1

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

1650 Arch Street

Philadelphia, Pennsylvania 19103

DATE:

SUBJECT: Technical Support Document (TSD) for the State of West Virginia State Implementation 

Plan for Section 110(a)(2) Infrastructure Requirements for the 2010 1-Hour Nitrogen 

Dioxide (NO2) National Ambient Air Quality Standards

FROM: Ellen Schmitt, Environmental Scientist /s/ 9/24/2013

 Office of Air Program Planning 

TO: File

THRU: Cristina Fernandez, /s/ 9/24/2013

Associate Director, Office of Air Program Planning 

A. INTRODUCTION

The Environmental Protection Agency (EPA) is taking action on the State of West Virginia’s State 

Implementation Plan (SIP) revision submitted by West Virginia through the West Virginia Department of 

Environmental Protection (WVDEP) to meet the Clean Air Act (CAA) section 110(a)(2) requirements for 

the revised 2010 1-hour Nitrogen Dioxide (NO2) national ambient air quality standards (NAAQS).

B. BACKGROUND

EPA first set standards for NO2 in 1971, setting both a primary standard (to protect health) and a 

secondary standard (to protect the public welfare) at 0.053 parts per billion (53 ppb), averaged annually.

The Agency reviewed the standards twice since that time, but chose not to revise the annual standards at 

the conclusion of each review. On January 22, 2010, EPA established an additional primary standard at 

100 ppb, averaged over one hour.

In addition to establishing an averaging time and level, EPA also set a new “form” for the 

standard. The form is the air quality statistic used to determine if an area meets the standard. The form 
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for the 1-hour NO2 standard is the 3-year average of the 98th percentile of the annual distribution of daily

maximum 1-hour average concentrations.

On January 20, 2012, EPA designated all areas of the country “unclassifiable/attainment” for the 

2010 NO2 NAAQS, based on the existing community-wide monitoring network. As previously 

mentioned, EPA established a one hour standard of 100 ppb for NO2 on January 22, 2010. On March 20, 

2012, EPA took final action to retain the current secondary NAAQS for NO2, 53 ppb averaged over a 

year, to address direct effects on vegetation. 

Pursuant to section 110(a) of the CAA, states are required to submit SIPs to provide for the 

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

the promulgation of such NAAQS, or within a shorter period as EPA may prescribe. More specifically, 

section 110(a)(1) provides the procedural and timing requirements for SIPs and section 110(a)(2) lists 

specific elements that states must meet for ‘‘infrastructure’’ SIP requirements related to a newly

established or revised NAAQS. These requirements include basic SIP elements such as requirements for 

monitoring, basic program requirements and legal authority that are designed to assure attainment and 

maintenance of the NAAQS.

Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or 

revised NAAQS, but the contents of that submission may vary depending upon the facts and 

circumstances. In particular, the data and analytical tools available at the time the state develops and 

submits the SIP for a new or revised NAAQS affect the content of the submission. The contents of such 

SIP submissions may also vary depending upon what provisions the state’s existing SIP already contains. 

This proposed rulemaking pertains to the Clean Air Act requirements for the 2010 1-hour NO2

NAAQS infrastructure SIP.

C. EPA REQUIREMENTS

For the 2010 1-hour NO2 NAAQS, states must provide SIP submissions, or provide certification 

that the existing SIP contains provisions addressing relevant infrastructure SIP elements from sections 

110(a)(2)(A) through (M) of the CAA.
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D. STATE’S SUBMITTAL

On December 13, 2012, EPA received a submittal from West Virginia to address the requirements 

of section 110(a)(2) of the CAA for the 2010 NO2 NAAQS. This submittal addressed the following 

infrastructure elements, or portions thereof, that EPA is proposing to approve: section 110(a)(2)(A), (B), 

(C), (D), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA. EPA will take separate action on the 

portions of CAA section 110(a)(2) infrastructure elements for the 2010 NO2 NAAQS as they relate to 

West Virginia’s permit program for Prevention of Significant Deterioration (PSD), as required by part C 

of Title I of the CAA, including portions of CAA section 110(a)(2)(C), (D) and (J).1 EPA will also take 

separate action on CAA section 110(a)(2)(E)(ii) for the 2010 NO2 NAAQS as it relates to CAA section 

128, “State Boards.”

E. EVALUATION OF STATE SUBMITTAL

1. Section 110(a)(2)(A) 

West Virginia has established laws and regulations applicable to the 2010 NO2 NAAQS that 

include enforceable emissions limitations and other control measures, means or techniques, as well as 

schedules and timetables for compliance to meet the applicable requirements of the CAA. The Secretary

of WVDEP (hereafter the Secretary) holds the legislative authority to promulgate regulations concerning 

air pollution control in accordance with the Administrative Procedures Act (W.Va. Code section 29A3-1 

et seq.) and W.Va. Code sections 22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17). EPA also notes that the WV 

SIP includes the following provisions related to nitrogen oxides:

 45CSR11 - “Prevention of Air Pollution Emergency Episodes”

 

1 EPA previously approved West Virginia’s PSD permit program with the limited exception of West Virginia’s definition of 

“regulated new source review (NSR) pollutant” which received a narrow disapproval as the definition did not include 

condensable emissions of particulate matter. See (77 FR 63736, October 17, 2012) and (78 FR 27062, May 9, 2013). Because 

the grounds for disapproval were narrow and extended only to the lack of condensables within the definition of "regulated NSR

pollutant", the narrow disapproval does not alter EPA's October 17, 2012 approval of the remaining portions of West Virginia's 

August 2011 SIP submittal for the State’s PSD program. EPA anticipates that West Virginia will make a submission rectifying 

the deficiency regarding condensables, and EPA will take action on the PSD elements of Section 110(a)(2)(C), (D) and (J) for 

West Virginia’s December 13, 2012 SIP submittal for the 2010 NO2 NAAQS at that time.
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 45CSR13 - “Permits for Construction, Modification, Relocation and Operation of Stationary

Sources of Air Pollutants, Notification Requirements, Temporary Permits, General 

Permits, and Procedures for Evaluation”

 45CSR14 - “Permits for Construction and Major Modification of Major Stationary Sources of Air 

Pollution for the Prevention of Significant Deterioration”

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

Pollution Which Cause or Contribute to Nonattainment”

 45CSR39 - “Control of Annual Nitrogen Oxide Emissions to Mitigate Interstate Transport of Fine 

Particulate Matter and Nitrogen Oxides”

 45CSR40 - “Control of Ozone Season Nitrogen Oxide Emissions to Mitigate Interstate Transport 

of Ozone and Nitrogen Oxides” 

 West Virginia’s EPA-approved regional haze SIP (which includes best available retrofit technology 

(BART) rates).

2

See 77 FR 16937 (Mar. 23, 2012).

Additionally, the EPA-approved operating permit program is applicable to NO2 emission 

limitations and control measures. 45CSR30 (“Requirements for Operating Permits”), the EPA-approved 

operating program (66 FR 50325) pursuant to Title V of the CAA, includes all the enforceable emission 

limitations or control measures pursuant to 45CSR11, 45CSR13, 45CSR14, and 45CSR19, as well as 

additional West Virginia measures, 45CSR16 “Standards of Performance for New Stationary Sources” 

and 45CSR18 “Control of Air Pollution from Combustion of Solid Waste,” which are not included in the 

West Virginia SIP. 

 

2 On March 23, 2012, EPA granted limited approval and limited disapproval of West Virginia’s regional haze SIP. See 77 FR 

16937. Although West Virginia’s regional haze SIP has not been fully approved as discussed more fully for section 

110(a)(2)(D)(i)(II) analysis below, EPA believes that the approved West Virginia regional haze SIP addressing BART and 

reasonable progress requirements contains enforceable control measures for NOx appropriate for meeting requirements of the 

CAA. In addition, as discussed in more detail below, a limited approval results in approval of the entire SIP submittal. See 

Processing of State Implementation Plan (SIP) Revisions, EPA Memorandum from John Calcagni, Director, Air Quality 

Management Division, OAQPS, to Air Division Directors, EPA Regional Offices I-X, September 7, 1992, (1992 Calcagni 

Memorandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.
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On May 9, 2013, EPA finalized a narrow disapproval of West Virginia SIP submittals for the PSD 

and Clean Air Act section 110 infrastructure elements related to PSD. The West Virginia PSD submittal 

did not properly address condensable emissions of particulate matter within the definition of “regulated 

NSR pollutant.” There are no sanctions associated with this disapproval; however, EPA is required to 

promulgate a Federal Implementation Plan within two years of final disapproval if the definition of 

“regulated NSR pollutant” is not corrected. EPA anticipates acting on West Virginia's expected 

submission of this revised definition within the two year time frame prior to EPA’s federal 

implementation plan obligation on this very narrow issue.

In this action, EPA is not proposing to approve or disapprove any existing state provisions with 

regard to excess emissions during Startup, Shutdown, and Malfunction (SSM) of operations at a facility. 

EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing 

EPA guidance (August 11, 1999 Steven Herman and Robert Perciasepe Guidance Memorandum, “State 

Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and 

Shutdown”), and the Agency is addressing such state regulations in a separate rulemaking. See 78 FR 

12460. In the meantime, EPA encourages any state having a deficient SSM provision to take steps to 

correct it as soon as possible.

Also in this action, EPA is not proposing to approve or disapprove any existing West Virginia 

rules with regard to director’s discretion or variance provisions. EPA believes that a number of states 

have such provisions which are contrary to the CAA and existing EPA guidance (see 52 FR 45109, 

November 1987), and the Agency is taking separate action to address such state regulations. See 78 FR 

12460. In the meantime, EPA encourages any state having a director’s discretion or variance provision 

which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as 

possible.

EPA is proposing to determine that the State of West Virginia has met its obligations pursuant to 

section 110(a)(2)(A) of the CAA. 

2. Section 110(a)(2)(B)
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The Secretary of WVDEP has the authority under W.Va. Code sections 22-5-4(a)(1) & (3) “to 

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

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

WVDEP informs EPA of planned changes to monitoring sites by providing adequate prior 

notification. Pursuant to 40 CFR 58.10, WVDEP submits to EPA, on an annual basis, a monitoring 

network plan, which describes how West Virginia is complying with monitoring requirements and 

explains any changes to the monitoring network. West Virginia’s 2011 Annual Air Quality Monitoring 

Network Design Plan was submitted to EPA on June 22, 2011, and was consequently approved by EPA 

on December 6, 2011. EPA approved West Virginia’s 2012 Annual Air Quality Monitoring Network 

Design Plan on February 21, 2013.

No monitoring of NO2 is required in West Virginia since it has no NO2 nonattainment areas and is 

well below the thresholds of criteria to establish NO2 monitoring. 

As provided in W.Va. Code sections 22-5-4(a)(2) and 22-5-10 and CAA section 110(a)(2)(B), 

WVDEP collects and reports to EPA ambient air quality data. West Virginia submits to EPA quarterly

reports of air quality data to comply with the requirements of 40 CFR 58.16. The air quality data is 

reviewed, edited, validated, and entered into the EPA air quality system (AQS) for updating pursuant to 

prescribed AQS procedures, and is certified annually as required under 40 CFR 58.15. 

EPA concludes that West Virginia’s monitoring network and data system satisfy the requirements 

of CAA section 110(a)(2)(B) for the 2010 NO2 NAAQS.

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

The Secretary has the statutory authority to enforce control measures for the 2010 NO2 NAAQS, 

pursuant to W.Va. Code sections 22-1-3(a), 22-5-4(a)(4), 22-5-4(a)(5), 22-5-4(a)(9), 22-5-4(a)(16), 22-5-

4(a)(17), 22-5-5, and 22-5-6. West Virginia has an established legal framework and ability to provide for 

the enforcement of the measures described in the CAA section 110(a)(2)(A) infrastructure element, 

contained in the SIP-approved regulations: 45CSR13, 45CSR14, and 45CSR19, as well as in the EPAapproved Title V program codified in 45CSR30. The provisions described meet the requirements for 
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enforcement of measures described in section 110(a)(2)(C) of the CAA, which EPA is proposing to 

approve. 

EPA will take separate action on the portion of section 110(a)(2)(C) of the CAA for the 2010 NO2

NAAQS as it relates to West Virginia’s PSD program as required by part C of Title I of the CAA. EPA 

has approved West Virginia’s PSD program with the narrow exception of the definition of regulated NSR

pollutant for its failure to include condensables. See (77 FR 63736, October 17, 2012) and (78 FR 27062, 

May 9, 2013).

West Virginia has an adequate minor source permitting program approved in the West Virginia 

SIP for minor sources and minor modifications to ensure the NAAQS are achieved. See 45CSR13.

EPA is proposing to determine that the state of West Virginia has met its obligations pursuant to 

section 110(a)(2)(C) of the CAA, with the exception of the required PSD permit component on which 

EPA will take separate action. 

4. Section 110(a)(2)(D)(i)(I)

Section 110(a)(2)(D)(i)(I) of the Clean Air Act prohibits any source or other type of emissions 

activity within the State from emitting any air pollutants in amounts which will contribute significantly to 

nonattainment in any other state with respect to any primary or secondary NAAQS, or interfere with 

maintenance by any other state with respect to any primary or secondary NAAQS. In this action, EPA is 

proposing to approve the 110(a)(2)(D)(i)(I) portion of the West Virginia SIP submission and determine 

that the existing West Virginia SIP contains provisions sufficient to satisfy all of the requirements of 

110(a)(2)(D)(i)(I) for the NO2 NAAQS.3 EPA reviewed West Virginia’s December 13, 2012 

infrastructure SIP submittal for the 2010 NO2 NAAQS and based on that review and EPA’s review of 

relevant air quality data, EPA is proposing to determine that West Virginia’s SIP includes adequate 

provisions to prohibit sources or other emission activities within the State from emitting nitrogen oxides 

 

3

In accordance with the decision of the U.S. Court of Appeals for the District of Columbia, EPA at this time is not treating the 

110(a)(2)(D)(i)(I) portion of the SIP submission from West Virginia (which is part of the larger December 13, 2012 SIP 

submission for the 2010 NO2 NAAQS) as a required SIP submission. See EME Homer City Generation, L.P. v. EPA, 696 F 

.3d 7 (D.C. Cir. 2012), cert. granted, 2013 U.S. Lexis 4801 (2013). On June 24, 2013, the Supreme Court granted the petitions 

of the United States and others and agreed to review the merits of the D.C. Circuit decision in EME Homer City during the 

Court’s 2013 term. Regardless of whether a particular SIP submission is considered “required,” however, section 110(k)(2) of

the CAA requires EPA to act on the submission.
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(NOx) in amounts that will contribute significantly to nonattainment or interfere with maintenance by any

other state with respect specifically to the NO2 NAAQS. NO2 is a component of NOx. 

The EPA-approved West Virginia SIP includes requirements for emissions limits on NOx

including the following (see 40 CFR Part 52, Subpart XX, Section 52.2520(c)): 

 45CSR11 - “Prevention of Air Pollution Emergency Episodes” (which contains episode criteria, 

methods of measurement, preplanned reduction strategies and emission reduction 

plan requirements for sources of NO2 emissions in West Virginia)

 45CSR13 - “Permits for Construction, Modification, Relocation and Operation of Stationary

Sources of Air Pollutants, Notification Requirements, Temporary Permits, General 

Permits, and Procedures for Evaluation”

 45CSR14 - “Permits for Construction and Major Modification of Major Stationary Sources of Air 

Pollution for the Prevention of Significant Deterioration” (ensures that no new or 

modified NO2 emitting source significantly degrades the existing air quality)4

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

Pollution Which Cause or Contribute to Nonattainment”

 45CSR29 - “Rule Requiring the Submission of Emission Statements for Volatile Organic 

Compound Emissions and Oxides of Nitrogen Emissions”

 45CSR39 - “Control of Annual Nitrogen Oxide Emissions to Mitigate Interstate Transport of Fine 

Particulate Matter and Nitrogen Oxides”

 45CSR40 - “Control of Ozone Season Nitrogen Oxide Emissions to Mitigate Interstate Transport 

of Ozone and Nitrogen Oxides” 

 

4 EPA has approved West Virginia’s PSD program with the narrow exception of the definition of regulated NSR pollutant for 

its failure to include condensables. See (77 FR 63736, October 17, 2012) and (78 FR 27062, May 9, 2013).
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 West Virginia’s EPA-approved regional haze SIP (which includes best available retrofit 

technology (BART) rates).5See (77 FR 16937, Mar. 23, 2012).

In addition, all major stationary sources of NO2 are subject to the SIP-approved requirements for 

PSD and NSR which provide preconstruction review and permitting requirements in attainment and 

nonattainment areas and which help ensure that no new or modified NO2 emitting source will cause or 

contribute to any potential exceedances of the NO2 NAAQS.6 See 45CSR14 and 45CSR19.

On February 17, 2012 (77 FR 9532), EPA promulgated a rule that established air quality 

designations for all areas of the country for the 2010 NO2 NAAQS based on air quality monitoring data 

for the period 2008-2010. Based upon this 2008-2010 air quality monitoring data, EPA determined that 

no area of the country is violating the 2010 NO2 NAAQS. While there are no NO2 monitors in WV, EPA 

reviewed NO2 air quality monitoring data for monitors within a 50 kilometer radius from the State, 

including monitors in Virginia, Ohio, Kentucky and Pennsylvania. EPA selected fifty kilometers from 

West Virginia for reviewing design values at monitors because 50 kilometers is the standard distance for 

modeling analysis in EPA’s Guideline on Air Quality Models (Appendix W to 40 CFR Part 51) and EPA 

is acting consistent with that Guideline. The most recent design values7(DVs) that are computed using 

quality-assured and certified ambient air monitoring data using the Federal Reference method or 

equivalent data is reported by states, tribes and local agencies to EPA’s Air Quality System (AQS). Data 

for 2008-2010, 2009-2011 and 2010-2012 for monitors in states surrounding or bordering West Virginia 

within 50 kilometers of West Virginia are in Table 1 below and show that the DVs are well below the 

NAAQS for NO2. The level of the 1-hour NAAQS for NO2 is 100 parts per billion (ppb) and the form is 

the 3-year average of the annual 98th percentile of the daily 1-hour maximum. In the states surrounding 

and bordering West Virginia within the 50 kilometers reviewed by EPA, there are no areas with design 

 

5 As discussed in further detail in EPA’s analysis for section 110(a)(2)(D)(i)(II), EPA granted limited approval and limited 

disapproval of West Virginia’s regional haze SIP on March 23, 2012. See 77 FR 16937. Although West Virginia’s regional 

haze SIP has not been fully approved as discussed more fully below, the approved West Virginia regional haze SIP addressing 

BART and reasonable progress requirements contains enforceable control measures that limit NOx emissions in West Virginia. 

In addition, as discussed in more detail below, a limited approval results in approval of the entire SIP submittal. See 

Processing of State Implementation Plan (SIP) Revisions, EPA Memorandum from John Calcagni, Director, Air Quality 

Management Division, OAQPS, to Air Division Directors, EPA Regional Offices I-X, September 7, 1992, (1992 Calcagni 

Memorandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.

6 As previously discussed, EPA has approved the West Virginia’s PSD program with the narrow exception of the definition of 

regulated NSR pollutant for its failure to include condensables. 

7

For the most recent design values, see http://www.epa.gov/airtrends/values.html.
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values for 2008-2010, 2009-2011 and 2010-2012 that exceed the 2010 NO2 NAAQS. For example, the 

highest DV for 2009-2011 and 2010-2012 is 53 (Allegheny County, PA), well below the 100 ppb 

NAAQS. See Table 1 below for DVs surrounding and bordering West Virginia within 50 kilometers of 

West Virginia.

 Table 1. Design Values Surrounding and Bordering West Virginia

State County Site

2008-2010

Final DV 

(ppb)

2009-2011

Final DV 

(ppb)

2010-2012

Final DV 

(ppb)

KY Boyd 210190017 38 34 32

OH Athens 390090004 27 24 23

PA Allegheny 420030008 55 44 44

PA Allegheny 420030010 55 53 53

PA Beaver 420070014 43 42 40

PA Washington 421250005 40 38 38

VA Loudoun 511071005 40 41 39

VA Prince William 511530009 30 28 28

VA Roanoke 511611004 38 39 39

VA Rockingham 511650003 41 40 39

Based on this air quality monitoring data analysis and EPA’s review of NOx emission trends 

within West Virginia, EPA does not expect NOx emissions in West Virginia to increase significantly. A 

review of the National Emissions Inventory (NEI) data shows a reduction of over 53,938 tons per year of 

total NOx emissions in West Virginia from 2008 to 2011. EPA’s analysis of the air quality monitoring 

data and emission trends (in addition to West Virginia’s SIP provisions) also demonstrate that NO2

emissions are not increasing significantly in the states surrounding West Virginia. EPA therefore does 

not expect monitors identified in the table above which all have DVs well below the NO2 NAAQS to have 

difficulty maintaining the NAAQS for NO2. This data thus also supports EPA’s proposed conclusion that 

West Virginia emission sources are not significantly contributing to nonattainment in another state for the 

NO2 NAAQS and are not interfering with maintenance of the NO2 NAAQS in another state. For all these 

reasons, EPA proposes to find that West Virginia’s federally enforceable SIP provisions with NOx
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emission limits for NOx emission sources contain adequate provisions to ensure West Virginia emission 

sources will not significantly contribute to nonattainment or interfere with maintenance in another state 

with respect to the NO2 NAAQS. 

Based upon EPA’s review of the air quality data and the State’s submittal, EPA is proposing to 

determine that the State has met its obligations pursuant to 110(a)(2)(D)(i)(I) with respect to the 2010 

NO2 NAAQS. 

5. Section 110(a)(2)(D)(i)(II)

As mentioned previously for 110(a)(2)(C), EPA will take separate action on the portion of section 

110(a)(2)(D)(i)(II) (prong 3) of the CAA for the 2010 NO2 NAAQS as it relates to West Virginia’s PSD 

program as required by part C of Title I of the CAA. No nonattainment areas for the 2010 NO2 NAAQS 

currently exist in West Virginia. 

Prong 4 of section 110(a)(2)(D)(i)(II) requires that SIPs include provisions prohibiting any source 

or other type of emissions activity in one state from interfering with measures to protect visibility required 

to be included in another state’s SIP. On March 23, 2012, EPA granted limited approval and limited 

disapproval of West Virginia’s regional haze SIP. See 77 FR 16937. Although West Virginia’s regional 

haze SIP has not been fully approved, EPA believes that the infrastructure SIP submission together with 

previously approved SIP provisions, specifically those provisions that require electric generating units 

(EGUs) to comply with the Clean Air Interstate Rule (CAIR) and the additional measures in the regional 

haze SIP addressing BART and reasonable progress requirements for other sources or pollutants, are 

adequate to demonstrate compliance with prong 4. Thus, EPA is proposing to fully approve this aspect of 

the submission. 

West Virginia’s regional haze SIP relied on West Virginia’s previous incorporation of the CAIR 

into the EPA-approved SIP for West Virginia as an alternative to the requirement that the regional haze 

SIPs provide for source-specific BART emission limits for SO2 and NOx emissions from EGUs. At the 

time the West Virginia regional haze SIP was being developed, the State’s reliance on CAIR was fully

consistent with EPA’s regulations. CAIR, as originally promulgated, requires significant reductions in 

emissions of SO2 and NOx to limit the interstate transport of these pollutants, and EPA’s determination 

that states could rely on CAIR as an alternative to requiring BART for CAIR-subject EGUs had 
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specifically been upheld in Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006). 

Moreover, the states with Class I areas affected by emissions from sources in West Virginia had adopted 

reasonable progress goals for visibility protection that were consistent with the EGU emission limits 

resulting from CAIR. 

In 2008, however, the D.C. Circuit remanded CAIR back to EPA. See North Carolina v. EPA, 

550 F.3d 1176 (D.C. Cir. 2008). The court found CAIR to be inconsistent with the requirements of the 

CAA, see North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to 

EPA without vacatur because it found that “allowing CAIR to remain in effect until it is replaced by a rule 

consistent with [the court’s] opinion would at least temporarily preserve the environmental values covered 

by CAIR.” North Carolina, 550 F.3d at 1178. 

After the remand of CAIR by the D.C. Circuit and the promulgation by EPA of a new rule – the 

Cross State Air Pollution Rule (CSAPR) – to replace CAIR, EPA issued a limited disapproval of West 

Virginia’s regional haze SIP (and other states’ regional haze SIPs that relied similarly on CAIR) because 

EPA believed that full approval of the SIP was not appropriate in light of the court’s remand of CAIR and 

the uncertain but limited remaining period of operation of CAIR. EPA finalized a limited approval of the 

West Virginia regional haze SIP, indicating that except for its reliance on CAIR, the SIP met CAA 

requirements for the first planning period of the regional haze program. See (77 FR 16937, March 23, 

2012).8 EPA also finalized a limited FIP for West Virginia, which merely substituted reliance on EPA’s 

more recent CSAPR NOx and SO2 trading programs for EGUs for the SIP’s reliance on CAIR. See (77 

FR 33642, June 7, 2012).

Since the above-described developments with regard to West Virginia’s regional haze SIP, the 

situation has changed. In August 2012, the D.C. Circuit issued a decision to vacate CSAPR. EME Homer 

City Generation, LP v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted, 2013 U.S. Lexis 4801 (2013).

On June 24, 2013, the Supreme Court granted the petitions of the United States and others and agreed to 

review this D.C. Circuit decision. However, at this time the D.C. Circuit decision remains in place, and 

EPA is acting in accordance with the decision unless and until the EME Homer City decision is reversed 

 

8 Under CAA sections 301(a) and 110(k)(6) and EPA’s long-standing guidance, a limited approval results in approval of the 

entire SIP submittal, even of those parts that are deficient and prevent EPA from granting a full approval of the SIP revision. 

Processing of State Implementation Plan (SIP) Revisions, EPA Memorandum from John Calcagni, Director, Air Quality 

Management Division, OAQPS, to Air Division Directors, EPA Regional Offices I-X, September 7, 1992, (1992 Calcagni 

Memorandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.
13

or otherwise modified by the Supreme Court. The D.C. Circuit decision ordered EPA to “continue 

administering CAIR pending the promulgation of a valid replacement.” Thus, EPA has been ordered by

the court to develop a new rule, and to continue implementing CAIR in the meantime, and the D.C. 

Circuit opinion makes clear that after promulgating that new rule EPA must provide states an opportunity

to draft and submit SIPs to implement that rule. Implementation of CAIR thus cannot be replaced until 

EPA has promulgated a final rule through a notice-and-comment rulemaking process; states have had an 

opportunity to draft and submit SIPs; EPA has reviewed the SIPs to determine if they can be approved; 

and EPA has taken action on the SIPs, including promulgating a FIP, if appropriate. 

Based on the current direction from the court to continue administering CAIR, EPA believes that 

it is appropriate to rely on CAIR emission reductions as permanent and enforceable for purposes of 

assessing the adequacy of West Virginia’s infrastructure SIP with respect to prong 4 while a valid 

replacement rule is developed and until implementation plans complying with any new rule are submitted 

by the states and acted upon by EPA or until any subsequent litigation or Supreme Court review provides 

different direction regarding CAIR and CSAPR. In addition, following resolution of the Supreme Court’s 

review of EME Homer City and its decision on CSAPR, EPA will reconsider the limited disapproval of 

West Virginia’s regional haze SIP and proceed with further rulemaking action as necessary.

As neither West Virginia nor EPA has taken any action to remove CAIR from the West Virginia 

SIP, CAIR remains part of the EPA-approved SIP and can be considered in determining whether the SIP 

as a whole meets the requirement of prong 4 of 110(a)(2)(D)(i). EPA is proposing to approve the 

infrastructure SIP submission with respect to prong 4 because West Virginia’s regional haze SIP which 

EPA has given a limited approval in combination with its SIP provisions to implement CAIR adequately

prevent sources in West Virginia from interfering with measures adopted by other states to protect 

visibility during the first planning period. While EPA is not at this time proposing to change the March 

23, 2012, limited approval and limited disapproval of West Virginia’s regional haze SIP, EPA will

reconsider appropriate action regarding West Virginia’s regional haze SIP as necessary.

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

According to the submittal, the State has adequate provisions ensuring future compliance with the 

requirements of sections 126 (interstate pollution) and 115 (international air pollution) of the CAA as may

be necessary. W.VA Code section 45CSR14-17, regarding public review procedures, requires 
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notification to other states of potential impacts from a source, meeting its obligations pursuant to CAA 

Section 126(a).9 There are no pending actions pursuant to Sections 126(b), or (c), or 115 of the CAA 

applicable to West Virginia for NO2. 

EPA is proposing to determine that the State has met its obligations pursuant to 110(a)(2)(D)(ii). 

7. Section 110(a)(2)(E)(i) and (iii)

As required under W.Va. Code section 22-5-4(a)(8), WVDEP has demonstrated it has adequate 

personnel to carry out the implementation plan with respect to the 2010 NO2 NAAQS requirements. At 

present, a staff of approximately 90 full time employees is employed at WVDEP’s Division of Air 

Quality (DAQ). West Virginia’s Air Director supervises the air monitoring, compliance and enforcement, 

hazardous waste, permitting and planning sections, as well as three regional DAQ offices, and answers to 

the Secretary. DAQ believes its funding sources are sufficient to provide adequate personnel for those 

purposes and does not anticipate any changes in resources considered necessary during 5 years following 

SIP submittal. 

The Air Pollution Control Act of West Virginia (APCA) provides adequate funding under W.Va. 

Code sections 22-1-10(a) and 22-5-4(a)(17) to carry out the West Virginia SIP. W.Va. Code section 22-

5-12 sets forth the statutory operating permit requirements for stationary sources under Title V of the 

CAA. EPA approved rule 45CSR30 establishes fees sufficient to cover the direct and indirect costs of 

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

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

establishment of fees to cover non-Title V permitting costs under 45CSR22 “Air Quality Management 

Fee Program.” Additionally, the air quality program receives revenue from fines and penalties (Air 

Pollution Control Fund), federal funds under sections 105 and 103 of the CAA and state general 

appropriations. 

 

9 EPA previously approved West Virginia’s PSD permit program with the limited exception of West Virginia’s definition of 

“regulated new source review (NSR) pollutant” which received a narrow disapproval as the definition did not include 

condensable emissions of particulate matter. See (77 FR 63736, October 17, 2012) and (78 FR 27062, May 9, 2013). Because 

the grounds for disapproval were narrow and extended only to the lack of condensables in the definition of regulated NSR 

pollutant, West Virginia’s otherwise approved PSD permit program meets CAA section 126(a) requirements.
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The APCA, under W.Va. Code section 22-5-1, declares the State's policy "to fulfill its primary

responsibility for assuring air quality" pursuant to the CAA. The Secretary is authorized under W.Va. 

Code sections 22-1-6(c)(1) and 22-5-4(a)(12) to carry out and represent the State in any and all matters 

pertaining to the implementation plan. The Secretary has the authority under W.Va. Code section 22-5-

4(a)(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.” The Secretary is not 

prohibited by any provision of federal or State law from carrying out the implementation plan or portion 

thereof. 

The Secretary has the authority under W.Va. Code sections 22-1-3(a), 22-5-4(a)(4) and 22-5-

4(a)(17) to promulgate rules in accordance with the Administrative Procedures Act (W.Va. Code section 

29A3-1 et seq.). Approximately forty rules revised under the auspices of the APCA are currently in effect 

and codified at Title 45 of the Code of State Rules, including the ambient air quality standards for NO2

and other criteria pollutants contained in 45CSR8. West Virginia has an EPA approved air permitting 

program for both major and minor facilities under State rules 45CSR13, 45CSR14 (with the narrow 

exception for the definition of regulated NSR pollutant as previously described which is not relevant for 

the requirements in this element), 45CSR19 and 45CSR30 (as applicable). 

West Virginia has not relied on any local or regional agency for the implementation of any state 

implementation plan provision for the 2010 1-hour NO2 NAAQS and the State will retain primacy with 

respect to any future plan that relies on local or regional governments, agencies, or instrumentalities. 

EPA finds that West Virginia satisfies the requirements described in CAA section 110(a)(2)(E)(i) 

and (iii).

As to CAA section 110(a)(2)(E)(ii), EPA will take later separate action on this portion of section 

110(a)(2)(E) for the 2010 NO2 NAAQS as it relates to CAA section 128, “State Boards.”

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

W.Va. Code section 22-5-4(a)(15) authorizes the Secretary to require the installation, maintenance 

and replacement of equipment, and the implementation of other necessary steps by owners or operators of 

stationary sources to monitor and report emissions of NO2 from such sources as the Secretary may
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prescribe, through permits issued under 45CSR13, 45CSR14, 45CSR19, 45CSR30, and via compliance 

orders. Pursuant to 40 CFR part 51, subpart A, “Air Emission Reporting Rule” (AERR), DAQ’s 

emissions inventory program provides source-specific emissions data to EPA. 

In accordance with the emission reports and recordkeeping requirements set forth in 40 CFR 

51.211, W.Va. Code section 22-5-4(a)(15) authorizes the Secretary to require periodic reports on the 

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

sources (monitoring data) of NO2 emissions through permits issued under 45CSR13, 45CSR14, 

45CSR19, 45CSR39, and via compliance orders. Pursuant to W.Va. Code section 22-5-4(a)(14), the 

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

prescribed by the Secretary (emissions inventory program). As required, DAQ periodically reports 

emission inventory information to EPA.

W.Va. Code section 22-1-6(d)(3) authorizes the Secretary to “investigate for violations of statutes 

or rules which the department is charged with enforcing.” W.Va. Code section 22-5-4(a)(3) authorizes 

the Secretary to correlate periodic emissions reports with any NO2 emission limitations or standards 

established pursuant to 45CSR11, 45CSR13, 45CSR14, 45CSR19, 45CSR30 or the CAA. As set forth in 

W.Va. Code section 22-5-10, the Secretary makes available at reasonable times for public inspection the 

periodic emissions reported under W.Va. Code sections 22-5-4(a)(14) & (15). The Secretary has the 

responsibility of making all records, reports or information obtained by the WVDEP or referred to at 

public hearings under the provisions of the APCA, available to the public, except to the extent the records, 

reports or information are protected by confidentiality. The types of records WVDEP routinely provides 

access to include notifications, inspection reports, notices of violation, enforcement orders, applications, 

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

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

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

Based upon EPA’s review of the above referenced provisions, EPA finds West Virginia’s SIP 

revision meets the obligations of CAA section 110(a)(2)(F). 

9. Section 110(a)(2)(G) 
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West Virginia has authority comparable to that in section 303 of the CAA and adequate 

contingency plans to implement such authority. Section 303 of the CAA provides authority to the EPA’s 

Administrator to restrain any source from causing or contributing to emissions which present an 

“imminent and substantial endangerment to public health or welfare, or the environment.” W.Va. Code 

section 22-5-5 authorizes the Secretary to issue an order to cease and desist any activity that violates the 

APCA. The Secretary may also suspend, modify or revoke a source’s permit. Under W.Va. Code section 

22-5-6, the Secretary may also institute lawsuits for civil penalties. Additionally, W.Va. Code section 22-

5-7 authorizes the Secretary to seek applications for injunctive relief and W.Va. Code section 22-5-8 

authorizes the Secretary, with the written authorization of the Governor, to shut down a source of NO2

emissions, thereby preventing the emission of air pollutants which substantially contributes to an 

emergency that requires immediate action to protect public health. As provided in W.Va. Code sections 

22-5-4(a)(2) and 22-5-10, the Secretary may consult with EPA to affirm accuracy of any information 

considered while executing authority under W.Va. Code sections 22-5-5, 22-5-6, 22-5-7 or 22-5-8. 

West Virginia’s SIP-approved rule 45CSR11 provides a mechanism to prevent the buildup of air 

pollutant concentrations during periods of adverse meteorological conditions in which air pollutants may

accumulate, thereby preventing the occurrence of an emergency due to the effects of these pollutants on 

health. West Virginia has established 3 levels of pollutant concentration levels and specific emission 

reduction plans will be developed which will be initiated at each criteria stage to prevent further 

deterioration of the air supply to any air quality region or substantial portion thereof. 

Pursuant to 40 CFR 51.152(c), West Virginia does not need to develop episode contingency plans 

as it is classified as a Priority III Region for NO2. 

EPA finds that West Virginia has met the requirements of section 110(a)(2)(G) of the CAA. 

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

EPA finds that West Virginia has demonstrated that it has adequate authority to satisfy CAA 

Section 110(a)(2)(H). West Virginia has adequate authority to address revisions to SIPs, as set forth in 40 

CFR 51.104. Specifically, W.Va. Code section 22-5-4(a)(16) authorizes the Secretary to do all things 

necessary and convenient to prepare and submit a plan for the implementation, maintenance and 

enforcement of the CAA. WVDEP has historically revised, and will continue to revise, its NAAQS rules 
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as necessary to take account of revisions of the national primary or secondary ambient air quality

standards or improved or more expeditious methods of attaining the standards. West Virginia has 

promulgated various versions of the rule 45CSR8 “Ambient Air Quality Standards” to take account of 

revisions of, and maintain, the primary and secondary NAAQS. 

Based upon EPA’s review of the above referenced submittals, EPA is proposing to determine that 

West Virginia has met its obligations pursuant to 110(a)(2)(H).

11. Section 110(a)(2)(I):

EPA does not expect infrastructure SIP submissions to address this element. Nonattainment area 

plans required under part D of Title I of the CAA are required on a different schedule from the CAA 

section 110(a)(2) infrastructure elements and, thus, will be reviewed and acted upon through a separate 

process. 

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

As mentioned previously for 110(a)(2)(C), EPA will take separate action on the portion of section 

110(a)(2)(J) of the CAA for the 2010 1-hour NO2 NAAQS as it relates to West Virginia’s PSD program 

as required by part C of Title I of the CAA.

West Virginia satisfies the applicable requirements of section 121 of the CAA. The APCA 

provides adequate authority under W.Va. Code section 22-5-4(a)(2) for West Virginia’s practices of 

consultation with local governments, organizations and Land Managers for purposes of air pollution 

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

maintenance requirements, preconstruction review of direct sources, nonattainment requirements, and 

prevention of significant deterioration. For the 2010 NO2 NAAQS, West Virginia’s permitting program 

includes three SIP-approved rules: minor NSR rule 45CSR13 (68 FR 9559), PSD rule 45CSR14 (77 FR 

63736) (with the exception of the definition of regulated NSR pollutant as explained previously which is 

not relevant to the requirements for this element), and major NSR rule 45CSR19 (71 FR 64468). West 

Virginia also has an approved Title V operating permit program (66 FR 50325). 
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W.Va. Code section 22-4-(a)(10) authorizes the WVDEP’s DAQ to notify the public of imminent 

and serious hazards to public health. W.Va. Code section 22-1-12 provides authority for the public 

notification of NAAQS violations and education efforts as required by CAA section 127. Each year, 

WVDEP issues a comprehensive Air Quality Annual Report, which compares monitored air quality data 

with the NAAQS and tracks the Air Quality Index. The Air Quality Annual Report contains emissions 

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

pollutants and their effects on health, and provides educational website links to tips that improve air 

quality, links to technical websites and outreach efforts.

With regard to the visibility protection aspect of 110(a)(2)(J), EPA recognizes that states are 

subject to visibility and regional haze program requirements under part C of Title I of the CAA (which 

includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the 

visibility and regional haze program requirements under part C of Title I do not change. Thus, EPA finds 

that there are no applicable visibility obligations under part C “triggered” under section 110(a)(2)(J) when 

a new NAAQS becomes effective. West Virginia has submitted SIP revisions to satisfy the requirements 

of the CAA Section 169A and 169B, and the regional haze and BART rules contained in 40 CFR 51.308. 

On March 23, 2012, EPA published a final rulemaking regarding West Virginia’s regional haze program, 

consisting of a limited approval and a limited disapproval. See 77 FR 16937. In EPA’s view, the current 

status of West Virginia’s regional haze SIP as having not been fully approved is not a bar to full approval 

of the infrastructure SIP submission with respect to the visibility protection aspect of 110(a)(2)(J), and 

EPA is proposing to fully approve the infrastructure SIP for this aspect. While EPA is not at this time 

proposing to change the March 23, 2012 limited approval and limited disapproval of West Virginia’s 

regional haze SIP itself, EPA will reconsider the approval status of the regional haze SIP in a separate 

action as necessary after the Supreme Court reviews the EME Homer City decision as discussed 

previously.

EPA is proposing to determine that the State has met its obligations pursuant to CAA Section 

110(a)(2)(J) (except for the portion of this element related to PSD upon which EPA will take separate 

action as discussed previously in further detail). 

13. Section 110(a)(2)(K) 
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EPA proposes to find that West Virginia has the authority and technical capability to conduct air 

quality modeling in order to assess the effect on ambient air quality relevant pollutant emissions. W.Va. 

Code sections 2-5-4(a)(1) & (3) authorize the Secretary to “develop ways and means for the regulation 

and control of pollution of the air of the state” and “conduct such studies and research relating to air 

pollution and its control and abatement.” Inherent in West Virginia's authority to meet the NAAQS and 

to conduct studies and research is the obligation for WVDEP to perform modeling as required under the 

CAA to demonstrate attainment of the NAAQS, as prescribed by the EPA’s Administrator. WVDEP’s 

DAQ employs one full time technical employee who is responsible for air quality modeling. West 

Virginia will perform modeling, as required under the CAA to demonstrate attainment of the 2010 1-hour 

NO2 NAAQS. Any air quality modeling to be conducted in West Virginia with respect to the NO2

NAAQS may employ source-oriented dispersion models such as AERMOD. 

Also, West Virginia can provide relevant ambient air quality data as part of the permitting and 

NAAQS interpretation process. W.Va. Code sections 22-5-10, 22-5-4(a)(2) and 22-5-4(a)(16) authorize 

the Secretary to submit, upon request by the EPA’s Administrator, modeling data predicting the effect on 

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

NAAQS. West Virginia will submit to EPA current and future air quality modeling data as part of its 

relevant SIP submissions and through Federal grant commitments or in other ways that EPA may request.

Based upon EPA’s review of the above referenced submittals, EPA is proposing to determine that 

West Virginia has met its obligations pursuant to CAA section 110(a)(2)(K). 

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

West Virginia’s program permit fees are contained in the SIP-approved major NSR rule 45CSR19. 

See 71 FR 64468. Program permit fees are also contained in West Virginia’s PSD rule, on which, as 

mentioned previously, EPA has taken separate action.10 West Virginia’s approved Title V operating 

permit program, which satisfies the fee determination and certification requirements set forth in 40 CFR 

70.9, are contained in 45CSR30. See 66 FR 50325. The collected fees in West Virginia have been 

 

10 See (77 FR 63736, October 17, 2012) and (78 FR 27062, May 9, 2013) (narrowly disapproving a part of West Virginia’s 

PSD program related solely to the definition of regulated NSR pollutant). EPA’s narrow disapproval is unrelated to permit fees 

and not relevant to this element.
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sufficient to cover the costs of permit review and implementation and enforcement of permit terms and 

conditions. 

Based upon EPA’s review of the above referenced submittals, EPA is proposing to determine that 

the State has met its obligations pursuant to 110(a)(2)(L). 

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

The Secretary has the authority under W.Va. Code section 22-5-4(a)(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.” Under this statute, and pursuant to the General Plan 

Requirements set forth in 40 CFR 51.240, the WVDEP’s DAQ is the organization authorized to develop, 

implement and enforce the West Virginia SIP. W.Va. Code section 22-5-4(a)(2) authorizes the Secretary

to advise, consult, and cooperate with local political subdivisions affected by the implementation plan. 

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

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

maintenance requirements, preconstruction review of direct sources, nonattainment requirements, and 

PSD.

In accordance with the federal procedural requirements at 40 CFR 51.102, any plan or plan 

revision, or individual compliance schedule, prepared by DAQ is subject to a 30 day public notice period 

with public hearing, or in cases where there is little anticipated public interest, the opportunity for a public 

hearing. State rules which contain such public notice procedures include permitting rules 45CSR13, 

45CSR14, 45CSR19 and 45CSR30. The public notice and hearing processes fulfill the requirements for 

consultation with local political subdivisions affected by the SIP. 

Based upon EPA’s review of the above referenced submittals, EPA is proposing to determine that 

the State has met its obligations pursuant to 110(a)(2)(M). 

F. CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA has analyzed West Virginia’s infrastructure submittal for the 2010 1-hour NO2 NAAQS and 

the Agency proposes to conclude that West Virginia’s submittal meets the requirements of section 
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110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, of the CAA. 

EPA will take separate action on the portions of section 110(a)(2) infrastructure elements for the 2010 

NO2 NAAQS as they relate to the West Virginia’s PSD program, as required by part C of Title I of the

CAA, including portions of section 110(a)(2)(C), (D) and (J). EPA will take later separate action on

section 110(a)(2)(E)(ii) for the 2010 NO2 NAAQS as it relates to section 128, “State Boards.”

It is recommended that a notice of proposed rulemaking be prepared approving West Virginia’s 

infrastructure submittal, or the portions thereof identified herein, for the 2010 1-hour NO2 NAAQS.