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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

1650 Arch Street

Philadelphia, Pennsylvania 19103

DATE: April 4, 2011

SUBJECT: Revised Technical Support Document for the State of West Virginia State 

Implementation Plan for Section 110(a)(2) Infrastructure Requirements for the 

1997 8-hour Ozone and the 1997 and 2006 Fine Particulate Matter National 

Ambient Air Quality Standards

/s/

FROM: Irene Shandruk, Physical Scientist

Office of Air Program Planning

TO: File

/s/

THRU: Cristina Fernandez, Associate Director

Office of Air Program Planning 

A. INTRODUCTION

The Environmental Protection Agency (EPA) is taking action on certain submittals made by

West Virginia to meet the Clean Air Act (CAA) section 110(a)(2) requirements of the revised 

1997 8-hour ozone national ambient air quality standards (NAAQS), the 1997 fine particulate 

(PM2.5), and the revised 2006 PM2.5 NAAQS. As discussed in greater detail in section E, below, 

in comparison to EPA’s technical support document (TSD) dated April 21, 2010, this TSD 

revises EPA’s analysis of the submissions with respect to section 110(a)(2)(D)(ii).

B. BACKGROUND

1997 8-Hour Ozone and PM2.5 NAAQS

On July 18, 1997, EPA promulgated a revised NAAQS for ozone (62 FR 38856) and a new 

NAAQS for PM2.5 (62 FR 38652). The new ozone NAAQS was based on 8-hour average 

concentrations. The 8-hour averaging period replaced the previous 1-hour averaging period, and 

the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm. The new 

PM2.5 NAAQS established a health-based PM2.5 standard of 15.0 micrograms per cubic meter 

(μg/m3) based on a 3-year average of annual mean PM2.5 concentrations, and a twenty-four hour 

standard of 65μg/m3based on a 3-year average of the 98th percentile of 24-hour concentrations. 
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Whenever a new or revised NAAQS is promulgated, section 110(a) of the CAA imposes 

obligations upon States to submit State Implementation Plan (SIP) revisions that provide for the 

implementation, maintenance, and enforcement of the new or revised NAAQS within three years 

following the promulgation of such NAAQS. Although States typically have met many of the 

basic program elements required in section 110(a)(2) through earlier SIP submissions in 

connection with previous ozone and PM standards, States (including all of the Region 3 States) 

were still required to submit SIP revisions that address section 110(a)(2) for the 1997 NAAQS. 

These SIPs were due in July 2000. However, intervening litigation over the 1997 8-hour ozone 

and PM2.5 NAAQS created uncertainty about how to proceed and, as of October 2007, States had 

not submitted SIPs to meet these infrastructure requirements.

In March of 2004, Earthjustice initiated a lawsuit against EPA for failure to take action against 

States that had not made SIP submissions to meet the requirements of sections 110(a)(1) and (2), 

i.e., failure to make a “finding of failure to submit the required SIP 110(a) SIP elements.” On 

March 10, 2005, EPA entered into a Consent Decree with Earthjustice that obligated EPA to 

make official findings in accordance with section 110(k)(1) of the CAA, as to whether States 

have made complete SIP submissions, pursuant to sections 110(a)(1) and (2), by December 15, 

2007 for the 1997 8-hour ozone NAAQS and by October 5, 2008 for the 1997 PM2.5 NAAQS. 

EPA made completeness findings for the 1997 8-hour ozone NAAQS on March 27, 2008 (73 FR 

16205) and on October 22, 2008 (73 FR 62902) for the 1997 PM2.5 NAAQS. These findings 

pertained only to whether the submissions were complete, pursuant to 110(k)(1)(A), and did not 

constitute EPA approval or disapproval of such submissions.

Two elements identified in section 110(a)(2) are not governed by the three year submission 

deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area 

controls are not due within three years after promulgation of a new or revised NAAQS, but 

rather are due at the time the nonattainment area plan requirements are due pursuant to section 

172. These elements are: 1) submissions required by section 110(a)(2)(C) to the extent that 

subsection pertains to a permit program in Part D Title I of the CAA; and 2) any submissions 

required by section 110(a)(2)(I), which pertain to the nonattainment planning requirements of 

Part D Title I of the CAA. The determinations required by the consent decree excluded any

determination regarding such portion of section 110(a)(2)(C) and section 110(a)(2)(I), therefore, 

this action does not cover these specific elements for any of the NAAQS at issue. This action 

also does not address the requirements of 110(a)(2)(D)(i) for any of the NAAQS at issue since 

the requirements of 110(a)(2)(D)(i) for each of the NAAQS at issue have been addressed by a 

separate finding issued by EPA. See April 25, 2005 (70 FR 21147) and June 9, 2010 (75 FR 

32673).

With respect to West Virginia’s obligations pursuant to CAA sections 110(a)(1) and (2) for the 

1997 8-hour ozone and PM2.5 NAAQS, except for the portion of (C) and (J) relating to the Part C 

permit programs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, this technical support 

document will review only those elements which were the subject of EPA’s completeness 

findings. The March 27, 2008 (73 FR 16205) action made a completeness finding that the West 

Virginia submittals of December 3, 2007 and April 3, 2008 addressed some but not all of the 

110(a)(2) requirements. Specifically, EPA found that West Virginia failed to address sections 

110(a)(2)(B), (E)(i), (G) (with respect to authority comparable to section 303), (H) and (J) 
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(relating to public notification under section 127), (M), and Part C Prevention of Significant 

Deterioration (PSD) permit program required by the November 29, 2005 (70 FR 71612, page 

71699) final rule that made nitrogen oxides (NOx) a precursor for ozone in the Part C regulations 

found in 40 CFR 51.166 and in 40 CFR 52.21. The West Virginia submittal dated May 21, 2008 

addressed these findings, with the exception of the Part C PSD, which will be taken as a separate 

action. 

EPA will take separate action on the portions of section 110(a)(2)(C) and (J) for the 1997 8-hour 

ozone NAAQS as they relate to West Virginia’s PSD permit program. With respect to this 

permit program, on November 29, 2005 (70 FR 71612), EPA promulgated a change that made

NOx a precursor for ozone in the Part C regulations at 40 CFR 51.166 and 40 CFR 52.21. In the 

March 27, 2008 completeness findings, it was determined that while West Virginia had an 

approved PSD program in its SIP codified at 40 CFR 52.2520, West Virginia’s regulation, 

45CSR14, did not fully incorporate NOx as a precursor for ozone. On July 20, 2009, West 

Virginia submitted revisions to 45CSR14 to include NOx as a precursor for ozone. Action on 

this PSD SIP revision is being taken separately, and element 110(a)(2)(C) as it pertains to the 

PSD permit program for the 1997 8-hour ozone NAAQS is being addressed in this separate 

action as well. A notice of proposed rulemaking was published on December 17, 2010 (75 FR 

78949).

2006 PM2.5 NAAQS

On October 17, 2006 (71 FR 61144), EPA revised the twenty-four hour average PM2.5 primary

and secondary NAAQS from 65 μg/m3to 35 μg/m3. As required by section 110(a)(1) of the 

CAA, the 110(a)(2) submittals were due within three years after promulgation of the revised 

standard, with the exception of 110(a)(2)(C) pertaining to the Part D permit program and 

110(a)(2)(I) for the reasons discussed above for the 1997 8-hour ozone and PM2.5 standards.

C. EPA REQUIREMENTS

As discussed above, for the 1997 8-hour ozone and PM2.5 NAAQS, States must provide SIP 

submissions, or provide certification that address section 110(a)(2)(A) through (M), with the 

exception of the portion of 110(a)(2)(C) pertaining to a permit program in Part D Title I of the 

CAA, 110(a)(2)(I) and (D)(i). To help States meet this statutory requirement, EPA issued 

guidance on October 2, 2007 entitled “Guidance on SIP Elements Required Under Section 

110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2.5 National Ambient Air Quality 

Standards,” which listed the basic elements that States must include in their SIPs. 

On September 25, 2009, EPA issued an updated guidance document entitled Guidance on SIP 

Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) 

National Ambient Air Quality Standards (NAAQS), which clarifies, in further detail, expectations 

for certain elements to meet the requirements of sections 110(a)(1) and (2) of the CAA for both 

the 1997 and 2006 PM2.5 NAAQS. Specifically, guidance is provided for satisfying the section 

110(a)(2)(D) requirements for the 2006 PM2.5 NAAQS, as well as guidance for satisfying the 

section 110(a)(2)(G) requirements that addresses both the 1997 and 2006 PM2.5 NAAQS. EPA 
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notes, however, that the requirements under 110(a)(2)(D)(i) are being addressed separately and 

are not included in this action.

D. STATE’S SUBMITTAL 

West Virginia provided multiple submittals to satisfy the requirements of section 110(a)(1) and 

(2) of the CAA for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, and the 2006 PM2.5 NAAQS.

Submittals dated December 3, 2007, May 21, 2008, and October 1, 2009 addressed the 110(a)(2) 

requirements for 8-hour ozone. Submittals dated April 3, 2008, May 21, 2008, July 9, 2008,

October 1, 2009, and March 18, 2010 addressed the 110(a)(2) requirements for the 1997 PM2.5

NAAQS. To satisfy the requirements of section 110(a)(1) and (2) for the 2006 PM2.5 NAAQS, 

the West Virginia Department of Environmental Protection (WVDEP) provided a submittal

dated October 1, 2009, in accordance with the September 25, 2009 guidance. West Virginia’s 

October 1, 2009 SIP submittal originally included the infrastructure elements for the 2008 8-hour 

ozone NAAQS. On March 18, 2010, WVDEP submitted a withdrawal request for the 

110(a)(2)(A)-(M) elements for the 2008 8-hour ozone NAAQS from the October 1, 2009 

submittal, leaving only the 2006 PM2.5 portion of the submittal in place for action. Therefore, 

action will only be taken on the PM2.5 portion of the October 1, 2009 submittal. On March 18, 

2010, West Virginia made an additional submittal for the 110(a)(2)(G) element for both the 1997 

and 2006 PM2.5 NAAQS. The submittals shown in Table 1 address the infrastructure elements, 

or portions thereof, identified in section 110(a)(2) that EPA is proposing to approve.

Table 1: 110(a)(2) Elements, or Portions Thereof, EPA is Proposing to Approve for the 

1997 Ozone and PM2.5 and 2006 PM2.5 NAAQS

Submittal Date 1997 8-Hour Ozone 1997 PM2.5 2006 PM2.5

December 3, 2007 A, C, D(ii), E, F, G, J, 

K, L

April 3, 2008 A, C, D(ii), E, F, J, L

May 21, 2008 B, E, F, G, H, J, K, M B, E, F, G, H, J, K, M

July 9, 2008 G

October 1, 2009 C C A, B, C, D(ii), E, F, 

G, H, J, K, L, M

March 18, 2010 G G

E. EVALUATION OF STATE SUBMITTAL

As noted above, West Virginia provided multiple submittals for the 1997 8-hour ozone and PM2.5

NAAQS, and for the 2006 PM2.5 NAAQS. However, the demonstrations submitted by West 

Virginia for how it is meeting many of the elements are substantively identical for both the ozone 

and PM2.5 NAAQS, therefore, the following evaluation of each element pertains to all standards 

except as otherwise noted.
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1. Section 110(a)(2)(A)

Pursuant to West Virginia Code section 22-5-4(a)(1) and (3), the Secretary has the authority to 

“develop ways and means for the regulation and control of pollution of the air of the State” and 

“conduct such studies and research relating to air pollution and its control and abatement.” The 

Secretary has the authority under West Virginia Code sections 22-1-3(a), 22-5-4(a), and 22-5-

4(a)(17) to promulgate rules in accordance with the Administrative Procedures Act (West 

Virginia Code section 29A3-1 et seq.).

For the ozone NAAQS, enforceable emission limits, control measures, and compliance schedules 

are contained in those provisions of West Virginia’s federally approved NOx SIP Call 

Regulations (71 FR 56881 and 67 FR 31733). Additional emission limitations and schedules are 

found in West Virginia’s volatile organic compound (VOC) control regulations (60 FR 6022 and 

60 FR 39855). Control measures are identified in approved maintenance plans for the 

Charleston (71 FR 39001), Huntington (71 FR 54421), Parkersburg (72 FR 25967), Wheeling 

(72 FR 27060), and Weirton (72 FR 27247) areas.

For the PM2.5 NAAQS, the pertinent emission limitations and other control measures are 

contained in West Virginia’s SIP-approved State Rules 45CSR2, 45CSR3, 45CSR5, 45CSR6, 

45CSR7, 45CSR8, and 45CSR10. Additionally, the requirements for section 110(a)(2)(A) for 

PM2.5 are also found in West Virginia’s approved permitting program, which includes three SIPapproved rules: minor New Source Review (NSR) (68 FR 9559), PSD rule (71 FR 64470), and 

major NSR (71 FR 64468). The State also has an approved Title V operating permit program 

(66 FR 50325).

EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D 

of Title I of the CAA to be governed by the submission deadline of section 110(a)(1). 

Nevertheless, the State of West Virginia may have included some previously EPA-approved SIP 

provisions originally submitted in response to part D in its submission documenting its 

compliance with the requirements of sections 110(a)(1) and (2) of the CAA. For the purposes of 

this action, EPA has reviewed certain West Virginia 110(a)(2) submittals, including any rules 

originally submitted in response to part D, or references thereto, solely for the purposes of 

determining whether such submittals support a finding that the state has met the basic 

infrastructure requirements under section 110(a)(2).

2. Section 110(a)(2)(B)

Under manifold statute authority, pursuant to West Virginia Code sections 22-1-1(a)(1), 22-1-

1(a)(2), 22-1-1(b), 22-5-1, 22-1-1(b)(5), 22-1-6(a), 22-5-4(a)(1) and (3), West Virginia operates 

and maintains an established network of ambient air monitors in West Virginia for the purpose of

assessing compliance with the national ambient air quality standards, which Congress provided 

for in the CAA, and such standards promulgated by EPA to protect the health and welfare of 

individual citizens.
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To assess NAAQS compliance, the Division of Air Quality (DAQ) operates a network of 

monitors in West Virginia that have been designated by EPA as either Reference or Equivalent 

monitors. All ambient air monitors are subjected to the Quality Assurance requirements of 40 

CFR Part 58, Appendix A. In addition, all monitors have met the minimum sitting requirements 

of Part 58, Appendix E.

In order to keep EPA informed of planned changes to the monitoring network, WVDEP provides 

EPA Region III with adequate prior notification. Details of these changes and anticipated 

approvals of the changes are communicated to EPA. On an annual basis, WVDEP submits to 

EPA a network design plan required under 40 CFR 58.10, of any changes to the network. This 

plan also provides for a description of each change, the reason for each change, and any other 

information relevant to the change.

As provided in West Virginia Code sections 22-5-4(a)(2) and 22-5-10, WVDEP collects and

reports to EPA ambient air quality data for sulfur dioxide (SO2), carbon monoxide (CO), ozone 

(O3), PM10, and PM2.5. The reports comply with the federal requirements of 40 CFR 58.16. The 

data is reviewed, edited, validated, and entered into the EPA air quality system (AQS) for 

updating pursuant to prescribed AQS procedures. The EPA AQS receives each report within 90 

days after the end of the quarterly reporting period. Data is certified annually as required under 

40 CFR 58.15.

WVDEP analyzes such air quality data to determine attainment status or progress, as

demonstrated by the 8-hour ozone redesignation and maintenance plan requests submitted and/or 

approved during calendar years 2006, 2007, and first quarter of 2008.

3. Section 110(a)(2)(C)

Pursuant to West Virginia Code sections 22-1-6(a), 22-1-3(a), 22-5-4(a), 22-5-5, and 22-5-6, the 

West Virginia Cabinet Secretary has enforcement authority of emission limitations and control 

measures for ozone and PM2.5 NAAQS.

For the ozone NAAQS, monitoring, recordkeeping, and reporting requirements are found in 

West Virginia’s approved NOx SIP Call rules (71 FR 56881 and 67 FR 31733), in West 

Virginia’s VOC control regulations (60 FR 6022), and in State Rule 45CSR40. An additional 

approved provision includes submission of VOC and NOx emissions statements for sources in 

Putnam, Kanawha, Cabell, Wayne, Wood, and Greenbrier Counties. For the PM2.5 NAAQS, 

monitoring, recordkeeping, and reporting requirements are found in State Rules 45CSR39 and 

45CSR41. 

For both the ozone and PM2.5 NAAQS, additional provisions are found in West Virginia’s 

current permitting program, which includes three SIP-approved rules: minor NSR rule 45CSR13 

(68 FR 9559), PSD rule 45CSR14 (71 FR 64470), and major NSR 45CSR19 (71 FR 64468). 

The State also has an approved Title V operating permit program (66 FR 50325).
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EPA will take separate action on the portion of section 110(a)(2)(C) for the 1997 8-hour ozone 

NAAQS as it relates to West Virginia’s PSD permit program. On July 20, 2009, West Virginia 

submitted revisions to regulation 45CSR14 to include NOx as a precursor for ozone. Action on 

this PSD SIP revision is being taken separately, and element 110(a)(2)(C) as it pertains to the 

PSD permit program for the 1997 8-hour ozone NAAQS is being addressed in this separate 

action as well. A notice of proposed rulemaking was published on December 17, 2010 (75 FR 

78949).

In addition, the requirements of section 110(a)(2)(C) that pertain to a permit program in Part D 

Title I of the CAA are outside of the scope of the 110(a)(2) requirements addressed through this 

action, therefore, this subset of 110(a)(2)(C) requirements will be addressed separately and are 

not included in this action.

4. Section 110(a)(2)(D)(ii)

The original TSD stated that West Virginia is not subject to the requirements of sections 126 and 

115 of the CAA. However, a clarification is necessary because although West Virginia is subject 

to CAA section 126, West Virginia has demonstrated that it has met its obligations pursuant to 

CAA section 126(a) and it has no currently pending obligations pursuant to CAA section 126(b). 

West Virginia has made the necessary submittals to demonstrate that West Virginia has adequate 

provisions insuring future compliance with the requirements of sections 126 and 115 of the CAA

as may be necessary. 

5. Section 110(a)(2)(E)

West Virginia has adequate authority under the West Virginia Air Pollution Control Act 

(APCA), West Virginia Code section 22-5-1, to carry out its SIP obligations with respect to the 

8-hour ozone and PM2.5 NAAQS and to revise the SIP as necessary. 

The WVDEP Cabinet Secretary is authorized under West Virginia Code sections 22-1-6(c)(1) 

and 22-5-4(a)(12) to carry out and represent the State in any and all matters pertaining to the 

implementation plan, and under West Virginia Code section 22-5-4(a)(16) to do all things 

necessary and convenient to prepare and submit a plan. The Secretary is not prohibited by any 

provision of federal or state law from carrying out the implementation plan or portion thereof.

The Secretary has the authority under West Virginia Code sections 22-1-3(a), 22-5-4(a)(4), and 

22-5-4(a)(17) to promulgate rules in accordance with the Administrative Procedures Act (West 

Virginia Code sections 29A3-1 et seq.). Approximately forty rules revised under the auspices of

the Air Pollution Control Act (APCA) are currently in effect and codified at Title 45 of the Code 

of State Rules, including the ambient air quality standards for criteria pollutants contained in 

45CSR8. Statutory permitting requirements are set forth in West Virginia Code sections 22-5-11 

and 12. 

WVDEP has adequate personnel to carry out the implementation plan with respect to 8-hour 

ozone and PM2.5 NAAQS requirements. The Secretary employs adequate personnel and retains 
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specialists under West Virginia Code section 22-5-4(a)(8) that are "necessary, incident or 

convenient" to accomplish the statutory mandate to carry out the implementation plan.

The APCA provides adequate funding under West Virginia Code sections 22-1-10(a) and 2-5-

4(a)(17) to carry out the implementation plan. West Virginia Code section 22-5-12 sets forth the

statutory operating permit requirements for stationary sources under Title V of the CAA.

Regulation 45CSR30 establishes fees sufficient to cover the direct and indirect costs of

administering the air pollution control planning process, Title V operating permit program, and 

support the air pollution control program authorized by statute. The APCA also authorizes the 

establishment of fees to cover non-Title V permitting costs under 45CSR22. The air quality 

program also receives revenue from fines and penalties (Air Pollution Control Fund) and federal 

funds under section 105 and 103 of the CAA, special federal funds for PM2.5, and state general 

appropriations.

The requirements of section 110(a)(2)(E)(ii) are not applicable to West Virginia because it does 

not have a board which approves air quality permits or enforcement orders. Likewise, the 

requirements of section 110(a)(2)(E)(iii) are not applicable to West Virginia because it does not 

rely on local or regional entities for specific SIP implementation.

6. Section 110(a)(2)(F)

West Virginia Code section 22-5-4(a)(15) authorizes the Secretary to require the installation, 

maintenance and replacement of equipment, and the implementation of other necessary steps by

owners or operators of stationary sources to monitor emissions from such sources as the 

Secretary may prescribe. Under this authority, West Virginia requires the installation,

maintenance, and replacement of monitoring equipment at stationary sources through permits 

issued under 45CSR13, 45CSR14, 45CSR19, 45CSR30, and via compliance orders. The State’s 

NOx SIP Call Regulations (45CSR1 & 45CSR26) also require the installation, maintenance, and 

replacement of monitoring equipment.

West Virginia Code sections 22-5-4(a)(15) authorizes the Secretary to require periodic reports on 

the nature and amounts of emissions and emissions-related data from owners or operators of 

stationary sources (monitoring data). Pursuant to West Virginia Code sections 22-5-4(a)(14), the 

Secretary is authorized to require such information as the Secretary may require in a form or 

manner prescribed by the Secretary (emissions inventory program). Under this authority, West 

Virginia requires periodic reports on the nature and amounts of emissions and emissions-related 

data from stationary sources through permits issued under 45CSR13, 45CSR14, 45CSR19, 

45CSR30, and via compliance orders. The State’s NOx SIP Call Regulations (45CSR1 & 

45CSR26) also require periodic reporting of emissions data.

West Virginia Code section 22-1-6(d)(3) authorizes the Secretary to “investigate for violations of 

statutes or rules which the department is charged with enforcing.” Section 22-5-4(a)(3) 

authorizes the Secretary to correlate periodic emissions reports with any emission limitations or 

standards established pursuant to 45CSR13, 45CSR14, 45CSR19, 45CSR30, or the CAA. As set 

forth in West Virginia Code section 22-5-10, the Secretary makes available at reasonable times 
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for public inspection the periodic emissions reported under sections 22-5-4(a)(14) and (15). The 

Secretary has the responsibility of making all records, reports or information obtained by the 

Department or referred to at public hearings under the provisions of the APCA available to the 

public, except to the extent the records, reports or information are protected by confidentiality 

pursuant to 45CSR31. The types of records DEP routinely provides access to include 

notifications, inspection reports, notices of violation, enforcement orders, applications, permit 

review letters, sample results, monitoring reports, permits, approvals, and denials that would

relate to section 110(a)(2)(F). WVDEP generally makes information available for public access

through its website, but also makes hard copy reports available upon written request.

7. Section 110(a)(2)(G)

West Virginia Code section 22-5-5 authorizes the Secretary to issue an order to cease and desist 

any activity that violates the APCA. The Secretary may also suspend, modify or revoke a 

source’s permit. Under section 22-5-6, the Secretary may also institute lawsuits for civil 

penalties. Section 22-5-7 authorizes the Secretary to seek applications for injunctive relief. 

Section 22-5-8 authorizes the Secretary, with the written authorization of the governor, to shut 

down a source, thereby preventing the emission of air pollutants which substantially contributes 

to an emergency that requires immediate action to protect public health. As provided in West 

Virginia Code, sections 22-5-4(a)(2) and 22-5-10, the Secretary may consult with EPA to affirm 

accuracy of any information considered while executing authority under sections 22-5-5, -6, -7,

or -8.

In order to address the 110(a)(2)(G) requirement relating to “adequate contingency plans” on

March 18, 2010, West Virginia submitted a certification of classification as a priority III 

emergency episode plan region. This submission is consistent with the recommendations set 

forth in EPA’s September 25, 2009 memorandum issued by William T. Harnett, Director, 

OAQPS/AQPD, entitled “Guidance on SIP Elements Required Under section 110(a)(1) and (2) 

for the 2006 24-Hour Fine Particulate (PM2.5) National Ambient Air Quality Standards 

(NAAQS).” With respect to the requirement that states have adequate contingency plans as part 

of their SIPs, this guidance recommended that unless the state had monitored ambient values 

above a specific level, no contingency plan would be necessary.

In accordance with the above cited guidance, the requirement for a State to submit an emergency

episode plan is based on a priority region classification. For States with a 24-hour PM2.5

concentration above 140.5 μg/m3, using the most recent three years of data, are required to 

develop an emergency episode plan. States that do not meet this threshold would be classified as 

priority III and would not be required to adopt an emergency episode plan for PM2.5. PM2.5

monitors in West Virginia show that PM2.5 concentration levels for the past three years are below 

the 140.5 μg/m3threshold. Therefore , in accordance with EPA guidance, West Virginia has 

certified through a SIP revision that it has appropriate general emergency powers to address 

PM2.5-related episodes and that it is not specifically required to submit an emergency episode 

plan and contingency measures for PM2.5 at this time given monitored PM2.5 levels. In 

accordance with the above cited guidance, West Virginia has met its statutory obligations to 

provide adequate contingency plans to implement the authority that it has comparable to that in 
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CAA section 303 and West Virginia is not, at this time, required to adopt any additional 

emergency episode plan for PM2.5.

8. Section 110(a)(2)(H)

West Virginia Code section 22-5-4(a)(16) authorizes the Secretary to do all things necessary and 

convenient to prepare and submit a plan. WVDEP has historically revised, and will continue to 

revise its NAAQS rules as necessary to take account of revisions of the national primary or 

secondary ambient air quality standards or improved or more expeditious methods of attaining 

the standards.

When, if ever, EPA finds the SIP is substantially inadequate to attain the NAAQS which it 

implements or otherwise to comply with the CAA, West Virginia will revise the plan as 

necessary for adequacy.

9. Section 110(a)(2)(J)

The APCA provides adequate authority under West Virginia Code section 22-5-4(a)(2) for West 

Virginia’s practices of consultation with local governments, organizations and Land Managers 

with respect to SIP development. WVDEP also consults with such entities regarding 

implementation plans for air quality maintenance requirements, preconstruction review of direct 

sources, nonattainment requirements, and prevention of significant deterioration. As an example, 

WVDEP consulted with Federal Land Managers on the development of West Virginia’s 

Regional Haze SIP revision, and provided an additional 30-day review and comment period 

beyond the general public review period.

West Virginia Code section 22-1-12 provides authority for the public notification of NAAQS 

violations and education efforts as required by CAA Section 127. Each year, WVDEP issues a 

comprehensive Air Quality Annual Report, which compares monitored air quality data with the 

NAAQS, and tracks the Air Quality Index. The Report contains emissions information and air 

quality highlights from the previous year, and provides public awareness of criteria pollutants 

and their effects on health; educational website links to tips that improve air quality, links to 

technical websites and outreach efforts. West Virginia has also implemented an anti-idling 

program to reduce pollutants from school buses and vehicles at public schools.

For the ozone and PM2.5 NAAQS, West Virginia’s permitting program includes three SIP 

approved rules: minor NSR rule 45CSR13 (68 FR 9559), PSD rule 45CSR14 (71 FR 64470), 

and major NSR 45CSR19 (71 FR 64468). The State also has an approved Title V operating 

permit program (66 FR 50325).

EPA will take separate action on the portion of section 110(a)(2)(J) for the 1997 8-hour ozone 

NAAQS as it relates to West Virginia’s PSD permit program. On July 20, 2009, West Virginia 

submitted revisions to 45CSR14 to include NOx as a precursor for ozone. Action on this PSD 

SIP revision is being taken separately, and element 110(a)(2)(C) as it pertains to the PSD permit 
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program for the 1997 8-hour ozone NAAQS is being addressed in this separate action as well. A 

notice of proposed rulemaking was published on December 17, 2010 (75 FR 78949).

10. Section 110(a)(2)(K)

Through the submissions referenced above, West Virginia has demonstrated that it: 1) has the 

authority and technical capability to conduct air quality modeling, or that the State participates 

with a group of states to conduct air quality modeling, in order to assess the effect on ambient air 

quality relevant pollutant emissions; and 2) can provide relevant data as part of the permitting 

and NAAQS implementation processes.

West Virginia Code, sections 22-5-4(a)(1) and (3), authorizes the Secretary to “develop ways 

and means for the regulation and control of pollution of the air of the state” and “conduct such 

studies and research relating to air pollution and its control and abatement.” Inherent in West 

Virginia's authority to meet the NAAQS and to conduct studies and research is the obligation for 

WVDEP to perform modeling as required under the CAA to demonstrate attainment of the 

NAAQS, as prescribed by the Administrator. WVDEP participates in regional planning 

organizations such as the Association for Southeastern Integrated Planning (ASIP), which 

performs NAAQS modeling for member states. West Virginia will continue to perform 

modeling, as required under the CAA to demonstrate attainment of the NAAQS.

West Virginia Code sections 22-5-4(a)(2), 22-5-10, and 22-5-4(a)(16) authorizes the Secretary to 

submit, upon request by the Administrator, modeling data predicting the effect on ambient air 

quality of any emissions of any air pollutant for which the Administrator has established a 

national ambient air quality standard. West Virginia will continue to submit the air quality

modeling data as part of its relevant SIP submissions and through Federal grant commitments or 

in other ways that EPA may request.

11. Section 110(a)(2)(L)

West Virginia’s submissions adequately address this requirement by explaining that fees are 

collected according to West Virginia’s approved SIP under PSD rule 45CSR14 (71 FR 64470) 

and major NSR rule 45CSR19 (71 FR 64468), as well as under their Title V permit program

45CSR30 (66 FR 50325).

12. Section 110(a)(2)(M)

West Virginia Code section 22-5-4(a)(2), authorizes the Secretary to advise, consult and 

cooperate with local political subdivisions affected by the implementation plan. West Virginia 

consults with local governments, organizations and Land Managers with respect to SIP 

development. WVDEP also consults with such entities regarding implementation plans for air 

quality maintenance requirements, preconstruction review of direct sources, nonattainment 

requirements, and prevention of significant deterioration.
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F. CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA’s analysis of West Virginia’s infrastructure submittals for the 1997 8-hour ozone and PM2.5 

NAAQS, and the 2006 PM2.5 NAAQS concludes that West Virginia’s submittals meet the 

requirements of section 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), 

or portions thereof. It is recommended that a notice of final rulemaking be prepared approving 

West Virginia’s infrastructure submittals for the 1997 8-hour ozone and 1997 PM2.5 NAAQS and 

the 2006 PM2.5 NAAQS.