Office of Permits and Air Toxics

Air Protection Division

TO: Kathleen Cox, Associate Direotor 7// -

Office of Permits and Air Toxics

Approval and Promulgation of Air Quality Implementation Plans;

West Virginia; Permits for Construction and Major Modification of Major Stationary

Sources of Air Pollution for the Prevention of Significant Deterioration

I. BACKGROUND

EPA is proposing to approve revisions to the West Virginia State Implementation Plan (SIP),

submitted by the West Virginia Department of Environmental Protection (WVDEP) on August31, 2011. These revisions pertaining to West Virginia’s Prevention of Significant Deterioration(PSD) program incorporate preconstruction permitting regulations for fine particulate matter(PM2.5)into the West Virginia SIP, establish thresholds at which Greenhouse Gases (GHGs)

become subject to regulation under the PSD program, and include minor updates to be consistent

with federal counterpart language. In addition, EPA is approving these revisions and portions of

other related submissions for the purpose of determining that West Virginia has met its statutory

obligations with respect to the infrastructure requirements of the Clean Air Act (CAA) which

relate to West Virginia’s PSD permitting program and are necessary to implement, maintain, and

enforce the 1997 8-hour ozone and PM2.5National Ambient Air Quality Standards (NAAQS), the

2006 PM2.5NAAQS, and the 2008 ozone and lead NAAQS. EPA is approving these revisions in

accordance with the requirements ofthe Clean Air Act (CAA). This action, if approved, would

replace the previously approved version of 45CSR14 in its entirety with the version submitted byWVDEP on August 31, 2011.

II. Summary of Action

The SIP revision submitted by WVDEP consists of amendments to the PSD permittingregulations of 45CSR14. The revision fulfills the federal program requirements established bythe EPA rulemaking actions discussed above. The amendments establish the major sourcethresholds and significant emission rates for direct PM2.5emissions and its precursors for PSD

applicability, pursuant to the May 2008 NSR PM2.5Rule. Also established in the revisions are

thresholds at which GHGs become subject to regulation under the PSD program. West Virginia

has chosen to adopt thresholds consistent with EPA’s “Prevention of Significant Deterioration

and Title V Greenhouse Gas Tailoring Rule,” (the Tailoring Rule) Final Rule, 75 FR 31514(June 3, 2010). Several minor revisions were made as well in order to be consistent with Federalcounterpart language.
Fine particles in the atmosphere are made up of a complex mixture of components. Common

constituents include sulfate (SO 4); nitrate (NO 3); ammonium; elemental carbon; a great

variety of organic compounds; and inorganic material (including metals, dust, sea salt, and othertrace elements) generally referred to as “crustal” material, although it may contain material from

other sources. Airborne particulate matter (PM) with a nominal aerodynamic diameter of 2.5

micrometers or less (a micrometer is one-millionth of a meter, and 2.5 micrometers is less than

one-seventh the average width of a human hair) are considered to be “fine particles” and are also

known as PM2.5 “Primary” particles are emitted directly into the air as a solid or liquid particle

(e.g., elemental carbon from diesel engines or fire activities, or condensable organic particlesfrom gasoline engines). “Secondary” particles (e.g., sulfate and nitrate) form in the atmosphere

as a result of various chemical reactions.

The health effects associated with exposure to PM2.5include potential aggravation ofrespiratory

and cardiovascular disease (i.e., lung disease, decreased lung function asthma attacks and certaincardiovascular issues). Epidemiological studies have indicated a correlation between elevated

PM2.5levels and premature mortality. Groups considered especially sensitive to PM2.5exposureinclude older adults, children, and individuals with heart and lung diseases. For more details

regarding health effects and PM2.5see EPA’s Web site at

h.tip://w34’14.’.epa.gov/oar/particlepoilutzon/ (see heading “Health and Welfare”).

On July 18, 1997, EPA revised the NAAQS for PM to add new standards for fine particles, using

PM2.5as the indicator. Previously, EPA used PM10 (inhalable particles smaller than or equal to

10 micrometers in diameter) as the indicator for the PM NAAQS. EPA established health-based

(primary) annual and 24-hour standards for PM2.5,setting an annual standard at a level of 15

micrograms per cubic meter (jig/rn 3)and a 24-hour standard at a level of 65 jig/rn 3(62 FR

38652). At the time the 1997 primary standards were established, EPA also established welfarebased (secondary) standards identical to the primary standards. The secondary standards aredesigned to protect against major environmental effects ofPM25,such as visibility impairment,soiling, and materials damage. On October 17, 2006, EPA revised the primary and secondary

NAAQS for PM25.In that rulemaking, EPA reduced the 24-hour NAAQS for PM2.5to 35 jig/rn 3

and retained the existing annual PM2.5NAAQS of 15 jig/rn 3(71 FR 61236).

1. Implementation of NSR Requirements for PM2.5—the NSR PM2.5Rule

After EPA promulgated the NAAQS for PM2.5on October 23, 1997, the Agency issued a

guidance document written by John Seitz entitled “Interim Implementation of New Source

Review Requirements for PM2.5”(Seitz memo). The Seitz memo was designed to help statesimplement NSR requirements pertaining to the new PM2.5NAAQS in light oftechnicaldifficulties posed by PM2.5at that time. Specifically, the Seitz memo stated: “PM10 may properly

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Federal PSD program at 40 CFR 52.2 l(i)(l)(xi). This grandfathering provision applied to

sources that had applied for, but had not yet received, a final and effective PSD permit before the

July 15, 2008, effective date ofthe May 2008 final rule. The second exception was that stateswith SIP-approved PSD programs could continue to implement the Seitz Memo’s PM10

Surrogate Policy for up to three years (until May 2011) or until the individual revised state PSD

programs for PM2.5are approved by EPA, whichever came first. For additional information onthe NSR PM2.5Rule, see (73 FR 28321). On February 11, 2010, EPA proposed to repeal the

grandfathering provision for PM2.5contained in the federal PSD program at 40 CFR

52.21(i)(l)(xi) and to end early the PM10 Surrogate Policy applicable in states that have a SIP

approved PSD program (75 FR 6827). In support of this proposal, EPA explained that the PM2.5

implementation issues that led to the adoption of the PM10 Surrogate Policy in 1997 have beenlargely resolved to a degree sufficient for sources and permitting authorities to conduct

meaningful permit-related PM2.5analyses. The repeal ofthe grandfathering rule was finalized on

May 18, 2011(76 FR 28646).

The 2008 NSR PM2.5Rule also established the following NSR requirements to implement thePM2.5NAAQS: (1) Require NSR permits to address directly emitted PM2.5and precursor

pollutants; (2) establish significant emission rates for direct PM2.5and precursor pollutants

(including sulfur dioxide (SO 2)and oxides of nitrogen (NOx); (3). establish PM2.5emission

offsets; and (4) require states to account for gases that condense to form particles (condensables)in PM2.5emission limits.

This action, if approved, would update the West Virginia SIP to address the 2008 NSR PM2.5Rule requirements pertaining to the State’s PSD program.B. Greenhouse Gases VAlso included in the August 31, 2011 SIP revision are emission thresholds for determining whichnew or modified stationary sources become subject to West Virginia’s Prevention of SignificantDeterioration (PSD) permitting requirements for GHG emissions. In a letter dated July 30, 2010

(the 60-day letter), West Virginia stated that it could interpret the current version of 45CSR14 toapply the meaning ofthe term “subject to regulation” established by the Tailoring Rule in

implementing the PSD program, but would still pursue rulemaking action to be consistent withFederal counterpart language. West Virginia has chosen to adopt changes under West Virginia

State Rule 45CSR14 consistent with those incorporated by the Tailoring Rule. This proposed

approval ofWest Virginia’s SIP revision will put in place the GHG emission thresholds for PSDapplicability set the Tailoring Rule, ensuring that smaller GHG sources emitting less than these

thresholds will not be subject to permitting requirements. Pursuant to section 110 ofthe CAA,EPA is proposing to approve this revision into the West Virginia SIP.

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Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans” 75 FR 82536(Narrowing Rule) (December 30, 2010). A summary of each ofthese rulemakings is described

below.

In the first rulemaking, the Tailoring Rule, EPA established appropriate GHG emission

thresholds for determining the applicability of PSD requirements to GHG-emitting sources. Inthe second rulemaking, the GHG SIP Call, EPA proposed to find that the EPA-approved PSD

programs in 13 States (not including West Virginia) are substantially inadequate to meet CAA

requirements because they do not appear to apply PSD requirements to GHG-emitting sources.For each ofthese States, EPA proposed to require the State (through a “SIP Call”) to revise its

SIP as necessary to correct such inadequacies. EPA proposed an expedited schedule for these

States to submit their SIP revision, in light of the fact that on January 2, 2011, certain GHG

emitting sources would be subject to the PSD requirements and would not be able to obtain a

PSD permit in order to construct or modify. In the third rulemaking, the GHG FTP, EPA

proposed a FTP to apply in any state that is unable to submit, by its deadline, a SIP revision to

ensure that the state has authority to issue PSD permits for GHG-emitting sources. In the

Narrowing Rule, EPA limited its approval ofthose states’ programs which had the authority to

regulate GHG’s, but lacked a vehicle to limit applicability to the higher thresholds established by

the Tailoring Rule. West Virginia was not one of the states included in the Narrowing Rule.

Below is a brief overview of GHGs and GHG-emitting sources, minimum SIP elements for aPSD program, and EPA’s recent actions regarding GHG permitting.

1. Sources of GHGs

A detailed explanation of GHGs, climate change and the impact on health, society, and the

environment is included in EPA’s technical support document for EPA’s GHG endangermentfinding final rule (Document ID No. EPA-HQ-OAR-2009-0472-11292 at www.regulations.gov).

The endangerment finding rulemaking is discussed later in this rulemaking. A summary ofthe

nature and sources of GHGs is provided below.

GHGs trap the Earth’s heat that would otherwise escape from the atmosphere into space and form

the greenhouse effect that helps keep the Earth warm enough for life. GHGs are naturally

present in the atmosphere and are also emitted by human activities. Human activities are

intensifying the naturally occurring greenhouse effect by increasing the amount of GHGs in the

atmosphere, which is changing the climate in a way that endangers human health, society, and

the natural environment.

Some GHGs, such as carbon dioxide (C0 2), are emitted to the atmosphere through natural

processes as well as human activities. Other gases, such as fluorinated gases, are created and

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CO2emissions and accounts for 80 percent ofthe total GHG emissions by mass. AnthropogenicCO2emissions released from a variety ofsources, including through the use of fossil fuelcombustion and cement production from geologically stored carbon (e.g., coal, oil, and natural

gas) that is hundreds of millions of years old, as well as anthropogenic CO2emissions from landuse changes such as deforestation, perturb the atmospheric concentration ofC0 2,and thedistribution of carbon within different reservoirs readjusts. More than half ofthe energy-relatedemissions come from large stationary sources such as power plants, while about a third comefrom transportation. Ofthe six well-mixed GHGs, four (CO 2,CH4,N2O, and HFCs) are emitted

by motor vehicles. In the United States, industrial processes (such as the production of cement,

steel, and aluminum), agriculture, forestry, other land use, and waste management are also

important sources of GHGs.Different GHGs have different heat-trapping capacities. The concept of Global WarmingPotential (GWP) was developed to compare the heat-trapping capacity and atmospheric lifetimeof one GHG to another. The definition of a GWP for a particular GHG is the ratio of heat

trapped by one unit mass ofthe GHG to that of one unit mass ofCO2over a specified time

period. When quantities ofthe different GHGs are multiplied by their GWPs, the different

GHGs can be summed and compared on a carbon dioxide equivalent (CO 2e) basis. For example,CH4has a GWP of2l, meaning each ton of CH4emissions would have 21 times as much impact

on global warming over a 100-year time horizon as 1 ton of CO2emissions. Thus, on the basisof heat-trapping capability, 1 ton of CH4 would equal 21 tons ofCO2e. The GWPs ofthe nonCO2 GHG range from 21 (for CH4)up to 23,900 (for SF6). Aggregating all GHG on a C0 2e

basis at the source level allows a facility to evaluate its total GHG emissions contribution based

on a single metric.2. Actions EPA Has Taken Concerning PSD Requirements for GHG-emitting Sources

By notice dated December 15, 2009, and pursuant to CAA section 202(a), EPA issued two

findings regarding GHGs that are commonly referred to as the “Endangerment Finding” and the

“Cause or Contribute Finding.” “Endangerment and Cause or Contribute Findings for

Greenhouse Gases Under Section 202(a) ofthe Clean Air Act,” 74 FR 66496. In the

Endangerment Finding, the Administrator found that six long-lived and directly emitted GHGs—

CO2,CH4,N2O, HFCs, PFCs, and SF6—may reasonably be anticipated to endanger public health

and welfare. In the Cause or Contribute Finding, the Administrator “define[d] the air pollutantas the aggregate group ofthe same six.. .greenhouse gases,” 74 FR 66536, and found that thecombined emissions ofthis air pollutant from new motor vehicles and new motor vehicle enginescontribute to the GHG air pollution that endangers public health and welfare.

By notice dated May 7, 2010, EPA published what is commonly referred to as the “Light-Duty

Vehicle Rule” (LDVR), which for the first time established federal controls on GHGs emitted

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EPA and state actions, with respect to a previously unregulated pollutant, cause that pollutant to

become “subject to regulation” under the CAA. Whether a pollutant is “subject to regulation” is

important for the purposes of determining whether it is covered under the federal PSD permitting

program. The Interpretive Memo established that a pollutant is “subject to regulation” only ifit

is subject to either a provision in the CAA or regulation adopted by EPA under the CAA that

requires actual control of emissions ofthat pollutant (referred to as the “actual control

interpretation”). On February 17, 2009, EPA granted a petition for reconsideration on theInterpretive Memo and announced its intent to conduct a rulemaking to allow for publiccomment on the issues raised in the memorandum and on related issues. EPA also clarified that

the Interpretive Memo would remain in effect pending reconsideration.

On March 29, 2010, EPA signed a notice conveying its decision to continue applying (with one

limited refinement) the Interpretive Memo’s interpretation of “subject to regulation”

(“Interpretation ofRegulations that Determine Pollutants Covered by Clean Air Act Permitting

Programs,” 75 FR 17004). EPA concluded that the “actual control interpretation” is the most

appropriate interpretation to apply given the policy implications. However, EPA refined the

Agency’s interpretation in one respect: EPA established that PSD permitting requirements applyto a newly regulated pollutant at the time a regulatory requirement to control emissions ofthat

pollutant “takes effect” (rather than upon promulgation or the legal effective date of the

regulation containing such a requirement). In addition, based on the anticipated promulgation ofthe LDVR, EPA stated that the GHG requirements ofthe vehicle rule would take effect onJanuary 2, 2011, because that is the earliest date that a 2012 model year vehicle may beintroduced into commerce. In other words, the compliance obligation under the LDVR does notoccur until a manufacturer may introduce into commerce vehicles that are required to complywith GHG standards, which will begin with model year 2012 and will not occur before January2,2011.

On June 3, 2010 (effective August 2, 2010), EPA promulgated a final rulemaking, the Tailoring

Rule, for the purpose ofrelieving overwhelming permitting burdens that would, in the absence of

the rule, fall on permitting authorities and sources 75 FR 31514. EPA accomplished this bytailoring the applicability criteria that determine which GHG emission sources become subject tothe PSD program’ of the CAA. In particular, EPA established in the Tailoring Rule a phase-in

approach for PSD applicability and established the first two steps ofthe phase-in for the largestGHG-emitters. Additionally, EPA committed to certain follow-up actions regarding future steps

beyond the first two, discussed in more detail later in this notice.

The Tailoring Rule also applies to the title V program, which requires operating permits for existing sources.

However, today’s action does not affect West Virginia’s title V program.

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sources of GHG emissions. New sources that emit, or have the PTE, at least 100,000 tpy C0 2eare subject to the PSD requirements. In addition, sources that emit or have the PTE at least

100,000 tpy C0 2eand that undertake a modification that increases net GHG emissions by at least

75,000 tpy C0 2eare also be subject to PSD requirements. For both steps, EPA notes that ifsources or modifications exceed theseC0 2e-adjusted GHG triggers, they are not covered by

permitting requirements unless their GHG emissions also exceed the corresponding mass-based

triggers in tpy.EPA believes that the costs to the sources and the administrative burdens to the permitting

authorities of PSD permitting will be manageable at the levels in these initial two steps and that

it would be administratively infeasible to subject additional sources to PSD requirements at those

times. However, EPA also intends to issue a supplemental notice of proposed rulemaking in

2011, in which the Agency will propose or solicit comment on a third step ofthe phase-in that

would include more sources, beginning on July 1, 2013. In the Tailoring Rule, EPA established

an enforceable commitment that the Agency will complete this rulemaking by July 1, 2012,

which will allow 1 year’s notice before Step 3 would take effect.

In addition, EPA committed to explore streamlining techniques that may well make the

permitting programs much more efficient to administer for GHG, and that therefore may allowtheir expansion to smaller sources. EPA expects that the initial streamlining techniques willtake

several years to develop and implement.

In the Tailoring Rule, EPA also included a provision, that no source with emissions below

50,000 tpy C0 2e, and no modification resulting in net GHG increases ofless than 50,000 tpy

C0 2e, will be subject to PSD permitting before at least 6 years (i.e., April 30, 2016). This is

because EPA has concluded that at the present time, the administrative burdens that would

accompany permitting sources below this level would be so great that even with the streamliningactions that EPA may be able to develop and implement in the next several years, and even with

the increases in permitting resources that EPA can reasonably expect the permitting authorities to

acquire, it would be impossible to administer the permit programs for these sources until at least

2016.

As EPA explained in the Tailoring Rule, the threshold limitations are necessary because without

it, PSD applies to all stationary sources that emit or have the PTE more than 100 or 250 tons of

GHG per year, beginning on January 2, 2011. This is the date when EPA’s recently promulgated

LDVR took effect, imposing control requirements for the first time on CO2and other GHGs. If

this January 2, 2011, date had passed without the Tailoring Rule being in effect, PSDrequirements would have applied to GHG emissions at the 100/250 tpy applicability levels

provided under a literal reading ofthe CAA as ofthat date. From that point forward, a source

owner proposing to construct any new major source that emits at or higher than the applicability

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permitting authorities would likely be able to issue only a tiny fraction ofthe permits requested.

In the Tailoring Rule, EPA adopted regulatory language codifiing the phase-in approach. As

explained in that rulemaking, many state, local and tribal area programs will likely be able to

immediately implement the approach without rule or statutory changes by, for example,

interpreting the term “subject to regulation” that is part ofthe applicability provisions for PSD

permitting. EPA requested permitting authorities to confirm that they will follow this

implementation approach for their programs, and ifthey could not, then EPA requested that theynotify the Agency so that we could take appropriate follow-up action to narrow federal approval

of their programs before GHGs became subject to PSD permitting on January 2, 2011. In a letterdated July 30, 2010 (the 60-day letter), West Virginia stated that it could interpret the current

version of 45CSR14 to apply the meaning ofthe term “subject to regulation” established by EPAin the Tailoring Rule in implementing the PSD program, but would still pursue rulemaking

action to be consistent with Federal counterpart language. See the docket for this proposed

rulemaking for a copy of West Virginia’s letter.

By Federal Register notice dated September 2, 2010, EPA proposed the GHG SIP Call. In that

action, along with the companion GHG FIP rulemaking published at the same time, EPA tooksteps to ensure that in the 13 States that did not appear to have authority to issue PSD permits toGHG-emitting sources at present, either the State or EPA would have the authority to issue such

permits by January 2, 2011. EPA explained that although for most states, either the state or EPA

is already authorized to issue PSD permits for GHG-emitting sources as ofthat date, our

preliminary information showed that these 13 States have EPA-approved PSD programs that did

not appear to include GHG-emitting sources and therefore did not appear to authorize these

States to issue PSD permits to such sources. Therefore, EPA proposed to find that these 13States’ SIPs were substantially inadequate to comply with CAA requirements and, accordingly,

proposed to issue a SIP Call to require a SIP revision that applies their SIP PSD programs to

GHG-emitting sources. In the companion GHG FIP rulemaking, EPA proposed a FTP that wouldgive EPA authority to apply EPA’s PSD program to GHG-emitting sources in any State that is

unable to submit a corrective SIP revision by its deadline. West Virginia was not one ofthe

States for which EPA proposed .a SIP Call.

As noted above, by notice dated September 2, 2010, EPA proposed the GHG SIP Call. At the

same time, EPA proposed a FIP to apply in any state that is unable to submit, by its deadline, aSIP revision to ensure that the state has authority to issue PSD permits to GHG-emittingsources. 2West Virginia is not included on the list of areas for the proposed SIP call.

2 As explained in the proposed GHG SIP Call (75 FR 53892, 53896), EPA intended to finalize its finding of

substantial inadequacy and the SIP call for the 13 listed states by December 1, 2010. EPA requested that the states

for which EPA is proposing a SIP call identify the deadline—between 3 weeks and 12 months from the date ofsignature of the final SIP Call—that they would accept for submitting their corrective SIP revision.

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the gap between when GHG PSD requirements went into effect on January 2, 2011 and when

either (1) EPA approves a SIP revision adopting EPA’s tailoring approach, or (2) if a state opts

to regulate smaller GHG-emitting sources, the state demonstrates to EPA that it has adequate

resources to handle permitting for such sources. West Virginia was not one of the statesimpacted by the Narrowing Rule. With the regulations submitted in the proposed SIP revision,West Virginia has made its regulations consistent with the Tailoring Rule.

The thresholds that EPA established in the Tailoring Rule are based on C0 2efor the aggregate

sum of six GHGs that constitute the pollutant that will be subject to regulation, which we refer to

as GHG. 3 These gases are: C0 2,CH4,N20, HFCs, PFCs, and SF6. Thus, in EPA’s Tailoring

Rule, EPA provided that PSD applicability is based on the quantity that results when the mass

emissions of each ofthese gases is multiplied by the GWP ofthat gas, and then summed for all

six gases. However, EPA further provided that in order for a source’s GHG emissions to trigger

PSD requirements, the quantity ofthe GHG emissions must equal or exceed both the

applicability thresholds established in the Tailoring Rule on a C0 2ebasis and the statutory

thresholds of 100 or 250 tpy on a mass basis. 4 Similarly, in order for a source to be subject to thePSD modification requirements, the source’s net GHG emissions increase must exceed the

applicable significance level on a C0 2ebasis and must also result in a net mass increase ofthe

constituent gases combined.

3. GUG Rescission Language

Also included in the revision submitted by West Virginia are automatic rescission provisions.These provisions provide that in the event that GHGs are no longer subject to regulation due to

an EPA final rule, an act of Congress, a Presidential Executive Order, a final order ofthe District

of Columbia Circuit Court of Appeals, or an order ofthe United States Supreme Court, then

GHGs shall not be subject to regulation under West Virginia’s PSD regulations.

EPA has determined that West Virginia’s automatic rescission provisions are approvable. In

assessing the approvability ofthese provisions, EPA considered two key factors: (1) Whether the

public will be given reasonable notice of any change to the SIP that occurs as a result ofthe

automatic rescission provisions, and (2) whether any future change to the SIP that occurs as a

3 The term “greenhouse gases” is commonly used to refer generally to gases that have heat-trapping properties.

However, in this notice, unless noted otherwise, we use it to refer specifically to the pollutant regulated in theLDVR.

4 The relevant thresholds are 100 tpy for title V, and 250 tpy for PSD, except for 28 categories listed in EPAregulations for which the PSD threshold is 100 tpy.

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under the CAA

s PSD permitting program. Furthermore, the rescission language submitted by

West Virginia provides for a 30-day public notice before going into effect.

EPA’s consideration of whether any SIP change resulting from West .Virginia’s automatic

rescission provisions would be consistent with EPA’s interpretation ofthe effect ofthe triggering

action on federal GHG permitting requirements is based on 40 CFR 51.105. Under 40 CFR51.105, “[r]evisions of a plan, or any portion thereof, will not be considered part of an applicable

plan until such revisions have been approved by the Administrator in accordance with this part.”40 CFR 51.105. To be consistent with 40 CFR 51.105, any automatic SIP change resulting from

an EPA final rule, an act of Congress, a Presidential Executive Order, a final order ofthe Districtof Columbia Circuit Court of Appeals, or an order ofthe United States Supreme Court must beconsistent with EPA’s interpretation ofthe effect ofsuch action on GHG permitting

requirements.With respect to the revocation of GHG permitting requirements pursuant to 45C5R14-2.80.f and

g, “if any ofthe following actions result in GHGs not being subject to regulation” under theFederal PSD permitting program, EPA reads this provision to mean that West Virginia will

follow EPA’s interpretation as to the impact ofthe change on Federal GHG permitting

requirements. In the event of an action that triggers (or likely triggers) application ofWestVirginia’s automatic rescission provisions, EPA intends to promptly describe the impact such

action on the enforceability ofits GHG permitting regulations.

C. Related CAA Section 11O(a)(2) Requirements

Whenever a new or revised NAAQS is promulgated, section 110(a) ofthe CAA imposes

obligations upon states to submit SIP revisions that provide for the implementation, maintenance,and enforcement ofthe new or revised NAAQS within three years following the promulgation of

such NAAQS - the so called infrastructure SIP revisions. Although states typically have met

many of the basic program elements required in section 11 0(a)(2) through earlier SIP

submissions in connection with previous PM standards, states (including all the EPA Region 3states) were still required to submit SIP revisions that address section 11 0(a)(2) for the 1997 and

2006 PM2.5NAAQS.

In addition to the August 31, 2011 SIP submission, West Virginia has previously submitted SIP

revisions addressing requirements set forth in CAA Section 11 0(a)(2) for the 1997 PM2.5and

ozone NAAQS, 2006 PM2.5NAAQS, and 2008 lead and ozone NAAQS, including those

11 0(a)(2) requirements related to West Virginia’s PSD permitting program. Because these SIP

submissions addressed West Virginia’s compliance with CAA Section 11 0(a)(2), these SIPsubmissions are referred to as infrastructure SIP submissions. The following infrastructure SIP

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,

October 1, 2009 2006 PM2.5 1 1 0(a)(2)(D)(i)(II)

October 26, 2011 2008 lead 1 10(a)(2)(D)(i)(II), (C), and (J)

February 17, 2012 2008 ozone 1 10(a)(2)(D)(i)(II), (C), and (J)

On May 17, 2010 (75 FR 27510), EPA proposed to approve portions ofthe submittals related to’

1997 ozone NAAQS, 1997 PM2.5NAAQS, and 2006 PM2.5NAAQS. Final approval was granted

on August 4, 2011(76 FR 47062). EPA’s approval of each ofthese submissions was limited to

the following 11 0(a)(2) elements: 11 0(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (3), (K), (L),

and (M), or portions thereof, for the 1997 8-hour ozone and 1997 PM2.5NAAQS; and thefollowing infrastructure elements for the 2006 PM2.5NAAQS: 1 10(a)(2)(A), (B), (C), (D)(ii),

(E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof. A general discussion relating toSection 11 0(a)(2) requirements may be found in EPA’s proposed and final approvals. See 75 FR

27510 and 76 FR 47062.

With respect to the 2008 lead NAAQS, EPA also proposed to approve portions of 11 0(a)(2)requirements ofthe October 26, 2011 submittal on July 3, 2012 (77 FR 39458). EPA explicitly

stated in the proposal that 11 0(a)(2)(C), (D), and (J) elements were not part ofthe proposed

approval, and we would be taking separate action on those elements. In this action EPA is

proposing to approve 11 0(a)(2)(C), (D)(i)(II), and (J) elements for the 2008 lead NAAQS, as

well as the 2008 ozone NAAQS.Based on the August 31 2011 West Virginia SIP submittal, EPA is proposing to approve the

portions ofthe above identified 110(a)(2) submittals which relate to West Virginia’s compliance

with the PSD requirements of CAA Section 11 0(a)(2)(D)(i)(II) for the 1997 PM2.5NAAQS, 1997

8-hour ozone NAAQS, 2006 PM2.5NAAQS, 2008 lead NAAQS, and 2008 ozone NAAQS, as

well as CAA Section 1 10(a)(2)(C) and (J) for the 2008 lead NAAQS and 2008 ozone NAAQS.

The relevant portion of CAA section 11 0(a)(2)(C) requires that — “Each implementation plan.. .shall. . .include a program to provide for.. .regulation ofthe

modification and construction of any stationary source within the areas covered by the plan asnecessary to assure that national ambient air quality standards are achieved, including a permit

program as required in part[] C.. .of this subchapter.”The relevant portion of CAA section 11 0(a)(2)(D)(i)(II) requires that — 11
Based upon the above analysis, West Virginia’s PSD program (inclusive ofthe PSD SIPRevision) is consistent with EPA’s promulgated PSD regulations. West Virginia’s PSD program

meets the applicable requirements of Part C of Title I ofthe CAA. This program regulates the

construction and major modifications ofmajor stationary sources as necessary to assure that

national ambient air quality standards are achieved in areas designated as attainment for aparticular pollutant. Furthermore, West Virginia’s PSD program contains adequate provisions

prohibiting, consistent with the CAA, any source or other regulated type of emissions activity

within the state from emitting amounts ofregulated air pollutants which will interfere with

approved PSD regulations of another state

West Virginia has made sufficient demonstration that its SIP meets the requirements ofsection

1 l0(a)(2)(D)(i)(II) for the 1997 ozone NAAQS, 1997 NAAQS, 2006 NAAQS, and

section 11 0(a)(2)(C), (D)(i)(II), and (J) for the 2008 ozone NAAQS and 2008 lead NAAQS

which relate to Part C ofTitle I ofthe CAA. EPA proposes to find that West Virginia has met its

obligations pursuant to 1 l0(a)(2)(C), (D)(i)(II), and (J) for these NAAQS.

Upon final approval ofthe PSD SIP submission at issue, West Virginia will have a SIP approved

PSD program that is consistent with current federal requirements. West Virginia’s federally

enforceable permitting program is codified at 40 CFR 52.2520.

IV. Summary of Changes

A. SIP Revision WV11445CSR14 - Permits for Construction and Major Modification of Major Sttnnr Sources

of Air Pollution for the Prevention of Significant Deterioration

The following is a briefsummary ofthe changes.

WV45CSR14 Revision - Summary of Changes

Citation Change Notes

1.3 Modified Text Deleted filing date.1.4 Modified Text Deleted effective date.1.5 Modified Text Replaced “June 1, 2009” with “June 1, 2010”

.

. Replaced “May 8, 2009” with “April 30, 2010” and “June 1, 20091T 1.6 Modified Text . ,, with June 1, 2010

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thermal dryers are in the 100 ton per year major source category.

Clarified that a source that major source for VOCs or NOx is major 2.43.d Added Text for ozone.

2.43.e Renumbered

Renumbered!

2.43.f Added Text! Changed “fugitives” to “fugitive emissions” and removed examples

Removed Text

2.43.g Typographical Changed “this subsection” to “subdivision 2.43.f”

Added numbering

2.46.d.1 Typographical Changed “the” to “The”

Added “or”Added numbering

2.46.d.2 Typographical Changed “or by” to “By”

Changed “;“ to

. Changed “from the particular project” to “from the particular 2.63.a.3 Typographical project

Deleted “for purposes of this rule” in the definition of Regulated 2.66 Deleted Text NSR Pollutant

Changed definition of Regulated NSR Pollutant to read:

“Any pollutant for which a National Ambient Air Quality Standard

2 66 a Modified Text has been promulgated and any pollutant identified under this subdivision as a constituent or precursor to such pollutant.

Precursors identified by the Administrator for purposes of NSR are

the following:”Clarified that NOx and VOC5 are precursors to ozone, S02 is a

2.66.a.1-4 Added Text precursor to PM2.5, NOx is a presumed precursor, and VOC5 are

presumed not to be precursors to PM2.5.

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“Notwithstanding subdivisions 2.66.a through 2.66.d, the term

regulated NSR pollutant shall not include any or all hazardous air

pollutants either listed in §112 of the CAA, or added to the list 2.66.e Added Text

pursuant to §112(b)(2) of the CAA, and which have not been

delisted pursuant to §112(b)(3) of the CAA, unless the listed

hazardous air pollutant is also regulated as a constituent or

precursor of a general pollutant listed under §108 of the CAA”

Changed “in” to “In”Changed “Pollutant and Emission Rate” to “Pollutant and Pollutant

2 74 a Typographical! Emission Rate” in table. . Added Text Added direct PM2.5 and PM2.5 precursor significant emissions rate

to table.Changed “in” to “In”Changed “Pollutant and Emission Rate” to “Pollutant and Pollutant

. Emission Rate” in table. 2.74.b Typographical Added direct PM2.5 and PM2.5 precursor significant emissions rate

to table.

2.74.c Typographical Changed “notwithstanding” to “Notwithstanding”

2.76 Typographical Added quotations around “Significant emissions unit”

Clarifying language to state that the definition of “source” and

.

. “stationary source” was only for the purpose of 45CSR14. 2.79 Modified Text , . . ,, Changed may emit any regulated air pollutant to may emit a

regulated NSR pollutant.”

Added language to establish the thresholds at which GHGs become

subject to regulation. Also added automatic rescission provisions 2.80 Added Text . . for GHG5 for certain actions that results in GHGs no longer being

subject to regulation in the Federal PSD program.

2.81-85 Renumbered

Deleted language that allowed for fugitive emissions to be excluded

in determining the significant emissions increase for sources not

listed in subdivision 2.43.f.

3.4.b Deleted Text

Note: This language was added and subsequently deleted by West

. Virginia before being submitted as a SIP revision.

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162 AddedText/ Added: Deleted Text “The source or modification that would be a major stationary

source or major modification only if fugitive emissions, to theextent quantifiable, are considered in calculating the potential toemit of the stationary source or modification and such source does

not belong to any of the source categories listed in Table 1 maypetition the Secretary for exemption from the requirements of

subsections 8.2, 8.3, 8.4, and sections 9, 11, and 12.”

Added:

“Requirements equivalent to those contained in subsections 8.2,

8.3, and 8.4 and sections 9, 11, and 12 do not apply to a major

16.4 Added Text stationary source or major modification with respect to a particular

pollutant if the owner or operator demonstrates that, as to thatpollutant, the source of modification is located in an area

designated as nonattainment under §107 of the CAA.”

16.5 Renumbered16.6 RenUmbered

16.6.d Removed Removed. Similar wording was added as a subnote to Table 2. (old citation) V

16.7 Deleted exemption from requirements in 11.5 (Air Quality

.

. Deleted Text . (old citation) Monitoring Requirements).

16.7 Renumbered

16 7 Renumbered! Changed “than that listed in Table 2” to “than the amounts listed in .a Typographical Table 2”

16 7 b Renumbered! Changed “than that listed in Table 2” to “than the concentrations Typographical listed in Table 2”

Renumbered! 16.7.c . Removed or from end of text. Typographical

Added subnote:

“No de minimus air quality level is provided for ozone. However,

any net emissions increase of 100 tons per year or more of volatile Table 2 Added Text . . . organic compounds or nitrogen oxides subject to PSD would be

required to perform an ambient impact analysis, including the

gathering of air quality data.”

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V. RECOMMENDED AGENCY ACTION

I find that the proposed revisions represent a strengthening ofWest Virginia’s SIP. Accordingly,I recommend that the August 31, 2011 proposed revisions to 45CSR1 4 be approved as described

above.

16 9 Added Text 

The permitting requirements contained in subdivision 9.1.b shall not apply to a stationary source or modification with respect to any

maximum allowable increase for PM1O if:”

Added:

“The owner or operator of the source or modification submitted an

16.9.a Added Text application for a permit to the Secretary before the before the

provisions embodying the maximum allowable increases for PM1O

took effect as part of the plan and”Added:

“The Secretary subsequently determines that the application was

16 9 b Added Text submitted before that date was complete. Instead, the applicable • requirements of subdivision 9.1.b shall apply with respect to the

maximum allowable increases for TSP as in effect on the date the

application was submitted.”Changed “subdivision 3.4.a” to “paragraph 19.8.f.1”

19.8.f.2 Modified Text Changed “subsections 3.2 through 3.5” to “subdivisions 19.8.b

through 19.8.e”

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