UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 


REGIONW 


1650 Arch Street 


Philadelphia, PenDsylvaDia 19103-2029 


August 26, 2008 

Mr. John Benedict, Director 

West Virginia Department ofEnvironmental Protection 

Division ofAir Quality 

601 57th Street, S.E. 

Charleston, WV 25304 

~: Proposed Air Quality Rules for 2009 Legislative Session 

Dear Mr. Benedict: 

The United States Environmental Protection Agency (EPA) would like to thank you for 

the opportunity to comment on your proposed air quality rules for the 2009 legislative session, . 

specifically 45 CSR 13 and 45 CSR 14. 

Our comments and suggestions on your minor source permitting regulations (45 CSR 13) 

and your major source permitting regulations (45 CSR 14) are provided in Enclosures A and B to 

this letter. These comments should be addressed prior to formal submittal of your air quality 

rules (45 CSR 13 and 45 CSR 14) for approval into the West Virginia State Implementation Plan 

(SIP). 

EPA stands ready to help West Virginia address any concerns they may have regarding 

our comments and suggestions, so they can be approved into the West Virginia SIP. Ifyou have 

any questions, please contact me or Amy Caprio of my staff at 215 814-2156. 

SiI#rely, ~ 

\...:;~¥f.:. Judiih M. Katz, Direc 

Air Protection Division 

cc: 	Neil Bigioni, US EPA (w/enclosures) 

Fred Durham, WVDEP (w/enclosures) 

Jim Mason, WVDEP (w/enclosures) 

Enclosures 

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Enclosure A 

EPA's Comments on West Virginia's Series 13 Regulations Titled Permits for 

Construction, Modification, Relocation and Operation of Stationary Sources of Air 

Pollutants Notification Requirements, Administrative Updates, Temporary Permits, 

General Permits, Permission to Commence Construction, and Procedures for Evaluation 

(45 CSR 13) 

1. 	 40 CFR Section 51.161(a) requires the following information to be included as 

information available for public comment, "the agency's analysis ofthe effect of 

construction or modification on ambient air quality, including the agency's proposed 

approval or disapproval." Rule 45-13-8.7 requires that, "prior to issuance of any permit 

subject to public notice under subsections 8.4 or 8.5, prepare an engineering evaluation 

supporting his or her stated intent to issue such a permit and shall transmit to U.S. EPA 

and any other interested party which so requests, a nonconfidential copy of the 

engineering evaluation 'and a draft copy ofthe permit which is proposed for issuance." 

Can the West Virginia Department ofEnvironmental Protection (WVDEP) confirm that 

the type ofinformation or an equivalent ofthe information required in 40 CFR Section 

51.161(a) is covered by the materials made available through 45-13-8.7 or is otherwise 

made available for public comment, for each type ofpermit issued pursuant to the 

requirements ofsubsection 8,4 or 8.5, and explain whether such materials are available to 

the public for permits issued pursuant to subsectio~ 8.3. 

2. 	 EPA understands the process for permit application and reporting requirements for 

construction of and modifications to stationary sources laid out in rules 45-13-S,7(a) and 

45-13-5.7(b). However, EPA unclear about the process laid out in 45-13-S.7(c) for action 

on complete temporary or relocation permit applications. EPA believes that the 30 day 

completeness review required by 45-13-5.9 pertains to permits issued pursuant 45-13­

S.7(a), (b) and (c). However, we are not certain why these provisions use non-identical 

language to address the completeness criteria. We are concerned that use ofdifferent 

language in the 45-13.S.7(c) -- as <;ompared to 45-13.5.7(a) and (b) -- when referring to 

the completeness requirement may cause confusion in the regulated community if West 

Virginia does not provide clarification of how the 45-13-5.9 completeness determination 

works within the time frames specified by 45-13-S.7(c). 

3. 	 It is EPA's experience that netting analysis often lack adequate information, contain 

errors, and reach inappropriate conclusions. Sources that are "netting out" ofthe major 

source preconstruction permitting provisions have a greater likelihood ofultimately being 

subject to the major source provisions and its intended control technology requirements 

than other classes of minor sources or minor modifications. Ifsuch a source is authorized 

to begin construction on their new source or modification and it is later determined that 

the application in fact represents a new major source or major modification, it is likely 

that the applicant may be required by their construction permit to redesign the source to 

include pollution control equipment. EPA continues to ,believe that these types of sources 

do not make good candidates for advance construction. 

4. 	 The term· "federally enforceable is used in 45-13-16.2(b) as a term ofart and is undefined 

in section 45-13-2 ofthe regulations. EPA suggests that WVDEP add the definition of 

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Particulate matter: 

PMI0, annual arithmetic mean. 17 

PMI0,24-hrmaximum ... 30 

Sulfur dioxide: 

Annual arithmetic mean .. 20 


24-hr maximum ............. 91 


3-hr maximum ............... 512 


Nitrogen dioxide: 

Annual arithmetic mean .. 25 

Class III 

Particulate matter: 

PMI0. annual arithmetic mean .. 34 

PM10, 24-hrmaximum ... 60 


Sulfur dioxide: 


Annual arithmetic mean . .40 


24-hr maximum .•........... 182 


3-hr maximum ............... 700 


Nitrogen dioxide: 

Annual arithmetic mean .. 50 

For any period other than an annual period, the applicable maximum allowable increase 

may be exceeded during one such period per year at anyone location. 

(2) Where the State can demonstrate that it has alternative measures in its plan other than 

maximum allowable increases that satisfy the requirements in sections 166(c) and 166(d) 

ofthe Clean Air Act for nitrogen oxides. the reguirements for maximum allowable 

increases for nitrogen dioxide under paragraph (c)(n ofthis section shall not awly upon 

approval ofthe plan by the Administrator. . 

4. 	 Clarifications to add "Replacement Unit" and PAL Baseline - § 51.165 Permit 

requirements. 

Section 51.166 is amended: 

a. By revising paragraph (b )(7)(ii). 

b. By adding paragraph (b)(32). 

c. By revising paragraph (w)(6). 

The revisions read as follows: 

§ 51.166 Prevention ofsignificant deterioration ofair quality. 

(b)(7)(ii) An existing emissions unit is any emissions unit that does not meet the 

requirements in paragraph (b)(7)(i) ofthis section. A re.placement unit as defined in 

paragraph (b)(32) ofthis section. is an existing emissions unit 

(32) [Resetvedl Replacement unit means an emissions unit for which all the criteria listed 

in paragraphs (b)(32)(i) through (iv) ofthis section are met. No creditable emission 

reductions shall be generated from shutting down the existing emissions unit that is 

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replaced. CO The emissions unit is a reconstructed unit within the meaning of § 

60. 15(b)(l) ofthis chapter, or the emissions unit completely takes the place of an existing 

emissions unit. (m The emissions unit is identical to or functionally eguivalent to the 

replaced emissions unit. (iii) The replacement does not change the basic design 

parameter(s) (as discussed in paragraph (y)(2) ofthis section) ofthe process unit. (iv) The 

replaced emissions unit is permanently removed from the major stationary source, 

otherwise permanently disabled, or permanently barred from operation by a pennit that is 

enforceable as a practical matter. lfthe replaced emissions unit is brought back into 

operation. it shall constitute a new emissions unit. 

(w)(6) Setting the 10-year actuals PAL level. (i) Except as provided in paragraph 

(w)(6)(ii) ofthis section, the plan shall provide that the actuals PAL level for a major 

stationary soutce shall be established as the sum ofthe baseline actual emissions (as 

defined in paragraph (b)(47) ofthis section) ofllie PAL pollutant for each emissions unit 

at the source; plus an amount equal to the applicable significant level for the PAL 

pollutant under paragraph (b)(23) ofthis section or under the Act, 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 shut 

down 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 ofthe units. The reviewing 

authority shall specify a reduced PAL level(s) (in tonslyr) in the PAL permit to become 

effective on the future compliance date(s) of any applicable Federal or State regulatory 

requirement(s) that the reviewing authority is aware ofprior to issuance ofthe PAL 

permit. For instance, ifthe source owner or operator will be required to reduce emissions 

from industrial boilers in halffrom baseline emissions of 60 ppm NOX to a new rule 

limit of30 ppm, then the permit shall contain a future effective PAL level that is equal to 

the current PAL level reduced by half ofthe original baseline emissions ofsuch unites). 

(ii) 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 paragraph (w)(6)(i) ofthis section, the emissions must be 

added to the PAL level in an amount equal to the potential to emit ofthe units. 

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Attachment B 

EPA's Comments on West Virginia's Series 14 Permits for Construction and Major 

Modification of Major Stationary Sources ofAir Pollution for the Prevention of Significant 

Deterioration . 

With respect to 45 CSR 14, we seek clarification regarding West Virginia's intention regarding 

the following NSR reform provisions that were not included in the regulatory package we 

received on August 11, 2008. Please refer to the following 40 CFR Section 51.166 (prevention 

of Significant Deterioration of Air Quality) changes [Underline is used to denote new EPA 

regulatory text and strikeem is used to indicate removed text that was not included in the West 

Virginia regulatory package]: 

1. 	 New Source Review: Reasonable Possibility in Recordkeeping - § 51.166 Permit 

requirements is amended by revising paragraph (r)(6) introductory text and adding 

paragraph (r)(6)(vi) to read as follows: 

(a)(6) Each plan shall provide that, except as otherwise provided in paragraph (a)(6)(vi) 

ofthis section. the following specific provisions applyte with respect to any regulated 

NSR pollutant emitted from projects at existing emissions units at a major stationary 

source (other than projects at a Clean UBit er at a source with a PAL) in circumstances 

where there is a reasonable possibility, within the meaning ofparagraph (a)(6)(vi) ofthis 

section, that a project that is not a part of a major modification may result in a significant 

. emissions increase ofsuch pollutant, andthe oWner or operator elects to use the method 

specified in paragraphs (a)(I)(xxviii)(B)(I) through (3) ofthis section for calculating 

projected actual emissions. Deviations from these provisions will be approved only ifthe 

State specifically demonstrates that the submitted provisions are more stringent than or at 

least as stringent in all respects as the corresponding provisions in paragraphs (a)(6)(i) 

through M (vi) ofthis section. 

(vi) A "reasonable possibilitv" under paragraph (r)(6) of this section occurs when the 

owner or operator calculates the project to result in either: 

(a) A projected actual emissions increase ofat least 50 percent ofthe amount that is a 

"significant emissions increase," as defined under paragraph (b)(39) ofthis section 

(without reference to the amount that is a significant net emissions increase), for the 

regulated NSR pollutant; or 

(b) A projected actual emissions increase that added to the amount of emissions excluded 

under paragraph (b)(40)Cii)(c), sums to at least 50 percent ofthe amount that is a 

"significant emissions increase," as defined under paragrlilPh (b)(39) ofthis section 

(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 ofparagraph (r)(6)(vi)(b) ofthis section, and not also within the 

meaning ofparagraph (a)(6)(vi)(a) ofthis section. then provisions (a)(6)(ii) through (v) 

do not apply to the project. 

2. 	 Treatment of Certain Ethanol Production Facilities Under "Major Emitting 

Facility" Definition - § 51.166 Prevention of significant deterioration of air quality. 

Section 51.166 is amended by revising paragraphs (b)(l)(i)(a), (b)(l)(iii)(t), and 

(i)(l)(ii)(t): 

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(b)(I)(i)(a) Any of the following stationary sources of air pollutants which emits, or has 

the potential to emit, 100 tons per year or more of any regulated NSR pollutant: Fossil 

fuel-fired steam electric plants ofmore than 250 million British thermal units per hour 

heat input, coal cleaning plants (with thermal dryers), kraft pulp mills, portland cement 

plants, primary zinc smelters, iron and steel niill plants, primary aluminum ore reduction 

plants (with thermal dryers), primary copper smelters, municipal incinerators capable of 

charging more than 250 tons ofrefuse per day, hydrofluoric, sulfuric, and nitric acid 

plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven 

batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead 

smelters, fuel conversion plants, sintering plants, secondary metal production plants, 

chemical process plants (which does not include ethanol production facilities that produce 

ethanol by natural fermentation included in NArcs codes 325193 or 312140), fossil-fuel 

boilers (or combinations thereof) totaling more than 250 million British thermal units per 

hour heat input, petroleum storage and transfer units with a total storage capacity 

exceeding 300,000 barrels, taconite ore processing plants, glass fiber processing plants, 

and charcoal production plants; 

(b)( 1 ) (iii)(t) 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; 

(i)( 1 )(ii)(t) Chemical process plants-The term chemical processing plant shall not 

include ethanol production facilities that produce ethanol by natural fermentation 

included in NArCS codes 325193 or 312140; 

3. 	 Prevention of Significant Deterioration for Nitrogen Oxides Increments - § 51.166 

Prevention of significant deterioration of air quality. Section 51.166 is amended by 

revising paragraph (c) to read as follows: 

(c) Ambient air increments and other measures. ill The plan shall contain emission 

limitations and such other measures as may be necessary to assure that in areas designated 

as Class I, II, or III, increases in pollutant concentrations over the baseline concentration 

shall be limited to the following: 

Pollutant and Maximum Allowable increase (micrograms per cubic meter) 


Class I 


Particulate matter: 


PMIO, annual arithmetic mean .. 4 


PMI0, 24-hr maximum ... 8 


Sulfur dioxide: 

Annual arithmetic mean .. 2 

24-hr maximum ............. 5 


3-hr maximum ............... 25 


Nitrogen dioxide: 

Annual arithmetic mean ..2.5 

Class II 

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"federally enforceable" from 45-14-2.29 to 45-13-2 to clarify the use ofthe term in 45 


CSR 13. 


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