23.15. The term “PAL” shall mean “actuals PAL” throughout section 23.

23.1.b. The Secretary shall not allow an actuals PAL for VOC or NOX for any major stationary

source located in an extreme ozone nonattainment area.

23.1.c. Any physical change in or change in the method of operation of a major stationary source

that maintains its total source-wide emissions below the PAL level, meets the requirements in subsections

23.1 through 23.15, and complies with the PAL permit:

23.1.c.1. Is not a major modification for the PAL pollutant;

33
45CSR19

23.1.c.2. Does not have to be approved through the plan's nonattainment major NSR program; and 

23.1.c.3. Is not subject to the provisions in subdivision 17.3.c (restrictions on relaxing enforceable

emission limitations that the major stationary source used to avoid applicability of the nonattainment major

NSR program).

23.1.d. Except as provided under paragraph 23.1.c.3, a major stationary source shall continue to

comply with all applicable Federal or State requirements, emission limitations, and work practice

requirements that were established prior to the effective date of the PAL.

23.2. Definitions.

23.2.a. Allowable emissions means “allowable emissions” as defined in subsection 2.4, except as

this definition is modified according to paragraphs 23.2.a.1 through 23.2.a.2.

23.2.a.1. The allowable emissions for any emissions unit shall be calculated considering any

emission limitations that are enforceable as a practical matter on the emissions unit’s potential to emit.

23.2.a.2. An emissions unit’s potential to emit shall be determined using the definition in

subsection 2.55, except that the words “or enforceable as a practical matter” should be added after “federally

enforceable.”

23.3. Permit application requirements. -- As part of a permit application submitted pursuant to 45CSR13

requesting a PAL, the owner or operator of a major stationary source shall submit the following information

to the Secretary for approval:

23.3.a. A list of all emissions units at the source designated as small, significant or major based on

their potential to emit. In addition, the owner or operator of the source shall indicate which, if any, Federal

or State applicable requirements, emission limitations or work practices apply to each unit.

23.3.b. Calculations of the baseline actual emissions, with supporting documentation. Baseline

actual emissions are to include emissions associated not only with operation of the unit, but also emissions

associated with startup, shutdown and malfunction.

23.3.c. The calculation procedures that the major stationary source owner or operator proposes to

use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month

rolling total for each month as required by subdivision 23.11.a.

23.4. General requirements for establishing PALs.

23.4.a. The Secretary may establish a PAL at a major stationary source, provided that at a minimum,

the requirements in paragraphs 23.4.a.1 through 23.4.a.7 are met.

23.4.a.1. The PAL shall impose an annual emission limitation in tons per year, that is enforceable

as a practical matter, for the entire major stationary source. For each month during the PAL effective period

after the first 12 months of establishing a PAL, the major stationary source owner or operator shall show that

the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive

months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11 months

from the PAL effective date, the major stationary source owner or operator shall show that the sum of the

34
45CSR19

preceding monthly emissions from the PAL effective date for each emissions unit under the PAL is less than

the PAL.

23.4.a.2. The PAL shall be established in a PAL permit that meets the public participation

requirements in subsection 23.5.

23.4.a.3. The PAL permit shall contain all the requirements of subsection 23.7.

23.4.a.4. The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions

units that emit or have the potential to emit the PAL pollutant at the major stationary source.

23.4.a.5. Each PAL shall regulate emissions of only one pollutant.

23.4.a.6. Each PAL shall have a PAL effective period of 10 years.

23.4.a.7. The owner or operator of the major stationary source with a PAL shall comply with the

monitoring, recordkeeping, and reporting requirements provided in subsections 23.12 through 23.14 for each

emissions unit under the PAL through the PAL effective period.

23.4.b. At no time (during or after the PAL effective period) are emissions reductions of a PAL

pollutant, which occur during the PAL effective period, creditable as decreases for purposes of offsets under

subsections 7.2 through 7.6, 8.1 through 8.2 and 8.6 through 8.9 unless the level of the PAL is reduced by

the amount of such emissions reductions and such reductions would be creditable in the absence of the PAL.

23.5. Public participation requirement for PALs. -- PALs for existing major stationary sources shall be

established, renewed, or increased through a procedure that is consistent with 40 CFR §§ 51.160 and 51.161. 

The Secretary shall provide the public with notice of the proposed approval of a PAL permit and at least a

30-day period for submittal of public comment. The Secretary must address all material comments before

taking final action on the permit.

23.6. Setting the 10-year actuals PAL level.

23.6.a. Except as provided in subdivision 23.6.b, actuals PAL level for a major stationary source

shall be established as the sum of the baseline actual emissions (as defined in subsection 2.52.) of the PAL

pollutant for each emissions unit at the source; plus an amount equal to the applicable significant level for

the PAL pollutant under subsection 2.66 or under the CAA, whichever is lower. When establishing the

actuals PAL level, for a PAL pollutant, only one consecutive 24-month period must be used to determine the

baseline actual emissions for all existing emissions units. However, a different consecutive 24-month period

may be used for each different PAL pollutant. Emissions associated with units that were permanently

shutdown after this 24-month period must be subtracted from the PAL level. Emissions from units on which

actual construction began after the 24-month period must be added to the PAL level in an amount equal to

the potential to emit of the units. The Secretary shall specify a reduced PAL level(s) (in tons/yr) in the PAL

permit to become effective on the future compliance date(s) of any applicable Federal or State regulatory

requirement(s) that the Secretary is aware of prior to issuance of the PAL permit. For instance, if the source

owner or operator will be required to reduce emissions from industrial boilers in half from baseline emissions

of 60 ppm NOX to a new rule limit of 30 ppm, then the permit shall contain a future effective PAL level that

is equal to the current PAL level reduced by half of the original baseline emissions of such unit(s).

23.6.b. For newly constructed units (which do not include modifications to existing units) on which

35
45CSR19

actual construction began after the 24-month period, in lieu of adding the baseline actual emissions as

specified in subdivision 23.6.a, the emissions must be added to the PAL level in an amount equal to the

potential to emit of the units.

23.7. Contents of the PAL permit. -- The PAL permit shall contain, at a minimum, the information in

subdivisions 23.7.a through 23.7.j.

23.7.a. The PAL pollutant and the applicable source-wide emission limitation in tons per year.

23.7.b. The PAL permit effective date and the expiration date of the PAL (PAL effective period).

23.7.c. Specification in the PAL permit that if a major stationary source owner or operator applies

to renew a PAL in accordance with subsection 23.10 before the end of the PAL effective period, then the PAL

shall not expire at the end of the PAL effective period. It shall remain in effect until a revised PAL permit

is issued by the Secretary.

23.7.d. A requirement that emission calculations for compliance purposes include emissions from

startups, shutdowns and malfunctions.

23.7.e. A requirement that, once the PAL expires, the major stationary source is subject to the

requirements of subsection 23.9.

23.7.f. The calculation procedures that the major stationary source owner or operator shall use to

convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling

total for each month as required by subdivision 23.13.a.

23.7.g. A requirement that the major stationary source owner or operator monitor all emissions units

in accordance with the provisions under subsection 23.12.

23.7.h. A requirement to retain the records required under subsection 23.3 on site. Such records may

be retained in an electronic format.

23.7.i. A requirement to submit the reports required under subsection 23.14 by the required

deadlines.

23.7.j. Any other requirements that the Secretary deems necessary to implement and enforce the

PAL.

23.8. PAL effective period and reopening of the PAL permit.

23.8.a. PAL effective period. -- The Secretary shall specify a PAL effective period of 10 years.

23.8.b. Reopening of the PAL permit.

23.8.b.1. During the PAL effective period, the Secretary shall reopen the PAL permit to:

23.8.b.1.A. Correct typographical or calculation errors made in setting the PAL or reflect a

more accurate determination of emissions used to establish the PAL.

36
45CSR19

23.8.b.1.B. Reduce the PAL if the owner or operator of the major stationary source creates

creditable emissions reductions for use as offsets under subsections 7.2 through 7.6, 8.1 through 8.2 and 8.6

through 8.9.

23.8.b.1.C. Revise the PAL to reflect an increase in the PAL as provided under subsection

23.11.

23.8.b.2. The Secretary may reopen the PAL permit for the following:

23.8.b.2.A. Reduce the PAL to reflect newly applicable Federal requirements (for example,

NSPS) with compliance dates after the PAL effective date.

23.8.b.2.B. Reduce the PAL consistent with any other requirement, that is enforceable as a

practical matter, and that the State may impose on the major stationary source under the plan.

23.8.b.2.C. Reduce the PAL if the Secretary determines that a reduction is necessary to avoid

causing or contributing to a NAAQS or PSD increment violation, or to an adverse impact on an air quality

related value that has been identified for a Federal Class I area by a Federal Land Manager and for which

information is available to the general public.

23.8.b.3. Except for the permit reopening in subparagraph 23.8.b.1.A for the correction of

typographical/calculation errors that do not increase the PAL level, all other reopenings shall be carried out

in accordance with the public participation requirements of subsection 23.5.

23.9. Expiration of a PAL. -- Any PAL which is not renewed in accordance with the procedures in

subsection 23.10 shall expire at the end of the PAL effective period, and the requirements in subdivision

23.9.a through 23.9.e shall apply.

23.9.a. Each emissions unit (or each group of emissions units) that existed under the PAL shall

comply with an allowable emission limitation under a revised permit established according to the procedures

in paragraphs 23.9.a.1 through 23.9.a.2.

23.9.a.1. Within the time frame specified for PAL renewals in subdivision 23.10.b, the major

stationary source shall submit a proposed allowable emission limitation for each emissions unit (or each group

of emissions units, if such a distribution is more appropriate as decided by the Secretary) by distributing the

PAL allowable emissions for the major stationary source among each of the emissions units that existed under

the PAL. If the PAL had not yet been adjusted for an applicable requirement that became effective during

the PAL effective period, as required under subdivision 23.10.e, such distribution shall be made as if the PAL

had been adjusted.

23.9.a.2. The Secretary shall decide whether and how the PAL allowable emissions will be

distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group

of emissions units, as the Secretary determines is appropriate.

23.9.b. Each emissions unit(s) shall comply with the allowable emission limitation on a 12-month

rolling basis. The Secretary may approve the use of monitoring systems (source testing, emission factors,

etc.) other than CEMS, CERMS, PEMS or CPMS to demonstrate compliance with the allowable emission

limitation.

23.9.c. Until the Secretary issues the revised permit incorporating allowable limits for each

37
45CSR19

emissions unit, or each group of emissions units, as required under paragraph 23.9.a.1, the source shall

continue to comply with a source-wide, multi-unit emissions cap equivalent to the level of the PAL emission

limitation.

23.9.d. Any physical change or change in the method of operation at the major stationary source will

be subject to the nonattainment major NSR requirements if such change meets the definition of major

modification in subdivision 2.33.

23.9.e. The major stationary source owner or operator shall continue to comply with any State or

Federal applicable requirements (BACT, RACT, NSPS, etc.) that may have applied either during the PAL

effective period or prior to the PAL effective period except for those emission limitations that had been

established pursuant to subdivision 17.3.c, but were eliminated by the PAL in accordance with the provisions

in paragraph 23.1.c.3.

23.10. Renewal of a PAL.

23.10.a. The Secretary shall follow the procedures specified in subsection 23.5 in approving any

request to renew a PAL for a major stationary source, and shall provide both the proposed PAL level and a

written rationale for the proposed PAL level to the public for review and comment. During such public

review, any person may propose a PAL level for the source for consideration by the Secretary.

23.10.b. Application deadline. -- The owner or operator of a major stationary source shall submit a

timely application to the Secretary to request renewal of a PAL. A timely application is one that is submitted

at least 6 months prior to, but not earlier than 18 months from, the date of permit expiration. This deadline

for application submittal is to ensure that the permit will not expire before the permit is renewed. If the owner

or operator of a major stationary source submits a complete application to renew the PAL within this time

period, then the PAL shall continue to be effective until the revised permit with the renewed PAL is issued.

23.10.c. Application requirements. -- The application to renew a PAL permit shall contain the

information required in paragraphs 23.10.c.1 through 23.10.c.4.

23.10.c.1. The information required in subdivisions 23.3.a through 23.3.c.

23.10.c.2. A proposed PAL level.

23.10.c.3. The sum of the potential to emit of all emissions units under the PAL (with supporting

documentation).

23.10.c.4. Any other information the owner or operator wishes the Secretary to consider in

determining the appropriate level for renewing the PAL.

23.10.d. PAL adjustment. -- In determining whether and how to adjust the PAL, the Secretary shall

consider the options outlined in paragraphs 23.10.d.1 and 23.10.d.2. However, in no case may any such

adjustment fail to comply with paragraph 23.10.d.3.

23.10.d.1. If the emissions level calculated in accordance with subsection 23.6 is equal to or

greater than 80 percent of the PAL level, the Secretary may renew the PAL at the same level without

considering the factors set forth in paragraph 23.10.d.2.; or 

38
45CSR19

23.10.d.2. The Secretary may set the PAL at a level that it determines to be more representative

of the source's baseline actual emissions, or that it determines to be appropriate considering air quality needs,

advances in control technology, anticipated economic growth in the area, desire to reward or encourage the

source's voluntary emissions reductions, or other factors as specifically identified by the Secretary in its

written rationale.

23.10.d.3. Notwithstanding paragraphs 23.10.d.1 and 23.10.d.2,

23.10.d.3.A. If the potential to emit of the major stationary source is less than the PAL, the

Secretary shall adjust the PAL to a level no greater than the potential to emit of the source; and 

23.10.d.3.B. The Secretary shall not approve a renewed PAL level higher than the current PAL,

unless the major stationary source has complied with the provisions of subsection 23.11 (increasing a PAL).

23.10.e. If the compliance date for a State or Federal requirement that applies to the PAL source

occurs during the PAL effective period, and if the Secretary has not already adjusted for such requirement,

the PAL shall be adjusted at the time of PAL permit renewal or title V permit renewal, whichever occurs first.

23.11. Increasing a PAL during the PAL effective period.

23.11.a. The Secretary may increase a PAL emission limitation only if the major stationary source

complies with the provisions in paragraphs 23.11.a.1 through 23.11.a.4.

23.11.a.1. The owner or operator of the major stationary source shall submit a complete

application to request an increase in the PAL limit for a PAL major modification. Such application shall

identify the emissions unit(s) contributing to the increase in emissions so as to cause the major stationary

source's emissions to equal or exceed its PAL.

23.11.a.2. As part of this application, the major stationary source owner or operator shall

demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of the

baseline actual emissions of the significant and major emissions units assuming application of BACT

equivalent controls, plus the sum of the allowable emissions of the new or modified emissions unit(s) exceeds

the PAL. The level of control that would result from BACT equivalent controls on each significant or major

emissions unit shall be determined by conducting a new BACT analysis at the time the application is

submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement that

was established within the preceding 10 years. In such a case, the assumed control level for that emissions

unit shall be equal to the level of BACT or LAER with which that emissions unit must currently comply.

23.11.a.3. The owner or operator obtains a major NSR permit for all emissions unit(s) identified

in paragraph 23.11.a.1, regardless of the magnitude of the emissions increase resulting from them (that is, no

significant levels apply). These emissions unit(s) shall comply with any emissions requirements resulting

from the nonattainment major NSR program process (for example, LAER), even though they have also

become subject to the PAL or continue to be subject to the PAL.

23.11.a.4. The PAL permit shall require that the increased PAL level shall be effective on the

day any emissions unit that is part of the PAL major modification becomes operational and begins to emit

the PAL pollutant.

23.11.b. The Secretary shall calculate the new PAL as the sum of the allowable emissions for each

39
45CSR19

modified or new emissions unit, plus the sum of the baseline actual emissions of the significant and major

emissions units (assuming application of BACT equivalent controls as determined in accordance with

paragraph 23.11.a.2), plus the sum of the baseline actual emissions of the small emissions units.

23.11.c. The PAL permit shall be revised to reflect the increased PAL level pursuant to the public

notice requirements of subsection 23.5.

23.12. Monitoring requirements for PALs.

23.12.a. General requirements.

23.12.a.1. Each PAL permit must contain enforceable requirements for the monitoring system

that accurately determines plantwide emissions of the PAL pollutant in terms of mass per unit of time. Any

monitoring system authorized for use in the PAL permit must be based on sound science and meet generally

acceptable scientific procedures for data quality and manipulation. Additionally, the information generated

by such system must meet minimum legal requirements for admissibility in a judicial proceeding to enforce

the PAL permit.

23.12.a.2. The PAL monitoring system must employ one or more of the four general monitoring

approaches meeting the minimum requirements set forth in paragraphs 23.12.b.1 through 23.12.b.4 and must

be approved by the Secretary.

23.12.a.3. Notwithstanding paragraph 23.12.a.2, you may also employ an alternative monitoring

approach that meets paragraph 23.12.a.1 if approved by the Secretary.

23.12.a.4. Failure to use a monitoring system that meets the requirements of this rule renders the

PAL invalid.

23.12.b. Minimum Performance Requirements for Approved Monitoring Approaches. The following

are acceptable general monitoring approaches when conducted in accordance with the minimum requirements

in subdivisions 23.12.c through 23.12.i: 

23.12.b.1. Mass balance calculations for activities using coatings or solvents;

23.12.b.2. CEMS;

23.12.b.3. CPMS or PEMS; and 

23.12.b.4. Emission Factors.

23.12.c. Mass Balance Calculations. An owner or operator using mass balance calculations to

monitor PAL pollutant emissions from activities using coating or solvents shall meet the following

requirements:

23.12.c.1. Provide a demonstrated means of validating the published content of the PAL pollutant

that is contained in or created by all materials used in or at the emissions unit;

23.12.c.2. Assume that the emissions unit emits all of the PAL pollutant that is contained in or

created by any raw material or fuel used in or at the emissions unit, if it cannot otherwise be accounted for

40
45CSR19

in the process; and

23.12.c.3. Where the vendor of a material or fuel, which is used in or at the emissions unit,

publishes a range of pollutant content from such material, the owner or operator must use the highest value

of the range to calculate the PAL pollutant emissions unless the Secretary determines there is site-specific

data or a site-specific monitoring program to support another content within the range.

23.12.d. CEMS. An owner or operator using CEMS to monitor PAL pollutant emissions shall meet

the following requirements:

23.12.d.1. CEMS must comply with applicable Performance Specifications found in 40 CFR Part

60, appendix B; and

23.12.d.2. CEMS must sample, analyze and record data at least every 15 minutes while the

emissions unit is operating.

23.12.e. CPMS or PEMS. An owner or operator using CPMS or PEMS to monitor PAL pollutant

emissions shall meet the following requirements:

23.12.e.1. The CPMS or the PEMS must be based on current site-specific data demonstrating

a correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of

operation of the emissions unit; and

23.12.e.2. Each CPMS or PEMS must sample, analyze, and record data at least every 15 minutes,

or at another less frequent interval approved by the Secretary while the emissions unit is operating.

23.12.f. Emission factors. An owner or operator using emission factors to monitor PAL pollutant

emissions shall meet the following requirements:

23.12.f.1. All emission factors shall be adjusted, if appropriate, to account for the degree of

uncertainty or limitations in the factors' development;

23.12.f.2. The emissions unit shall operate within the designated range of use for the emission

factor, if applicable; and

23.12.f.3. If technically practicable, the owner or operator of a significant emissions unit that

relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine

a site-specific emission factor within 6 months of PAL permit issuance, unless the Secretary determines that

testing is not required.

23.12.g. A source owner or operator must record and report maximum potential emissions without

considering enforceable emission limitations or operational restrictions for an emissions unit during any

period of time that there is no monitoring data, unless another method for determining emissions during such

periods is specified in the PAL permit.

23.12.h. Notwithstanding the requirements in subdivisions 23.12.c through 23.12.g, where an owner

or operator of an emissions unit cannot demonstrate a correlation between the monitored parameter(s) and

the PAL pollutant emissions rate at all operating points of the emissions unit, the Secretary shall, at the time

of permit issuance:

41
45CSR19

23.12.h.1. Establish default value(s) for determining compliance with the PAL based on the

highest potential emissions reasonably estimated at such operating point(s); or

23.12.h.2. Determine that operation of the emissions unit during operating conditions when there

is no correlation between monitored parameter(s) and the PAL pollutant emissions is a violation of the PAL.

23.12.i. Re-validation. All data used to establish the PAL pollutant must be re-validated through

performance testing or other scientifically valid means approved by the Secretary. Such testing must occur

at least once every 5 years after issuance of the PAL.

23.13. Recordkeeping requirements.

23.13.a. The PAL permit shall require an owner or operator to retain a copy of all records necessary

to determine compliance with any requirement of section 23 and of the PAL, including a determination of

each emissions unit’s 12-month rolling total emissions, for 5 years from the date of such record.

23.13.b. The PAL permit shall require an owner or operator to retain a copy of the following records

for the duration of the PAL effective period plus 5 years:

23.13.b.1. A copy of the PAL permit application and any applications for revisions to the PAL;

and

23.13.b.2. Each annual certification of compliance pursuant to title V and the data relied on in

certifying the compliance.

23.14. Reporting and notification requirements. -- The owner or operator shall submit semi-annual

monitoring reports and prompt deviation reports to the Secretary in accordance with the applicable title V

operating permit program. The reports shall meet the requirements in subdivisions 23.14.a through 23.14.c.

23.14.a. Semi-Annual Report. -- The semi-annual report shall be submitted to the Secretary within

30 days of the end of each reporting period. This report shall contain the information required in paragraphs

23.14.a.1 through 23.14.a.7.

23.14.a.1. The identification of owner and operator and the permit number.

23.14.a.2. Total annual emissions (tons/year) based on a 12-month rolling total for each month

in the reporting period recorded pursuant to subdivision 23.13.a.

23.14.a.3. All data relied upon, including, but not limited to, any Quality Assurance or Quality

Control data, in calculating the monthly and annual PAL pollutant emissions.

23.14.a.4. A list of any emissions units modified or added to the major stationary source during

the preceding 6-month period.

23.14.a.5. The number, duration, and cause of any deviations or monitoring malfunctions, other

than the time associated with zero and span calibration checks, and any corrective action taken.

23.14.a.6. A notification of a shutdown of any monitoring system, whether the shutdown was

permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will be

42
45CSR19

fully operational or replaced with another monitoring system, and whether the emissions unit monitored by

the monitoring system continued to operate, and the calculation of the emissions of the pollutant or the

number determined by method included in the permit, as provided by subdivision 23.12.g.

23.14.a.7. A signed statement by the responsible official (as defined by the applicable title V

operating permit program) certifying the truth, accuracy, and completeness of the information provided in

the report.

23.14.b. Deviation report. -- The major stationary source owner or operator shall promptly submit

reports of any deviations or exceedance of the PAL requirements, including periods where no monitoring is

available. A report submitted pursuant to 45CSR30-5.1.c.3 shall satisfy this reporting requirement. The

deviation reports shall be submitted within the time limits prescribed by 45CSR30-5.1.c.3. The reports shall

contain the following information:

23.14.b.1. The identification of owner and operator and the permit number;

23.14.b.2. The PAL requirement that experienced the deviation or that was exceeded;

23.14.b.3. Emissions resulting from the deviation or the exceedance; and

23.14.b.4. A signed statement by the responsible official (as defined by 45CSR30) certifying the

truth, accuracy, and completeness of the information provided in the report.

23.14.c. Re-validation results. -- The owner or operator shall submit to the Secretary the results of

any re-validation test or method within 3 months after completion of such test or method.

23.15. Transition requirements.

23.15.a. The Secretary shall not issue a PAL that does not comply with the requirements in

subsections 23.1 through 23.15 after the Administrator has approved regulations incorporating these

requirements into the WV State Implementation Plan (SIP).

23.15.b. The Secretary may supersede any PAL which was established prior to the date of approval

of this rule by the Administrator with a PAL that complies with the requirements of subsections 23.1 through

23.15.

§45-19-24. Conflict with Other Permitting Rules.

24.1. For sources required to obtain a permit under this rule, the provisions of 45CSR13 and 45CSR14

requiring a permit do not apply, so that only a single permit is required; provided however, that:

24.1.a. The base permit application fee of $1,000 pursuant to 45CSR22, subdivision 3.4.a shall apply

to such sources in addition to other applicable fees; and

24.1.b. Any permit issued under this rule includes conditions that ensure compliance with the

provisions of 45CSR13 and 45CSR19 to the extent applicable to any regulated NSR pollutant not otherwise

covered under this rule.

24.2. For sources that may be subject to 45CSR13, 45CSR14 and/or 45CSR19, the more stringent

43
45CSR19

provisions of each applicable rule shall apply.

§45-19-25. Inconsistency Between Rules.

25.1. In the event of any inconsistency between this rule and any other rule of the West Virginia

Department of Environmental Protection, such inconsistency shall be resolved by the determination of the

Secretary and such determination shall be based upon the application of the more stringent provision, term,

condition, method or rule.

44
45CSR14 AND 45CSR19

PERMITS FOR CONSTRUCTION AND MAJOR MODIFICATION OF MAJOR

STATIONARY SOURCES OF AIR POLLUTION FOR THE PREVENTION OF

SIGNIFICANT DETERIORATION

AND

PERMITS FOR CONSTRUCTION AND MAJOR MODIFICATION OF MAJOR

STATIONARY SOURCES OF AIR POLLUTION WHICH CAUSE OR CONTRIBUTE

TO NONATTAINMENT

RESPONSE TO COMMENTS

On June 11, 2010, the Division of Air Quality (DAQ) commenced a thirty day public

comment period and subsequently held a public hearing on July 12, 2010 to accept oral comments

on proposed revisions to legislative rules 45CSR14 and 45CSR19. Written comments were also

accepted through 6:00 PM on Monday, July 12, 2010.

No one verbally commented at the public hearing concerning proposed rules 45CSR14 or

45CSR19. Two commenters submitted written comments on proposed rule 45CSR14. Three

commenters submitted written comments on proposed rule 45CSR19. DAQ addresses these

comments below.

I. COMMENTER: Environmental Protection Agency

COMMENT A. The commenterstates, “Thank you for the opportunity to review the proposed

2011 WV Department of Air Quality’s Prevention of Significant Deterioration and Nonattainment

New Source Review regulations located at 45 CSR 14 and 45 CSR 19, respectively. Based on our

review, we were pleased to see WV setting new limitations for PM2.5, the addition of emission offest 

(sic) ratios and provisions for fugitive emissions based on the most recent stay of that regulation. 

EPA has no further comments regarding these proposed regulations.”

RESPONSE A. No response required.

II. COMMENTER: Nancy Bouldin

COMMENT A. The commenter states, “45CSR14 – Permits for Construction and Major

Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant

Deterioration Comment: I strongly urge theWVDEPto enact and enforce standards under 45CSR14

that meet OR EXCEED federal standards. 

RESPONSE A. DAQ notes that the permit program under 45CSR14 comports to federal

counterpart regulation promulgated by the U.S. EPA as of June 1, 2010.

1
COMMENT B. The commenter states, “45CSR19 – Permits for Construction and Major

Modification of Major Stationary Sources of Air Pollution Which Cause or Contribute to

Nonattainment Comment: I strongly urge the WVDEP to enact and enforce standards for permits

under 45CSR19 that meet OR EXCEED federal standards.”

RESPONSE B. DAQ notes that the permit program under 45CSR19 comports to federal

counterpart regulation promulgated by the U.S. EPA as of June 1, 2010.

III. COMMENTER: Linda Lee E. Emrich

COMMENT A. The commenter states, “Subject: 45CSR19 11a. The construction of major

sources of air pollution should no longer be permitted. Our economy must retool with renewable,

non polluting resources, instead of wasting time and energy by constructing new facilities that are

obsolete when permitted.”

RESPONSE A. DAQ notes that the permit program under 45CSR19 is a required component

of the West Virginia State Implementation Plan under the Federal Clean Air Act.

COMMENT B. The commenterstates, “11b. Major stationary sources of air pollution which

presently exisit (sic) would do well to modify for compliance with the air quality standards set forth

in the Clean Air Act as a first priority and with all haste. Renewable resources is homeland security.

Protect our regenerating life supporting ecosystems. Oxygen for life!”

RESPONSE B. DAQ notes that anymajor stationarysourcewhichmodifiesits operation must

do so according to the permitting requirements under 45CSR14 or 45CSR19, as applicable, as

required by states (or U.S. EPA) under the federal Clean Air Act.

IV. COMMENTER: DEP Advisory Council

COMMENT A. The commenterstates, “Council also recommends that the Air Quality rules

contain language in the sections entitled ‘Inconsistency Between Rules" to read as follows: "In the

event of any inconsistency between this rule and any other rule of the West Virginia Department of

Environmental Protection, the inconsistency shall be resolved by the determination of the Secretary

and the determination shall be based upon the application of the more stringent provision, term,

condition, method, or rule using sound scientific information.’”

RESPONSE A. DAQ appreciates the comment, however, the comment involves language that

is beyond the scope of proposed revisions, and, therefore requires no response. 

2
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 121

(By Senators Minard, Snyder, Prezioso, 

Unger, Boley and K. Facemyer)

__________

[Originating in the Committee on the Judiciary;

reported February 23, 2011.]

__________

A BILL to amend and reenact article 3, chapter 64 of the Code of

West Virginia, 1931, as amended, relating generally to the

promulgation of administrative rules by the Department of

Environmental Protection; legislative mandate or authorization for the promulgation of certain legislative rules by various

executive or administrative agencies of the state; authorizing

certain of the agencies to promulgate certain legislative rules

in the form that the rules were filed in the State Register;

authorizing certain of the agencies to promulgate certain

legislative rules in the form that the rules were filed in the
Com. Sub. for S. B. No. 121] 2

State Register and as amended by the Legislature; authorizing

certain of the agencies to promulgate certain legislative rules

with various modifications presented to and recommended by

the Legislative Rule-Making Review Committee; authorizing

certain of the agencies to promulgate certain legislative rules

with various modifications presented to and recommended by

the Legislative Rule-Making Review Committee and as

amended by the Legislature; authorizing certain of the

agencies to promulgate certain legislative rules as amended by

the Legislature; authorizing the Department of Environmental

Protection to promulgate a legislative rule relating to hazardous waste management systems; authorizing the Department

of Environmental Protection to promulgate a legislative rule

relating to surface mining reclamation; authorizing the

Department of Environmental Protection to promulgate a

legislative rule relating to ambient air quality standards;

authorizing the Department of Environmental Protection to

promulgate a legislative rule relating to permits for construction and major modification of major stationary sources of air

pollution for the prevention of significant deterioration;

authorizing the Department of Environmental Protection to

promulgate a legislative rule relating to standards of perfor-
3 [Com. Sub. for S. B. No. 121

mance for new stationary sources; authorizing the Department

of Environmental Protection to promulgate a legislative rule

relating to control of air pollution from combustion of solid

waste; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to permits for

construction and major modification of major stationary

sources of air pollution which cause or contribute to

nonattainment; authorizing the Department of Environmental

Protection to promulgate a legislative rule relating to the

control of air pollution from hazardous waste treatment,

storage and disposal facilities; authorizing the Department of

Environmental Protection to promulgate a legislative rule

relating to emission standards for hazardous air pollutants;

authorizing the Department of Environmental Protection to

promulgate a legislative rule relating to the National Pollutant

Discharge Elimination System (NPDES) Program; authorizing

the Department of Environmental Protection to promulgate a

legislative rule relating to requirements governing groundwater standards; and authorizing the Department of Environmental Protection to promulgate a legislative rule relating to

monitoring well design standards.

Be it enacted by the Legislature of West Virginia:
Com. Sub. for S. B. No. 121] 4

That article 3, chapter 64 of the Code of West Virginia, 1931,

as amended, be amended and reenacted to read as follows:

ARTICLE 3. AUTHORIZATION FOR DEPARTMENT OF ENVIRONMENTAL PROTECTION TO PROMULGATE LEGISLATIVE RULES.

§64-3-1. Department of Environmental Protection.

1 (a) The legislative rule filed in the state register on the

2 thirtieth day of July, two thousand ten, authorized under the

3 authority of section six, article eighteen, chapter twenty-two

4 of this code, modified by the Department of Environmental

5 Protection to meet the objections of the Legislative Rule6 Making Review Committee and refiled in the state register

7 on the twenty-first day of September, two thousand ten,

8 relating to the Department of Environmental Protection

9 (hazardous waste management system, 33 CSR 20), is

10 authorized.

11 (b) The legislative rule filed in the state register on the

12 thirtieth day of July, two thousand ten, authorized under the

13 authority of section four, article three, chapter twenty-two

14 of this code, modified by the Department of Environmental

15 Protection to meet the objections of the Legislative Rule16 Making Review Committee and refiled in the state register
5 [Com. Sub. for S. B. No. 121

17 on the eighteenth day of January, two thousand eleven,

18 relating to the Department of Environmental Protection

19 (surface mining reclamation, 38 CSR 2), is authorized with

20 the following amendments:

21 On page fifty-four, subdivision 3.32.b., by striking out the

22 words “For the purposes of W.Va. Code §22-3-19(a)(1)(B), an

23 operator shall be considered in compliance with the applica24 ble environmental performance standards referenced therein

25 unless it has unabated cessation orders, notices of violations

26 that are not in the process of being abated to the Secretary’s

27 satisfaction, delinquent civil penalties, or bond forfeitures.”;

28 On pages one hundred fifty-four and one hundred fifty29 five, paragraph 12.2.a.1., by striking out all of paragraph

30 12.2.a.1. and inserting in lieu thereof a new paragraph

31 12.2.a.1. to read as follows:

32 “12.2.a.1. The permittee may file an application with the

33 Secretary for the release of all or part of a bond. Applica34 tions may be filed only at times or during seasons established

35 by the Secretary which allow proper evaluation of the

36 completed reclamation operations.”;

37 And,
Com. Sub. for S. B. No. 121] 6

38 On page one hundred seventy-seven, subdivision 14.11.h.,

39 by striking out the words “e. and f.” and inserting in lieu

40 thereof the words “e., f. and g.”.

41 (c) The legislative rule filed in the state register on the

42 twenty-eighth day of July, two thousand ten, authorized

43 under the authority of section four, article five, chapter

44 twenty-two of this code, relating to the Department of

45 Environmental Protection (ambient air quality standards, 45

46 CSR 8), is authorized.

47 (d) The legislative rule filed in the state register on the

48 twenty-eighth day of July, two thousand ten, authorized

49 under the authority of section four, article five, chapter

50 twenty-two of this code, modified by the Department of

51 Environmental Protection to meet the objections of the

52 Legislative Rule-Making Review Committee and refiled in

53 the state register on the eleventh day of January, two

54 thousand eleven, relating to the Department of Environmen55 tal Protection (permits for construction and major modifica56 tion of major stationary sources of air pollution for the

57 prevention of significant deterioration, 45 CSR 14), is

58 authorized with the following amendment:
7 [Com. Sub. for S. B. No. 121

59 On page twenty, after paragraph 2.80.e.2., by adding the

60 following:

61 “2.80.f. Notwithstanding subdivisions 2.80.d. and 2.80.e.,

62 and subject to the public notice requirements set forth in

63 subdivision 2.80.g., the preconstruction permit requirements

64 of this rule shall not apply to a source’s GHG emissions if

65 any of the following actions result in GHGs not being subject

66 to regulation under the otherwise applicable federal preven67 tion of significant deterioration requirements set forth in 40

68 CFR §51.166:

69 2.80.f.1. A US EPA final rule;

70 2.80.f.2. An act of the United States Congress;

71 2.80.f.3. A Presidential Executive Order;

72 2.80.f.4. A final order of the District of Columbia Circuit

73 Court of Appeals, if the specified time for appealing the

74 order has lapsed and no appeals, petitions seeking clarifica75 tion or rehearing, or other petitions regarding the order have

76 been filed, or, if any appeals or petitions are filed, the

77 resolution of any and all appeals and petitions regarding the

78 final order are complete and have upheld the relevant

79 determination(s). Moreover, a stay shall also create an

80 exemption during the effective length of the stay. These two
Com. Sub. for S. B. No. 121] 8

81 specific exemptions shall become effective only if US EPA

82 does not object in writing by the end of the notice period set

83 forth in subdivision 2.80.g.; or

84 2.80.f.5. An order of the United States Supreme Court.

85 2.80.g. The exemption set forth in subdivision 2.80.f. shall

86 become effective after the Secretary provides a thirty day

87 notice of such exemption to US EPA and the public. Such

88 notice shall be published in the West Virginia Register and

89 explain the circumstances justifying the exemption.”

90 (e) The legislative rule filed in the state register on the

91 twenty-eighth day of July, two thousand ten, authorized

92 under the authority of section four, article five, chapter

93 twenty-two of this code, relating to the Department of

94 Environmental Protection (standards of performance for new

95 stationary sources, 45 CSR 16), is authorized.

96 (f) The legislative rule filed in the state register on the

97 twenty-eighth day of July, two thousand ten, authorized

98 under the authority of section four, article five, chapter

99 twenty-two of this code, modified by the Department of

100 Environmental Protection to meet the objections of the

101 Legislative Rule-Making Review Committee and refiled in

102 the state register on the eleventh day of January, two
9 [Com. Sub. for S. B. No. 121

103 thousand eleven, relating to the Department of Environmen104 tal Protection (control of air pollution from combustion of

105 solid waste, 45 CSR 18), is authorized.

106 (g) The legislative rule filed in the state register on the

107 twenty-eighth day of July, two thousand ten, authorized

108 under the authority of section four, article five, chapter

109 twenty-two of this code, relating to the Department of

110 Environmental Protection (permits for construction and

111 major modification of major stationary sources of air

112 pollution which cause or contribute to nonattainment, 45

113 CSR 19), is authorized.

114 (h) The legislative rule filed in the state register on the

115 twenty-eighth day of July, two thousand ten, authorized

116 under the authority of section four, article five, chapter

117 twenty-two of this code, relating to the Department of

118 Environmental Protection (control of air pollution from

119 hazardous waste treatment, storage or disposal facilities, 45

120 CSR 25), is authorized.

121 (i) The legislative rule filed in the state register on the

122 twenty-eighth day of July, two thousand ten, authorized

123 under the authority of section four, article five, chapter

124 twenty-two of this code, relating to the Department of
Com. Sub. for S. B. No. 121] 10

125 Environmental Protection (emission standards for hazardous

126 air pollutants, 45 CSR 34), is authorized.

127 (j) The legislative rule filed in the state register on the

128 thirtieth day of July, two thousand ten, authorized under the

129 authority of section four, article eleven, chapter twenty-two

130 of this code, relating to the Department of Environmental

131 Protection (requirements governing water quality standards,

132 47 CSR 2), is authorized with the following amendments:

133 On pages two and three, subsection 3.1, by striking out the

134 words “and certain water withdrawal activities”;

135 On page three, subsection 3.2, by striking out the words “or

136 water withdrawal activities”;

137 On page fourteen, subdivision 8.2.b., striking out all of

138 subdivision 8.2.b. and inserting in lieu thereof a new subdivi139 sion 8.2.b. to read as follows:

140 “8.2.b. For waters other than the Ohio River between river

141 mile points 68.0 and 70.0, a final determination on the

142 critical design flow for carcinogens is not made in this rule,

143 in order to permit further review and study of that issue.

144 Following the conclusion of such review and study, the

145 Legislature may again take up the authorization of this rule

146 for purposes of addressing the critical design flow for
11 [Com. Sub. for S. B. No. 121

147 carcinogens: Provided, That until such time as the review

148 and study of the issue is concluded or until such time as the

149 Legislature may again take up the authorization of this rule,

150 the regulatory requirements for determining effluent limits

151 for carcinogens shall remain as they were on the date this

152 rule was proposed.”;

153 On page fourteen, after subdivision 8.2.b., by adding a new

154 paragraph 8.2.b.1. to read as follows:

155 “8.2.b.1. For the Ohio River between river mile points 68.0

156 and 70.0 the critical design flow for determining effluent

157 limits for carcinogens shall be harmonic mean flow.”;

158 On page fourteen, subdivision 8.3.b., by striking out all of

159 subdivision 8.3.b.;

160 On page fourteen, paragraph 8.3.b.1., by striking out all of

161 paragraph 8.3.b.1.;

162 On page fourteen, subparagraph 8.3.b.1.A., by striking out

163 all of subparagraph 8.3.b.1.A.;

164 And,

165 On page forty-seven, by striking out all of parameter 8.32

166 and renumbering the remaining parameters.

167 (k) The legislative rule filed in the State Register on April

168 8, 2010, authorized under the authority of section four,
Com. Sub. for S. B. No. 121] 12

169 article eleven, chapter twenty-two of this code, approved for

170 promulgation by the Legislature on March 13, 2010, relating

171 to the Department of Environmental Protection (National

172 Pollutant Discharge Elimination System (NPDES) Program,

173 47 CSR 10), is authorized with the following amendments:

174 On page forty-four, part 13.1.b.4.A.13., by striking out all

175 of part 13.1.b.4.A.13. and inserting in lieu thereof a new part

176 13.1.b.4.A.13. to read as follows:

177 “13.1.b.4.A.13. Five thousand (5,000) ducks, if the AFO

178 uses a liquid manure handling system.”;

179 On page forty-four, subparagraph 13.1.b.4.B, by striking

180 out all of subparagraph 13.1.b.4.B;

181 On page forty-four, part 13.1.b.4.B.1, by striking out all of

182 part 13.1.b.4.B.1.;

183 And,

184 On page forty-four, part 13.1.b.4.B.2, by striking out all of

185 part 13.1.b.4.B.2. 

186 (l) The legislative rule filed in the state register on the

187 twenty-third day of July, two thousand ten, authorized under

188 the authority of section four, article twelve, chapter twenty189 two of this code, modified by the Department of Environ190 mental Protection to meet the objections of the Legislative
13 [Com. Sub. for S. B. No. 121

191 Rule-Making Review Committee and refiled in the state

192 register on the fourteenth day of September, two thousand

193 ten, relating to the Department of Environmental Protection

194 (requirements governing groundwater standards, 47 CSR 12),

195 is authorized.

196 (m) The legislative rule filed in the state register on the

197 twenty-sixth day of July, two thousand ten, authorized under

198 the authority of section five, article twelve, chapter twenty199 two of this code, modified by the Department of Environ200 mental Protection to meet the objections of the Legislative

201 Rule-Making Review Committee and refiled in the state

202 register on the twenty-second day of September, two thou203 sand ten, relating to the Department of Environmental

204 Protection (monitoring well design standards, 47 CSR 60), is

205 authorized.