dep 

west virginia department of environmental protection 

Executi ve Office 

60 I 57" Street SE 

Charleston, WV 25304 

Phone: (304) 926-0440 

Fax: (304) 926-0446 

Mr. Shawn M. Garvin 

Regional Administrator (3RAOO) 

U. S. EPA Region III 

Air Protection Division 

1650 Arch Street 

Philadelphia, PA 19103-2029 

Seplember 7, 20 I I 

Earl Ray Tomblin, Governor 

Randy C. Huffman, Cabinet Secretary 

www,dep.wv.gov 

RE: eAA 111(£1)/129 Pltlll-WV Revised PIal/for HospitallMedicall/l/fectiolls Waste Illeil/erators 

Dear Administrator Garvin: 

I am herein submitting the above referenced revised Clean Air Act 111(d)/I29 Plan for approval by the 

U.S. Environmental Protection Agency. 

The Division of Air (DAQ) has incorporated changes made to 45CSR 18, "Control of Air Pollution From 

Combustion of Solid Waste." This rule change has required DAQ to submit a plan revision for HMIWI. 

Shou ld you or your staff have any questions concerning this submittal, please contact John A. Benedict, 

Director, Division of Air Quality at (304) 926-0499 Ext. 1966 or Rich Boehm at (304) 926-0499 Ext. 

1687. 

Enclosures 

cc: James Topsale, USEPA, Region III 

John A. Benedict, WVDEP - DAQ 

c::r:;;. 

Cabi

RandYnet Secretary ~ 

Promoting a healthy environment. 

dep 

West Virginia Department of Environmental Protection 

Division of Air Quality 

Revision to the West Virginia Section 111(d)/129 Plan 

Control of Air Pollution from Combustion of Solid Waste 

for 

Hospital/Medical/Infectious Waste Incinerators 

July 2011 

TABLE OF CONTENTS 

I. BACKGROUND...................................................................................................... 1 

II. PERMITS .................................................................................................................. 4 

Ill. PUBLIC PARTICIPATION ..................................................................................... 4 

IV. IMPLEMENTATION OF NEW SOURCE PERFORMANCE 

STANDARDS .......................................................................................................... 4 

V. IMPLEMENTATION OF EMISSION GUIDELINES FOR 

EXISTING SOURCES STANDARDS ..................................................................... 4 

VI. EMISSION INVENTORY FOR DESIGNATED HMIWI FACILITIES ................ 6 

VII. TESTING, MONITORING, RECORDKEEPING, REPORTING 

AND OTHER SOURCE REQUIREMENTS .......................................................... 6 

1. Compliance and Perfonnance Testing ......................................................... 7 

2. Monitoring ..................................................................................... '" ....... .... 7 

3. Reporting and Recordkeeping ... .... ... ....... .... ....... ... ...... ... ......... ... ....... ...... ..... 8 

4. Operator Training and Qualification............................................................. 8 

5. Inspection. ............. .... .... ...... .............. ...... ..... ...... ......... .... .... .... .... ... ....... ... ..... 9 

6. Waste Management Plan ................................................................................ 9 

VIll. LEGAL AUTHORITy ............................................................................................. 9 

IX. COMPLIANCE SCHEDULES.: ............................................................................... 13 

X. PROGRESS REPORTS ........................................................................................... 14 

LIST OF TABLES 

Table 18-1A Emissions Limits for Small, Medium, and Large HMIWI at Designated 

Facilities as Set Forth in 40 CFR §60.32e(a)(I) and 45 CSR 18-7.2.a.l 

Table 18-lB Emissions Limits for Small, Medium, and Large HMIWI at Designated 

Facilities as Set Forth in 40 CFR 60.32e(a)(1) and (a)(2) and 45CSR18-

§7.2.a.l and §7.2.a.2 

Table l8-2A Emissions Limits for Small HMIWI Which Meet the Criteria Under 40 

CFR §60.33e(b)(1) and 45 CSR 18-§7.3.b.l 
Table l8-2B Emissions Limits for Small HMIWI Which Meet the Criteria Under 40 

CFR §60.33e(b)(2) and 45 CSR l8-§7.3.b.2 

Table 18-3 HMIWI Source Inventory 

Table 18-4 West Virginia Emission Inventory - Large CapacityHMIWI 

Table 18-5 West Virginia Emission Inventory - Medium Capacity HMIWI 

LIST OF APPENDICES 

A. 45CSR18- Control of Air Pollution From Combustion of Solid Waste, effective 

June 16,2011. 

B. West Virginia Air Pollution Control Act (§§22-5-1 ~ seq.) 

C. Documentation of Public Participation 
WEST VIRGINIA 111 (d)/129 PLAN FOR 

CONTROL OF AIR POLLUTION FROM COMBUSTION OF SOLID WASTE FOR 

HOSPIT AL/MEDICALIINFECTIOUS WASTE INCINERATORS 

I. BACKGROUND 

Under Sections 111 and 129 of the CAA as amended in 1990, the EPA is required to 

develop regulations to control air pollutant emissions from HMIWI. Section 111 addresses 

Standards of Performance for Stationary Sources. Section 129 addresses Solid Waste 

Combustion. Under the authority of these sections EPA codified regulations governing 

emissions from new and existing HMIWI in Title 40 of the Code of Federal Regulations (CFR) 

Part 60, Subparts Ec and Ce, respectively. 

On September IS, 1997, the United States Environmental Protection Agency (EPA) 

promulgated amended Emission Guidelines for existing hospital, medical, and infectious waste 

incinerators (HMIWI) under 40 CFR Part 60, subpart Ce, and New Source Performance 

Standards (NSPS) for new HMIWI under 40 CFR Part 60, subpart Ec (62 FR 48348, September 

15, 1997). The Clean Air Act (CAA) requires that State regulatory agencies implement the 

Emission Guidelines according to a State Plan developed under Sections 111(d) and 129 of the 

CAA. 

On August 3, 2009, EPA took direct final action under Part 62, Subpart XX, to approve a 

revision to the West Virginia (WV) HMIWI 111(d)1129 plan (the "Plan''). The revision 

contained a newly promulgated West Virginia Department of Environmental Protection, 

Division of Air Quality (DAQ) rule that streamlined the state's regulatory structure (WV 

45CSR6, 18, and 24) for incinerator units and incorporated applicable section 129, requirements 

into WV 45CSR18, effective June 1, 2008. The streamlining of the state's regulatory structure 

of its incinerator rules was not an EPA requirement. 

On October 6, 2009, the EPA amended 40 CFR 60, Subparts Ce and Ec. This final rule 

revises emission limits for both the NSPS and Emission Guidelines in response to a public 

comment on the December 2008 re-proposal, which requested EPA adjust the statistical 

approach used to account for variability in the data and consider the distribution of the emissions 

data in determining the MACT floor emissions limits. 

Per the October 6, 2009 amendment, under Subpart Ce, a facility that commenced 

construction on or before June 20, 1996, or for which modification was commenced on or before 

1 
March 16, 1998 or for a facility that commenced after June 20, 1996 but no later than December 

I, 2008, or for which modification is commenced after March 16, 1998 but no later than April 6, 

2010 are considered to be an existing source, otherwise the facility is considered a new source 

and must comply with NSPS. 

The requirements of 40 CFR 60, Subpart Ce as promulgated on September 15, 1997, 

must apply to the designated facilities until one year after the effective date of U.S. EPA's 

approval of West Virginia's 111(d)/129 plan revision for HMIWI units. Upon one year after the 

effective date of U.S. EPA's approval of the 111 (d)/129 Plan the designated facilities are no 

longer subject to the requirements of 40 CFR 60, Subpart Ce as promulgated on September 15, 

1997, but subject to the requirements of 40 CFR 62, Subpart XX, as amended in accordance with 

the October 6, 2009 provisions of 40 CFR Part 60, Subpart Ceo 

The HMIWI source category is divided into three subcategories based on the waste 

burning capacity: small (less than or equal to 200 Ib/hr), medium (greater than 200 but less than 

or equal to 500 Ib/hr), and large (greater than 500 Ib/hr). Waste burning capacity is determined 

either by the maximum design capacity or by the "maximum charger rate" established during the 

most recent performance test. The rule establishes a different set of emission limits for 

pollutants depending upon the subcategory. The pollutants regulated by this rule include metals 

(cadmium, lead, and mercury); particulate matter; acid gases (sulfur dioxide and nitrogen oxides, 

and hydrogen chloride); organic compounds (dioxins and furans); carbon monoxide; and opacity. 

Subpart Ce establishes criteria for state and local agencies to develop Emission 

Guidelines and performance standards for existing HMIWl. The existing HMIWl source 

category is divided into the same three subcategories as the new HMIW1. Subpart Ce, however, 

allows for an additional subcategory for Small Remote HMIWI (bum less than 2,000 Ib/week 

and are located more than 50 miles from the boundary of the nearest Standard Metropolitan 

Statistical Area). Like Subpart Ec, the Emission Guidelines also establishes a different set of 

emission limits for pollutants depending upon the subcategory. The pollutants regulated are the 

same as those for Subpart Ec. Pursuant to Subsection 12.1 of45CSR18, existing HMIWI must 

comply with Title V operating permit requirements as codified in WV 45CSR30 -

"Requirements for Operating Permits." 

Rule 45CSRI8 establishes standards of performance and emission guidelines for large 

municipal waste combustors, small municipal waste combustion units, hospital! medical! 

infectious waste incinerators, commercial and industrial solid waste incineration units, and other 

solid waste incineration units pursuant to Sections III and 129. This rule codifies general 

2 
procedures and criteria to implement certain standards of performance for new stationary sources 

and emission guidelines for existing units promulgated by EPA as set forth in 40 CFR Part 60. It 

is the intent ofthe Secretary to adopt these standards by reference. 

This document serves as a revision to the West Virginia HMIWI 1 II (d)/129 plan (the 

"plan") which incorporates the October 6, 2009 amended 40 CFR 60, Subparts Ce and Ec. As 

part of the plan, the DAQ has included legislative rule West Virginia 45CSRl8 - "Control of Air 

Pollution From Combustion of Solid Waste", which became effective June 16, 2011 and has 

been included as Appendix D. This rule establishes standards of performance and Emission 

Guidelines for new and existing HMIWI, respectively. 

3 
II. PERMITS 

As the result of the rule streamlining, and to reflect changes of the 45CSR18, a Title V 

pennit revision of the affected sources of HMIWI must be completed by the DAQ as soon as 

practicable after EPA plan approval. The level of public process required in conducting these 

pennit revisions will be detennined by the types of modifications needed in order for the Title V 

pennits issued by DAQ to comply with the provisions of 40 CFR §70.7 and to assure compliance 

with all applicable Section 129 requirements. 

III. PUBLIC PARTICIPATION [40 CFR §60.23(f)] 

Prior to adopting the Section 111(d)/129 State Plan, the DAQ allowed the opportunity for 

public comment and held a public hearing on the plan. The public hearing was held on August 

8,2011 at 601 57th Street, SE, Charleston, WV at 5:30 p.m. The notice of the public hearing was 

published as a Class 1 legal advertisement in the Charleston Daily Mail and Charleston Gazette 

newspaper and in the State Register. The DAQ has certified that the public hearing was held in 

accordance with 40 CFR §60.23( d), and will maintain the hearing records required under 40 

CFR §60.23(e). The hearing records will be maintained at least 2 years. The public hearing 

certification is attached in Appendix A. 

IV. IMPLEMENTATION OF NEW SOURCE PERFORMANCE STANDARDS 

45CSR18, "Control of Air Pollution From Combustion of Solid Waste" rule was 

subsequently approved by the 2011 State Legislature and has an effective date ofJune 16,2011. 

For HMIWI Sources, Subsection 3.1 incorporates by reference the entire NSPS standards 

of 40 CFR Part 60 Subpart Ec, effective September 15, 1997 and as amended on October 6, 

2009. 

V. IMPLEMENTATION OF EMISSION GUIDELINES FOR EXISTING HIMWI 

SOURCES 

West Virginia legislative rule 45CSR18 effective June 1,2008, and the related HMIWI 

111(d)/129 plan revision, 40 CFR Part 62, Subpart XX, §62.l2150(b) were approved by EPA in 

the Federal Register on August 3, 2009. 45CSR18 sets forth the emission limits that are 

recommended in the Emission Guidelines of 40 CFR Part 60 Subpart Ce for existing HMIWI 

and remain applicable until the affected HMIWI unit comes into full compliance, as required 

4 
under the amended provisions of 45CSR18 HMIWI (effective June 16, ZOII), and the related 

plan revision. The emission guidelines set forth in 45CSR18 are identical to the federal emission 

guidelines. 

Emission Limitations [40 CFR §§60.24(b)(1) and 60.33eJ 

Under Section lZ9(b)(Z) of the CAA, the West Virginia Section 11l(d)/IZ9 plan must 

include emission limits that are "at least as protective as" those in the HMIWI Emission 

Guidelines. With the amendments on October 6, Z009, EPA has established two types of 

designated existing facilities, each with its own emission guidelines. 

For a designated facility set forth in 40 CFR 60.3Ze(a)(I) subject to the emission 

guidelines as promulgated on September 15, 1997, the requirements are presented in Table 18-

lA, except as provided in 40 CFR §60.3Ze(b). For a designated facility set forth in 40 CFR 

§60.3Ze(a)(l) subject to the emission guidelines as amended on October 6, Z009, the 

requirements are presented in Table 18-lB except as provided in 40 CFR §60.3Ze(b). For a 

designated facility set forth in 40 CFR §60.3Ze(a)(Z) the more stringent of the requirements 

presented in Table 18-lB and Table lA of 40 CFR 60, Subpart Ec. The limits contained in the 

state rule are identical in amount and dimension (units) to those established in the Emission 

Guidelines. 

Under 40 CFR §60.33e(b), a State Plan must include the requirements for emissions 

limits for any small HMIWI constructed on or before June ZO, 1996, which is located more than 

50 miles from the boundary of the nearest Standard Metropolitan Statistical Area and which 

bums less than Z,OOO pounds per week of hospital waste and medical/infectious waste that are at 

least as protective as the federal requirements. Pursuant to 45CSRI8-§7.3.b, West Virginia 

requires small HMIWI units to meet emissions limits equivalent to those set forth in 40 CFR 

§60.33e(b ). 

For a designated facility set forth in 40 CFR §60.3Ze (a)(I) subject to the emission 

guidelines as promulgated on September 15, 1997, the emission limits are presented in Table 18-

ZA. For a designated facility set forth in 40 CFR 60.3Ze (a)(1) subject to the emission guidelines 

as promulgated on October 6, Z009, the emission limits are presented in Table 18-ZB, 

In addition, 45CSRI8-§7.3.c. requires existing HMIWI to meet the NSPS opacity 

requirements of 40 CFR §60.5Zc(b) as follows: For a designated facility under 40 CFR 

§60.3Ze(a)(I) subject to the emission guidelines as promulgated on September 15, 1997, the 

5 
facility must meet requirements set forth in 40 CFR §60.52c(b)(I). For a designated facility 

under 40 CFR §60.32e(a)(l) subject to the emission guidelines as amended on October 6, 2009 

and a designated facility as defined under 40 CFR §60.32e(a)(2) the facility must meet 

requirements set forth in 40 CFR §60.52c(b )(2). 

VI. EMISSION INVENTORY FOR DESIGNATED HMIWI FACILITIES [40 CFR 

§§60.2S(a) and 60.2S(c)] 

A complete source inventory of affected HMIWI in West Virginia regulated by the 

Emission Guidelines must be submitted as part of the West Virginia Section 111(d)/129 plan. 

Sources affected by the Emission Guidelines are the following: (I) HMIWI, (2) co-fired 

combustors, and (3) incinerators burning only pathological, low-level radioactive, and 

chemotherapeutic waste alone or in combination. The definition of these types of units can be 

found in 40 CFR §60.5Ic. According to the results of a survey conducted by the DAQ in 

January 1998, West Virginia has 2 operating HMIWI units. Table 18-3 lists these sources, their 

charge/design rate, and addresses. Any other sources identified, that are not included on this 

Table, must be required to comply with the emission and perfonnance standards, including 

compliance schedule and reporting requirements, established in this Plan. 

An emission inventory, based on the HMIWI source inventory, for the nine designated 

pollutants of 40 CFR Part 60, Subpart Ce is also required to be included in the West Virginia 

Section I II(d)/129 plan. Tables 18-4, and 18-5 provide an estimate of the current emission 

rates, emission concentrations and methods of emission estimation. Since the tables are 

organized by size category, the corresponding emission standards are also presented in order to 

show the relationship between measured or estimated emissions and the amounts of such 

emissions allowed by the standard. 

VII. TESTING, MONITORING, RECORDKEEPING, REPORTING AND OTHER 

SOURCE REQUIREMENTS [40 CFR §§60.24(b)(2) AND 60.37e] 

The West Virginia Section 111(d)/129 plan must include testing, monitoring, 

recordkeeping and reporting requirements for existing HMIWI. The plan must also include 

required operator training and qualification criteria and inspection and waste management 

requirements. Therefore, the owner or operator of existing HMIWI must demonstrate 

compliance with applicable testing, monitoring, recordkeeping and reporting requirements in 40 

CFR Part 60, Subparts Ce and Ec, and the related provisions of WV 45CSRI8 and Section 

I 11 (d)1129 Plan. 

6 
1. Compliance and Performance Testing [40 CFR §60.37e(a), 

45CSRlS-§7.7.a.l! 

All existing facilities which are subject to the emission limits in Tables lA, ZA, IB, and 

ZB to Subpart Ce and the related 45CSRl8 emission limit tables for small, medium and large 

HMIWI must comply with the compliance and performance testing requirements in 40 CFR 

§60.56c as required by 40 CFR §60.37e, except for certain exclusions (e.g., fugitive emissions 

testing requirements), as stipulated in 40 CFR §60.37e(a)(I) and (Z), and (b)(l) and (Z). The 

related and applicable 45CSRl8 exclusions are stipulated in 45CSRI8-§7.7. For small HMIWI 

not equipped with control devices, they must comply with the requirements of 40 CFR 

§60.37(e). 

For facilities as defined in 40 CFR §60.3Ze(a)(I) or a (Z) subject to emissions limits 

under §60.33e(a)(Z)(a)(3), or (b)(Z) may use the results of previous emissions tests to 

demonstrate compliance with the emissions limits, provided that conditions within 40 CFR 

§60.37e(f)1-3 are met. 

2. Monitoring [40 CFR §60.37e(d), 45CSRlS-§7.7.dl 

The owner or operator of an existing facility subject to the West Virginia Section 

111(d)/IZ9 plan for HMIWI must demonstrate compliance with the monitoring requirements in 

40 CFR §60.57c as required by 40 CFR §60.37e. The owner or operator of the existing HMIWI 

facility must install, calibrate (to manufacturer's specifications), maintain, and operate devices 

(or establish methods) for monitoring the maximum and minimum operating parameters listed in 

Table 3 of 40 CFR Part 60, Subpart Bc (relating to operating parameters to be monitored and 

minimum measurement and recording frequencies). The owner or operator of the existing 

facility must also install, calibrate (to manufacturer's specifications), maintain, and operate a 

device or method for measuring the use of bypass stack including the date, time and duration. 

The owner or operator of a small HMIWI unit is subject to the emission limits under 40 

CFR §60.33e(b) that are not equipped with an air pollution control device must comply with the 

following monitoring requirements set forth in 40 CFR §60.37e. 

Pursuant to 40 CFR §60.57c(c) as required by 40 CFR §60.37e, the owner or operator of 

the HMIWI must install, calibrate (to manufacturer's specifications), maintain, and operate 

equipment needed to monitor the site-specific operating parameters developed under 40 CFR 

7 
§§60.56c(i) and 60.52c relating to emission limits. The owner or operator of the facility must 

obtain monitoring data at all times during the HMIWI operation except when the monitoring 

equipment malfunctions or when the monitoring equipment is being calibrated or repaired. 

3. Reporting and Recordkeeping [40 CFR §60.38e. 45CSR18-§7.8! 

Except as provided in 40 CFR §§60.38e(a)(I) and 60.38e(a)(2), the owner or operator of 

any existing HMIWI facility subject to the Plan must comply with applicable reporting and 

recordkeeping requirements in 40 CFR §§60.58c(b )-(g). 

As required under 40 CFR §60.38e(b), the owner or operator of each small HMIWI 

subject to the emission limit in 40 CFR §60.33e(b) must maintain records of the annual 

equipment inspections, any required maintenance, and any repairs not completed within 10 days 

of an inspection. Any inspection, maintenance and repair information recorded must be 

submitted to the DAQ within 60 days following the year in which the data were collected. The 

report must be signed by the manager of the HMIWI facility. Subsequent reports must be 

submitted no later than 12 calendar months following the previous submittal. For purposes of 

complying with Title V operating permit requirements, the reports must be submitted on a semiannual basis. 

As required under 40 CFR 60.32e(b) and 45 CSR 18-7 .2.b, the owner or operator of 

each pathologically exempt HMIWI must notify the Secretary of an exemption claim, and keep 

quarterly records of the peiods of time when only pathological waste, low-level radioactive 

waste, and/or chemotherapeutic waste is burned. 

4. Operator Training and Oualification [40 CFR §60.34e. 45CSR18-

§7.4! 

The owner or operator of each HMIWI facility must comply with the operator training 

and qualification requirements in 40 CFR §60.53c as required by 40 CFR §60.34e and must 

have at least one fully trained and qualified HMIWI operator on duty or available within one 

hour when operating the facility. The trained and qualified HMIWI operator may operate the 

facility or directly supervise one or more HMIWI operators. Each trained and qualified HMIWI 

operator must meet the requirements specified in 40 CFR §§60.53c(c) through (g). 

The owner or operator of each HMIWI must maintain documentation at the facility 

which meet the requirements of 40 CFR §60.53c(h) as required by 40 CFR §60.34e and must 

8 
establish a program to require all employees at the facility who are involved in the operation of 

the HMIWI to review the provided information on an annual basis. As specified in 40 CFR 

§60.3ge( e), the operator training and qualification requirement must be met within one year 

following the date of approval of the Plan by the EPA. 

5. Inspection [40 CFR §60.36e. 45CSR18-§7.6J 

40 CFR §60.36e provides that a state plan must require that each small HMIWI that is 

subject to the emission limits established under 40 CFR §60.33e(b) and each HMIWI subject to 

the emissions limits under 40 CFR §§60.33e(a)(2) and 60.33e(a)(3) to undergo an initial and 

annual inspection for air po1!ution control devices and equipment that is at least as protective as 

the requirements in 40 CFR §60.36e(a). 

6. Waste Management Plan [40 CFR §60.35e. 45CSR18-§7.5J 

The owner or operator of the existing HMIWI must prepare a waste management plan 

which meets the requirements of 40 CFR §60.55c as required by 40 CFR §60.35e and must 

submit the plan to the Director within 60 days after the initial performance test. In order to 

reduce the amount of toxic emissions from incinerated waste, the waste management plan must 

specifY the feasibility and the approach used to separate components of solid waste from the 

health care waste. The American Hospital Association publication, "An Ounce of Prevention: 

Waste Reduction Strategies" must be considered during the development of the waste 

management plan. 

VIII. LEGAL AUTHORITY [40 CFR §60.26(a)] 

Pursuant to 40 CFR §60.26(a), state plans must show that states have legal authority to 

carry out the plan including the authority to adopt emission standards and compliance schedules 

applicable to existing facilities and to enforce applicable laws, regulations, standards, 

compliance schedules and seek injunctive relief. 

The DAQ has the statutory and regulatory authority under W.va. Code §§22-5-1 et seq. 

to adopt and enforce rules and regulations to implement the State Plan. In particular, W. Va. 

Code §22-5-4(a)(4) authorizes the Director to promulgate legislative rules relating to the control 

of air pollution. The DAQ, effective June 16, 2011, promUlgated a legislative rule, 45CSR18, 

which specifica1!y incorporates by reference the New Source Performance Standards for 

9 
HMIWI. Such incorporation by reference of model legislation is a permissible means of 

enacting law under West Virginia law. See State v. Grinstead, 206 S.E. 2d 912 (W.va. 1974). 

In addition, 45CSR1S sets forth the Emission Guidelines contained in 40 CFR Part 60, Subpart 

Ceo 

The applicable emiSSIOn standards and other requirements for existing facilities are 

incorporated by reference in 45CSRIS-§7.1. The pertinent provisions from the federal 

regulations relating to compliance schedules for existing facilities are contained in subsections 7, 

of 45CSR1S. 

Regarding the enforcement of applicable laws, regulations, standards, and compliance 

schedules, the DEP has several enforcement mechanisms available under State law, including 

permits, administrative orders, civil and criminal penalties, and injunctive relief. 

Since the emission standards and compliance schedules included in the State Plan are 

codified in 45CSR1S, any violation of such standards or schedules constitutes a violation of a 

State rule and is therefore subject to civil penalties of up to $10,000 for each day of violation and 

criminal penalties of up to $25,000 for each day of violation and/or imprisonment for up to one 

year in jail. W.Va. Code §22-5-6. In addition to civil and criminal penalties, the DEP may seek 

injunctive relief against any person in violation of 45CSR1S (W. Va. Code §22-5-7). 

In addition to penalties and injunctive relief, the DEP may compel compliance with 

45CSRIS through the issuance of administrative orders. Under W. Va. Code §§22-5-4(a)(5) and 

(6) and 22-5-5, the DEP may issue administrative orders including cease and desist orders and 

order suspending, modifYing or revoking permits. Such administrative orders may be appealed 

to the Air Quality Board, an administrative board with quasi-judicial powers. The DEP may also 

collect administrative penalties from a source in violation of a rule under an administrative 

consent order (W. Va. Code §22-5-4(a)(IS)). 

Existing facilities may also be required to obtain permits, III which case emiSSIOn 

standards and compliance schedules from 45CSR1S are included as enforceable permit 

conditions.' Depending upon the nature of the activity and the amount of the emissions, the 

existing facility may be required to obtain a preconstruction permit under W. Va. Code §22-5-11 

I Under W. Va. Cod~ §22-5-6, the violation of a pennit is subject to the same enforcement remedies as the violation 

ofa rule. 

2 The State's applicable preconstruction pennit program rules consist of 45CSR13 for minor sources, 45CSR14 for 

major (PSD) sources, and 45CSR19 for sources located in non-attaironent areas. The State's operating pennit 

program (Title V program) is found at 45CSR30. 

10 
and/or an operating permit under W. Va. Code §22-5-12. 2 The permit must ensure compliance 

with all applicable requirements, including the emission standards and compliance schedules 

required under 45 CSR 18. W. Va. Code §§22-5-11 and 12; also see WV 45CSR13-§5.7 and 

5.11 and WV 45CSR30-§2.6. 

In addition to the authority to adopt and enforce the applicable emission standards and 

compliance schedules, the DEP has authority to obtain information necessary to determine the 

compliance status of existing facilities, including requiring facilities to maintain compliance 

records, pursuant to W.Va. Code §22-5-4(a)(14), which states: 

(a) The director is authorized: 

(14) To require any and all persons who are directly or 

indirectly discharging air pollutants into the air to file 

with the director such information as the director may require 

in a form or manner prescribed by him or her for such purpose, 

including, but not limited to, location, size and height of discharge 

outlets, processes employed, fuels used and the nature and time 

periods of duration of discharges. Such information shall be filed 

with the director, when and in such reasonable time, and in such 

manner as the director may prescribe. 

The DEP also has the authority to conduct inspections and tests of existing 

facilities pursuant to W.Va. Code §22-5-4 (a)(6) and (9), which state: 

(a) The director is authorized: 

(6) To consider complaints, subpoena witnesses, administer oaths, 

make investigations and hold hearings relevant to the promulgation 

of rules and the entry of compliance orders hereunder; and 

(9) To enter and inspect any property, premise or place on or at which 

a source of air pollutants is located or is being constructed, installed 

or established at any reasonable time for the purpose of ascertaining 

the state of compliance with this article and rules promulgated under 

the provisions ofthis article. No person shall refuse entry or access 

to any authorized representative ofthe director who requests entry for 

11 
purposes of inspection, and who presents appropriate credentials; nor 

shall any person obstruct, hamper or interfere with any such inspection: 

Provided, That nothing contained in this article eliminates any obligation 

to follow any process that may be required by law. 

An additional authority which must be demonstrated in the State Plan is the agency's 

authority to require the use of monitors and require emission reports of existing facilities. This 

authority exists in W.Va. Code §22-S-4 (a)(lS), which states: 

(IS) To require the owner or operator of any stationary source 

discharging air pollutants to install such monitoring equipment 

or devices as the director may prescribe and to submit periodic 

reports on the nature and amount of such discharges to the director. 

In addition to the general statutory authority discussed above, the DEP has specific 

regulatory authority under 4SCSR18 to require existing facilities to comply with operator 

training and qualification requirements, waste management plans, equipment inspections, 

monitoring of emissions, keeping of records, and submitting reports in accordance with the 

applicable provisions of 40 CFR Part 60, Subparts Ce and Ec, 4SCSR18-§7.1. Furthermore, the 

DEP has authority to include conditions in any administrative orders or permits issued to 

existing facilities to ensure compliance with such conditions. W.Va. Code §§22-S-4(a)(S), 22-SS, 22-S-11, and 22-S-12. 

Lastly, the State must have authority to make emission data from existing facilities 

available to the public. The DEP has such authority under W.Va. Code §22-S-10, which states in 

pertinent part: 

All air quality data, emission data, permits, compliance schedules, 

... shall be available to the public, except that upon a showing 

satisfactory to the director ... that records, reports, data or information 

... would divulge methods or processes entitled to protection as trade 

secrets ... the director shall consider such records ... confidential: 

Provided, That such confidentiality does not apply to the types and 

amounts of air pollutants discharged and that such records ... may be 

disclosed to other officers, employees or authorized representatives of 

the state or of the federal environmental protection agency ... Provided, 

however, That such officers, employees or authorized representatives ... 

12 
protect such records ... to the same degree required of the director by 

this section .... 

See, WV 4SCSR31-§2.4 for the definition of the term "types and amounts of pollutants 

discharged. " 

In addition to W.Va. Code §22-S-1O, the State's Freedom of Information Act requires 

the DEP to make records available to the public upon request, unless such records specifically 

fall under one of the exemptions contained in the Act (one of which is an exemption for "trade 

secrets"). See, W.Va. Code §§29B-l-l et seq. 

In conclusion, the State DEP possesses the requisite authority to adopt, implement, and 

enforce all necessary elements of the West Virginia Section Ill(d) and 129 plan for HMIWI, 

except as outlined in 40 CFR §60.S0c(i). 

IX. COMPLIANCE SCHEDULES 

The Plan will require existing HMIWl to comply with the emission regulations in 

accordance with the compliance schedule below under the enforceable provisions of 40 

CFR 62, Subpart XX. 

For HMIWl facilities subject to the requirements of 40 CFR 60, Subpart Ce as 

promulgated on September IS, 1997, the facility must achieve compliance in accordance 

with the milestons shown below: 

MILESTONE COMPLIANCE DATE 

Submit control plan and/or site specific No later than November 28, 2000 

parameters 

Submit petition for site specific operating No later than November 28, 2000 

parameters if installing alternative air 

I pollution control eauioment 

Obtain services of architectural and No later than July 28,2001 

engineering firm( s) 

Order design drawings and equipment of the No later than January 28, 2002 

air pollution device(s) 

Site preparation for installation of the air No later than April 28, 2002 

pollution device(s) initiated 

13 
Initial startup of the air pollution device(s) No later than April 28, 2002 

Initial compliance teste s) of the air pollution No later than April 28, 2002 

devices conducted 

Compliance required No later September 16 2002 

For HMIWI facilities subject to the requirements of 40 CFR 60, Subpart Ce as amended on 

October 6, 2009, the facility must achieve compliance in accordance with the milestones shown 

below: 

MILESTONE COMPLIANCE DATE 

Submit compliance plan and schedule No later than 120 days after the effective date 

of U.S. EPA's approval ofthe required 

111(d)/129 State Plan Revision 

Submit petition for site specific operating No later than 12 months after the effective 

parameters if installing alternative air date of U.S. EPA's approval of the required 

pollution control equipment lll(d)!129 State Plan Revision 

Obtain services of architectural and No later than 12 months after the effective 

engineering firm( s) date of U.S. EPA's approval of the required 

I 11 (d)!129 State Plan Revision 

Order design drawings and equipment of the No later than 18 months after the effective 

air pollution device(s) date of U.S. EPA's approval of the required 

Ill( d)!129 State Plan Revision 

Site preparation for installation of the air No later than 18 months after the effective 

pollution device(s) initiated date of U.S. EPA's approval of the required 

111(d)1129 State Plan Revision 

Initial startup of the air pollution device(s) No later than 30 months after the effective 

date of U.S. EPA's approval of the required 

111(d)1129 State Plan Revision 

Initial compliance testes) of the air pollution No later than 30 months after the effective 

devices conducted date of U.S. EPA's approval of the required 

111(d)1129 State Plan Revision 

Compliance required No later than October 6 2014 

X. PROGRESS REPORTS [40 CFR §60.25(f)] 

14 
States must commit in the Section 11 1 (d)1129 Plan to submit annual reports on progress 

III the implementation of the Emission Guidelines to the EPA. The first progress report 

concerning existing HMIWI units will be submitted to EPA within one year after approval of the 

Section 1 1 1 (d)/I 29 State Plan. In addition, emission and compliance data must also be reported 

to Aerometric Information Retrieval System (AIRS). 

As required under 40 CFR §60.25(f), the annual progress report must include the 

following information: 

I. Compliance status of each existing HMIWI units. 

2. List of any enforcement actions taken against any existing HMIWI units during 

that year. 

3. Increments of progress completed by each existing HMIWI units during that year. 

4. Identification of any existing HMIWI units that have shut down or started 

operation during the reporting period. 

5. Update Emission Inventory information to include: 

a. Emissions from HMIWI units that have achieved compliance. 

b. Emissions from any new or modified HMIWI units. 

c. Emissions from HMIWI units that have changed their emissions by more 

than 5% of the most recently submitted emission data. 

6. Copies of technical reports on all performance testing and monitoring, including 

concurrent process data for existing HMIWI units. 

15 

HMIWI Tables · 

*** 

Table 18-1A Emissions Limits for Small, Medium, and Large 

HMIWI at Designated Facilities as Set Forth in 40 CFR 

§60.32e(a)(1) and 45CSR18-§7.2.a.1 ' 

Table 18-1B Emissions Limits for Small, Medium, and Large 

HMIWI at Designated Facilities as Set Forth in 40 CFR 

§60.32e(a)(1) and (a)(2) and 45CSR18-§7.2.a.1and 7.2.a.2 

Table 18-2A Emissions Limits for Small HMIWI Which Meet 

the Criteria Under 40 CFR §60.33e(b)(1) and 45 CSR 18-

§7.3.b.1 

Table 18-2B Emissions Limits for Small HMIWI Which Meet 

the Criteria Under 40 CFR §60.33e(b)(2) and 45 CSR 18-

§7.3.b.2 

Table 18-3 HMIWI Source Inventory 

Table 18-4 West Virginia Emission Inventory- Large Capacity 

HMIWI 

Table 18-5 West Virginia Emission Inventory- Medium 

Capacity HMIWI 
/ 
45CSR18 

TABLE 18-1A 

Emissions Limits for Small, Medium, and Large HMIWI at Designated Facilities as Set Forth in 45CSR§18-7.2.a.1. 

Units Emissions Limits 

Pollutant HMIWI Size Averaging Timel Compliance Method2 

(7 percent oxygen, dry basis) Small Medium Large 

Milligrams per dry standard cubic meter 3-run average 

EPA Reference Method 5 of 

Appendix A-3 of 40 CFR Part 60. or Particulate matter (mg/dscm) (grains per dry standard cubic 115 (0.05) 69 (0.03) 34 (0.015) (I-hour minimum EPA Reference Method 26A or 29 of foot (gr/dscf)) sample time per run) Appendix A-8 of 40 CFR Part 60. 

3-run average EPA Reference Method 10 or lOB of Carbon monoxide Parts per million by volume (ppmv) 40 40 40 (I-hour minimum Appendix A-4 of 40 CFR Part 60. sample time per run) 

Nanograms per dry standard cubic meter 125 (55) 125 (55) 125 (55) 3-run average total dioxinslfurans (ngldscm) (grains per EPA Reference Method 23 of Dioxins/furans billion dry standard cubic feet (grll 09dscf)) or or or (4-hour minimum Appendix A-7 of 40 CFR Part 60. 

or ngfdscm TEO (",11 09dscf) 2.3 (1.0) 2.3 (1.0) 2.3 (1.0) sample time per run) 

100 \00 100 3-run average EPA Reference Method 26 or 26A of Hydrogen chloride ppmv or 93% or 93% or 93% (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 6 or 6C of 

Sulfur dioxide ppmv 55 55 55 (I-hour minimum sample Appendix A-4 of 40 CFR Part 60. time per run) 

3-run average EPA Reference Method 7 or 7E of 

Nitrogen oxides ppmv 250 250 250 (I-hour minimum Appendix A-4 of 40 CFR Part 60. samnle time ner run) 

mg/dscm (grains per thousand dry standard 1.2 (0.52) 1.2 (0.52) 1.2 (0.52) 3-run average EPA Reference Method 29 of 

Lead (I-hour minimum cubic feet (grll 03dscf)) or 70% or 70% or 70% samole time oer run) Appendix A-8 of 40 CFR Part 60. 

0.16 (0.07) 0.16 (0.07) 0.16 (0.07) 3-run average EPA Reference Method 29 of 

Cadmium mg/dscm (gr/103dscf) (I-hour minimum or 65% or 65% or 65% sarno Ie time per run) Appendix A-8 of 40 CFR Part 60. 

0.55 (0.24) 0.55 (0.24) 0.55 (0.24) 3-run average EPA Reference Method 29 of Mercury mg/dscm (grll 03dscf) or 85% or 85% or 85% (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

'Except as allowed under 40 CFR §60.56c(c) for HMIWI equipped with CEMS. 

'Does not include CEMS and approved alternative non-EPA test methods allowed under 40 CFR §60.56c(b). 

45CSR18 

TABLE 18-lB 

Emissions Limits for Small, Medium, and Large HMIWI at Designated Facilities as Set Forth in 45CSR§§18-7.2.a.l and 7.2.a.2. 

Units Emissions Limits 

Compliance Method2 

Pollutant HMIWI Size Averaging Timel 

(7 percent oxygen, dry basis) Small Medium Large 

Milligrams per dry standard cubic meter 3-run average 

EPA Reference Method 5 of 

Particulate matter (mgldscm) (grains per dry standard cubic 66 (0.029) 46 (0.020) 25 (0.011) (I-hour minimum Appendix A-3 of 40 CFR Part 60. or 

foot (gr/dscf)) sample time per run) EPA Reference Method 26A or 29 of 

Appendix A-S of 40 CFR Part 60. 

3-run average EPA Reference Method 10 or lOB of Carbon monoxide Parts per million by volume (ppmv) 20 5.5 11 (I-hour minimum Appendix A-4 of 40 CFR Part 60. sample time per run) 

Nanograms per dry standard cubic meter 16 (7.0) 0.S5 (0.37) 9.3(4.1) 3-run average total dioxins/furans (ng/dscm) (grains per EPA Reference Method 23 of Dioxinslfurans billion dry standard cubic feet (grIl09dscf)) or 0.013 or 0.020 or 0.054 (4-hour minimum Appendix A-7 of 40 CFR Part 60. 

or ng/dscm TEO (gr/J09dscf) (0.0057) (0.00S7) (0.024) sample time per run) 

3-run average EPA Reference Method 26 or 26A of Hydrogen chloride ppmv 44 7.7 6.6 (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 6 or 6C of Sulfur dioxide ppmv 4.2 4.2 9.0 (I-hour minimum 

Appendix A-4 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 7 or 7£ of Nitrogen oxides ppmv 190 190 140 (I-hour minimum Appendix A-4 of 40 CFR Part 60. sample time per run) 

mgldscm (grains per thousand dry standard 0.018 0.036 3-run average EPA Reference Method 29 of Lead 0.31 (0.14) (I-hour minimum cubic feet (grll 03dscf)) (0.0079) (0.016) samole time ner run) Appendix A-8 of 40 CFR Part 60. 

0.017 0.013 0.0092 3-run average EPA Reference Method 29 of Cadmium mgldscm (grll 03dscf) (0.0074) (0.0057) (0.0040) (I-hour minimum Appendix A-S of 40 CFR Part 60. sample time per run) 

0.014 0.025 O.01S 

3-run average EPA Reference Method 29 of Mercury mgldscm (gr/I03dscf) (0.0061) (0.011) (0.0079) (I-hour minimum Appendix A-S of 40 CFR Part 60. sample time per run) 

'Except as allowed under 40 CFR §60.56c(c) for HMIWI equipped with CEMS. 

2Does not include CEMS and approved alternative non-EPA test methods allowed under 40 CFR §60.S6c(b). 

45CSR18 

TABLE 18-2A 

Emissions Limits for Small HMIWI Which Meet the Criteria Under 45CSR§18-7.3.b.1. 

Pollutant Units HMIWI Emissions Limits Averaging Timel Compliance Method2 

(7 percent oxvQ:en drY basi~_ 

3-run average EPA Reference Method 5 of Appendix A-3 of 

Particulate matter mgldscm (gr/dscf) 197 (0.086) (I-hour minimum 40 CFR Part 60, or EPA Reference Method 26A or 29 of 

sample time_per run)_ Appendix A-8 of 40 CFR Part 60. 

3-run average EPA Reference Method 10 or lOB of Carbon monoxide ppmv 40 (I -hour minimum Appendix A-4 of 40 CFR Part 60. sall)Qie tirnlier runt 

ngldscm total dioxins/furans 800 (350) or 3-run average EPA Reference Method 23 of Dioxins/furans (grll 09dscf) or ngldscm TEQ (4-hour minimum 

-.igrll 09ds!'f) .. 5 (6.6) samnle time ner run} Appendix A-7 of 40 CFR Part 60. 

3-run average EPA Reference Method 26 or 26A of 

I 

Hydrogen chloride ppmv 3.100 (I-hour minimum Appendix A-8 of 40 CFR Part 60. samote time ner run) 

3-run average EPA Reference Method 6 or 6C of Sulfur dioxide ppmv 55 (I-hour minimum Appendix A-4 of 40 CFR Part 60. samoie time per run) 

3-run average EPA Reference Method 7 or 7E of Nitrogen oxides ppmv 250 (I-hour minimum Appendix A-4 of 40 CFR Part 60. samole time oer run) 

3-run average EPA Reference Method 29 of Lead mgldscm (gr/I03dscf) 10 (4.4) (I-hour minimum 

sample time per run) Appendix A-8 of 40 CFR Part 60. 

3-run average EPA Reference Method 29 of Cadmium mgldscm (gr/l 03dscf) 4 (1.7) (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 29 of Mercury mgldscm (gr/l03dscf) 7.5 (3.3) (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

'Except as allowed under 40 CFR §60.56c(c) for HMIWI equipped with CEMS. 

2Does not include CEMS and approved alternative non-EPA test methods allowed under 40 CFR §60.56c(b). 

45CSR18 

TABLE 18-2B 

Emissions Limits for Small HMIWI Which Meet the Criteria Under 45CSR§18-7.3.b.2. 

Pollutant Units HMIWI Emissions Limits Averaging Timel Compliance Method2 

(7 percent OxYgen dry basis) 

3-run average EPA Reference Method 5 of Appendix A-3 of 

Particulate matter mgldscm (gr/dscf) 87 (0.038) (I-hour minimum 40 eFR Part 60, or EPA Reference Method 26A or 29 of 

sample time per run) p..ppendix A-8 of 40 eFR Part 60. 

3-run average EPA Reference Method 10 or lOB of Carbon monoxide ppmv 20 (I-hour minimum Appendix A-4 of 40 eFR Part 60. sample time per run) 

ngJdscm total dioxins/furans 240 (100) 3-run average EPA Reference Method 23 of Dioxinslfurans (grll 09dscf) or ngldscm TEQ (4-hour minimum 

(grll 09dscf) or 5.1 (2.2) sam----.l2ie time per ru[l) Appendix A-7 of 40 eFR Part 60. 

3-run average EPA Reference Method 26 or 26A of Hydrogen chloride ppmv 810 (I-hour minimum Appendix A-8 of 40 eFR Part 60. sam~e time per rurrt 

3-run average EPA Reference Method 6 or 6C of Sulfur dioxide ppmv 55 (I-hour minimum Appendix A-4 of 40 eFR Part 60. sam---.IDe time per runl 

3-run average EPA Reference Method 7 or 7E of Nitrogen oxides ppmv 130 (I-hour minimum Appendix A-4 of 40 eFR Part 60. sample time per run) 

3-run average EPA Reference Method 29 of Lead mgldscm (grll 03dscf) 0.50 (0.22) (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time oer run) 

3-run average EPA Reference Method 29 of Cadmium mgldscm (gr/I03dscf) 0.11 (0.048) (I-hour minimum Appendix A-8 of 40 eFR Part 60. sample time per run) 

3-run average EPA Reference Method 29 of Mercury mgldscm (gr/I03dscf) 0.0051 (0.0022) (I-hour minimum Appendix A-8 of 40 eFR Part 60. sample time per run) 

Except as allowed under 40 eFR §60.56c(c) for HMIWI equipped with eEMS. 

200es not include CEMS and approved alternative non-EPA test methods allowed under 40 CFR §60.56c(b). 

Facility Status 

CAMC In.operation 

Cabell- Huntington Hospital Closed 9-1-00 

City Hospital, Inc. Closed 7-28-01 

Columbia-St. Lukes Closed 6-30-00 

Princeton Community Hospital Closed 3-1-99 

Raleigh General Hospital Closed 6-8-00 

Reynolds Memorial Hospital Closed 10-6-99 

Summersville Memorial Hospital Closed 7-28-01 

Thomas Memorial"Hospitar" In Operation 

United Hospital Center Closed 3-22-01 

VAMC- Beckley Closed 9-19-00 

VAMC- Huntington Closed 6-30-00 

VAMC- Martinsburg Closed 8-29-02 

WV Dept. of Health & Human Pathological Waste Exemption 

WV University Medical Center Closed 5-2-02 

Wheeling Hospital Closed 12-17-99 

Table 18-3 

West Virginia 

HMIWI Source Inventory 

Max Design Avg. Annual 

Capacity Feed Rate 

Ib/hr IbJyear 

1253 1500000 

447 0 

52 0 

133 0 

111 0 

113 0 

221 0 

113 0 

318 800000 

67.5 0 

288 0 

240 0 

556 0 

52 25000 

106 0 

397 0 

Address City Zip Code 

.501 Morris Street "Charleston " 25301 

1340 Hal Greer Blvd. Huntington 25701 

P.O. Box 1418, Dry Run Road Martinsburg 25401 

1333 Southview Drive Bluefield 24701 

P.O. Box 1369, 12th Street Princeton 24740 

1710 Harper Road Beckley 25801 

800 Wheeling Avenue Glen Dale 26038 

400 Fairview Heights Road Summersville 26651 

4605l111aci::orkle AvenueS\\! South Charleston 25309 

Rt. 19 S #3 Hospital Plaza Clarksburg 26301 

200 Veterns Ave. Beckley 25801 

1540 Spring Valley Drive Huntington 25704 

Rt.9 East Martinsburg 25401 

167 11th Avenue South Charleston 25303 

Med. Center Dr. P.O. Box 9004 Morgantown 26506 

1 Medical Park Wheeling 26003 

Pollutants 

Carbon Monoxide 

Particulate Matter (PM) 

Hydrogen Chloride (HCI) 

Nitrogen Oxides (NOx) 

Sulfur Dioxide (S02) 

Lead (Pb) 

Cadmium (Cd) 

Mercury (Hg) 

Table 18-4 

West Virginia Emission Inventory 

Large Capacity HMIWI 

Concentration 

Standard 

ppmv 

gr/thousand dscf 

gr/thousand dscf 

0.011 

16.000 0.207 

gr/thousand dscf 2.21E-06 

'CAMC Emission Rates (Ib/hr) and concentrations that are in bold are taken from 2008 stack tests 

Concentrations corrected to 7% Oxygen 

S02 results from previous actual stack test data (2001) 

Pollutants 

Carbon Monoxide 

Particulate Matter (PM) 

Hydrogen Chloride (HCI) 

Nitrogen Oxides (NOx) 

Sulfur Dioxide (502) 

lead (Pb) 

Cadmium (Cd) 

Mercury (Hg) 

Table 18-5 

West Virginia Emission Inventory 

Medium Capacity HMIWI 

Concentration 

Standard 

125 

ppmv 

gr/dscf 

ppmv 

ppmv 

gr/thousand dscf 

0.07 gr/thousand dscf 

0.24 gr/thousand dscf 

5.09 

1.30E-02 

1.2SE-02 

4.75E-02 

Particulate Matter results from previous actual stack test data (May 2010) 

0.033 

3.07E-03 

1.22E-04 

4.60E-04 

Carbon Monoxide and Hydrogen Chloride results from previous actual stack test data ( September 2009) 

Hg, Cd, Pb, 502, NOx results from previous actual stack test data (2001) 

CCD/CDF Results from previous actual stack test data (1998) 

Concentrations for those parameters were converted from the stack test em is ion rates to concentrations 

APPENDIX A 

45CSR18- Control 0/ Air Pollution/rom Combustion o/Solid 

Waste, effective June 16,2011 

i 

I 

I 

i 

! 

45CSR18 

TITLE 45 

LEGISLATIVE RULE 

DEPARTMENT OF ENVIRONMENTAL PROTECTION 

AIR QUALITY 

SERIES 18 

CONTROL OF AIR POLLUTION FROM COMBUSTION OF SOLID WASTE 

§45-18-1. General. 

1.1. Scope. -- This rule adopts standards of perfonnance, and establishes emission guidelines and 

compliance times pursuant to Sections III and 129 of the federal Clean Air Act for the control of certain 

designated pollutants from the following categories of solid waste combustors, combustion units, incinerators 

and incineration units in West Virginia: 

1.I.a. Large municipal waste combustors subject to the standards of performance promulgated by the 

United States Environmental Protection Agency (U.S. EPA) under 40 CFR Part 60, Subpart Eb; 

1.I.b. Small municipal waste combustion units subject to the standards of performance promulgated 

by the U.S. EPA under 40 CFR Part 60, Subpart AAAA; 

1.l.c. Hospital! medicall infectious waste incinerators subject to the standards of perfonnance 

promulgated by the U.S. EPA under 40 CFR Part 60, Subpart Ec, or the emission guidelines and compliance 

times promulgated by the U.S. EPA under 40 CFR Part 60, Subpart Ce set forth in section 7; 

1.I.d. Commercial and industrial solid waste incineration units subjectto the standards ofperfonnance 

promulgated by the U.S. EPA under 40 CFR Part 60, Subpart CCCC, or the emission guidelines and 

compliance times promulgated by the U.S. EPA under 40 CFR Part 60, Subpart DDDD set forth in section 

9; and 

1.I.e. Other solid waste incineration units subject to the standards of performance promulgated by the 

U.S. EPA under 40 CFR Part 60, Subpart EEEE. 

1.2. This rule codifies general procedures and criteria to implement a program of specific standards of 

perfonnance, emission guidelines and compliance times for solid waste combustors, combustion units, 

incinerators and incineration units set forth in the Code of Federal Regulations and as listed in Tables 18-IA, 

18-1B, 18-2A, 18-2B and 18-IC. 

1.3. Neither compliance with the provisions of this rule nor the absence of specific language to cover 

particular situations constitutes approval or implies consent or condonement of any emission which is 

. released in any locality in such a manner or amount as to cause or contribute to statutory air pollution. 

Neither does it exempt nor excuse any person from complying with other applicable laws, ordinances, 

regulations, or orders of governmental entities having jurisdiction over the combustion of solid waste. 

104. Authority. -- W.Va. Code §22-5-4. 

I 
45CSR18 

1.5. Filing Date. -- June 16,2011. 

1.6. Effective Date. -- June 16, 2011. 

I. 7. lncorporation by Reference. -- Federal Counterpart Regulation. The Secretary has determined that 

a federal counterpart rule exists. In accordance with the Secretary's recommendation, and with limited 

exception, this rule incorporates by reference 40 CFR Part 60, Subparts Eb, Ec, AAAA, CCCC and EEEE, 

effective June I, 2010. 

1.8. Fonner Rules. -- This legislative rule amends 45CSRI8 - "Control of Air Pollution from 

Combustion of Solid Waste" which was filed April 23, 2008, and which became effective June 1,2008. 

§45-18-2. Defmitions. 

2.1. "Administrator" means the Administrator of the United States Environmental Protection Agency 

(U.S. EPA) or his or her designated representative. 

2.2. "Air curtain incinerator" means: 

2.2.a. For the purpose of 40 CFR Part 60, Subpart EEEE only, an incineration unit operating by 

forcefully projecting a curtain of air across an open, integrated combustion chamber (fire box) or open pit 

or trench (trench burner) in which combustion occurs; or 

2.2.b. For the purpose of 40 CFR Part 60, Subparts CCCC and DDDD only, an incinerator that 

operates by forcefully projecting a curtain of air across an open chamber or pit in which combustion occurs. 

Incinerators ofthis type can be constructed above or below ground and with or without refractory walls and 

floor. (Air curtain incinerators are not to be confused with conventional combustion devices with enclosed 

fireboxes and controlled air technology such as mass burn, modular, and fluidized bed combustors.) 

2.3. "Air Pollutants" means solids, liquids, or gases which, if discharged into the air, may result in 

statutory air pollution. 

2.4. "Air Pollution" or 'statutory air pollution' has the meaning ascribed to it in W.Va. Code §22-5-2. 

2.5. "Bag leak detection system" means an instrument that is capable of monitoring PM loadings in the 

exhaust of a fabric filter in order to detect bag failures. A bag leak detection system includes, but is not 

limited to, an instrument that operates on triboelectric, light-scattering, light-transmittance, or other effects 

to monitor relative PM loadings. 

2.6. "Batch HMIW!" means an HMIWI that is designed such that neither waste charging nor ash 

removal can occur during combustion. 

2.7. "Biologicals" means preparations made from living organisms and their products, including 

vaccines, cultures, etc., intended for use in diagnosing, immunizing, or treating humans or animals or in 

research pertaining thereto. 

2.8. "Blood products" means any product derived from human blood, including but not limited to blood 

2 
45CSR18 

plasma, platelets, red or white blood corpuscles, and other derived licensed products, such as interferon, etc. 

2.9. "Body fluids" means liquid emanating or derived from humans and limited to blood; dialysate; 

amniotic, cerebrospinal, synovial, pleural, peritoneal and pericardial fluids; and semen and vaginal 

secretions. 

2.10. "Bypass stack" means a device used for discharging combustion gases to avoid severe damage to 

the air pollution control device or other equipment. 

2.11. "CFR" means the Code of Federal Regulations published by the Office of the Federal Register, 

National Archives and Records Service, General Services Administration. 

2.12. "Chemotherapeutic waste" means waste material resulting from the production or use of antineoplastic agents used for the purpose of stopping or reversing the growth of malignant cells. 

2.13. "Clean Air Act" or 'CAA' means the federal Clean Air Act, as amended, 42 U.S.C. §7401 et seq. 

2.14. "Co-fired combustor" means a unitcombusting hospital waste andlormedical/infectious waste with 

other fuels or wastes (e.g., coal, municipal solid waste) and subject to an enforceable requirement limiting 

the unit to combusting a fuel feed stream, 10 percent or less of the weight of which is comprised, in 

aggregate, of hospital waste and medical/infectious waste as measured on a calendar quarter basis. For 

purposes ofthis definition, pathological waste, chemotherapeutic waste, and low-level radioactive waste are 

considered "other" wastes when calculating the percentage of hospital waste and medical/infectious waste 

combusted. 

2.15. "Commercial and industrial solid waste incineration unit" or 'CISWI unit' means any combustion 

unit that combusts commercial or industrial waste, that is a distinct operating unit of any commercial or 

industrial facility (including field erected, modular, and custom built incineration units operating with starved 

or excess air), and any air curtain incinerator that is a distinct operating unit of any commercial or industrial 

facility that does not comply with the opacity limit in Table 18-lC applicable to air curtain incinerators 

burning commercial or industrial waste. While not all CISWI units will include all of the following 

components, a CISWI unit includes, but is not limited to, the commercial or industrial solid waste feed 

system, grate system, flue gas system, waste heat recovery equipment, if any, and bottom ash system. The 

CISWI unit does not include air pollution control equipment or the stack. The CISWI unit boundary starts 

at the commercial and industrial waste hopper (if applicable) and extends through two areas: the combustion 

unit flue gas system, which ends immediately after the last combustion chamber or after the waste heat 

recovery equipment, if any; and the combustion unit bottom ash system, which ends at the truck loading 

station or similar equipment that transfers the ash to final disposal. The CISWI unit includes all ash handling 

systems connected to the bottom ash handling system. A CISWI unit does not include any ofthe fifteen types 

of units described in 40 CFR §60.2555, nor does it include any combustion turbine orreciprocating internal 

combustion engine. 

2.16. "Commercial HMIWl" means a HMIWI which offers incineration services for 

hospital/medical/infectious waste generated offsite by firms unrelated to the firm that owns the HMIWl. 

2.17. "Commercial or industrial waste" means solid waste that is combusted at any commercial or 

industrial facility using controlled flame combustion in an enclosed, distinct operating unit: whose design 

3 
45CSR18 

does not provide for energy recovery; or operated without energy recovery. Commercial or industrial waste 

also means solid waste combusted in an air curtain incinerator that is a distinct operating unit of any 

commercial or industrial facility. 

2.18. "Continuous emission monitoring system" or 'CEMS' means a monitoring system for continuously 

measuring and recording the emissions of a pollutant from an affected facility. 

2.19. "Dioxinsl furans" means the combined emissions of tetra-through octa-chlorinated 

dibenzo-para-dioxins and dibenzofurans, as measured by EPA Reference Method 23. 

2.20. "Dry scrubber" means an add-on air pollution control system that injects dry alkaline sorbent (dry 

injection) or sprays an alkaline sorbent (spray dryer) to react with and neutralize acid gases in the HM1WI 

exhaust stream forming a dry powder material. 

2.21. "Energy recovery" means the process of recovering thermal energy from combustion for useful 

purposes such as steam generation or process heating. 

2.22. "Existing CISWI unit" means a CISWI unit that commenced construction on or before November 

30, 1999. If an owner or operator of an existing CISWI unit makes changes that meet the defmition of 

modification or reconstruction on or after June I, 200 I, the CISWI unit becomes subject to 40 CFR Part 60 

Subpart CCCC, and the requirements of section 9 no longer apply to that unit. If the owner or operator of 

an existing CISWI unit makes physical or operational changes to the unit primarily to comply with the 

requirements of section 9, then Subpart CCCC does not apply to that unit. Such changes do not qualifY as 

modifications or reconstructions under Subpart CCCC. 

2.23. "Existing HMIWI unit" means and has the following designations as set forth in subsection 7.2: 

2.23.a. A HMIWI unit that commenced construction on or before June 20, 1996, or for which 

modification was commenced on or before March 16, 1998; and 

2.23.b. A HM1WI unit for which construction was commenced after June 20, 1996 but no later than 

December I, 2008, or for which modification is commenced after March 16, 1998 but no later than April 6, 

2010. 

2.24. "Fabric filter" or 'baghouse' means an add-on air pollution control system that removes particulate 

matter (PM) and nonvaporous metals emissions by passing flue gas through filter bags. 

2.25. "Facilities manager" means the individual in charge of purchasing, maintaining, and operating the 

HM1WI or the owner's or operator's representative responsible for the management of the HMIWI. 

Alternative titles may include director of facilities or vice president of support services. 

2.26. "High-air phase" means the stage ofthe batch operating cycle when the primary chamber reaches 

and maintains maximum operating temperatures. 

2.27. "HospitaV medicall infectious waste incinerator operator" or 'HM1WIoperator' means any person 

who operates, controls or supervises the day-to-day operation of an HM1WI. 

4 
45CSR18 

2.28. "Hospital" means any facility which has an organized medical staff, maintains at least six inpatient 

beds, and where the primary function of the institution is to provide diagnostic and therapeutic patient 

services and continuous nursing care primarily to human inpatients who are not related and who stay on 

average in excess of 24 hours per admission. This definition does not include facilities maintained for the 

sole purpose of providing nursing or convalescent care to human patients who generally are not acutely ill 

but who require continuing medical supervision. 

2.29. "Hospital! medicaV infectious waste incinerator", 'HMIWI' or'HMIWI unit' means any device that 

combusts any amount of hospital waste or medical! infectious waste as defined in 40 CFR §60.5lc. 

2.30. "Hospital waste" means discards generated at a hospital, except unused items returned to the 

manufacturer. The defmition of hospital waste does not include human corpses, remains, and anatomical 

parts that are intended for interment or cremation. 

2.31. "Infectious agent" means any organism (such as a virus or bacteria) that is capable of being 

communicated by invasion and multiplication in body tissues and capable of causing disease or adverse 

health impacts in humans. 

2.32. "Institutional waste" means solid waste !hat is combusted at any institutional facility using 

controlled flame combustion in an enclosed, distinct operating unit: whose design does not provide for 

energy recovery; operated wi!hout energy recovery; or operated with only waste heat recovery. Institutional 

waste also means solid waste combusted on site in an air curtain incinerator that is a distinct operating unit 

of any institutional facility. 

2.33. "Institutional waste incineration unit" means any combustion unit that combusts institutional waste 

and is a distinct operating unit of the institutional facility that generated the waste. Institutional waste 

incineration units include field- erected, modular, cyclonic bum barrel, and custom built incineration units 

operating with starved or excess air, and any air curtain incinerator that is a distinct operating unit of the 

institutional facility !hat generated the institutional waste (except those air curtain incinerators listed in 40 

CFR §60.2994(b)). 

2.34. "Intermittent HMIWI" means an HMIWI that is designed to allow waste charging, but not ash 

removal, during combustion. 

2.35. "Intermittent OSWI unit" means an OSWI unit that is designed to allow waste charging but not ash 

removal, during combustion. 

2.36. "Large HMIWI" means: 

2.36.a. Except as provided in subsection 2.33.b; 

2.36.a.l. An HMIWI whose maximum design waste burning capacity is more than 500 pounds per 

hour; or 

2.36.a.2. A continuous or intermittent HMIWI whose maximum charge rate is more than 500 

pounds per hour; Or 

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45CSR18 

2.36.a.3. A batch HMIWI whose maximum charge rate is more than 4,000 pounds per day. 

2.36.b. The following are not large HMIWI: 

2.36.b.l. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal 

to 500 pounds per hour; or 

2.36.b.2. A batch HMIWI whose maximum charge rate is less than or equal to 4,000 pounds per 

day. 

2.37. "Large municipal waste combustor unit" or 'LMWCunit' means a municipal waste combustor with 

a combustion capacity greater than 250 tons per day of municipal solid waste. 

2.38. "Low-level radioactive waste" means waste material that contains radioactive nuclides emitting 

primarily beta or gamma radiation, or both, in concentrations or quantities that exceed applicable Federal 

or State standards for unrestricted release. Low-level radioactive waste is not high-level radioactive waste, 

spent nuclear fuel, or byproduct material as defined by the Atomic Energy Act of 1954 (42 U.S.C. 

2014(e)(2)). 

2.39. "Malfunction" means any sudden, infrequent, and not reasonably preventable failure of air 

pollution control equipment, process equipment, or a process to operate in a normal or usual manner. 

Failures that are caused, in part, by poor maintenance or careless operation are not malfunctions. During 

periods of malfunction the operator shall operate within established parameters as much as possible, and 

monitoring of all applicable operating parameters shall continue until all waste has been combusted or until 

the malfunction ceases, whichever comes first. 

2.40. "Maximum charge rate" means: 

2.40.a. For continuous and intermittent HMIWI, 110 percent ofthe lowest 3-hour average charge 

rate measured during the most recent performance test demonstrating compliance with all applicable 

emission limits. 

2.40.b. For batch HMIWI, 110 percent of the lowest daily charge rate measured during the most 

recent performance test demonstrating compliance with all applicable emission limits. 

2.41. "Maximum design waste burning capacity" means: 

2.41.a. For intermittent and continuous HMIWI, 

C ~ PV x 15,000/8,500 

Where: 

C ~ HMIWI capacity, Iblhr 

PV ~ primary chamber volume, ft' 

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45CSR18 

15,000 = primary chamber heat release rate factor, Btulf!'/hr 

8,500 = standard waste heating value, Btullb; 

2.4l.b. For batch HMIWI, 

C=PV x 4.5 / 8 

Where: 

C = HMIWI capacity, lb/hr 

PV = primary chamber volume, ff 

4.5 = waste density, lb/ff 

8 = typical hours of operation of a batch HMIWI, hours. 

2.42. "Maximum fabric filter inlet temperature" means 110 percent of the lowest 3-hour average 

temperature at the inlet to the fabric filter (taken, at a minimum, once every minute) measured during the 

most recent performance test demonstrating compliance with the dioxinlfuran emission limit. 

2.43. "Maximum flue gas temperature" means 110 percent of the lowest 3-hour average temperature at 

the outlet from the wet scrubber (taken, at a minimum, once every minute) measured during the most recent 

performance test demonstrating compliance with the mercury (Hg) emission limit. 

2.44. "Medical/ infectious waste" means any waste generated in the diagnosis, treatment, or 

immunization of human beings or animals, in research pertaining thereto, or in the production or testing of 

biologicals that is listed below: 

2.44.a. Cultures and stocks of infectious agents and associated biologicals, including: cultures from 

medical and pathological laboratories; cultures and stocks of infectious agents from research and industrial 

laboratories; wastes from the production of biologicals; discarded live and attenuated vaccines; and culture 

dishes and devices used to transfer, inoculate and mix cultures; 

.2.44.b. Human pathological waste, including tissues, organs, and body parts and body fluids that 

are removed during surgery or autopsy, or other medical procedures, and specimens of body fluids and their 

containers; 

2.44.c. Human blood and blood products including: 

2.44.c.l. Liquid waste human blood; 

2.44.c.2. Products of blood; 

2.44.c.3. Items saturated or dripping with human blood; or 

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45CSR18 

2.44.c.4. Items that were saturated or dripping with human blood that are now caked with dried 

human blood; including serum, plasma, and other blood components, and their containers, which were used 

or intended for use in either patient care, testing and laboratory analysis or the development of 

pharmaceuticals. Intravenous bags are also included in this category; 

2.44.d. Sharps that have been used in animal or human patient care or treatment or in medical, 

research, or industrial laboratories, including hypodermic needles, syringes (with or without the attached 

needle), pasteur pipettes, scalpel blades, blood vials, needles with attached tubing, and culture dishes 

(regardless of presence of infectious agents). Also included are other types of broken or unbroken glassware 

that were in contact with infectious agents, such as used slides and cover slips; 

2.44.e. Animal waste including contaminated animal carcasses, body parts, and bedding of animals 

that were koown to have been exposed to infectious agents during research (including research in veterinary 

hospitals), production of biologicals or testing of pharmaceuticals; 

2.44.f. Isolation wastes including biological waste and discarded materials contaminated with blood, 

excretions, exudates, or secretions from humans who are isolated to protect others from certain highly 

communicable diseases, or isolated animals koown to be infected with highly communicable diseases; 

2.44.g. Unused sharps including the following unused, discarded sharps: hypodermic needles, suture 

needles, syringes and scalpel blades; and 

2.44.h. The definition of medical! infectious waste does not include hazardous waste identified or 

listed under the regulations in 40 CFR Part 261; household waste, as defined in 40 CFR §261.4(b)(l); ash 

from incinerators of medical! infectious waste, once the incineration process has been completed; human 

corpses, remains, and anatomical parts that are intended for intennent or cremation; and domestic sewage 

materials as identified in 40 CFR §261.4(a)(I). 

2.45. "Medium HMIWI" means: 

2.45.a. Except as provided in subdivision 2.45.b; 

2.45.a.l. An HMIWI whose maximum design waste burning capacity is more than 200 pounds per 

hour but less than or equal to 500 pounds per hour; or 

2.45.a.2. A continuous or intennittent HMIWI whose maximum charge rate is more than 200 

pounds per hour but less than or equal to 500 pounds per hour; or 

2.45.a.3. A batch HMIWI whose maximum charge rate is more than 1,600 pounds per day but less 

than or equal to 4,000 pounds per day. 

2.45.b. The following are not medium HMIWI: 

2.45.b.l. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal 

to 200 pounds per hour or more than 500 pounds per hour; or 

2.45.b.2. A batch HMIWI whose maximum charge rate is more than 4,000 pounds per day or less 

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45CSR18 

than or equal to 1,600 pounds per day. 

2.46. "Minimum dioxin! furan sorbent flow rate" means 90 percentofthe highest 3-hour average dioxin! 

furan sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent performance 

test demonstrating compliance with the dioxin! furan emission limit. 

2.47. "Minimum Hg sorbent flow rate" means 90 percent ofthe highest 3-hour average Hg sorbent flow 

rate (taken, at a minimum, once every hour) measured during the most recent performance test demonstrating 

compliance with the Hg emission limit. 

2.48. "Minimum hydrogen chloride (Hel) sorbent flow rate" means 90 percent of the highest 3-hour 

average Hel sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent 

performance test demonstrating compliance with the Hel emission limit. 

2.49. "Minimum horsepower or amperage" means 90 percent ofthe highest 3-hour average horsepower 

or amperage to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent 

performance test demonstrating compliance with the applicable emission limits. 

2.50. "Minimum pressure drop across the wet scrubber" means 90 percent ofthe highest 3-hour average 

pressure drop across the wet scrubber PM control device (taken, at a minimum, once every minute) measured 

during the most recent performance test demonstrating compliance with the PM emission limit. 

2.SI. "Minimum reagent flow rate" means 90 percent of the highest 3-hour average reagent flow rate at 

the inlet to the selective noncatalytic reduction technology (taken, at a minimum, once every minute) 

measured during the most recent performance test demonstrating compliance with the NOx emissions limit. 

2.52. "Minimum scrubber liquor flow rate" means 90 percent ofthe highest 3-hour average liquor flow 

rate at the inlet to the wet scrubber (taken, at a minimum, once every minute) measured during the most 

recent performance test demonstrating compliance with all applicable emission limits. 

2.S3. "Minimum scrubber liquor pH" means 90 percent of the highest 3-hour average liquor pH at the 

inlet to the wet scrubber (taken, at a minimum, once every minute) measured during the most recent 

performance test demonstrating compliance with the Hel emission limit. 

2.S4. "Minimum secondary chamber temperature" means 90 percent of the highest 3-hour average 

secondary chamber temperature (taken, at a minimum, once every minute) measured during the most recent 

performance test demonstrating compliance with the PM, eo, dioxin!furan, and NOx emissions limits. 

2.SS. "Modification" or 'Modified HMIWI' means any change to an HMIWI unit after the effective date 

of these standards such that: 

2.SS.a. The cumulative costs of the modifications, over the life of the unit, exceed SO per centum 

of the. original cost of the construction and installation of the unit (not including the cost of any land 

purchased in connection with such construction or installation) updated to current costs, or 

2.5S.b. The change involves a physical change in or change in the method of operation of the unit 

which increases the amount of any air pollutant emitted by the unit for which standards have been established 

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45CSR18 

under Sections 129 or III of the CAA. 

2.56. "Municipal waste" means refuse (and refuse-derived fuel) collected from the general public and 

from residential, commercial, institutional, and industrial sources consisting of paper, wood, yard wastes, 

food wastes, plastics, leather, rubber, and other combustible materials and non-combustible materials such 

as metal, glass and rock, provided: that the term does not include industrial process wastes or medical wastes 

that are segregated from such other wastes; and an incineration unit shall not be considered to be combusting 

municipal waste for purposes of this rule if it combusts a fuel feed stream, 30 percent or less of the weight 

of which is comprised, in aggregate, of municipal waste. 

2.57. Municipal waste combustion unit means any setting or equipment that combusts solid, liquid, or 

gasified municipal solid waste including, but not limited to, field-erected combustion units (with or without 

heat recovery), modular combustion units (starved-air or excess-air), boilers (for example, steam generating 

units), furnaces (whether suspension~fired, grate-fired, mass-fired, air curtain incinerators, or fluidized bedfired), and pyrolysis/ combustion units. Two criteria further define municipal waste combustion units: 

2.57.a. Municipal waste combustion units do not include pyrolysis or combustion units located at 

a plastics or rubber recycling unit as specified under 40 CFR §§60.1020(h) and (i). Municipal waste 

combustion units also do not include cement kilns that combust municipal solid waste as specified under 40 

CFR §60.1 0200). Municipal waste combustion units also do not include internal combustion engines, gas 

turbines, or other combustion devices that combust landfill gases collected by landfill gas collection systems. 

2.57.b. The boundaries ofa municipal waste combustion unit are defined as follows. The municipal 

waste combustion unit includes, but is not limited to, the municipal solid waste fuel feed system, grate 

system, flue gas system, bottom ash system, and the combustion unit water system. The municipal waste 

combustion unit does not include air pollution control equipment, the stack, water treatment equipment, or 

the turbine-generator set. The municipal waste combustion unit boundary starts at the municipal solid waste 

pit or hopper and extends through three areas: 

2.57.b.l. The combustion unit flue gas system, which ends immediately after the heat recovery 

equipment or, if there is no heat recovery equipment, immediately after the combustion chamber; 

2.57.b.2. The combustion unit bottom ash system, which ends at the truck loading station or similar 

equipment that transfers the ash to final disposal. It includes all ash handling systems connected to the 

bottom ash handling system; and 

2.57.b.3. The combustion unit water system, which starts at the feed water pump and ends at the 

piping that exits the steam drum or superheater. 

2.58. "Municipal waste combustor unit" or 'municipal waste combustor' means any setting or equipment 

that combusts solid, liquid, or gasified municipal solid waste including, but not limited to, field-erected 

incinerators (with or without heat recovery), modular incinerators (starved-air or excess-air), boilers (i.e., 

steam generating units), furnaces (whether suspension-fired, grate-fired, mass-fired, air curtain incinerators, 

or fluidized bed-fired), and pyrolysis/ combustion units. 

2.58.a. Municipal waste combustors do not include pyrolysis/ combustion units located at a plastics/ 

rubber recycling unit as specified in 40 CFR §60.50b(m). Municipal waste combustors do not include 

10 
45CSR18 

cement kilns firing municipal solid waste as specified in 40 CFR §60.50b(p). Municipal waste combustors 

do not include internal combustion engines, gas turbines, or other combustion devices that combust landfill 

gases collected by landfill gas collection systems. 

2.58.b. The boundaries of a municipal waste combustor are defmed as follows. The municipal waste 

combustor unit includes, but is not limited to, the municipal solid waste fuel feed system, grate system, flue 

gas system, bottom ash system, and the combustor water system. The municipal waste combustor boundary 

starts at the municipal solid waste pit or hopper and extends through: 

2.58.b.l. The combustor flue gas system, which ends immediately following the heat recovery 

equipment or, if there is no heat recovery equipment, immediately following the combustion chamber; 

2.58.b.2. The combustor bottom ash system, which ends at the truck loading station or similar ash 

handling equipment that transfer the ash to final disposal, including all ash handling systems that are 

connected to the bottom ash handling system; and 

2.58.b.3. The combustor water system, which starts at the feed water pump and ends at the piping 

exiting the steam drum or superheater. 

2.58.c. The municipal waste combustor unit does not include air pollution control equipment, the 

stack, water treatment equipment, or the turbine-generator set. 

2.59. "New CISWI unit" means a CISWI unit that commenced construction after November 30, 1999 

or for which modification or reconstruction is commenced on or after June I, 200 I. A CISWI unit shall not 

be defined as 'new' if physical or operational changes to the unit are primarily to comply with the emission 

guidelines for existing CISWI units, as referenced in 40 CFR Part 60 Subpart DDDD and set forth in section 

9. Such changes do not qualify as reconstruction or modification under 40 CFR Part 60, Subpart CCCC. 

2.60. "New HMIWI unit" means a HMIWI unit that commenced construction after December I, 2008 

or for which modification is commenced after May 6,2010. A HMIWI unit shall not be defined as 'new' if 

physical or operational changes made to an existing HMIWI unit solely for the purpose of complying with 

emission guidelines for existing HMIWI units, as referenced in 40 CFR Part 60 Subpart Ce and set forth in 

section 7. Such changes are not considered a modification and do not result in an existing HMIWI unit 

becoming subject to the provisions of 40 CFR Part 60, Subpart Ec. 

2.61. "New LMWC unit" means a LMWC unit for which construction is commenced after September 

20, 1994, or for which modification or reconstruction is commenced after June 19, 1996. 

2.62. "New SMWC unit" means a SMWC unit which commenced construction after August 30, 1999, 

or commenced reconstruction or modification after June 6,2001. 

2.63. "New OSWI unit" means an OSWI unit that commenced construction after December 9, 2004 or 

for which modification or reconstruction is commenced on or after June 16, 2006. 

2.64. "Operating day" means a 24-hour period between 12:00 midnight and the following midnight 

during which any amount of hospital waste or medical/infectious waste is combusted at any time in the 

HMIWI. 

11 
45CSR18 

2.65. "Operation" means the period during which waste is combusted in the incinerator excluding periods 

of startup or shutdown. 

2.66. "Other solid waste incineration unit" or 'OSWI unit' means either a very small municipal waste 

combustion unit or an institutional waste incineration unit. Unit types listed in 40 CFR §60.2887 are not 

OSWI units. While not all OSWI units will include all ofthe following components, an OSWI unit includes, 

but is not limited to, the municipal or institutional solid waste feed system, grate system, flue gas system, 

waste heat recovery equipment, if any, and bottom ash system. The OSWI unit does not include air pollution 

control equipment or the stack. The OSWI unit boundary starts at the municipal or institutional waste hopper 

(if applicable) and extends through two areas: 

2.66.a. The combustion unit flue gas system, which ends immediately after the last combustion 

chamber or after the waste heat recovery equipment, if any; and 

2.66.b. The combustion unit bottom ash system, which ends at the truck loading station or similar 

equipment that transfers the ash to final disposal. The OSWI unit includes all ash handling systems 

connected to the bottom ash handling system. 

2.67. "Particulate matter" or 'PM' means the total particulate matter emitted from an HMIWI as 

measured by EPA Reference Method 5 or EPA Reference Method 29. 

2.68. "Pathological waste" means waste material consisting of only human or animal remains, anatomical 

parts or tissue, the bags or containers used to collect and transport the waste material, and animal bedding 

(if applicable). 

2.69. "Person" means any and all persons, natural or artificial, including the state of West Virginia or 

any other state, the United States of America, any municipal, statutory, public or private corporation 

organized or existing under the laws of this or any other state or country, and any firm, partnership or 

association of whatever nature. 

2.70. "Primary chamber" means the chamber in an HMIWI that receives waste material, in which the 

waste is ignited, and from which ash is removed. 

2.71. "Pyrolysis" means the endothermic gasification of hospital waste and/or medical/infectious waste 

using external energy. 

2.72. "Secondary chamber" means a component ofthe HMIWI that receives combustion gases from the 

primary chamber and in which the combustion process is completed. 

2.73. "Secretary" means the Secretary of the Department of Environmental Protection or such other 

person to whom the Secretary has delegated authority or duties pursuant to W.Va. Code §§22-1-6 or 22-1-8. 

2.74. "Shutdown" means the period oftime after all waste has been combusted in the primary chamber. 

For continuous HMIWI, shutdown shall commence no less than 2 hours after the last charge to the 

incinerator. For intermittent HMIWI, shutdown shall commence no less than 4 hours after the last charge 

to the incinerator. For batch HMIWI, shutdown shall commence no less than 5 hours after the high-air phase 

of combustion has been completed. 

12 
45CSR18 

2.75. "Small HMIWI means: 

2.75.a. Except as provided in subdivision 7.62.b; 

2.75.a.1. An HMIWI whose maximum design waste burning capacity is less than or equal to 200 

pounds per hour; or 

2.75.a.2. A continuous or intermittent HMIWI whose maximum charge rate is less than or equal 

to 200 pounds per hour; or 

2.75.a.3. A batch HMIWI whose maximum charge rate is less than or equal to 1,600 pounds per 

day. 

2.75.b. The following are not small HMIWI: 

2.75.b.1. A continuous or intermittent HMIWI whose maximum charge rate is more than 200 

pounds per hour; 

2.75.b.2. A batch HMIWI whose maximum charge rate is more than 1,600 pounds per day. 

2.76. "Small municipal waste combustion unit" or 'SMWC unit' means a municipal waste combustion 

unit with the capacity to combust at least 35 tons per day but no more than 250 tons per day of municipal 

solid waste or refuse-derived fuel. 

2.77. "Solid waste" means any garbage, refuse, sludge from a waste treatment plant, water supply 

treatment plant, or air pollution control facility and other discarded material, including solid, liquid, 

semisolid, or contained gaseous material resulting from industrial, commercial, mining, agricultural 

operations, and from community activities, but does not include solid or dissolved material in domestic 

sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point 

sources subject to permits illlder Section 402 of the Federal Water Pollution Control Act, as amended (33 

U.S.C. 1342),or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of1954, 

as amended (42 U.S.C. 2014). 

2.78. "Solid Waste Disposal Act" means the federal Solid Waste Disposal Act, as amended, 42 U.S.c. 

§690 I et seq. 

2.79. "Solid waste incineration unit" means a distinct operating unit of any facility which combusts any 

solid waste material from commercial or industrial establishments or the general public (including single and 

multiple residences, hotels, and motels). Such term does not include incinerators or other units required to 

have a permit illlder Section 3005 ofthe Solid Waste Disposal Act. The term "solid waste incineration unit" 

does not include materials recovery facilities (including primary or secondary smelters) which combust waste 

for the primary purpose of recovering metals, qualifying small power production facilities, as defined in 

Section 3 (17)(C) of the Federal Power Act (16 U.S.C. 769(17)(C)), or qualifying cogeneration facilities, as 

defined in Section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)), which bum homogeneous 

waste (such as units which bum tires or used oil, but not including refuse-derived fuel) for the production 

of electric energy or in the case of qualifying cogeneration facilities which bum homogeneous waste for the 

production of electric energy and steam or forms of useful energy (such as heat) which are used for 

13 
45CSR18 

industrial, commercial, heating or cooling purposes, or air curtain incinerators provided that such incinerators 

only burn wood wastes, yard wastes and clean lumber and that such air curtain incinerators comply with 

established opacity limitations. 

2.80. "Standard Metropolitan Statistical Area" means any areas listed in OMB Bulletin No. 93-17 

entitled "Revised Statistical Defmitions for Metropolitan Areas" dated June 30,1993. 

2.81. "Standard conditions" means a temperature of 20°C and a pressure of 101.3 kilopascals. 

2.82. "Startup" means the period of time between the activation ofthe system and the first charge to the 

unit. For batch HMlWI, startup means the period oftime between activation of the system and ignition of 

the waste. 

2.83. "Very small municipal waste combustion unit" means any municipal waste combustion unit that 

has the capacity to combust less than 35 tons per day of municipal solid waste or refuse-derived fuel, as 

determined by the calculations in 40 CFR §60.2975. 

2.84. "Waste heat recovery" means the process of recovering heat from the combustion flue gases outside 

of the combustion firebox by convective heat transfer only. 

2.85. "Wet scrubber" means an add-on air pollution control device that utilizes an alkaline scrubbing 

liquor to collect particulate matter (including nonvaporous metals and condensed organics) and/or to absorb 

and neutralize acid gases. 

2.86. "You", as used in 40 CFR Part 60 Subparts CCCC and DDDD, means the owner or operator of a 

CISWI unit. 

2.87. Other words and phrases used in this rule, unless otherwise indicated, shall have the meaning 

ascribed to them in 40 CFR Part 60 Subparts A, B, Ce, Eb, Ec, AAAA, CCCC, DDDD and EEEE, as 

applicable. Words and phrases not defmed therein shall have the meaning given to them in the Clean Air 

Act and the Solid Waste Disposal Act. 

§45-18-3. Adoption of Standards. 

3.1. The Secretary hereby adopts and incorporates by reference the provisions of 40 CFR Part 60, 

Subparts Eb, Ec, AAAA, CCCC and EEEE, including any applicable reference methods, performance 

specifications and other test methods which are appended to these standards and contained in these subparts, 

effective June 1,2010. 

§45-18-4. Requirements for New Large Municipal Waste Combustors. 

4.1. No person shall construct or operate, or cause to be constructed or operated a new LMWC unit 

which results in a violation of 40 CFR Part 60, Subpart Eb or this rule. 

4.2. Requirements for New LMWC Units. -- The owner or operator of a new LMWC unit shall comply 

with all applicable standards of performance, requirements and provisions of 40 CFR Part 60 Subpart Eb, 

including any reference methods, performance specifications and other test methods associated with Subpart 

14 
45CSR18 

Eb. 

§45-18-5. Requiremeuts for New Small Municipal Waste Combustiou Units. 

5.1. No person shall construct or operate, or cause to be constructed or operated a new SMWC unit 

which results in a violation of 40 CFR Part 60, Subpart AAAA or this rule. 

5.2. Requirements for New SMWC Units. -- The owner or operator of a new SMWC unit shall comply 

with all applicable standards of performance, requirements and provisions of 40 CFRPart 60 Subpart AAAA, 

including any reference methods, performance specifications and other test methods associated with Subpart 

AAAA. 

§45-18-6. Requirements for New Hospital! Medical! Infectious Waste Iucinerators. 

6.1. No person shall construct, reconstruct, modify, or operate, or cause to be constructed, 

reconstructed, modified, or operated a new HMIWI unit which results in a violation of 40 CFR Part 60 

Subpart Ec, or this rule. 

6.2. Requirements for New HMIWIUnits. -- The owner or operator of a new HMIWI unit shall comply 

with all applicable standards of performance, requirements and provisions of 40 CFR Part 60 Subpart Ec, 

including any reference methods, performance specifications and other test methods associated with Subpart 

Ec. 

§45-18-7. Requirements for Existing Hospital! Medical! Infectious Waste Incinerators. 

7.1. The owner or operator of an existing HMlWI unit shall comply with the applicable emission 

guidelines, compliance times, requirements and provisious of 40 CFR Part 60 Subpart Ce contained in this 

section, including any reference methods, performance specifications and other test methods associated with 

Subpart Ceo 

7.2. Designated Facilities. 

7.2.a. Except as provided in subdivisons 7.2.b through 7.2.h, the designated facility to which the 

emissions guidelines apply is each individual HMIWI unit: 

7.2.a.1. For which construction was commenced on or before June 20, 1996, or for which 

modification was commenced on or before March 16, 1998. 

7.2.a.2. For which construction was commenced after June 20, 1996 but no later than December 

I, 2008, or for which modification is commenced after March 16, 1998 but no later than April 6, 2010. 

7.2.b. A combustor is not subject to this section during periods when only pathological waste, 

low-level radioactive waste, and/or chemotherapeutic waste is burned, provided the owner or operator of the 

combustor: 

7.2.b.1. Notifies the Administrator of an exemption claim; and 

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7.2.b.2. Keeps records on a calendar quarter basis of the periods of time when only pathological 

waste, low-level radioactive waste, and/or chemotherapeutic waste is burned. 

7.2.c. Any co-fired combustor is not subject to this section if the owner or operator of the co-fired 

combustor: 

7.2.c.1. Notifies the Administrator of an exemption claim; 

7.2.c.2. Provides an estimate of the relative weight of hospital waste, medical!infectious waste, 

and other fuels and/or wastes to be combusted; and 

7.2.c.3. Keeps records on a calendar quarter basis of the weight of hospital waste and medical! 

infectious waste combusted, and the weight of all other fuels and wastes combusted at the co-fired 

combustor. 

7.2.d. Any combustor required to have a permit under Section 3005 of the Solid Waste Disposal Act 

is not subject to this section. 

7.2.e. Any combustor which meets the applicability requirements under 40 CFRPart 60, Subparts Cb, 

Ea, or Eb (standards or guidelines for certain municipal waste combustors) is not subject to this section. 

7.2.f. Any pyrolysis unit is not subject to this section. 

7.2.g. Cement kilns firing hospital waste and/or medical! infectious waste are not subject to this 

section. 

7..2.h. Physical or operational changes made to an existing HMIWI unit solely for the purpose of 

complying with emission guidelines under this section are not considered a modification and do not result 

in an existing HMIWI unit becoming subject to the provisions of 40 CFR Part 60, Subpart Ec. 

7.2.i. On or before September 15, 2000, the owner or operator of an existing HMIWI unit shall 

operate pursuant to a Title V permit in accordance with the requirements of 45CSR30. 

7.2.j The requirements of 40 CFR §§62.12150-12152, as amended and approved on August 3, 2009, 

and the related provisions of 40 CFR Part 60, Subpart Ce as promulgated on September 15, 1997, shall apply 

to the designated facilities under paragraph 7.2.a.l until one year after the effective date of U.S. EPA's 

approval of the 111(d)/129 State Plan revision for HMIWI units. Upon one year after the effective date of 

U.S. EPA's approval of the III (d)/129 State Plan revision for HMIWI units, designated facilities under 

paragraph 7.2.a.1 are no longer subject to the requirements of 40 CFR Part 60, Subpart Ce as promulgated 

on September IS, 1997, but are subject to the requirements of 40 CFR Part 60, Subpart Ce as amended on 

October 6, 2009. 

7.3. Emissions Guidelines. 

7.3.a. The owner or operator of an existing HMIWI unit shall comply with the following emissions 

limits as applicable: 

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45CSR18 

7.3.a.1. For a designated facility set forth in paragraph 7.2.a.! subject to the emissions guidelines 

as promulgated on September IS, 1997, the requirements listed in Table 18-IA, except as provided in 

subdivision 7.3.b; 

7.3.a.2. For a designated facility set forth in paragraph 7.2.a.! subject to the emissions guidelines 

as amended on October 6,2009, the requirements listed in Table 18-lB, except as provided in subdivision 

7.3.b; 

7.3.a.3. For a designated facility set forth in paragraph 7.2.a.2, the more stringent of the 

requirements listed in Table 18-lB and Table IA of 40 CFR Part 60, Subpart Ec, as amended October 6, 

2009. 

7.3.b. The owner or operator of any small HMIWI unit constructed on or before June 20, 1996, which 

is located more than 50 miles from the boundary of the nearest Standard Metropolitan Statistical Area and 

which burns less than 2,000 pounds per week of hospital waste and medical/infectious waste shall comply 

with emissions limits in paragraphs 7.3 .b.1 and 7.3 .b.2, as applicable. The 2,000 Ib/week limitation does not 

apply during performance tests. 

7.3.b.l. For a designated facility under paragraph 7.2.a.1 subject to the emissions guidelines as 

promUlgated on September 15,1997, the requirements listed in Table 18-2A; and 

7.3.b.2. For a designated facility under paragraph 7.2.a.! subject to the emissions guidelines as 

amended on October 6,2009, the requirements listed in Table 18-2B. 

7.3.c. The owner or operator of any existing HMIWI unit shall comply with the following stack 

opacity requirements, as applicable: 

7.3.c.l. For a designated facility under paragraph 7.2.a.1 subject to the emissions guidelines as 

promUlgated on September 15,1997, the requirements in 40 CFR §60.52c(b)(I); and 

7.3.c.2. For a designated facility under paragraph 7.2.a.1 subject to the emissions guidelines as 

amended on October 6, 2009 and a designated facility under paragraph 7.2.a.2, the requirements in 40 CFR 

§60.S2c(b)(2). 

7.4. Operator Training and Qualification Guidelines. -- The owner or operator of an existing HMIWI 

unit shall comply with the operator training and qualification requirements specified in 40 CFR §60.S3c: 

7.4.a. For a designated facility under paragraph 7.2.a.1", by July 28, 2001, and 

7.4.b. For a designated facility under paragraph 7.2.a.2, at the time of initial facility start-up. 

7.5. Waste Management Guidelines. -- The owner or operator of an existing HMIWI unit shaH comply 

with the waste management plan specified in 40 CFR §60.SSc: 

7.S.a. For a designated facility under paragraph 7.2.a.!, by July 28,2001, and 

7.S.b. For a designated facility under paragraph 7.2.a.2, no later than 60 days after the date of the 

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initial performance test under 40 CFR §60.S6c(b). 

7.6. Inspection Guidelines. 

7.6.a. The owner or operator of each small HMIWI unit subject to the emissions limits under 

subdivision 7.3.b and eachHMIWI unit subject to the emissions limits under paragraphs 7.3.a.2 and 7.3.a.3 

shall perfonn an initial equipment inspection within one year after the date of U.S. EPA's approval of the 

III (d)/129 State Plan revision for HMIWI units under 40 CFR Part 60, Subpart Ce requirements, as revised 

October 6, 2009. The initial equipment inspection shall include the following: 

7.6.a.l. Inspection of all burners, pilot assemblies, and pilot sensing devices for proper operation: 

cleaning of pilot flame sensor, as necessary; 

7.6.a.2. Ensuring proper adjustment of primary and secondary chamber combustion air, and adjust 

as necessary; 

7.6.a.3. Inspection of hinges and door latches and lubrication as necessary; 

7.6.a.4. Inspection of dampers, fans, and blowers for proper operation; 

7.6.a.S. Inspection ofHMIWI unit door and door gaskets for proper sealing; 

7.6.a.6. Inspection of motors for proper operation; 

7.6.a.7. Inspection of primary chamber refractory lining; cleaning and repairing or replacing 

lining as necessary; 

7.6.a.8. Inspection of incinerator shell for corrosion and hot spots; 

7.6.a.9. Inspection of secondary and tertiary chamber and stack, cleaning as necessary; 

7 .6.a. 10. Inspection of mechanical loader, including limit switches, for proper operation, if 

applicable; 

7.6.a.1 I. Visual inspection of waste bed (grates), and repairing or sealing, as appropriate; 

7.6.a.12. For the bum cycle that follows the inspection, documentation that the incinerator is 

operating properly and making any necessary adjustments; 

7.6.a.13. Inspection of air pollution control device(s) for proper operation, if applicable; 

7 .6.a. 14. Inspection of waste heat boiler systems to ensure proper operation, if applicable; 

7.6.a.IS. Inspection of bypass stack components; 

7.6.a.l6. Ensuring proper calibration of thermocouples, sorbent feed systems and any other 

monitoring equipment; and 

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7 .6.a.17. Generally observing that the equipment is maintained in good operating condition. 

7.6.b. Within 10 operating days following an equipment inspection, all necessary repairs shall be 

completed unless the owner or operator obtains written approval from the Secretary establishing a date 

whereby an necessary repairs of the designated facility shall be completed. 

7.6.c. The owner or operator of each small HMIWI unit subject to the emissions limits under 

subdivision 7.3. b and each HMIWI unit subj ect to the emissions limits under paragraphs 7.3 .a.2 and 7.3 .a.3 

shall perform an equipment inspection annually (no more than 12 months following the previous annual 

equipment inspection), as outlined in subdivision 7.6.a. 

7.6.d. The owner or operator of each small HMIWI unit subject to the emissions limits under 

paragraph 7.3.b.2 and each HMIWI unit subject to the emissions limits under paragraphs 7.3.a.2 and 7.3.a.3 

shal1 perform an initial air pollution control device inspection, as applicable, within one year following 

approval of the 111(d)1129 State Plan revision for HMIWI units under 40 CFR Part 60, Subpart Ce 

requirements, as revised October 6, 2009. The initial air pollution control device inspection shall include 

the following: 

7.6.d.l. Inspect air pollution control device(s) for proper operation, if applicable; 

7.6.d.2. Ensure proper calibration of thermocouples, sorbent feed systems, and any other 

monitoring equipment; and 

7 .6.d.3. Generally observe that the equipment is maintained in good operating condition. 

7.6.e. Within 10 operating days following an air pollution control device inspection under subdivision 

7.6.d, all necessary repairs shall be completed unless the owner or operator obtains written approval from 

the Secretary establishing a date whereby all necessary repairs ofthe designated facility shall be completed. 

7.6.f. The owner or operator of each small HMIWI unit subject to the emissions limits under 

paragraph 7.3.b.2 and each HMIWI unit subject to the emissions limits under paragraphs 7.3.a.2 and 7.3.a.3 

shall perform an air pollution control device inspection, as applicable, annually (no more than 12 months 

following the previous annual air pollution control device inspection), as outlined in subdivision 7.6.d. 

7.7. Compliance, Performance Testing, and Monitoring Guidelines. 

7.7.a. Except as provided in subdivision 7.7.b, the owner or operator ofa HMIWI unit shall comply 

with the requirements for compliance and performance testing listed in 40 CFR §60.S6c, with the following 

exclusions: 

7.7a.1. For a designated facility under paragraph 7.2.a.l subject to the emissions limits in 

paragraph 7 .3.a.l, the test methods listed in 40 CFR §§60.56c(b)(7) and (8), the fugitive emissions testing 

requirements under 40 CFR §§60.56c(b)(l4) and (c)(3), the CO CEMS requirements under 40 CFR 

§60.56c(c)(4), and the compliance requirements for monitoring listed in 40 CFR §§60.S6c(c)(S)(ii) through 

(v), (c)(6), (c)(7), (e)(6) through (10), (f)(7) through (10), (g)(6) through (10), and (h). 

7.7.a.2. For a designated facility under paragraphs 7.2.a.1 and 7.2.a.2 subject to the emissions 

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limits in paragraphs 7.3.a.2 and 7.3.a.3, the annual fugitive emissions testing requirements under 40 CFR 

§60.56c(c)(3), the CO CEMS requirements under 40 CFR §60.56c(c)(4), and the compliance requirements 

for monitoring listed in 40 CFR §§60.56c(c)(5)(ii) through (v), (c)(6), (c)(7), (e)(6) through (10), (f)(7) 

through (10), and (g)( 6) through (10). Sources subject to the emissions limits under paragraphs 7 .3.a.2 and 

7.3.a.3 may, however, elect to use CO CEMS as specified under 40 CFR §60.56c( c)( 4) or bag leak detection 

systems as specified under 40 CFR §60.57c(h). 

7.7.b. Except as provided in paragraphs 7.7 .b.I and 7.7 .b.2, the owner or operator of a small HMIWI 

unit subject to the emissions limits under subdivision 7.3.b shall comply with the performance testing 

requirements listed in 40 CFR §60.56c. The 2,000 lb/week limitation under subdivision 7.3.b does not apply 

during performance tests. 

7.7.b.l. For a designated facility under paragraph 7.2.a.l subject to the emissions limits under 

paragraph 7.3.b.l, the test methods listed in 40 CFR §§60.56c(b)(7), (8), (12), (13) (Pb and Cd), and (14), 

the annual PM, CO, andHCl emissions testing requirements under 40 CFR §60.56c(c)(2), the annual fugitive 

emissions testing requirements under 40 CFR §60.56c(c)(3), the CO CEMS requirements under 40 CFR 

§60.56c( c)( 4), and the compliance requirements for monitoring listed in 40 CFR §§60.56c( c )(5) through (7), 

and (d) through (k) do not apply. 

7.7.b.2. For a designated facility under paragraph 7.2.a.2 subject to the emissions limits under 

paragraph 7.3.b.2, the annual fugitive emissions testing requirements under 40 CFR §60.56c(c)(3), the CO 

CEMS requirements under 40 CFR §60.56c(c)(4), and the compliance requirements for monitoring listed 

in 40 CFR §§60.56c(c)(5)(ii) through (v), (c)(6), (c)(7), (e)(6) through (10), (f)(7) through (10), and (g)(6) 

through (10) do not apply. Sources subject to the emissions limits under paragraph 7.3.b.2 may, however, 

elect to use CO CEMS as specified under 40 CFR §60.56c(c)(4) or bag leak detection systems as specified 

under 40 CFR §60.57c(h). 

7.7.c. The owner or operator of a small HMIWI unit subjectto the emissions limits under subdivision 

7.3.b that is not equipped with an air pollution control device shall comply with the following compliance 

and performance testing requirements: 

7.7.c.l. Establishment of maximum charge rate and minimum secondary chamber temperature 

as site-specific operating parameters during the initial performance test to determine compliance with 

applicable emission limits; 

7.7.c.2. Following the date on which the initial performance test is completed or is required to 

be completed under 40 CFR §60.8, whichever date comes first, the small HMIWI unit shall not operate above 

the maximum charge rate or below the minimum secondary chamber temperature measured as 3-hour rolling 

averages (calculated each hour as the average of the previous 3 operating hours) at all times. Operating 

parameter limits do not apply during performance tests. Operation above the maximum charge rate or below 

the minimum secondary chamber temperature shall constitute a violation of the established operating 

parameter( s). 

7.7.c.3. Operation above the maximum charge rate and below the minimum secondary chamber 

temperature (each measured on a 3-hour rolling average) simultaneously shall constitute a violation of the 

PM, CO and dioxin! furan emission limits, except as provided in paragraph 7.7.c.4; and 

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45CSR18 

7.7.cA. The owner or operator of a small HMIWI unit may conduct a repeat performance test 

within 30 days of violation of applicable operating parameter(s) to demonstrate that the small HMIWI unit 

is not in violation of the applicable emission limit(s). Repeat performance tests conducted pursuant to this 

paragraph must be conducted using the identical control device operating conditions that indicated a violation 

under paragraph 7.7.c.3; 

7.7.d. The owner or operator of a HMIWI unit subjectto the emissions limits under subdivisions 7.3.a 

and 7.3.b shall comply with the requirements for monitoring listed in 40 CFR §60.57c, except as provided 

for under subdivision 7.7 .e. 

7.7.e. The owner or operator of a small HMIWI unit subject to the emissions limits under subdivision 

7.3.b that is not equipped with an air pollution control device shall comply with the following monitoring 

requirements: 

7.7.e.l. Installation, calibration (to manufacturer's specifications), maintenance and operation 

of a device for measuring and recording the temperature of the secondary chamber on a continuous basis, 

the output of which shall be recorded, at a minimum once every minute throughout operation; 

7.7.e.2. Installation, calibration (to manufacturer's specifications), maintenance and operation 

of a device which automatically measures and records the date, time, and weight of each charge fed into the 

HMIWIunit; 

7.7 .e.3. The owner or operator of a HMIWI unit shall obtain monitoring data at all times during 

HMIWI unit operation except during periods of monitoring equipment malfunction, calibration, or repair. 

At a minimum, valid monitoring data shall be obtained for 75 percent of the operating hours per day and for 

90 percent of the operating hours per calendar quarter that the HMIWI unit is combusting hospital waste or 

medical! infectious waste. 

7.7.f. The owner or operator of a designated facility under paragraphs 7.2.a.1 or 7.2.a.2 subject to 

emissions limits under paragraphs 7.3.a.2, 7.3.a.3 or 7.3.b.2 may use the results of previous emissions tests 

to demonstrate compliance with the emissions limits, provided that the conditions in paragraphs 7.7.f.1 

through 7.7.f.3 are met: 

7.7.f.1. The designated facility's previous emissions tests must have been conducted using the 

applicable procedures and test methods listed in 40 CFR §60.56c(b). Previous emissions test results obtained 

using EPA-accepted voluntary consensus standards are also acceptable. 

7.7.f.2. The HMIWI unit at the designated facility shall currently be operated in a manner (e.g., 

with charge rate, secondary chamber temperature, etc.) that would be expected to result in the same or lower 

emissions than observed during the previous emissions test(s), and the HMIWI unit may not have been 

modified such that emissions would be expected to exceed (notwithstanding normal test-to-test variability) 

the results from previous emissions test(s). 

7.7.f.3. The previous emissions test(s) must have been conducted in 1996 orlater. 

7.8. Reporting and Recordkeeping Guidelines. 

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45CSR18 

7.8.a. Except as provided in paragraphs 7.8.a.! and 7;8.a.2, the owner or operator of an existing 

HMIWI unit shall comply with the reporting and recordkeeping requirements listed in 40 CFR §§60.58c(b) 

through (g). 

7.8.a.!. For a desigoated facility under paragraph 7.2.a.! subject to emissions limits under 

paragraphs 7.3.a. lor 7.3.b.!, excluding 40 CFR §§60.58c(b)(2)(ii) (fugitive emissions), (b)(2)(viii) (NOx 

reagent), (b)(2)(xvii) (air pollution control device inspections), (b)(2)(xviii) (bag leak detection system 

alarms), (b)(2)(xix) (CO CEMS data), and (b)(7) (siting documentation). 

7.8.a.2. For a desigoated facility under paragraphs 7.2.a.1 or 7.2.a.2 subject to emissions limits 

under paragraphs 7.3.a.2, 7.3.a.3 or 7.3.b.2, excluding 40 CFR §§60.58c(b)(2)(xviii) (bag leak detection 

system alanns), (b)(2)(xix) (CO CEMS data), and (b)(7) (siting documentation). 

7.8.b. The owner or operator of each HMIWI unit subject to the emissions limits under subsection 7.3 

shall: 

7.8.b.l. As specified in subsection 7.6, maintain records ofthe annual equipment inspections that 

are required for each HMIWI unit subject to the emissions limits under paragraphs 7.3.a.2, 7.3.a.3 and 

subdivision 7.3.b, and the annual air pollution control device inspections that are required for each HMIWI 

unit subject to the emissions limits under paragraphs 7.3.a.2, 7.3.a.3 and 7.3 .b.2, any required maintenance, 

and any repairs not completed within 10 days of an inspection or repair date approved by the Secretary; and 

7.8.b.2. Submit an annual report containing information recorded under paragraph 7 .8.b.1 no later 

than 60 days following the year in which data were collected. Subsequent reports shall be sent no later than 

12 calendar months following the previous report (once the unit is subject to permitting requirements under 

45CSR30, the owner or operator must submit these reports semiannually). The report shall be sigoed and 

certified in accordance with subdivision 7.8.c. 

7.8.c. Where reports are required to be submitted to the Secretary under the terms of a permit issued 

pursuant to 45CSR13, 45CSR14, 45CSRI9 or 45CSR30, the reports shall be sigoed and certified in 

accordance with the requirements of the applicable pennitting rule. Where reports are required to be 

submitted to the Secretary under this rule, and no permit is in effect under 45CSRI3, 45CSR14, 45CSRI9 

or 45CSR30, the report shall be sigoed by the facilities manager and shall contain a certification stating that, 

based on infonnation and belief formed after reasonable inquiry, the statements and information in the 

document are true, accurate and complete. 

7.9. Compliance Times. 

7.9.a. Except as provided in subdivisions 7.9.b, 7.9.c and 7.9.d, on or after July 28, 2001, the owner 

or operator of any existing HMIWI unit subject to the requirements of 40 CFR Part 60, Subpart Ce as 

promulgated on September 15, 1997, shall be in compliance with all applicable provisions of this section. 

7.9.b. No later than November 28,2000, the owner or operator of an existing HMIWI unit required 

to install air pollution control equipment shall submit a compliance plan and schedule subject to the approval 

of the Secretary that meets the following criteria: 

7.9.b.!. No later than July 28, 200 I, a facility that plans to install air pollution control equipment 

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45CSR18 

other than a dry scrubber followed by a fabric filter, a wet scrubber or dry scrubber followed by a fabric filter 

and a wet scrubber shall submit a petition for site specific operating parameters under 40 CFR §60.56c(i) to 

the Administrator and the Secretary; 

7.9.b.2. No later than July 2S, 200 I, services of an architectural and engineering f111l1 regarding 

air pollution device(s) shall be obtained; 

7.9.b.3. No later than January 2S, 2002, design drawings of an air pollution device(s) shall be 

ordered; 

7.9.bA. No later than January 2S, 2002, air pollution device(s) shall be ordered; 

7.9 .b.5. No later than July 2S, 2002, site preparation for installation of the air pollution device(s) 

shall be initiated; 

7.9.b.6. No later than April 2S, 2002, initial startup of the air pollution device(s) shall be 

conducted; 

7.9 .b. 7. No later than Apri12S, 2002, initial compliance test(s) of the air pollution device(s) shall 

be conducted; and 

7.9. b.S. No later than September 16, 2002, the owner or operator of an existing HMIWI unit shall 

not allow or cause to be allowed a HMIWI unit to be operated except in compliance with all applicable 

provisions of this section. 

7.9.c. An owner or operator of an existing HMIWI unit who submits in writing to the Secretary a 

request for an extension to comply beyond the compliance dates under subdivision 7.9 .b, shall submit to the 

Secretary no later than Apri12S, 2001, the following information: 

7.9.c.1. An analysis to support the need for an extension, including an explanation of why a time 

period up to three years after July 2S, 2000 is not sufficient time to comply with subdivision 7.9.b; 

7.9.c.2. A demonstration ofthe feasibility to transport the waste offsite to a commercial medical 

waste treatment and disposal facility on a temporary or permanent basis; and 

7.9.c.3. Measurable and enforceable incremental steps of progress to be taken towards 

compliance with the emission limits contained in Table IS-IA. 

7.9.d. The owner or operator of an existing HMIWI unit will be notified in writing by the Secretary 

of his or her decision as to whether an extension shall be granted or denied. The owner or operator shall 

comply with one of the following: 

7.9.d.l. If the request for extension is denied, the owner or operator shall submit a compliance 

plan in accordance with subdivision 7.9.b no later than 30 days after denial of the request for extension, or 

July 2S, 2001, whichever is later; or 

7.9.d.2. If the request for extension is granted, the owner or operator shall submit a compliance 

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plan and schedule commensurate with the granted extension no later than 30 days after the date the request 

for extension has been granted. 

7.9.e. Except as provided in subdivisions 7.9 .f, 7 .9.g and 7.9 .h, one year after the effective date of U.S. 

EPA's approval of the III (d)/129 State Plan revision for HMIWI units, the owner or operator of any existing 

HMIWI unit subject to the requirements of 40 CFR Part 60, Subpart Ce as promulgated on October 6, 2009, 

shall be in compliance with all applicable provisions of this section. 

7.9.f. No later than 120 days after the effective date of U.S. EPA's approval of the 1II(d)/129 State 

Plan revision for HMIWI units, the owner or operator of an existing HMIWI unit required to install air 

pollution control equipment shall submit an expeditious compliance plan and schedule subject to the 

approval ofthe Secretary that meets the following criteria: 

7.9.f.1. No later than 12 months after the effective date of U.S. EPA's approval ofthe 1II(d)/129 

State Plan revision for HMIWI units, a facility that plans to install air pollution control equipment other than 

a dry scrubber followed by a fabric filter, a wet scrubber or dry scrubber followed by a fabric filter and a wet 

scrubber shall submit a petition for site specific operating parameters under 40 CFR §60.56c(i) to the 

Administrator and the Secretary; 

7.9.f.2. No later than 12 months after the effective date of U.S. EPA's approval of the 1II(d)/129 

State Plan revision for HMIWI units, services of an architectural and engineering firm regarding air pollution 

device(s) shall be obtained; 

7.9.f.3. No later than 18 months after the effective date of U.S. EPA's approval ofthe I II(d)/129 

State Plan revision for HMIWI units, design drawings of an air pollution device(s) shall be ordered; 

7.9.f.4. No later than 18 months after the effective date of U.S. EPA's approval of the 111(d)/129 

State Plan revision for HMIWI untis, air pollution device(s) shall be ordered; 

7.9.f.5. No later than 18 months after the effective date of U.S. EPA's approval of the I II(d)/129 

State Plan revision for HMIWI units, site preparation for installation of the air pollution device(s) shall be 

initiated; 

7.9.f.6. No later than 30 months after the effective date of U.S. EPA's approval ofthe Ill(d)/129 

State Plan revision for HMIWI units, initial startup of the air pollution device(s) shall be conducted; 

7.9.f.7. No later than 30 months after the effective date of U.S . EPA's approval of the I II(d)/129 

State Plan revision for HMIWI untis, initial compliance testes) of the air pollution device(s) shall be 

conducted; and 

7.9.f.8. No later than October 6, 2014, the owner or operator of an existing HMIWI unit shall not 

allow or cause to be allowed a HMIWI unit to be operated except in compliance with all applicable 

provisions of this section. 

7.9.g. An owner or operator of an existing HMIWI unit who submits in writing to the Secretary a 

request for an extension to comply beyond the compliance dates under subdivision 7.9.f, shall submit to the 

Secretary no later than 9 months after the effective date of U.S. EPA's approval ofthe 1II(d)/129 State Plan 

24 
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revision for HMIWI units, the following infonnation: 

7.9.g.1. An analysis to support the need for an extension, including an explanation of why a time 

period up to three years after the effective date of U.S. EPA's approval ofthe 1II(d)/129 State Plan revision 

for HMIWI units is sufficient time to comply with this section, while one year after the effective date of U.S. 

EPA's approval of the 1II(d)/129 State Plan revision for HMIWl units is not sufficient; 

7.9.g.2. A demonstration ofthe feasibility to transport the waste offsite to a commercial medical 

waste treatment and disposal facility on a temporary or pennanent basis; and 

7.9.g.3. Measurable and enforceable incremental steps of progress to be taken towards 

compliance with the emission limits contained in Table IS-lB. 

7.9.h. The owner or operator of an existing HMIWI unit will be notified in writing by the Secretary 

of his or her decision as to whether an extension shall be granted or denied. The owner or operator shall 

comply with one of the following: 

7.9.h.l. If the request for extension is denied, the owner or operator shall submit a compliance 

plan in accordance with subdivision 7.9.fno later than 30 days after denial of the request for extension, or 

one year after the effective date of U.S. EPA's approval of the 111(d)/129 State Plan revision for HMIWl 

units whichever is later; or 

7.9.h.2. If the request for extension is granted, the owner or operator shall submit a compliance 

plan and schedule commensurate with the granted extension no later than 30 days after the date the request 

for extension has been granted; and 

7.9.h.3. On or before October 6,2014, the owner or operator shall comply with the emissions 

guidelines as amended on October 6, 2009, and not allow or cause to be allowed a HMIWI unit to be 

operated except in compliance with all applicable provisions of this section. 

§45-18-8. Requirements for New Commercial and Industrial Solid Waste Incinerators. 

S.1. No person shall construct, reconstruct, modify, or operate, or cause to be constructed, 

reconstructed, modified, or operated a new CISWI unit which results in a violation of 40 CFR Part 60 

Subpart CCCC, or this rule. 

S.2. Requirements for New CISWI Units. -- The owner or operator of a new CISWI unit shall comply 

with all applicable standards of perfonnance, requirements and provisions of 40 CFR Part 60 Subpart CCCC, 

including any reference methods, perfonnance specifications and other test methods associated with Subpart 

CCCC. 

§45-18-9. Requirements for Existing Commercial and Industrial Solid Waste Incinerators. 

9.1. Requirements for Existing CISWI Units. -- The owner or operator of an existing CISWI unit shall 

comply with the applicable emission guidelines, compliance times, requirements and provisions of 40 CFR 

Part 60 Subpart DDDD contained in this section, including any reference methods, perfonnance 

specifications and other test methods associated with Subpart DDDD. 

25 
45CSR18 

9.l.a. Emission limits contained in Table 18-C; 

9.l.b. Compliance dates specified in subsection 9.2, including increments of progress toward 

compliance specified in that subsection and 40 CFR §§60.2575 through 60.2615; 

9.l.c. Waste management plan requirements specified in 40 CFR §§60.2620 through 60.2630; 

9.l.d. Operator training and qualification requirements specified in 40 CFR §§60.2635 through 

60.2665; 

9.l.e. Emission limitations andoperating limits specified in 40 CFR §§60.2670 through 60.2685; 

9.l.f. Performance testing requirements specified in 40 CFR §§60.2690 through 60.2695; 

9.l.g. Initial compliance requirements in 40 CFR §§60.2700 through 60.2705; 

9.l.h. Continuous compliance requirements specified in 40 CFR §§60.2710 through 60.2725; 

9.1.i. Monitoring requirements specified in 40 CFR §§60.2730 through 60.2735; 

9.l.j. Recordkeeping and reporting requirements specified in 40 CFR §§60.2740 through 60.2800; 

and 

9.I.k. Requirements for air curtain incinerators specified in 40 CFR §§60.28 I 0 through 60.2870. 

9.2. Compliance Times. 

9.2.a. The Du Pont Washington Works CISWI unit in Wood County shall achieve final compliance 

with all applicable provisions of this rule by no later than September 30, 2003; the owner or operator of any 

other existing CISWI unit shall achieve final compliance with all applicable provisions ofthis section by no 

later than October 4, 2004. 

§45-18-10. Requirements for New Other Solid Waste Incineration Units. 

10.1. No person shall construct or operate, or cause to be constructed or operated a new OSWI unit 

which results in a violation of 40 CFR Part 60, Subpart EEEE or this rule. 

10.2. Requirements for New OSWI Units. -- The owner or operator of a new OSWI unit shall comply 

with all applicable standards of performance, requirements and provisions of 40 CFR Part 60 Subpart EEEE, 

including any reference methods, performance specifications and other test methods associated with Subpart 

EEEE. 

§45-18-11. Secretary. 

11.1. Any and all references in 40 CFR Part 60 Subparts Ce, Eb, Ec, AAAA, CCCC, DDDD, and EEEE 

to the "Administrator" are amended to be the "Secretary" except in the following references which shall 

remain "Administrator": 

26 
45CSR18 

Il.l.a. Where the federal regulations specifically provide that the Administrator shall retain 

authority and not transfer such authority to the Secretary; 

II.l.b. Where provisions occur which refer to: 

11.1. b.1. Alternate means of emission limitations; 

Il.l.b.2. Alternate control technologies; 

Il.l.b.3. Innovative technology waivers; 

ll.l.b.4. Alternate test methods; 

11.I.b.5. Alternate monitoring methods; 

11.I.b.6. Waivers/adjustments to recordkeeping and reporting; or 

11.I.b.7. Applicability determinations; 

11.I.c. Where the context of the regulation clearly requires otherwise; 

Il.l.d. The requirements of 40 CFR §60.56c(i) establishing operating parameters when using 

controls other than those listed in 40 CFR §60.56c(d); 

II. I.e. Alternative methods of demonstrating compliance under 40 CFR §60.8; and 

11.1.f. Performance test and data reduction waivers under 40 CFR §60.8(b). 

§45-18-12. Permits. 

12.1. On or before September 15, 2000, the owner or operator of existing HMlWI units shall operate 

pursuant to a Title V permit in accordance with the requirements of 45CSR30. 

12.2. The owner or operator of a new HMlWI unit shall submit to the Secretary a complete application 

for a Title V permit in accordance with the requirements of 45CSR30 within twelve (12) months after 

commencing operation. 

12.3. On or before December I, 2003, the owner or operator of existing CISWI units shall operate 

pursuant to a CAA Title V permit in accordance with the requirements of 45CSR30. 

12.4. The owner or operator of a new CISWI unit shall submit to the Secretary a complete application 

for a Title V permit in accordance with the requirements of 45CSR30 within twelve (12) months after 

commencing operation, provided that a new CISWI unit may be required to apply for and obtain a Title V 

permit prior to this date, as specified in 40 CFR §60.2242(b). 

12.5. The owner or operator of a new OSWI unit shall submit a complete application for a Title V permit 

in accordance with the requirements of 45CSR30 within twelve (12) months after commencing operation, 

27 
45CSR18 

provided that a new OSWI unit may be required to apply for and obtain a Title V pennit prior to this date, 

as specified in 40 CFR §60.2967(b). 

12.6. Nothing contained in this rule shall be construed or inferred to mean that pennit requirements in 

accordance with applicable rules shall be in any way limited or inapplicable, including but not limited to the 

pennitting requirements under 45CSR13, 45CSR14, 45CSR19, 45CSR25 and 45CSR30. 

§45-18-13. Recordkeeping, Reports and Testing. 

13.1. The owner or operator ofa LMWC unit, SMWC unit, HMIWI unit, CISWI unit, or OSWI unit 

subject to sections 7 or 9, 40 CFR Part 60, Subparts Eb, Ec, AAAA, CCCC or EEEE (as applicable) shall 

comply with all applicable recordkeeping and reporting requirements, reference methods, performance 

specifications and test methods associated with these subparts. 

13.2. All notices, reports and other information required to be submitted to the Administrator pursuant 

to sections 7 or 9, 40 CFR Part 60,-Subparts Eb, Ec, AAAA, CCCC and EEEE (as applicable) shall also be 

submitted to the Secretary. 

§45-18-14. Exemptions. 

14.1. The exemption provisions under 40 CFR Part 60 Subparts Eb, Ec, AAAA, CCCC and EEEE shall 

be incorporated in this rule. 

14.2. Temporary air curtain incinerators approved by the Secretary under the requirements of 45CSR6 

that are operated for the disposal of only on-site land clearing debris (as defined in 45CSR6) shall be exempt 

from the requirements of this rule. 

14.3. Temporary incinerators approved by the Secretary under the requirements of 45CSR6 that are 

operated for the disposal of animal or poultry remains and related pathological waste shall be exempt from 

the requirements of this rule. 

14.4. Pathological waste incineration units. -- Any institutional waste incineration unit, very small 

municipal waste combustion unit, incinerator or combustor shall be exempt from the requirements ofthis rule 

provided: 

14.4.a. The unit burns 90 percent or more by weight (on a calendar quarter basis and excluding the 

weight of auxiliary fuel and combustion air) of pathological waste, low-level radioactive waste, or 

chemotherapeutic waste; 

14.4.b. The owner or operator of the unit keeps records on a calendar quarter basis of the periods 

of time when only pathological waste, low-level radioactive waste or chemotherapeutic waste is incinerated; 

14.4.c. The unit is subject to the requirements of 45CSR6 or 45CSR25; and 

14.4.d. The owner or operator of the unit notifies the Administrator and the Secretary that the unit 

meets these criteria. 

28 
45CSR18 

14.5. Any incinerator or combustor subject to 40 CFR Part 60 Subparts Cb, E, Ea, 0, WWW, BBBB, 

or FFFF shall be exempt from the requirements of this rule. 

14.6. Any incinerator or combustor subjectto 42 U.S.C. §6925, 45CSR25 and 33CSR20 shall be exempt 

from the requirements of this ruk 

14.7. Any combustor subject to 40 CFR Part 63, Subpart EEE shall be exempt from the requirements of 

this rule. 

§45-18-15. Effect of the Rule. 

15.1. Nothing in this rule shall be construed to allow or permit the installation, establishment or 

construction of a new municipal or commercial solid waste facility utilizing incineration technology for the 

purpose of solid waste incineration in violation of W.Va. Code §22-15-19. 

§45-18-16. Inconsistency Between Rules. 

16.1. 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 ofthe 

Secretary and the detennination shall be based upon the application of the more stringent provision, term, 

condition, method or rule. 

29 
45CSR18 

TABLE 18-1A 

Emissions Limits for Small, Medium, and Large HMIWI at Designated Facilities as Set Forth in 45CSR§18-7.2.a.1. 

Units Emissions Limits 

Pollutant (7 percent oxygen, dry basis) HMIWISize Averaging Time' Compliance Method2 

Small Medium Large 

Milligrams per dry standard cubic 3-run average 

EPA Reference Method 5 of 

Particulate matter meter (mg/ dscm) (grains per dry 115 69 (0.03) 34 (I-hour minimum Appendix A-3 of 40 CFR Part 60, or 

standard cubic foot (gr/ dscf)) (0.05) (0.015) sample time per run) EPA Reference Method 26A or 29 of 

Appendix A-8 of 40 CFR Part 60. 

Parts per million by volume 3-run average EPA Reference Method 10 or lOB of Carbon monoxide (ppmv) 40 40 40 (I-hour minimum AppendixA-4 of 40CFRPart 60. sample time l'.er run) 

I 

Nanograms per dry standard cubic 

meter total dioxins/furans 125 (55) 125 (55) 125 (55) 3-run average EPA Reference Method 23 of Dioxins/furans (ng/dscm) (grains per billion dry or or or (4-hour minimum Appendix A-7 of 40 CFR Part 60. standard cubic feet (gr/IO'dscf)) or 2.3 (1.0) 2.3 (1.0) 2.3 (1.0) sample time per run) 

ng/dscmTE(1(gr/IO'dscf) 

100 100 100 3-run average EPA Reference Method 26 or 26A of Hydrogen chloride ppmv or 93% or 93% or 93% (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 6 or 6C of Sulfur dioxide ppmv 55 55 55 (I-hour minimum Appendix A-4 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 7 or 7E of Nitrogen oxides ppmv 250 250 250 (I-hour minimum Appendix A-4 of 40 CFR Part 60. sample time per run) 

mg/dscm (grains per thousand dry 1.2 (0.52) 1.2 (0.52) 1.2 (0.52) 3 -run average EPA Reference Method 29 of 

Lead (I-hour minimum standard cubic feet (gr/IO'dscf)) or 70% or 70% or 70% sample time per run) Appendix A-8 of 40 CFR Part 60. 

0.16 0.16 0.16 3-run average EPA Reference Method 29 of Cadmium mg/dscm (grIlO'dscf) (0.07) (0.07) (0.07) (I-hour minimum Appendix A-8 of 40 CFR Part 60. 

or 65% or 65% or 65% sample time per run) 

0.55 0.55 0.55 3-run average EPA Reference Method 29 of 

Mercury mg/dscm (gr/IO'dscf) (0.24) (0.24) (0.24) (I-hour minimum Appendix A-8 of 40 CFR Part 60. 

or 85% or 85% or 85% sample time per run) -_. --_. 

'Except as allowed under 40 CFR §60.56c(c) for HMIWI equipped with CEMS. 

2Does not include CEMS and approved alternative non-EPA test methods allowed under 40 CFR §60.56c(b). 

30 
45CSR18 

TABLE 18-1B 

Emissions Limits for Small, Medium, and Large HMIWI at Designated Facilities as Set Forth in 45CSR§§18-7.2.a.l and 7.2.a.2. 

Units Emissions Limits 

Pollutant 

(7 percent oxygen, dry basis) HMIWISize Averaging Time' Compliance Method2 

Small Medium Large 

I Particulate matter 

Milligrams per dry standard cubic 3·run average 

EPA Reference Method 5 of 

66 46 25 Appendix A-3 of 40 CFR Part 60, or meter (mg/dscm) (grains per dry (0.029) (0.020) (0.011) (I-hour minimum EPA Reference Method 26A or 29 of standard cubic foot (gr/dscf)) sample time per run) Appendix A-8 of 40 CFR Part 60. 

Parts per million by volume 3-run average EPA Reference Method 10 or lOB of Carbon monoxide 20 5.5 II (l-hour minimum (ppmv) sample time per run) Appendix A-4 of 40 CFR Part 60. 

Nanograms per dry standard cubic 0.85 

meter total dioxins/furans 16(7.0) (0.37) 9.3 (4.1) 3-run average EPA Reference Method 23 of Dioxins/furans (ng/dscm) (grains per billion dry or 0.0l3 

or 0.020 or 0.054 (4-hour minimum Appendix A-7 of 40 CFR Part 60. standard cubic feet (gr/lO'dscf)) or (0.0057) (0.0087) (0.024) sample time per run) 

ng/dscm TEQ (gr/lO'dscf) 

3-run average EPA Reference Method 26 or 26A of Hydrogen chloride ppmv 44 7.7 6.6 (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 6 or 6C of Sulfur dioxide ppmv 4.2 4.2 9.0 (I-hour minimum Appendix A-4 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 7 or 7E of Nitrogen oxides ppmv 190 190 140 (I-hour minimum Appendix A-4 of 40 CFR Part 60. sample time per run) 

mg/ dscm (grains per thousand dry 0.31 0.018 0.036 3-run average EPA Reference Method 29 of Lead standard cubic feet (gr/lO'dscf)) (0.14) (0.0079) (0.016) (l-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

0.017 0.013 0.0092 3-run average EPA Reference Method 29 of Cadmium mg/dscm (grIlO'dscf) (0.0074) (0.0057) (0.0040) (l·hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

0.014 O.oz5 0.018 3-run average EPA Reference Method 29 of Mercury mg/dscm (grIlO'dscf) (0.0061) (0.011) (0.0079) (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

'Except as allowed under 40 CFR §60.56c(c) for HMIWI equipped with CEMS. 

'Does not include CEMS and approved alternative non-EPA test methods allowed under 40 CFR §60.56c(b). 

31 
45CSR18 

TABLE 18-2A 

Emissions Limits for SmaU HMIWI Which Meet the Criteria Under 45CSR§18-7.3.b.1. 

PoUutant Units HMIWI Averaging Time' Compliance Method' (7 percent oxygen, dry basis) Emissions Limits 

3-run average EPA Reference Method 5 of Appendix A-3 of 

Particulate matter mg/dscm (gr/dscf) 197 (0.086) (I-hour minimum 40 CFR Part 60, or EPA Reference Method 26A or 

sample time per run) 29 of Appendix A-8 of 40 CFR Part 60. 

3-run average EPA Reference Method 10 or lOB of Carbon monoxide ppmv 40 (I-hour minimum 

Appendix A-4 of 40 CFR Part 60. sample time per run) 

ng/dscm total dioxins/furans 800 (350) or 

3-run average EPA Reference Method 23 of Dioxins/furans (gr/l0'dscf) or ng/dscm TEQ 15 (6.6) (4-hour minimum Appendix A-7 of 40 CFR Part 60. (grlI O'dscfl sample time"'per run) 

3-run average EPA Reference Method 26 or 26A of Hydrogen chloride ppmv 3,100 (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 6 or 6C of Sulfur dioxide ppmv 55 (I-hour minimum Appendix A-4 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 7 or 7E of Nitrogen oxides ppmv 250 (I-hour minimum Appendix A-4 of 40 CFR Part 60. sample time per run) 

3 -run average EPA Reference Method 29 of Lead mg/dscm (gr/l0'dscf) 10 (4.4) (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 29 of 

Cadmium mg! dscm (grl I 0' dscf) 4 (1.7) (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 29 of Mercury mg!dscm (gr/IO'dscf) 7.5 (3.3) (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

'Except as allowed under 40 CFR §60.56c(c) for HMIWI equipped with CEMS. 

'Does not include CEMS and approved alternative non-EPA test methods allowed under 40 CFR §60.56c(b). 

< 

32 
45CSR18 

TABLE 18-2B 

Emissions Limits for Small HMlWI Which Meet the Criteria Under 45CSR§18-7.3.b.2. 

Pollutant Units HMlWI Averaging Time' Compliance Method' (7 percent oxygen, dry basis) Emissions Limits 

3-run average EPA Reference Method 5 of Appendix A-3 of 

Particulate matter mg!dscm (gr/dscf) 87 (0.038) (I-hour minimum 40 CFR Part 60, or EPA Reference Method 26A or 

sample time per run) 29 of Appendix A-8 of 40 CPR Part 60. 

3 -run average EPA Reference Method 10 or lOB of Carbon monoxide ppmv 20 (I-hour minimum 

Appendix A-4 of 40 CPR Part 60. sample time per run) 

ng! dscm total dioxins/furans 240 (100) 3-run average EPA Reference Method 23 of Dioxins/furans (gr/109

dscf) or ng!dscm TEQ 

or 5.1 (2.2) (4-hour minimum Appendix A-7 of 40 CPR Part 60. (gr/I09dscf) sample time per run) 

3-run average EPA Reference Method 26 or 26A of Hydrogen chloride ppmv 810 (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 6 or 6C of Sulfur dioxide ppmv 55 (I-hour minimum Appendix A-4 of 40 CFR Part 60. sample time per run) 

3-run average EPA Reference Method 7 or 7E of Nitrogen oxides ppmv 130 (I-hour minimum Appendix A-4 of 40 CPR Part 60. sample time.per run) 

3-run average EPA Reference Method 29 of 

Lead mg!dscm (gr/IO'dscf) 0.50 (0.22) (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time-"per run) 

3-run average EPA Reference Method 29 of 

Cadmium mg!dscm (grIlO'dscf) 0.11 (0.048) (I-hour minimum Appendix A-8 of 40 CPR Part 60. sample time per run) 

3-run average EPA Reference Method 29 of 

Mercury mg!dscm (grIlO'dscf) 0.0051 (0.0022) (I-hour minimum Appendix A-8 of 40 CFR Part 60. sample time per run) 

'Except as allowed under 40 CFR §60.56c(c) for HMIWI equipped with CEMS. 

'Does not include CEMS and approved alternative non-EPA test methods allowed under 40 CFR §60.56c(b). 

33 
45CSR18 

TABLE 1S-1C 

Emission Limits for Existing Commercial and Industrial Solid Waste Incineration Units 

Air Pollutant Emission Limit' Averaging Time Performance Test Methods 

Cadmium 0.004 milligrams per dry standard 3-run average (1 hour minimum sample time Performance test (Method 29 of 40 CFR Part 

cubic meter. per run). 60, Appendix A) 

I Carbon monoxide 157 parts per million by dry volume. 3-run average (1 hour minimum sample time Performance test (Method 10, lOA, or lOB, 

I per run). of 40 CFR Part 60, Appendix A) 

Dioxins/furans (toxic 0.41 nanograms per dry standard 3-run average (1 hour minimum sample time Performance test (Method 23 of 40 CFR Part 

equivalency basis) cubic meter. per run). 60, Appendix A) 

Hydrogen chloride 62 parts per million by dry volume. 3-run average (1 hour minimum sample time Performance test (Method 26A of 40 CFR 

per run). Part 60, Appendix A) 

Lead 0.04 milligrams per dry standard 3-run average (1 hour minimum sample time Performance test (Method 29 of 40 CFR Part 

cubic meter. per run). 60, Appendix A) 

Mercury 0.47 milligrams per dry standard 3-run average (1 hour minimum sample time Performance test (Method 29 of 40 CFR Part 

cubic meter. per run). 60, Appendix A) 

Opacity 10 percent 6-minute averages Performance test (Method 9 of 40 CFR Part 

60, Appendix A) 

Oxides of nitrogen 388 parts per million by dry volume. 3-run average (1 hour minimum sample time Performance test (Method 7, 7 A, 7C, 7D, or 

per run). 7E of 40 CFR Part 60, Appendix A) 

Particulate matter 70 milligrams per dry standard 3-run average (1 hour minimum sample time Performance test (Method 5 or 29 of 40 CFR 

cubic meter. per run). Part 60, Appendix A) 

Sulfur dioxide 20 parts per million by dry volume. 3-run average (1 hour minimum sample time Performance test (Method 6 or 6C of 40 CFR 

per run). Part 60, Appendix A) 

All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. 

34 
APPENDIX B 

West Virginia Air Pollution Control Act (§§22-5-1 et seq.) 

I 

f 

! 

! 

f 

! 

; 

, 

~ 

I 

WV Code Chapter 22 Article 5 

WEST VIRGINIA CODE 

CHAPTER 22. ENVIRONMENTAL RESOURCES. 

ARTICLE 5. AIR POLLUTION CONTROL. 

§21-5-1. Declaration of policy and purpose. 

Page 1 of 14 

It is hereby declared to be the public policy of this state and the purpose of this article to achieve and maintain such levels 

of air quality as will protect human health and safety, and to the greatest degree practicable, prevent injury to plant and 

animal life and property, foster the comfort and convenience of the people, promote the economic and social development 

of this state and facilitate the enjoyment of the natural attractions of this state. 

To these ends it is the purpose of this article to provide for a coordinated statewide program of air pollution prevention, 

abatement and control; to facilitate cooperation across jurisdictional lines in dealing with problems of air pollution not 

confined within single jurisdictions; to assure the economic competitiveness of the state by providing for the timely 

processing of permit applications and other authorizations under this article; and to provide a framework within which all 

values may be balanced in the public interest. 

Further, it is the public policy of this state to fulfill its primary responsibility for assuring air quality pursuant to the "Federal 

Clean Air Act," as amended. 

§22-5-2. Definitions, 

The terms used in this article are defined as follows: 

(1) "Air pollutants" means solids, liquids or gases which, if discharged into the air, may result in a statutory air pollution. 

(2) "Board" means the air quality board continued pursuant to the provisions of article two, chapter twenty-two-b of this 

code. 

(3) "Director" means the director of the division of environmental protection or such other person to whom the director has 

delegated authority or duties pursuant to sections six or eight, article one, chapter twenty-two of this code. 

(4) "Discharge" means any release, escape or emission of air pollutants into the air. 

(5) "Person" means any and all persons, natural or artifiCial, including the state of West Virginia or any other state, the 

United States of America, any municipal, statutory, public or private corporation organized or existing under the laws of this 

or any other state or country, and any firm, partnership or association of whatever nature. 

(6) "Statutory air pollution" means and is limited to the discharge into the air by the act of man of substances (liquid, solid, 

gaseous, organic or inorganic) in a locality, manner and amount as to be injurious to human health or welfare, animal or 

plant life, or property, or which would interfere with the enjoyment of life or property. 

§22-5-3. Causing statutory pollution unlawful; article not to provide persons with additional legal remedies. 

It is unlawful for any person to cause a statutory air pollution, to violate the provisions of this article, to violate any rules 

promulgated pursuant to this article to operate any facility subject to the permit requirements of the director without a valid 

permit, or to knowingly misrepresent to any person in the state of West Virginia that the sale of air pollution control 

eqUipment will meet the standards of this article or any rules promulgated pursuant to this article. Nothing contained in this 

article provides any person with a legal remedy or basis for damages or other relief not othelWise available to such person 

immediately prior to enactment of this article. 

§22-5-4. Powers and duties of director; and legal services; rules. 

(a) The director is authorized: 

http://www.legis.state.wv.us/WV CO D E/ChapterEntire.cfm ?chap=22&art=5 9/6/2011 
WV Code Chapter 22 Article 5 Page 2 of 14 

(1) To develop ways and means for the regulation and control of pollution of the air of the state; 

(2) To advise, consult and cooperate with other agencies of the state, political subdivisions of the state, other states, 

agencies of the federal government, industries, and with affected groups in furtherance of the declared purposes of this 

article; 

(3) To encourage and conduct such studies and research relating to air pollution and its control and abatement as the 

director may deem advisable and necessary; 

(4) To promulgate legislative rules in accordance with the provisions of chapter twenty-nine-a of this code not inconsistent, 

with the provisions of this article, relating to the control of air pollution: Provided, That no rule of the director shall specify a 

particular manufacturer of equipment nor a single speCific type of construction nor a particular method of compliance except 

as specifically required by the "Federal Clean Air Act," as amended, nor shall any such rule apply to any aspect of an 

employer-employee relationship: Provided, however, That no legislative rule or program of the director hereafter adopted 

shall be any more stringent than any federal rule or program except to the limited extent that the director first makes a 

specific written finding for any such departure that there exists scientifically supportable evidence for such rule or program 

reflecting factors unique to West Virginia or some area thereof; 

(5) To enter orders requiring compliance with the provisions of this article and the rules lawfully promulgated hereunder; 

(6) To consider complaints, subpoena witnesses, administer oaths, make investigations and hold hearings relevant to the 

promulgation of rules and the entry of compliance orders hereunder; 

(7) To encourage voluntary cooperation by municipalities, counties, industries and others in preserving the purity of the air 

within the state; 

(8) To employ personnel, including specialists and consultants, purchase materials and supplies, and enter into contracts 

necessary, incident or convenient to the accomplishment of the purpose of this article; 

(9) To enter and inspect any property, premise or place on or at which a source of air pollutants is located or is being 

constructed, installed or established at any reasonable time for the purpose of ascertaining the state of compliance with this 

article and rules promulgated under the provisions of this article. No person shall refuse entry or access to any authorized 

representative of the director who requests entry for purposes of inspection, and who presents appropriate credentials; nor 

shall any person obstruct, hamper or interfere with any such inspection: Provided, That nothing contained in this article 

eliminates any obligation to follow any process that may be required by law; 

(10) Upon reasonable evidence of a violation of this article, which presents an imminent and serious hazard to public 

health, to give notice to the public or to that portion of the public which is in danger by any and all appropriate means; 

(11) To cooperate with, receive and expend money from the federal government and other sources; and the director may 

cooperate with any public or private agency or person and receive therefrom and on behalf of the state gifts, donations, and 

contributions, which shall be deposited to the credit of the "Air Pollution Education and Environment Fund" which is hereby 

continued in the state treasury. The moneys collected pursuant to this article which are directed to be depOSited in the air 

pollution education and environment fund must be deposited in a separate account in the state treasury and expenditures 

for purposes set forth in this article are not authorized from collection but are to be made only in accordance with 

appropriation and in accordance with the provisions of articlethree, chapter twelve of this code and upon fulfillment of the 

provisions set forth in article two, chapter five-a of this code. Amounts collected which are found from time to time to exceed 

the funds needed for the purposes set forth in this article may be transferred to other accounts or funds and redesignated 

for other purposes by appropriation of the Legislature; 

(12) To represent the state in any and all matters pertaining to plans, procedures and negotiations for interstate compacts 

in relation to the control of air pollution; 

(13) To appoint advisory councils from such areas of the state as he or she may determine. The members shall possess 

some knowledge and interest in matters pertaining to the regulation, control and abatement of air pollution. The council may 

advise and consult with the director about all matters pertaining to the regulation, control and abatement of air pollution 

within such area; 

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(14) To require any and all persons who are directly or indirectly discharging air pollutants into the air to file with the director 

such information as the director may require in a form or manner prescribed by him or her for such purpose, including, but 

not limited to, location, size and height of discharge outlets, processes employed, fuels used and the nature and time 

periods of duration of discharges. Such information shall be filed with the director, when and in such reasonable time, and 

in such manner as the director may prescribe; 

(15) To require the owner or operator of any stationary source discharging air pollutants to install such monitoring 

equipment or devices as the director may prescribe and to submit periodic reports on the nature and amount of such 

discharges to the director; 

(16) To do all things necessary and convenient to prepare and submit a plan or plans for the implementation, maintenance 

and enforcement of the "Federal Clean Air Act," as amended: Provided, That in preparing and submitting each such plan 

the director shall establish in such plan that such standard shall be first achieved, maintained and enforced by limiting and 

controlling emissions of pollutants from commercial and industrial sources and locations and shall only provide in such 

plans for limiting and controlling emissions of pollutants from private dwellings and the curtilage thereof as a last resort: 

Provided, however, That nothing herein contained affects plans for achievement maintenance and enforcement of motor 

vehicle emission standards and of standards for fuels used in dwellings; 

(17) To promulgate legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code, providing for 

the following: 

(A) Procedures and requirements for permit applications, transfers and modifications and the review thereof; 

(6) Imposition of permit application and transfer fees; 

(C) Establishment of criteria for construction, modification, relocation and operating permits; 

(D) Imposition of permit fees and of certificate fees: Provided, That any person subject to operating permit fees pursuant to 

section twelve of this article is exempt from imposition of the certificate fee; and 

(E) Imposition of penalties and interest for the nonpayment of fees. 

The fees, penalties and interest shall be deposited in a special account in the state treasury deSignated the "Air Pollution 

Control Fund", formerly the "Air Pollution Control Commission Fund", which is hereby continued to be appropriated for the 

sale purpose of paying salaries and expenses of the board, the office of air quality and their employees to carry out the 

provisions of this article: ProVided, That the fees, penalties and interest collected for operating permits required by section 

twelve of this article shall be expended solely to cover all reasonable direct and indirect costs required to administer the 

operating permit program. The fees collected pursuant to this subdivision must be deposited in a separate account in the 

state treasury and expenditures for purposes setforth in this article are not authorized from collections but are to be made 

only in accordance with appropriation and in accordance with the provisions of article three, chapter twelve of this code and 

upon fulfillment of the provisions set forth in article two, chapter five-a of this code. Amounts collected which are found from 

time to time to exceed the funds needed for the purposes set forth in this article may be transferred to other accounts or 

funds and redesignated for other purposes by appropriation of the Legislature: Provided, however, That for fiscal year one 

thousand nine hundred ninety-three, expenditures are permitted from collections without appropriation by the Legislature; 

and 

(18) Receipt of any money by the director as a result of the entry of any consent order shall be deposited in the state 

treasury to the credit of the air pollution education and environment fund. 

(b) The attorney general and his or her assistants and the prosecuting attorneys of the several counties shall render to the 

director without additional compensation such legal services as the director may require of them to enforce the provisions of 

this article. 

§22·S-S. Issuance of cease and desist orders by director; service; permit suspension. modification and revocation; 

appeals to board. 

If, from any investigation made by the director or from any complaint filed with him or her, the director is of the opinion that 

a person is violating the provisions of this article. or any rules promulgated pursuant thereto, he or she shall make and enter 

an order directing the person to cease and desist the activity, unless the director determines the violation is of a minor 

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nature or the violation has been abated. The director shall fix a reasonable time in such order by which the activity must 

stop or be prevented. The order shall contain the findings of fact upon which the director determined to make and enter the 

order. 

If, after any investigation made by the director, or from any complaint filed with him or her, the director is of the opinion that 

a permit holder is violating the provisions of this article, or any rules promulgated pursuant thereto, or any order of the 

director, or any provision of a permit, the director may issue notice of intent to suspend, modify or revoke and reissue such 

permit. Upon notice of the director's intent to suspend, modify or revoke a permit, the permit holder may request a 

conference with the director to show cause why the permit should not be suspended, modified or revoked. The request for 

conference must be received by the director within fifteen days following receipt of notice. After conference or fifteen days 

after issuance of notice of intent, if no conference is requested, the director may enter an order suspending, modifying or 

revoking the permit and send notice to the permit holder. Such order is a cease and desist order for purposes of 

administrative and judicial review and shaH contain findings of fact upon which the director determined to make and enter 

the order. If an appeal of the director's order is filed, the order of the director shall be stayed from the date of issuance 

pending a final decision of the board. 

The director shall cause a copy of any such order to be served upon the person by registered or certified mail or by any 

proper law-enforcement officer. 

Any person upon whom a copy of the final order has been served may appeal such order to the air quality board pursuant 

to the provisions of article one, chapter twenty-two-b of this code. 

§22-5-6. Penalties; recovery and disposition; duties of 

prosecuting attorneys. 

(a) Any person who violates any provision of this article, any permit or any rule or order issued pursuant to this article or 

article one, chapter twenty-two-b of this code is subject to a civil penalty not to exceed ten thousand dollars for each day of 

such violation, which penalty shall be recovered in a civil action brought by the director in the name of the state of West 

Virginia in the circuit court of any county wherein the person resides or is engaged in the activity complained of or in the 

circuit court of Kanawha County. The amount of the penalty shall be fixed by the court without a jury: Provided, That any 

person is not subject to civil penalties unless the person has been given written notice thereof by the director: Provided, 

however, That for the first such minor violation, if the person corrects the violation within the time as was specified in the 

notice of violation issued by the director, no civil penalty may be recovered: Provided further, That if the person fails to 

correct a minor violation or for any serious or subsequent serious or minor violation, the person is subject to civil penalties 

imposed pursuant to this section from the first day of the violation notwithstanding the date of the issuance or receipt of the 

notice of violation. The director shall, by rule subject to the provisions of chapter twenty-nine-a of this code, determine the 

definitions of serious and minor violations. The amount of any penalty collected by the director shall be deposited in the 

general revenue of the state treasury according to law. 

(b)(1) Any person who knowingly misrepresents any material fact in an application, record, report, plan or other document 

filed or required to be maintained under the provisions of this article or any rules promulgated under this article is guilty of a 

misdemeanor and, upon conviction thereof, shall be fined not more than twenty-five thousand dollars or imprisoned in the 

county jail not more than six months or both fined and imprisoned: Provided, That if the violation occurs on separate days 

or is continuing in nature, the fine shall be no more than twenty-five thousand dollars for each day of such violation. 

(2) Any person who knowingly violates any provision of this article, any permit or any rule or order issued pursuant to this 

article or article one, chapter twenty-two-b of this code is guilty of a misdemeanor and, upon conviction thereof, shall be 

fined not more than twenty-five thousand dollars for each day of such violation or imprisoned in the county jail not more 

than one year or both fined and imprisoned. 

(c) Upon a request in writing from the director it is the duty of the attorney general and the prosecuting attorney of the 

county in which any such action for penalties accruing under this section or section seven of this article may be brought to 

institute and prosecute all such actions on behalf of the director. 

(d) For the purpose of this section, violations on separate days are separate offenses. 

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§22-5-7, Applications for injunctive relief, 

The director may seek an injunction against any person in violation of any provision of this article or any permit, rule or 

order issued pursuant to this article or article one, chapter twenty-two-b of this code, In seeking an injunction, it is not 

necessary for the director to post bond nor to allege or prove at any stage of the proceeding that irreparable damage will 

occur if the injunction is not issued or that the remedy at law is inadequate. An application for injunctive relief brought under 

this section or for civil penalty brought under section six of this article may be filed and relief granted notwithstanding the 

fact that all administrative remedies provided in this article have not been exhausted or invoked against the person or 

persons against whom such relief is sought. 

In any action brought pursuant to the provisions of section six or of this section, the state, or any agency of the state which 

prevails, may be awarded costs and reasonable attorney's fees. 

§22-5-8, Emergencies, 

Whenever air pollution conditions in any area of the state become such as, in the opinion of the director, to create an 

emergency and to require immediate action for the protection of the public health, the director may, with the written 

approval of the governor, so find and enter such order as it deems necessary to reduce or prevent the emission of air 

pollutants substantially contributing to such conditions. In any such order the director shall also fix a time, not later than 

twenty-four hours thereafter, and place for a hearing to be held before it for the purpose of investigating and determining 

the factors causing or contributing to such conditions. A true copy of any such order shall be served upon persons whose 

interests are directly prejudiced thereby in the same manner as a summons in a civil action may be served, and a true copy 

of such order shall also be posted on the front door of the courthouse of the county in which the alleged conditions 

originated. All persons whose interests are prejudiced or affected in any manner by any such order shall have the right to 

appear in person or by counsel at the hearing and to present evidence relevant to the subject of the hearing. Within twentyfour hours after completion of the hearing the director shall affirm, modify or set aside said order in accordance and 

consistent with the evidence adduced. Any person aggrieved by such action of the director may thereafter apply by petition 

to the circuit court of the county for a review of the director's action. The circuit court shall forthwith fix a time for hearing de 

novo upon the petition and shall, after such hearing, by order entered of record, affirm, modify or set aside, in whole or in 

part, the order and action of the director. Any person whose interests shall have been substantially affected by the final 

order of the circuit court may appeal the same to the supreme court of appeals in the manner prescribed by law. 

§22-5-9, Powers reserved to secretary of the department of health and human resources, commissioner of bureau 

of public health, local health boards and political subdivisions; conflicting statutes repealed, 

Nothing in this article affects or limits the powers or duties heretofore conferred by the provisions of chapter sixteen of this 

code upon the the secretary of the department of health and human resources, the commissioner of the bureau of public 

health, county health boards, county health officers, municipal health boards, municipal health officers, combined boards of 

health or any other health agency or political subdivision of this state except insofar as such powers and duties might 

otherwise apply to the control, reduction or abatement of air pollution. All existing statutes or parts of statutes are, to the 

extent of their inconsistencies with the provisions of this article and to the extent that they might otherwise apply to the 

control, reduction or abatement of air pollution, hereby repealed: Provided, That no ordinance previously adopted by any 

municipality relating to the control, reduction or abatement of air pollution is repealed by this article. 

§22-5-10, Records, reports, data or information; confidentiality; proceedings upon request to inspect or copy, 

(a) All air quality data, emisSion data, permits, compliance schedules, orders of the director, board orders and any other 

information required by a federal implementation program (all for convenience hereinafter referred to in this section as 

"records, reports, data or information") obtained under this article shall be available to the public, except that upon a 

showing satisfactory to the director, by any person, that records, reports, data or information or any particular part thereof, 

to which the director has access under this article if made public, would divulge methods or processes entitled to protection 

as trade secrets of the person, the director shall consider these records, reports, data or information or a particular portion 

thereof confidential: Provided, That this confidentiality does not apply to the types and amounts of air pollutants discharged 

and that these records, reports, data or information may be disclosed to other officers, employees or authorized 

representatives of the state or of the federal environmental protection agency concerned with enforcing this article, the 

federal Clean Air Act, as amended, or the federal Resource Conservation and Recovery Act, as amended, when relevant to 

any official proceedings thereunder: Provided, however, That the officers, employees or authorized representatives of the 

state or federal environmental protection agency protect these records, reports, data or information to the same degree 

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required of the director by this section. The director shall promulgate legislative rules regarding the protection of records, 

reports, data or information, or trade secrets, as required by this section. 

(b) Upon receipt of a request for records, reports, data or information which constitute trade secrets and prior to making a 

final determination to grant or deny the request, the director shall notify the person claiming that any record, report, data or 

information is entitled to protection as a trade secret, and allow the person an opportunity to respond to the request in 

writing. 

(c) All requests to inspect or copy documents must state with reasonable specificity the documents or type of documents 

sought to be inspected or copied. Within five business days of the receipt of a request, the director or his or her designate 

shall by order: (1) Advise the person making the request of the time and place at which the person may inspect and copy 

the documents, which, if the request addresses information claimed as confidential, may not be sooner than thirty days 

following the date of the determination to disclose, unless an earlier disclosure date is agreed to by the person claiming the 

confidentiality; or (2) deny the request, stating in writing the reasons for denial. If the request addresses information claimed 

as confidential, notice of the action taken pursuant to this subsection shall also be provided to the person asserting the 

claim of confidentiality. 

Any person adversely affected by a determination, by order or otherwise, regarding information confidentiality under this 

article may appeal the determination to the air quality board pursuant to the provisions of article one, chapter twenty-two-b 

of this code. The filing of a timely notice of appeal shall stay any determination, by order or otherwise, to disclose 

confidential information pending a final decision on the appeal. The scope of review is limited to the question of whether the 

records, reports, data or other information, or any particular part thereof sought to be inspected or copied, are entitled to be 

treated as confidential under subsection (a) of this section. The air quality board shall afford evidentiary protection in 

appeals as is necessary to protect the confidentiality of the information at issue, including the use of in camera proceedings 

and the sealing of records where appropriate. 

(d) In lieu of the provision of chapter twenty-nine-b of this code, the provision of this section shall apply to determinations of 

confidentiality. 

§22-5-11. Construction, modification or relocation permits required for stationary sources of air pollutants. 

(a) Unless otherwise specifically provided in this article, no person shall construct, modify or relocate any stationary source 

of air pollutants without first obtaining a construction, modification or relocation permit as provided in this article. 

(b) The secretary shall by rule specify the class or categories of stationary sources to which this section applies. Application 

for permits shall be made upon such form, in such manner, and within such time as the rule prescribes and shall include 

such information, as in the judgment of the secretary, will enable him or her to determine whether such source will be so 

designed as to operate in conformance with the provisions of this article or any rules of the secretary. 

(c) Unless otherwise specifically provided in this article, the secretary shall issue a permit for a major stationary source 

within a reasonable time not to exceed three hundred sixty-five calendar days, after the secretary determines that the 

application is complete. 

(d) Unless otherwise specifically provided in this article, the secretary shall issue a permit for all other sources including 

modifications of existing major stationary sources which are not major modifications within a reasonable time not to exceed 

ninety calendar days, after tbe date the secretary determines the application is complete. The Secretary may extend this 

time by thirty calendar days to allow for public comment. 

(e) A permit application will be denied if the secretary determines that the proposed construction, modification or relocation 

will not be in accordance with this article or rules promulgated thereunder. 

(I) For purposes of this section, a modification is any physical change in, or change in the method of operation of, a 

stationary source which increases the amount of any air pollutant discharged by a source above the de minimis level set by 

the secretary. 

(9) With respect to the construction of new nonmajor stationary sources, or modifications of non major stationary sources, or 

modifications which are not major modifications to existing major stationary sources, or relocations of nonmajor stationary 

sources, the following requirements apply: 

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(1) The secretary shall issue an administrative update to a permit issued under this section with respect to any of these 

sources, unless he or she determines that the proposed administrative update will not be in accordance with this article or 

rules promulgated hereunder, in which case the secretary shall issue an order denying the administrative update. Any 

administrative update shall be issued by the secretary within a reasonable time not to exceed sixty calendar days after 

receipt of a complete application. Administrative updates are minor revisions of existing permits as further described and 

authorized by rule. 

(2) The secretary shall, within a reasonable time not to exceed forty-five calendar days after the date the secretary 

determines that an application is complete, issue a registration under a general permit applicable to any of these sources, 

unless he or she determines that the proposed construction, modification or relocation will not be in accordance with this 

article or rules promulgated hereunder. General permits are permits authorizing the construction, modification or relocation 

of a category of sources by the same owner or operator or involving the same Of similar processes or pollutants upon the 

terms and conditions specified in the general permit for those types of sources. 

(3) The secretary shall, within a reasonable time not to exceed forty-five calendar days after receipt of a complete 

application, issue a temporary permit or a relocation permit, unless he or she determines that the proposed construction, 

modification or relocation will not be in accordance with this article Of rules promulgated hereunder. Temporary permits are 

permits authorizing the owner or operator to make limited changes for limited periods of time as further described and 

authorized by rule. 

(h) The secretary shall determine whether an application filed under this section is complete within thirty calendar days after 

receipt of that application at which time the secretary shall notify the applicant in writing as to whether the application is 

complete or specify any additional information required for the application to be complete. 

(i) The secretary, shall propose rules for legislative approval in accordance with the provisions of article three, chapter 

twenty nine-a of this code, to implement the provisions of this section by the first day of August, two thousand eight. 

§22-5-11a. Activities authorized in advance of permit issuance. 

(a) With respect to the modifications of nonmajor stationary sources, or modifications which are not major modifications to 

existing major stationary sources, the following activities are authorized in advance of permit issuance. Any authorized 

activities undertaken by or on behalf of the permit applicant prior to the issuance of a final permitting action by the secretary 

are undertaken at the permit applicant's own risk and with the knowledge that the application for a permit or permit 

modification may be denied: 

(1) Receiving or storing on-site or off-site allY equipment or supplies which make up in part or in whole an emission unit or 

any support eqUipment, facilities, building or structure. 

(2) A person who holds an active West Virginia air quality permit issued under this article at an existing source, and who 

has applied to the secretary for permission to alter, expand or modify that source or to allow a new emissions unit at that 

source, may begin the construction of any such alteration, expansion, modification or new emission unit in advance of 

permit issuance in accordance with this section. The person may not operate any altered, expanded, modified or new 

emission unit without first obtaining an air quality permit as required by rules promulgated by the secretary. 

(3) The following sources are ineligible for submiSSion of an application for permission to commence construction in 

advance of permit issuance: 

(A) Sources subject to the "Federal Clean Air Act" subsections 112(g) or 1120). 

(8) Sources seeking federally enforceable permit conditions in order to avoid otherwise applicable standards; 

(C) Sources requiring a specific case-by-case emission limitation or standard under 45CSR21 or 45CSR27. 

(4) (A) To qualify for the authorization to construct in advance of permit issuance as provided in this section, the permittee 

shall submit to the secretary an application for permission to commence construction in advance of permit issuance. 

(8) Such application for permission to commence construction shall include all of the following: 

(1) The name and location of the source and the name and address of the permittee; 

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(2) The permit number of each active permit issued under this article for such source; 

(3) The nature of the sources and equipment associated with 

such alteration, expansion, modification or new emission unit; 

(4) An estimate of the maximum hourly and annual emissions of regulated air pollutants increased as a result of such 

alteration, expansion, modification or new emission unit; 

(5) The air pollution control devices or methods that are to be employed in connection with the alteration, expansion, 

modification or new emission unit; 

(6) A listing of the applicable state and federal air quality regulatory requirements for alteration, expansion, modification or 

new emission unit, and sufficient information which, in the judgement of the secretary, will demonstrate compliance with any 

applicable state and federal air quality regulatory requirements; 

(7) The anticipated construction or building schedule for alteration, expansion, modification or new emission unit; 

(8) A certification signed by the responsible official that the source, equipment and devices that are subject to a request for 

construction authorization will not be operated until the penmittee has obtained a permit under rules promulgated by the 

secretary; 

(9) A certification by the responsible official that any construction undertaken prior to the issuance of a final permit under 

rules of the secretary is undertaken at the permittee's own risk and with the knowledge that the permittee may be denied a 

permit or permit modification without regard to the permittee's financial investment or addition to or modification of the 

source; (10) A certification Signed by the responsible official that all of the information contained in the application is 

complete and accurate to the best of the responsible official's knowledge and ability; and 

(11) Upon submission of the application for permission to construct, the applicant shall give notice by publishing a Class I 

legal advertisement of the applicant's intent to alter or expand the physical arrangement or operation of an existing 

stationary source and the opportunity to provide written comment to the secretary within thirty calendar days of the 

publication. The applicant shall post a visible and accessible sign, at a minimum 2 feet square, at the entrance to the 

source or proposed site. The sign must be clearly marked indicating that an air quality permit has been applied for and 

include the West Virginia Division of Air Quality permitting section telephone number and web site for additional infonmation. 

The applicant must post the sign for the duration of the public notice period. Public notice shall be in a newspaper having 

general circulation in the county or counties where the facility is located. The notice shall contain the information required 

by rules promulgated by the secretary. Within fifteen days of completion of the public comment period, the secretary shall 

consider and respond to all written comments. If the secretary finds that concerns raised by the public comment period give 

rise to issues or concerns that would cause a construction or operational permit not to be issued, the secretary may issue a 

revocation or stay of the authorization to construct until those issues or concerns are resolved. 

(c) The secretary shall determine whether an application for penmission to commence construction in advance of permit 

issuance is complete within fifteen calendar days after receipt of the application at which time the secretary shall notify the 

applicant in writing as to whether the application is complete or specify any additional information required for the 

application to be complete. 

(d) Within fifteen calendar days after the secretary has made a determination that an application for permission to 

commence construction in advance of permit issuance is complete, unless the secretary for good cause shown, extends 

the fifteen day time period for up to an additional fifteen calendar days, the secretary shall notify the applicant in writing of 

his or her determination as to whether each of the following conditions has or has not been satisfied: 

(1) The applicant is and has been for a period of at least three years in substantial compliance with all other active permits 

and applicable state and federal air quality regulatory requirements under this article; 

(2) The applicant has demonstrated that the alteration, expansion, modification or new emission unit will be in compliance 

with all applicable state and federal air quality regulatory requirements; 

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(3) The alteration, expansion, modification or new emission unit will not interfere with attainment or maintenance of an 

applicable ambient air quality standard, cause or contribute to a violation of an applicable air quality increment or be 

inconsistent with the intent and purpose of this article; 

(4) The facility will be altered or expanded so that it will be used for either the same or a similar use as the use already 

permitted; 

(5) The alteration or expansion will not result in a disproportionate increase in size of the facility already permitted; and 

(6) The alteration or expansion will result in the same or substantially similar emissions as the facility already permitted. 

If the secretary finds that all of the conditions have been satisfied, the notice issued by the secretary shall state that 

construction of the alteration, expansion, modification or new emission unit in advance of permit issuance may begin 

immediately. If the secretary finds that one or more of the conditions has not been met, the notice shall state that the 

requested construction, alteration, expansion, modification or new emission unit may not begin prior to issuance of a new or 

modified permit. 

(e) If at any time during the construction of such alteration, expansion, modification or new emission unit, the secretary 

determines that the source is not likely to qualify for a permit or penmit modification under applicable rules, the secretary 

may order that construction cease until the secretary makes a decision on the application for a permit or permit 

modification. If the secretary orders that construction cease, then construction of the alteration, expansion, modification or 

new emission unit may resume only if the secretary either makes a subsequent written determination that the 

circumstances that resulted in such order have been adequately addressed or if the secretary issues a permit or permit 

modification under the rules that authorize construction to resume. 

(I) The secretary shall evaluate an application for a permit or permit modification under the rules and make a decision on 

the same basis as if the construction of the alteration, expansion, modification or new emission unit in advance of permit 

issuance had not been authorized pursuant to this section. No evidence regarding any contract entered into, financial 

investment made, construction undertaken, or economic loss incurred by any person or permittee who proceeds under this 

section without first obtaining a permit under this article is admissible in any contested case or judicial proceeding involving 

any permit required under the rules. No evidence as to any detenmination or order by the secretary pursuant to this section 

shall be admissible in any contested case or judicial proceeding related to any permit required under this article. 

(g) Any permittee who proceeds under this section shall be precluded from bringing any action, suit or proceeding against 

the state, the offiCials, agents, and employees of the state or the secretary for any loss resulting from any contract entered 

into, financial investment made, construction undertaken, or economic loss incurred by the permittee in reliance upon the 

provisions of this section. 

(h) This section does not relieve any person of the obligation to comply with any other requirement of state law, including 

any requirement to obtain any other permit or approval prior to undertaking any activity associated with preparation of the 

site or the alteration or expansion of the physical arrangement or method of operation of a source at a facility for which a 

permit is required under the rules. 

(i) This section does not relieve any person from any preconstruction or construction prohibition imposed by any federal 

requirement, federal delegation, federally approved requirement in any state implementation plan, or federally approved 

requirement under the Title V permitting program, as determined solely by the secretary. This section does not apply to any 

construction, alteration, or expansion that is subject to requirements for prevention of significant deterioration or federal 

nonattainment new source review, as detenmined solely by the secretary. This section does not apply if it is inconsistent 

with any federal requirement, federal delegation, federally approved requirement in any state implementation plan, or 

federally approved requirement under the Title V permitting program, as determined solely by the secretary. 

OJ A permittee who submits an application to commence construction in advance of permit issuance under this section shall 

pay to the department a fee of two hundred dollars for each application submitted to cover a portion of the administrative 

costs of implementing this section. 

(k) The secretary, in accordance with chapter twenty-nine-a of this code, shall propose legislative rule that may be 

necessary to implement the provisions of this section by the first day of August, two thousand eight. 

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(I) The secretary is directed to report back to the Joint Committee on Government and Finance by the first day of January, 

two thousand ten on the impact of the implementation of the expedited permits authorized pursuant to this section. The 

report shall include, but not be limited to, assessments regarding the number and types of facilities utilizing this section, 

whether the agency has found this expedited process has assisted these facilities to implement construction and make 

revisions to their operations efficiently, without adverse impacts on the agency, the permitting process, or state-wide air 

quality. 

§22.5.12. Operating permits required for stationary sources of air pollution. 

No person may operate a stationary source of air pollutants without first obtaining an operating permit as provided in this 

section. The director shall promulgate legislative rules, in accordance with chapter twenty·nine·a of this code, which specify 

classes or categories of stationary sources which are required to obtain an operating permit. The legislative rule shall 

provide for the form and content of the application procedure including time limitations for obtaining the required permits. 

Any person who has filed a timely and complete application for a permit or renewal thereof required by this section, and 

who is abiding by the requirements of this article and the rules promulgated pursuant thereto is in compliance with the 

requirements of this article and any rule promulgated thereunder until a permit is issued or denied. Any legislative rule 

promulgated pursuant to the authority granted by this section shall be equivalent to and consistent with rules and 

regulations adopted by the administrator of United States environmental protection agency pursuant to Title IV and Title V 

of the Clean Air Act Amendments of 1990, 42 U.S.C. §7651 et seq. and 42 U.S.C. §7661 et seq., respectively: Provided, 

That such legislative rule may deviate from the federal rules and regulations where a deviation is appropriate to implement 

the policy and purpose of this article taking into account such factors unique to West Virginia. 

§22-5-13. Consolidation of permits. 

For permits required by sections eleven and twelve of this article, the director may incorporate the required permits with an 

existing permit or consolidate the required permits into a single permit. 

§22-5-14. Administrative review of permit actions. 

Any person whose interest may be affected, including, but not necessarily limited to, the applicant and any person who 

participated in the public comment process, by a permit issued, modified or denied by the secretary, or construction 

authorization pursuant to section eleven·a of this article, may appeal such action of the secretary to the air quality board 

pursuant to article one, chapter twenty·two·b of this code. 

§22-5-15. Motor vehicle pollution, inspection and maintenance. 

(a) As the state of knowledge and technology relating to the control of emissions from motor vehicles may permit or make 

appropriate and in furtherance of the purposes of this article, the director may provide by legislative rule for the control of 

emissions from motor vehicles. The legislative rule may prescribe requirements for the installation and use of equipment 

designed to reduce or eliminate emissions and for the proper maintenance of such equipment and of vehicles. Any 

legislative rule pursuant to this section shall be consistent with provisions of federal law, if any, relating to control of 

emissions from the vehicles concerned. The director shall not require, as a condition precedent to the initial sale of a 

vehicle or vehicular equipment, the inspection, certification or other approval of any feature or equipment designed for the 

control of emissions from motor vehicles, if such feature or equipment has been certified, approved or otherwise authorized 

pursuant to federal law. 

(b) Except as permitted or authorized by law or legislative rule, no person shall fail to maintain in good working order or 

remove, dismantle or otherwise cause to be inoperative any equipment or feature constituting an operational element of the 

air pollution control system or mechanism of a motor vehicle required by rules of the director to be maintained in or on the 

vehicle. Any such failure to maintain in good working order or removal, dismantling or causing of inoperability subjects the 

owner or operator to suspension or cancellation of the registration for the vehicle by the department of transportation, 

division of motor vehicles. The vehicle is not thereafter eligible for registration until all parts and equipment constituting 

operational elements of the motor vehicle have been restored, replaced or repaired and are in good working order. 

(c) The department of transportation, division of motor vehicles, department of administration, information and 

communication services division and the state police shall make available technical information and records to the director 

to implement the legislative rule regarding motor vehicle pollution, inspection and maintenance. The director may 

promulgate a legislative rule establishing motor vehicle pollution, inspection and maintenance standards and imposing an 

http://www.legis.state.wv.us/WVCODE/ChapterEntire.cfm?chap=22&art=5 9/6/20 II 
WV Code Chapter 22 Article 5 Page 11 of 14 

inspection fee at a rate sufficient to implement the motor vehicle inspection program and shall do so when required 

pursuant to federal law regarding attainment of ambient air quality standards. 

(d) The director may promulgate a legislative rule requiring maintenance of features of equipment in or on motor vehicles 

for the purpose of controlling emissions therefrom and shall do so when required pursuant to federal law regarding 

attainment of ambient air quality standards, and no motor vehicle may be issued a division of motor vehicles registration 

certificate, or the existing registration certificate shall be revoked, unless the motor vehicle has been found to be in 

compliance with the director's legislative rule. 

(e) The remedies and penalties provided in this section and section one, article three, chapter seventeen-a of this code, 

apply to violations hereof and the provisions of sections six or seven of this article do not apply thereto. 

(I) As used in this section "motor vehicle" has the same meaning as in chapter seventeen-c of this code. 

§22-5-16. Small business environmental compliance assistance program, compliance advisory panel. 

The secretary of the department of commerce, labor, and environmental resources shall establish a small business 

stationary source technical and environmental compliance assistance program which meets the requirements of Title V of 

the Clean Air Act Amendments of 1990, 42 U.~.C. §7661 et seq. A compliance advisory panel composed of seven 

members appointed as follows shall be created to periodically review the effectiveness and results of this assistance 

program: 

(a) Two members who are not owners, nor representatives of owners, of small business stationary sources, selected by the 

governor to represent the general public; 

(b) One member selected by the speaker of the House of Delegates who is an owner or who represents owners of small 

business stationary sources; 

(c) One member selected by the minority leader of the House of Delegates who is an owner or who represents owners of 

small business stationary sources; 

(d) One member selected by the president of the Senate who is an owner or who represents owners of small business 

stationary sources; 

(e) One member selected by the minority leader of the Senate who is an owner or who represents owners of small business 

stationary sources; and 

(I) One member selected by the director to represent the director. 

§22-5-17. Interstate ozone transport. 

(a) This section of the Air Pollution Control Act may be referred to as the Interstate Ozone Transport Oversight Act. 

(b) The Legislature hereby finds that: 

(1) The federal Clean Air Act, as amended, contains a comprehensive regulatory scheme for the control of emissions from 

mobile and stationary sources, which will improve ambient air quality and health and welfare in all parts of the nation. 

(2) The number of areas unable to meet national ambient air quality standards for ozone has been declining steadily and 

will continue to decline with air quality improvements resulting from implementation of the federal Clean Air Act 

amendments of 1990, and the mobile and stationary source emission controls speCified therein. 

(3) Scientific research on the transport of atmospheric ozone across state boundaries is proceeding under the auspices of 

the United States environmental protection agency (U.S. EPA), state agencies, and private entities, which research will lead 

to improved scientific understanding of the causes and nature of ozone transport, and emission control strategies 

potentially applicable thereto. 

(4) The northeast ozone transport commission established by the federal Clean Air Act Amendments of 1990 has proposed 

emissioncontrol requirements for stationary and mobile sources in certain northeastern states and the District of Columbia 

in addition to those specified by the federal Clean Air Act amendments of 1990. 

http://www.1egis.state.wv.us/WVCODE/ChapterEntire.cfm?chap=22&art=5 9/6/2011 
WV Code Chapter 22 Article 5 Page 12 of 14 

(5) Membership of the northeast ozone transport commission includes, by statute, representatives of state environmental 

agencies and governors' offices; similar representation is required in the case of other ozone transport commissions 

established by the Administrator of the United States environmental protection agency pursuant to Section 176A of the 

federal Clean Air Act, as amended. 

(6) The northeast ozone transport commission neither sought nor obtained state legislative oversight or approval prior to 

reaching its decisions on mobile and stationary source requirements for states included within the northeast ozone 

transport region. 

(7) The Commonwealth of Virginia and other parties have challenged the constitutionality of the northeast ozone transport 

commission and its regulatory proposals under the guarantee, compact, and joinder clauses of the United States 

Constitution. 

(8) The United States environmental protection agency, acting outside of the aforementioned statutory requirements for the 

establishment of new interstate transport commissions, is encouraging the state of West Virginia and twenty-four other 

states outside of the northeast to participate in multistate negotiations through the ozone transport assessment group; such 

negotiations areintended to provide the basis for an interstate memorandum of understanding or other agreement on ozone 

transport requiring reductions of emissions of nitrogen oxides or volatile organic compounds in addition to those specified 

by the federal Clean Air Act amendments of 1990, membership of the ozone transport assessment group consists of state 

and federal air quality officials, without state legislative representation or participation by the governor. 

(9) Emission control requirements exceeding those specified by federal law can adversely affect state economic 

development, competitiveness, employment, and income without corresponding environmental benefits; in the case of 

electric utility emissions of nitrogen oxides, it is estimated that control costs in addition to those specified by the federal 

Clean Air Act could exceed five billion dollars annually in a thirty-seven state region of the eastern United States, including 

the state of West Virginia. 

(10) Requiring certain eastern states to meet emission control requirements more stringent than those otherwise applicable 

to other states and unnecessary for environmental protection would unfairly affect interstate competition for new industrial 

development and employment opportunities. 

(c) It is therefore directed that: 

(1) Not later than ten days subsequent to the receipt by thedirector of the division of environmental protection of any 

proposed memorandum of understanding or other agreement by the ozone transport assessment group, or similar group, 

potentially requiring the state of West Virginia to undertake emission reductions in addition to those specified by the federal 

Clean Air Act, the director of the division of environmental protection shall submit such proposed memorandum or other 

agreement to the president of the Senate and the speaker of the House of Delegates for consideration. 

(2) Upon receipt of the aforesaid memorandum of understanding or agreement, the President and the Speaker shall refer 

the understanding or agreement to one or more appropriate legislative committees with a request that such committees 

convene one or more public hearings to receive comments from agencies of government and other interested parties on its 

prospective economic and environmental impacts on the state of West Virginia and its citizens, including impacts on energy 

use, taxes, economic development, utility costs and rates, competitiveness and employment. 

(3) Upon completion of the public hearings required by the preceding subdivision, the committees(s) shall forward to the 

president and the speaker a report containing its findings and recommendations concerning any proposed memorandum of 

understandingor other agreement related to the interstate transport of ozone. The report shall make findings with respect to 

the economic, health, safety and welfare and environmental impacts on the state of West Virginia and its citizens, including 

impacts on energy use, taxes, economic development, utility costs and rates, competitiveness and employment. 

(4) Upon receipt of the report required by the preceding subdivision, the president and speaker shall thereafter transmit the 

report to the governor for such further consideration or action as may be warranted. 

(5) Nothing in this section shall be construed to preclude the Legislature from taking such other action with respect to any 

proposed memorandum of understanding or other agreement related to the interstate transport of ozone as it deems 

appropriate. 

http://www.legis.state.wv.us/WVCODE/ChapterEntire.cfm?chap=22&art=5 9/6/20 II 
WV Code Chapter 22 Article 5 Page 13 of 14 

(6) No person is authorized to commit the state of West Virginia to the terms of any such memorandum or agreement 

unless specifically approved by an act of the Legislature. 

§22-5-18. Market-based banking and trading programs, emissions credits; director to promulgate rules. 

(a) The director shall propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of 

this code, to the full extent allowed by federal and state law, one or more rules establishing a voluntary emissions trading 

and banking program that provides incentives to make progress toward the attainment or maintenance of the national 

ambient air quality standards, the reduction or prevention of hazardous air contaminants or the protection of human health 

and welfare and the environment from air pollution. 

(b) The director shall establish a system by legislative rule for quantifying, verifying, determining eligibility, registering, 

trading and using all emissions reduction credits, for banking and trading if achieved after the first day of January, one 

thousand nine hundred ninety-one, to the extent permitted by federal law. Credits also shall be available for permanent 

shutdowns. Ten percent of any emission reduction credits registered with the director shall be retired from future use: 

Provided, That fifty percent of any emission reduction credits generated from permanent shutdowns prior to the effective 

date of the legislative rule or rules promulgated pursuant to this section shall be retired from future use. All other emissions 

reduction credits registered shall remain in effect until used and debited or retired. Credits not used within ten years shall be 

retired from future use. The director may charge a reasonable transaction fee at the time any credits are registered and 

shall deposit the fees in the air pollution control fund. 

The division may establish the emissions trading program as a state, multistate or regional program as long as the program 

contributes to the goal of improving the air quality in West Virginia and in the air quality region where the source is located. 

§22-5-19. Net greenhouse gas inventory. 

(a) The secretary is authorized to propose legislative rules for promulgation in accordance with article three, chapter twentynine-a of this code, establishing a net greenhouse gas inventory to determine whether West Virginia is a net sink or emitter 

of greenhouse gas and whether greenhouse gas can be developed as an asset for economic development by establishing 

an inventory using reasonable estimates of current and future greenhouse gas emissions. The inventory shall include all 

significant emissions, reductions, capture and sequestration of greenhouse gases from stationary, area and mobile 

sources, such as power plants, waste combustors, natural gas/oil systems, landfills, and waste water treatment facilities, 

highway and nonroad sources, agricultural sources and shall consider direct (geologic) and indirect (terrestrial) carbon 

sequestration. Stationary sources are not required to but may submit to the secretary estimates of carbon sequestration 

activities. 

(b) To inventory greenhouse gas emissions, the secretary shall establish a program for the reporting and, where 

information already exists or is reported to the department or other state or federal agency, the collection of greenhouse 

gas emissions information from all sources that emit greater than a de minimis amount of greenhouse gases on an annual 

basis. De minimis shall mean emissions from an individual facility that are equal to or less than ten thousand tons per year 

for carbon dioxide, four hundred seventy-six tons per year for methane, thirty-two and six tenths tons per year for nitrous 

oxide, eight hundred fifty-five thousandths tons per year for hydrofiuorocarbons, one and nine hundredths tons per year for 

perfluorocarbons and forty-two hundredths tons per year for sulfur hexafluoride. Stationary sources shall only be required to 

report the annual quantities of non mobile source, anthropogenic emissions of greenhouse gases, and shall not be required 

to report naturally occurring emissions of greenhouse gases. Only those stationary sources who are otherwise required to 

report emissions of regulated air pollutants under rules promulgated by the secretary pursuant to section four of this article, 

shall be required to report their greenhouse gas emissions under this section. Stationary sources which are not required to 

report air emissions under this section and are regulated by the secretary under the provisions of article three, chapter 

twenty-two of this code are not required to, but may voluntarily, report such emissions. The reporting entities will be 

permitted to provide existing and ongoing documented inventories, such as those provided to the Environmental Protection 

Agency's Climate Leaders Program, Chicago Climate Exchange Registry, the International Organization for 

Standardization, the SF6 Emissions Reduction Partnership for Electric Power Systems or other widely recognized and 

verified greenhouse gas inventory programs to completely fulfill their West Virginia program reporting requirements. 

(c) The secretary shall establish a voluntary program under which the department registers voluntary reductions in 

emissions of greenhouse gases for reductions made before mandated by law. The voluntary program shall include. but not 

be limited to, developing criteria for establishing baseline emissions, quantifying emission reductions and providing public 

recognition. The department shall consider the information recorded in the voluntary emission reduction registry when 

http://www.legis.state.wv.lls/WVCODE/ChapterEntire.cfm?chap=22&art=5 9/6/2011 
WV Code Chapter 22 Article 5 Page 14 of 14 

determining baselines and reduction requirements under future emission reduction programs implemented under federal 

law. 

(d) To inventory greenhouse gas reductions, the secretary shall consult and coordinate with other state agencies and 

higher education institutions, the citizenry and other entities such as industry trade groups that have knowledge or 

information relating to greenhouse gas emissions. measurement protocols, greenhouse gas reductions and sequestration 

including, but not limited to, the Department of Agriculture, the Division of Forestry, Marshall University, West Virginia 

University and the Department of Transportation. These governmental entities shall enter into interagency agreements with 

the secretary and shall cooperate by: (i) Providing information relating to greenhouse gas emissions, reductions and 

sequestration; and (ii) providing any necessary assistance to the secretary in effectuating the purposes of this article. The 

secretary shall determine the form and format of the information submitted by these entities. 

(e) In establishing the net greenhouse gas inventory program, the department shall make the program as consistent as 

possible with other state and federal programs designed to monitor, quantify and register reductions in emissions of 

greenhouse gases as referenced in subsection (b) of this section. 

(I) As used in this section, "greenhouse gas" means carbon dioxide, methane, nitrous oxide, hydrofturocarbons, 

perfluorocarbons and sulfur hexafluoride. 

Nole: VW Code updated with legislation passed through the 20 1 0 2nd Special Session 

http://www.legis.state.wv.us/WVCODE/ChapterEntire.cfm?chap=22&art=5 9/6/2011 
APPENDIX C 

Documentation of Public Participation 

j 

! 

, 

i 

t 

PUBLIC NOTICE AND HEARING CERTIFICATION 

I, Randy C. Huffman, on behalf of the West Virginia Department of Environmental Protection, 

hereby certify that public notice and hearing on the Revised I II (d)/I 29 State Plan to implement 

"Control of Air Pollution from Combustion of Solid Waste for HospitaVMedical/lnfectious 

Waste Incinerators" was held prior to adoption of the State Plan in accordance with criteria 

specified in 40 CFR §60.23(f) and I further certify that the list of attendees, public hearing 

transcript, written comments and response to the comments are included in the Revised 

111(d)/129 State Plan. 

Cabinet Secretary 

Date 

Proposed Revision to the West Virginia Section 1 11 (d)/129 Plan 

Control of Air Pollution from Combustion of Solid Waste for 

Hospital/Medical/lnfectious Waste Incinerators 

Notice of Public Hearing and Public Comment Period 

The West Virginia Department of Environmental Protection, Division of Air Quality (DAQ) is 

revising the Section 111(d)/129 Plan for the Control of Air Pollution from Combustion of Solid Waste for 

HospitallMedicaVInfectious Waste Incinerators (HMIWl). This plan revision incorporates changes made 

to rule 45CSRl8 - "Control of Air Pollution From Combustion of Solid Waste". This rule change has 

required DAQ to submit a plan revision for HMIWI, and conduct public hearing (40CFR60 Subsections 

60.23 and 60.28). 

DAQ will hold a public hearing on August 8, 2011 beginning at 5:30 p.m. on a proposed Revised 

Plan to implement Emission Guidelines for HMIWI. 

The public hearing is being held to satisfy all requirements for submitting a revised 111(d)1129 

State Plan. The proposed revised plan will be submitted to the United States Environmental Protection 

Agency (US EPA) and supplemented legislative rule 45CSRI8 - "Control of Air Pollution From 

Combustion of Solid Waste," which became effective June 16,2011. This rule gives West Virginia 

regulatory authority to adopt, implement and enforce the Emission Guidelines requirements for existing 

HMIWI and the New Source Performance Standards for new facilities, either directly through 

administrative action requiring compliance with 45CSR18, or by including such requirements in State 

permits, where applicable. 

The public hearing will be held at the DAQ's conference room 1125, located at 601 57th Street SE, 

Charleston, West Virginia 25304. Written and oral conunents will be accepted until the close ofthe 

hearing on August 8, 2011. Conunents will also be accepted bye-mail if transmitted by 5:30 p.m. on 

August 8, 2011 to richard.a.boehm@wv.gov . Written conunents may be submitted by mail, facsimile 

(304-926-0499 x.1687) or other delivery on or before the hearing at the following address: " 

John A. Benedict, Director 

Division of Air Quality 

60 I 57th Street, SE 

Charleston, WV 25304 

Comments submitted by mail must be postmarked by August 8, 2011. Copies of the proposed 

revised State Plan will be available for public review on or before July I, 2011, at the Department of 

Environmental Protection, Division of Air Quality's Charleston office at the above address. 

(Appendices to the Plan will be available upon request.) 

" . 

~(fl) CHARLESTON NEWSPAPERS 

P,O. Box 2993 

Charleston, West Virginia 25330 

Billing 348-4898 

Classified 348-4848 

I-BOO-WVA-NEWS 

ILLED 

TO 

L 

WVDEP AIR QUALITY 

SANDRA ADKINS 

601 57TH ST., SE 

CHARLESTON WV 

I DICE DATE 

A T NBR 

SALES REP 10 

INVOICE NBR 

25304 USA 

Please return this portion with your payment. 

Make checks payable to: Charleston Newspapers 

AMOUNT PAID: 

CHARLESTON NEWSPAPERS INVOICE DATE 

P,O. Box 2993 ACCOUNT NBR 

SALES REP 10 Charleston, West Virginia 25330 

Billing 348-4898 

Classified 348-4848 L..._.!.'!:iNV:!l0",'",C",E..!N~B~R~_1-________ --' 

I-BOO-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. 

Charleston Gazette rate is $.14 and the Metro Putnam rate is word. 

M 

Richard Bo 

DM tice of public hea 

36311002 Richard Bo 

8.82 88.20 88.20 

)6/29 LEG 

TOTAL INVOICE AMOUNT 

AFFIDAVIT OF PUBLICATION 

[ ~,tl £~,. THE CHARLESTON GAZET E, 

THE DAILY MAIL, 

do solemnly swear that the legal notice of: 

Notice of public hearing 

was duly published in said newspaper(s) at the stated price f9 

,/ 

of 

\ Subscribed and sworn to before me this ) day of_""'_~-"""=-,4 ___ _ 

8.19 81. 90 81.90 

170.10 

:£WES1'~ OFFICIAL SEAL 

Ii~

O il~~" Notary PubliC, State of West Virginia 

~ ,¥ 7~ 0) ~ MARY T PRILLAMAN * _ _ 11 5508 Ohio Street 

~ .. ~ ,~., South Charleston, WV 25309 

,'" ....... ' My commission expi/es April 12, 2021 

Proposed Revision to 

the weSt Virginia Section 

111 (d)/129 Plan 

Control of Air Pollution 

from Combustion 

of Solid Waste for 

Hosp,tal/MecUcoJl Infjdious-Waste 

, Incrnirators 

NoUce ~ Pilbllc . Hearing and Public 

Comment .Perlod 

The West Virginia Department of _ Envif9nmen· 

to.' Protectlo~, DiVIsIon of 

Air Quality .(vAQI'S revising the Se;c1ion 1.1 (d)[l29 

Plan for the-Control of Air 

PollutIon .from. Combustion of._ SOJrd·."-.Wasfe for 

HospltaVMedlCtiVlnfedlou 

s Waste Incinerators 

(I-IMIWI). This plan revl· 

sian lncorporqles .changes . made to- . rule 4SCSR18 - 'Control of Air Pollution 

From Cambudlan);if SaUd 

Waste". This .. rule -change has required DAQ 10 stJbmit a plClil revision for 

HMIWI, and conduct pub- lic hearhig-(40CFR60 Subsections 60.23, and 6Q.28). 

DAQ wlit hold a public hearln9._on AU9US.t 8, 2011 

beginning at _5:~O 'p.m._ on a proposed Revised Plan 

to Implement Emission 

Guidelines for HMIWI. 

the p_ubHc heartn9'ls:beIn,9 held _to_-satlity" _all re_~ 

QUI.,emenl'.'lo'.1!"."ril. Il1ln. a revised, 111 {d}Il29~St¢e Plori~ - The. propQ$ed', re- visecl:plan will-oe:liubmltted -to ---the -_Unlte(i. ,States ~nvrron11'iental- p.r"Ofection Agency, -:_- (US EPA) ': and 

5uPPleme.nted '1d.9lslative rule_45CSRl8 - '~C:ontrol of 

Air PQIIUtjo_n From Com- bustlon 0 ,'SollCl_~Waste,' 

which bec_ame:_ effective 

June 16, 2011. _;_-I;[h.\s _rule gives West"-Vlrv nla- regu- latory authorlty.'to' adopt, implement and enforce 

the Emission Guidelines 

requirements ,for.' existing HMIWI -and --:_the New 

Source' _ Performance 

S1andard$ for new -facilities/ elther ,_. directly through ;- ': administrative 

action reqlllring compJl· anc8'wltfl45CSR1B, or by In.eludlng su,ctI- require· ments In 'State'_ permits, where oppll.cab!e. 

The-pUblic- hearing will 

be held, at the ~AQ'S con- ference. '.00. "",m-ll ~._Iocated at 60:1 --511h _os r~ SE, 

CharlestOl'l",WestJil'rglnla 2530-4. Written: _ a_"." oral 

comments wilt b$ ace:8pt- ed' until-'M,',c,lose _Of- the 

hearing on Au'tU$t e, 2011. 

Comments wUl-also be ac- cepted bye-mall If .transmiffed by 5:30 p. . on August ~201110 Ie ord.a.bd 

ehm_wY.jl0,/. rffen 

comments may be subml1-

ted by ,mall, facsimile 

(304-926-0499 x.l687J _or other delivery on or !lefore 

1he hedrlng at the followIng address: 

John A. Benedict, Director Division of Air Quality 601 57th Street, SE 

Charleston .... WV 2530-4 

Comments submitted by mall must be postmarked br Augu.1 8, 2011. Copies o the proposed revised 

State Plan will be available for PUbliC review on or before July 1, 2011 at the 

Department of t:.nvironmental Protection, Division of Air QUality's Charleston office at the above 

address. 

(Appendices to tha Pin!! 

will be avai!clble upon r~­

quest.) 

Proposed Revised Modified State Plan To Implement Emission Guidelines for 

Hospital/ Medical/Infectious Waste Incinerators 

Sign-In Sheet 

Comment 

Name Address Organization 

~ /-(/1~6 5od/? bO/ 5 7 ~ tJYIJeP 

Phone/Fax E-Mail 

6-<9~j?z (., -a:</9'1 rld(?rd.cJ., 6oe/m x/~J'7 (?tod'JC/ 

Yes No 

x 

r:f( 

'a)'~~, fr~\ ..... . ..; 

,0:1 1'1 )'.. .. •.. " • iru: .. ~.r, f~l ""." ~~ ri., <:i t) 

tJiJ~~L1 1 

BEFORE THE WEST VIRGINIA DEPARTMENT OF 

ENVIRONMENTAL PROTECTION 

DIVISION OF AIR QUALITY 

In re: Revisions to the West Virginia Section 111(d}/129 

Plan Control of Air Pollution from Combustion of 

Solid waste for Hospital/Medical/Infectious Waste 

Incinerators 

Transcript of proceedings had at a public 

hearing in the above-styled matter taken at the West 

Virginia Department of Environmental Protection, Division 

of Air Quality, Conference Room, 601 57th Street, S.E. 

Charleston, West Virginia, commencing at 5:45 p.m., on the 

8th day of August, 2011, pursuant to notice. 

MISSY L. YOUNG, C.C.R. 

POST OFFICE BOX 6296 

CHARLESTON, WEST VIRGINIA 25362 

304-205-4929 or 304-539-6192 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

(} 23 

Proceedings 

PRO C E E DIN G S 

MR. BOEHM: This public hearing will now 

come to order on this 8th day of August, 2011, at the west 

virginia Department of Environmental protection 

Headquarters conference room, 1125, located at 601 57th 

street, Charleston, west virginia. 

This public hearing is being held to 

satisfy all requirements for submitting a proposed 111(d)/ 

129 state Plan to implement the mission guidelines for 

hospital/medical and infectious waste incinerators, and is 

being held pursuant to the provisions of 29A of the west 

virginia Code 110 of the Clean Air Act. 

The hearing is meant to inform the public 

and effected facilities that the original compliance dates 

as given in the original HMIWI 111(d)/129 Plan approvals 

are still applicable and enforceable. 

Notice for this hearing was published as a 

Class 1 legal advertisement in the Charleston Gazette 

Newspaper on June 29, 2011. Notice was also sent to 

various individuals, organizations and the west virginia 

Register. 

The proposed modified plan will be 

submitted to the us EPA and supplemented proposed 

A13$$1f{ J!. 1f{IJl1/v(j, e. e.a. (304) .205-494.2 rn (3011) 539-619.2 

2 

Proceedings 3 

1 legislative Rule 45CSR18, which is the Control of Air 

2 Pollution from Combustion of Solid waste to be effective 

3 June 16, 2011. This rule gives West Virginia regulatory 

4 authority to adopt, implement and enforce the emission 

5 guideline requirements for existing 

6 hospital/medical/infectious waste incineration units, and 

7 new source performance standards for new facilities either 

8 directly through administrative action requiring compliance 

9 with 45CSR18, or by including such requirements in state 

10 permits where applicable. 

11 My name is Richard Boehm, Engineer, with 

12 the Division of Air Quality, Department of Environmental 

13 Protection. I will be the moderator for the proceedings 

14 this evening. The comment period ends at the close of this 

15 hearing this evening. All comments and testimony will be 

16 made part of the rulemaking record. 

17 Today's transcripts are being recorded by 

18 local court reporter, Missy Young, to satisfy this public 

19 hearing and will be made available in the certified file 

20 available for public review. 

21 At this time I would like to open the floor 

22 for public comment. Please, identify yourself, 

(, 

-:~-;;:;: 23 affiliations, if any, prior to making your comments. 

A1J$$'ij J!. 'ij(JU!V(j e. e.R. (30'1) .205-'19'1.2 {)J; (30'1) 539-619.2 

Proceedings 4 

1 As of now I have 5:45 on August 8, 2011. 

2 Currently there are no attendees other than myself, Richard 

3 Boehm, of the Division of Air Quality. I will allow 

4 another five minutes to elapse before closing this public 

5 hearing. 

6 (A brief recess was taken, after which the 

7 hearing continued as follows.) 

8 MR. BOEHM: As of five minutes till six on 

9 August 8, 2011, let it be known that there are no attendees 

10 for this public meeting. The meeting will now be adjourned. 

11 Once again, these proceedings will be made available for 

12 public review. Thank you. 

13 (WHEREUPON, the hearing was 

14 concluded at 5:55 p.m.) 

15 

16 

17 

18 

19 

20 

21 

22 

(~, 23 ~t 

A1J$$'lj./} 'ljt/l1IVCJ, e eR. (304) 205-4942 ()J; (304) 539-6192 

Proceedings 5 

STATE OF WEST VIRGINIA, 

COUNTY OF KANAWHA, to-wit: 

I, the undersigned, Missy L. Young, a 

Certified Court Reporter and Notary public within and for 

the State of West Virginia, duly commissioned and 

qualified, do hereby certify that the foregoing, was taken 

to the best of my skill and ability, a true and accurate 

transcript of all the proceedings had in the aforementioned 

matter. 

Given under my hand and official seal this 

13th day of July 2011. 

Notary 

ified ;court / ~epo'i'Eer 

for (t'he Sta,t-e of West Virginia 

My commission expires April 15, 2018. 

OF'ICIAC SEAL 

(iiNOlary Public, Staifl 01 west Virginia • MISSY L.'TOUNG, c,C,A. 

" PO BOX 6296 

\ ~.' CHARLESTON, WV 25312 "" 0_" My Commission Expires April 15, 2018 

A1J$$'ij J!. 'ijIJUIVq, e et<. (304) .205-494.21» (304) 539-619.2 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION III 

1650 Arch Street 

Philadelphia, Pennsylvania 19103-2029 

Mr. John A. Benedict, Director 

West Virginia Department of Environmental Protection 

Division of Air Quality ~ - 8 lOll 

60 I 57th Street SE 

Charleston, West Virginia 25304 

Dear Mr. Benedict: 

Thank you for your letter of June 27,2011, and the opportunity to comment on the 

proposed revision to your hospitaVmedicaVinfectious waste incinerator (HMIWI) Section 

111 (d)1129 Plan revision and the related Division of Air Quality (DAQ) rule, 45CSR 18 -

Control of Air Pollution From Combustion of Solid Waste. The DAQ is revising the rule in 

response to requirements of Section 129 of the Clean Air Act and the October 6, 2009 amended 

HMIWI emission guidelines (EG), 40 CFR Part 60, Subpart Ceo 

The United States Environmental Protection Agency (EPA) has completed the requested 

review. Our office provided comments on a draft plan rule revision in a June 17,2011 email 

from James Topsale of my staff to Richard Boehm of your office. The June 27, 2011 proposed 

plan revision satisfactorily addresses our comments regarding the plan revision narrative; 

however, important comments regarding the rule revision have not been addressed. Our 

concerns about the rule relate to the following: 1) definition provisions; 2) reference to EG, not 

Part 62, requirements; 3) repeat performance testing requirements; 4) compliance time 

provisions; and 5) rule effective date. Detailed EPA comments are enclosed. We request that 

our comments be made part of the public record. 

If you have any questions regarding the enclosed comments, please contact Andrew Hass, 

Acting Associate Director, Office of Air Monitoring and Analysis at (215) 814-2049, or James 

Topsale of his staff at (215) 814-2190. 

Enclosure 

Sincerely, iL--1 C7 

:D ~ C>v-A.C\., C:SS~ 

Diana Esher, Director 

Air Protection Division 

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EPA Review - DAQ's June 27, 2011 Proposed Revision to its 

State 111(d)/129 Plan for HMIWI Units, Part 62, Subpart XX 

The scope of EPA's comments below are limited to 45CSRI8 provisions relating to 

III (d)/I29 plan requirements for existing HMIWI unit only. Other proposed 45CSRI8 rule 

revisions relating to new and existing solid waste incinerator units are not required under 

Sections 111 (d) and 129 of the Clean Air Act, and thus were not reviewed for plan revision 

approvability. 

§45-18-2, Definitions 

I. Paragraph 2 - This paragraph contains no definition of "Continuous HMIWl'. Add the 40 

CFR 60.51c defmition. 

2. Paragraph 2.36.a - The wording in this paragraph needs to reference paragraph 2.3§.b, not 

2.33.b. 

3. Paragraph 2.75.a - The wording in this paragraph needs to reference paragraph 2.75.b, not 

2.62.b. 

§45-18-7.2, Designated Facilities 

I. Paragraph 7.2.j - Revise the second sentence to read, "Upon one year after the effective 

date of U.S. EPA's approval the III(d)/129 State Plan revision for HMIWI units, designated 

facilities, under subdivision 7.2.a.1 are no longer subject to the requirement ... but are subject 

to the requirements of 40 CFR Part 62. Subpart XX. as amended in accordance with the 

October 6. 2009 provisions of 40 CFR Part 60. Subpart Ce." The suggested changes clarify 

that the revised requirements are enforceable under Part 62, Subpart XX, authority, not Part 

60. 

§45-18-7.5, Waste Management Guidelines 

2.40 CFR 60.35e incorporates the amended requirements of 40 CFR 60.55c, thus the 

provisions of paragraph 7.5 also need revision to account for commercial HMIWI units and 

inclusion of an appropriate date (i.e. within 60 days after the initial performance test 

demonstrating compliance with the revised rule emission limitations) for submittal of a 

revised/amended Waste Management Plan. 

§45-18-7.6, Rural Unit Inspections 

3. Paragraph 7.6.a - Revise the first sentence of7.6.a to read, " ... within one year after the 

date of U.S. EPA's approval of the III(d)/129 State Plan revision under 40 CFR Part 62, 

Subpart XX. and the related provisions of 40 CFR Part 60, Subpart Ce, as revised Octoher 6, 

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Customer Service Hotline: 1-800-438-2474 

2009". See comment I above. 

4. Paragraph 7.6.d - Revise the first sentence of7.6.d to read, " ... within one year following 

approval of the II I (d)/129 State Plan revision for HMIWI units under 40 CFR Part 62, 

Subpart XX, and the related provisions of 40 CFR Part 60, Subpart Ce, as revised October 6, 

2009." 

§45-18-7.7, Compliance, Performance, Testing, and Monitoring Guidelines 

5. Paragraph 7.7.c.4 - This paragraph allows for repeat performance tests providing the 

repeat testing is done" ... using the identical operating control device operating conditions 

that indicated a violation ... " Although this is desirable, it is not practical or enforceable. 

Accordingly, revise paragraph 7. 7.c.4 wording to match that in the second sentence of 40 

CFR 60.37e(c)(4). 

§45-18-7.9, Compliance Time 

6. Paragraphs 7.9 .a, e, and h.3 - See comment 4 above. In each paragraph include a 

reference to " .. .40 CFR Part 62. Subpart XX, and the related provisions of 40 CFR Part 60, 

Subpart Ce ... " 

7. Paragraph 7.9.c.3 - Revise to read, " .. .in Table IS-lA, or Table IS-2A for Small Rural 

Units, as applicable." 

8. Paragraph 7.9.d.3 - Revise to read, " ... the owner or operator shall comply in an 

expeditious manner with the 111(d)!129 plan requirements of Part 62, subpart xx. sections 

62.12150 through 62.12152, on or before the date 3 years after ... " The emission guidelines 

are not enforceable under the approved State III (d)1129 plan. 

9. Paragraph 7.9.g.3 - Revise to read, " .. .in Table 18-1B, or Table 18-2B for Small Rural 

Units, as applicable." 

45CSR 18 Rule Effective Date 

10. The submitted I I I (d)1129 plan cover letter states, " ... the new 45CSR IS [rule] ... 

became effective on June 16,2011." However, a June 21, 2011 email from the DAQ to EPA 

states, "Proposed legislative rule 45CSR 18 is now out to notice, and WVDAQ would 

appreciate your comments on the proposed rule by July II, 2011." Please explain why 

comments were requested after the new rule effective date, June 16, 20 II. 

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WEST VIRGINIA SECTION 111 (d)1129 PLAN FOR 

HOSPITALIMEDICALIINFECTIOUS WASTE INCINERATORS 

RESPONSE TO COMMENTS 

On June 29, 2011, the Division of Air Quality (DAQ) commenced a thirty day public 

comment period and subsequently held a public hearing on August 8, 2011 to accept oral comments 

on West Virginia's 2011 Clean Air Act Section 111(d)1129 Plan for HospitallMedicaVInfectious 

Waste Incinerators. Written comments were also accepted through 6:00 PM on Monday, August 8, 

2011. One commenter submitted written comments regarding the Plan, and no commenterprovided 

verbal comment. DAQ addresses the written comments below. 

I. COMMENTER: United States Environmental Protection Agency 

COMMENT A. The commenter states, "§45-18-2, Definitions -Paragraph 2 - This paragraph 

contains no definition of "Continuous HMIWI". Add the 40 CFR 60.51c definition." 

RESPONSE A. Although the 2011 Rule 45CSRI8 does not explicitly define "Continuous 

HMIW[", paragraph 2.87 states, "Other words and phrases used in this rule, unless otherwise 

indicated, shall have the meaning ascribed to them in 40 CFR Part 60 Suparts A, ... Ec, as applicable. 

This provision incorporates the NSPSIMACT definitions of Subpart Ec for HMIWI units, which 

includes "Continuous HMIWI". 

COMMENT B. The commenter states, "§45-18-2, Definitions - Paragraph 2.36.a - The 

wording in this paragraph needs to reference paragraph 2.3§..b, not 2.33.b. " 

RESPONSE B. DAQnotes the typographical error, and has corrected the error in the proposed 

2012 rule 45CSR18 by incorporating by reference the majority of definitions. DAQ refers the 

commenter to Response LA. DAQ believes that the 2011 Plan is approvable, even though 2011 rule 

45CSR 18, which is an integral part of the 2011 Plan, cannot be retroactively revised. 

COMMENT C. The commenter states, "§45-18-2, Definitions -Paragraph 2.75.a - The 

wording in this paragraph needs to reference paragraph 2. 75.b, not 2. 62.b. " 

RESPONSE C. DAQ notes the typographical error, and has corrected the error in the proposed 

2012 rule 45CSR18 by incorporating by reference the majority of definitions. DAQ refers the 

commenter to Response LA. DAQ believes thatthe 2011 Plan is approvable, even though2011 rule 

45CSR 18, which is an integral part of the 2011 Plan, cannot be retroactively revised. 

COMMENT D. The commenter states, "§45-18-7.2, Designated Facilities -Paragraph 7.2.j. 

Revise the second sentence to read, 'Upon one year after the effective date of u.s. EPA's approval 

the III (d)/129 State Plan revision for HMIWI units, designatedfacilities, under subdivision 7.2.a.! 

are no longer subject to the requirement ... but are subject to the requirem~nts of 40 CFR Part 62. 

Subpart XX as amended in accordance with the October 6. 2009 provisions of 40 CFR Part 60. 

Subpart Ce.· The suggested changes clarifY that the revised requirements are enforceable under 

Part 62. Subpart xx, authority. not Part 60. " 

RESPONSE D. DAQ recognizes that 111(d)/129 plan enforcement authority is under the 

provisions of 40 CFR Part 62, Subpart XX. The first sentence under paragraph 7.2.j now recognizes 

the current requirements of 40 CFR Part 62, Subpart XX, while the second sentence recognizes the 

need for revision to Subpart XX, as required by the October 6, 2009 40 CFR Part 60, Subpart Ce, 

amendments. 

DAQ notes that fully-adopted 2011 rule 45CSR18 became effective on June 16, 2011. DAQ 

requested and received comment from EPA Region III during the public comment period for 

proposed 2011 rule 45CSRI8 that began on June 11,2010, and closed on July 12, 2010. Therefore, 

because the 2011 rule has satisfied public notice requirements, has been fully adopted by the 2011 

West Virginia Legislature and is final, DAQ cannot retroactively revise 2011 rule 45CSR18. DAQ 

believes that the 2011 Plan is approvable, even though 2011 rule 45CSR18, which is an integral part 

of the 2011 Plan, cannot be retroactively revised. DAQ has subsequently proposed 45CSR18 for the 

2012 legislative session and received a similar comment from EPA, which was incorporated into the 

proposed rule that has been sent to the legislature for consideration during the 2012 legislative 

seSSlOn. 

COMMENTE. Thecommenterstates, "§45-18-7.5, Waste Management Guidelines- 40 CFR 

60.35e incorporates the amended requirements of 40 CFR 60.55c, thus the provisions of 

paragraph 7.5 also need revision to account for commercial HMIWI units and inclusion of an 

appropriate date (i. e. within one year of plan revision approval) for submittal of a revised/amended 

Waste Management Plan. " 

RESPONSEE. DAQ refers the commenter to Response J.D. 

COMMENT F. The commenter states, "§45-18-7.6. Rural Unit Inspections - Paragraph 

7.6.a. Revise theftrst sentence of7.6.a to read, • ... within one year after the date of u.s. EPA's 

approval of the 111 {d)/129 State Plan revision under 40 CFR Part 62. Subpart xx, and the related 

provisions of 40 CFR Part 60, Subpart Ce, as revised October 6. 2009' ". 

RESPONSE F. DAQ refers the commenter to Response J.D. DAQ believes being unable to 

accommodate EPA's comment in the final 20 11 rule does not provide a reason for Plan disapproval. 

COMMENT G. The commenter states, "Paragraph 7.6.d. Revise theftrst sentence of7.6.d 

to read. • ... within one year following approval of the 111 {d)/129 State Plan revision for HMIWI 

units under 40 CFR Part 62. Subpart xx, and the related provisions of 40 CFR Part 60, Subpart Ce, 

as revised October 6, 2009 "'. 

RESPONSEG. DAQ refers the commenter to Response J.D. 

COMMENT H. Thecommenterstates, H§45-18-7. 7, Compliance, Performance, Testing, and 

Monitoring Guidelines. Paragraph 7. 7.c.4 - This paragraph allows for repeat performance tests 

providing the repeat testing is done ' ... using the identical operating control device operating 

conditions that indicated a violation ... ' Although this is desirable, it is not practical or enforceable. 

Accordingly, revise paragraph 7. 7.c.4 wording to match that in the second sentence of 40 CFR 

60. 37e(c)(4). 

RESPONSE H. DAQ refers the commenter to Response l.D. DAQ will interpret the plan and 

rule as closely as possible with respect to the provisions for repeat performance tests set forth in 40 

CFR 60.37e(c)(4). 

COMMENT I. The commenter states, H§45-18-7.9, Compliance Time. Paragraphs 7. 9. a, 

e, and h.3. In each paragraph include a reference to ' .. .40 CFR Part 62, Subpart xx: and the 

related provisions of 40 CFR Part 60, Subpart Ce ... '" 

RESPONSE!. DAQ refers the commenter to Response l.D. 

COMMENT J. The commenter states, H§45-18-7.9, Compliance Time. Paragraph 7.9.c.3. 

Revise to read, ' ... in Table 18-1A, or Table 18-2A for Small Rural Units. as applicable." 

RESPONSEJ. DAQ refers the commenter to Response l.D. 

COMMENT K. The commenter states, H§45-18-7.9, Compliance Time. Paragraph 7.9.d.3. 

Revise to read, ' ... the owner or operator shall comply in an expeditious manner with the 11 J(dl/129 

plan requirements of Part 62, subpart xx: sections 62.12150 through 62.12152, on or before the 

date 3 years after ... ' The emission guidelines are not enforceable under an approved State 

111 (d)/129 plan. H 

RESPONSEK. DAQ refers the commenter to Response l.D. 

COMMENT L. The commenter states, H§45-18-7.9, Compliance Time. Paragraph 7.9.g.3 

- Revise to read, " ... in Table 18-1 B, or Table 18-2B for Small Rural Units. as applicable.'" 

RESPONSEL. DAQ refers the commenter to Response l.D. 

COMMENT M. The commenter states, H§45CSRI8, Rule Effective Date. The submitted 

111 (d)/129 plan cover letter states, ' ... the new 45CSR18 [rule}. .. became effective on June 16,2011. ' 

However, a June 21,2011 emailfrom the DAQ to EPA states, 'Proposed legislative rule 45CSR18 

is now out to notice, and WVDA Q would appreciate your comments on the proposed rule by July 11, 

2011.' Please explain why comments were requested after the new rule effective date, June 16, 

2011. " 

RESPONSE M. DAQ notes that fully-adopted 2011 rule 45CSR18 became effective on June 

16,2011. DAQ requested and received comment from EPA Region III during the public comment 

period for 45CSR18 that began on June 11, 2010, and closed on July 12, 2010. Therefore, because 

the 2011 rule has satisfied its public notice requirements, has been fully adopted by the 2011 West 

Virginia Legislature, and is final, DAQ cannot retroactively revise 2011 rule 45CSR18. However, 

DAQ has subsequently proposed 45CSR18 for the 2012 legislative session, which was subject to a 

thirty day public notice period that began June 10,2011 and closed on July 11, 2011. DAQ received 

comments on proposed 2012 rule 45CSR18, which were incorporated into the proposed rule that 

will be final after the 2012 legislative session. After EPA approval, the 2012 rule 45CSRI8 will 

then become the enforceable component of West Virginia's 2012 Section 111(d)1129 Plan 

amendment.