45 CSR 2- 1

TITLE 45

LEGISLATIVE RULE

DIVISION OF ENVIRONMENTAL PROTECTION

OFFICE OF AIR QUALITY

SERIES 2

TO PREVENT AND CONTROL PARTICULATE AIR

POLLUTION FROM COMBUSTION OF FUEL IN INDIRECT HEAT EXCHANGERS

§45-2-1. General.

1.1. Scope. -- Series 2 establishes emission limitations for smoke and particulate matter

which are discharged from fuel burning units. The Appendix to this rule incorporates the compliance

determination methods and procedures.

1.2. Authority.– W. Va. Code §§22-5-1 et seq.

1.3. Filing Date. – June 2, 2000

1.4. Effective Date. – August 31, 2000

1.5. Former Rules. – This legislative rule amends 45CSR2 - 'To Prevent and Control

Particulate Air Pollution From Combustion of Fuel in Indirect Heat Exchangers'" which was filed on

April 28, 1995 and became effective on May 1, 1995.

§45-2-2. Definitions.

2.1 “ASTM” means American Society for Testing and Materials.

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

result in a statutory air pollution.

2.3. "Air Pollution" or "statutory air pollution" shall have the meaning ascribed to it in WV

Code §22-5-2.

2.4. "Air Pollution Control Equipment" means any equipment used for collecting or confining

particulate matter for the purpose of preventing or reducing the emission of this air pollutant into the

open air.
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2.5. "Control Equipment" means any equipment used for collecting or confining particulate

matter for the purpose of preventing or reducing the emission of this air pollutant into the open air.

2.6. "Director" means the Director of the West Virginia Division of Environmental Protection

or such other person to whom the Director has delegated authority or duties pursuant to W. Va. Code

§22-1-6 or §22-1-8.

2.7. "Discharge Point" means the point at which particulate matter is released from a stack

into open air.

2.8 “Distillate Oil” means fuel oil that complies with the specifications for fuel oil numbers

1or 2, as defined by the American Society for Testing and Materials in ASTM D396-

98, “Standard specification for Fuel Oils”. 

2.9. "Fuel" means any form of combustible matter (solid, liquid, vapor, or gas) that is used

as a source of heat.

2.10. "Fuel Burning Unit" means and includes any furnace, boiler apparatus, device,

mechanism, stack, or structure used in the process of burning fuel or other combustible material for the

primary purpose of producing heat or power by indirect heat transfer. For the purposes of this rule, all

fuel burning units are classified in the following categories:

2.10.a. Type 'a' means any fuel burning unit which has as its primary purpose the

generation of steam or other vapor to produce electric power for sale.

2.10.b. Type 'b' means any fuel burning unit not classified as a Type 'a' or Type 'c' unit

such as industrial pulverized-fuel-fired furnaces, cyclone furnaces, gas-fired and liquid-fuel-fired units.

2.10.c. Type 'c' means any hand-fired or stoker-fired fuel burning unit not classified as

a Type 'a' unit.

2.11. "Fugitive Particulate Matter" means any and all particulate matter generated by any

operation involving or associated with the combustion of fuel in fuel burning units which, if not confined,

would be emitted directly into the open air from points other than a stack outlet.

2.12. "Fugitive Particulate Matter Control System" means any equipment or method used to

confine, collect, or dispose of fugitive particulate matter, including, but not limited to, hoods, bins, duct

work, fans, and air pollution control equipment.

2.13. "Heat Input" means the rate of heat release from all fuels fired in all similar units vented

by the test stack during the test run period.
45 CSR 2- 3

2.13.a. 'Design Heat Input (DHI)' means the heat input level (in MM Btu/hr) for which

an individual fuel burning unit has been designed to be operated during continuous operation.

2.13.b. 'Total Design Heat Input (TDHI)' means the sum of the design heat inputs for

all similar units located at one plant.

2.13.c. 'Normal Maximum Operating Load (NMOL)' means the sum of the Design

Heat Input levels (in MM Btu/hr) of the similar unit(s) vented by the test stack, unless the

owner/operator has elected to operate one or more of the similar units vented by the test stack at or

below a specified percentage of its Design Heat Input level as part of a compliance program, permit, or

consent order officially accepted by the Director. In such event, the NMOL is the sum of the Design

Heat Input levels or fractions thereof as appropriate (i.e., NMOL = 0.75 DHI1 + DHI2).

2.14 “Indirect Heat Exchanger” means a device that combusts any fuel and produces steam

or heats water or any other heat transfer medium. This term includes any duct burner that combusts

fuel and in part of a combined cycle system. This term does not include process heaters as defined in

subsection 2.26.

2.15. "Laboratory Official" means the person, qualified by experience or education, who is

charged with overseeing or conducting the laboratory analysis of the collected samples. This person is

responsible for ensuring the accuracy and validity of the laboratory results.

2.16. "Malfunction" means any sudden and unavoidable failure of air pollution control

equipment or process equipment or of a process to operate in a normal or usual manner. Failures that

are caused entirely or in part by poor maintenance, careless operation, or any other preventable upset

condition or preventable equipment breakdown shall not be considered malfunctions.

2.17 “Natural Gas” means (1) a naturally occurring mixture of hydrocarbon and

nonhydrocarbon gases found in geologic formations beneath the earth’s surface, of which the principal

constituent is methane, or (2) liquified petroleum (LP) gas, as defined by the American Society for

Testing and Materials in ASTM D1835-97, “Standard specification for Liquified Petroleum Gases.”

2.18. "Normal Operation" when used in the context of fuel quality and combinations fired,

means the type, quality, and combination of fuel(s) fired which is representative of the fuel or fuel

combination fired, in the unit(s) tested, over a reasonable period prior to the test, and the fuel or fuel

combination which might reasonably be expected to continue to be fired in this unit after the test. If the

type of fuel, quality or combination used in the unit is variable, use the type, quality, and/or combination

fired in day-to-day operation which can reasonably be expected to produce the greatest particulate

matter loading to the control equipment (e.g., if coal is fired eight months out of the year and gas is fired

four months out of the year, coal is to be burned during the test).
45 CSR 2- 4

2.19. “Opacity” means the degree to which emissions reduce the transmission of light and

obscure the view of an object in the background.

2.20. "Owner or Operator" means the person responsible for the compliance of the fuel

burning units subject to the provisions of 45CSR2.

2.21. "Particulate Matter" means any material except uncombined water that exists in a finely

divided form as a liquid or solid.

2.22. "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.

2.23. "Plant" means and includes all fuel burning units, source operations, equipment, and

grounds utilized in an integral complex.

2.24. "Prefilter" means a filter used in the sampling train prior to the primary filter for the

purpose of reducing the particulate matter build-up on the primary filter.

2.25. "Primary Filter" means the last filter used in the sampling train to separate the particulate

matter sample from the sampled stack gas.

2.26 “Process Heater” means a device that is primarily used to heat a material to initiate or

promote a chemical reaction in which the material participates as a reactant or catalyst.

2.27. "Probe" means the part of the pitot tube assembly (nozzle, sample tube, pitot tube, filter

holder(s), sensor(s)), which precedes the last filter in the sampling train and conveys the sample gas and

particulate matter from the nozzle inlet to the last filter disc used for collecting stack particulate matter.

2.28 “Residual Oil” means crude oil, fuel oil that does not comply with the specifications

under the definition of distillate oil, and all fuel numbers 4, 5 and 6, as defined by the American Society

for Testing and Materials in ASTM D396-98, “Standard for the Specification for Fuel Oils”. 

2.29. "Sampling Plane" means the imaginary plane located perpendicular to the gas flow in the

duct or stack at the place selected for the extraction of the required samples.

2.30 “Shipment” means any discrete, identifiable quantity of fuel for which a quality report is

available. For example, a fuel shipment may be All fuel delivered from a specific lot, identified by the

lot number, or fuel delivered under a specific purchase order number. 
45 CSR 2- 5

2.31. "Shutdown" means the cessation of operation of a fuel burning unit(s) subject to this rule

for any purpose.

2.32. "Similar Unit(s)" means all Type 'a', or all Type 'b', or all Type 'c' fuel burning units

located at one plant.

2.33. "Smoke" means small gasborne and airborne particulate matter arising from a process

of combustion in sufficient number to be visible.

2.34. "Stack", for the purposes of this rule, means, but not be limited to, any duct, control

equipment exhaust, or similar apparatus, which vents gases and/or particulate matter into the open air.

2.35. "Start-up" means the setting in operation of a fuel burning unit subject to this rule for any

purpose.

2.36. "Test Team Supervisor" means the person, qualified by experience or education, who is

charged with supervising the stack test. This person is responsible for ensuring the validity and

correctness of the submitted test results.

2.37. “Wet Scrubber System” means any emission control device that mixes an aqueous

stream or slurry with the exhaust gases from an indirect heat exchanger to control emissions of

particulate matter (PM) or SO2.

2.38. “Wood” means wood, wood residue, bark, or any derivative fuel or residue thereof, in

any form, including, but not limited to, sawdust, sanderdust, wood chips, scraps, slabs, millings,

shavings and processed pellets made from wood or other forest residues. 

2.39 Other words and phrases used in this rules, unless otherwise indicated, shall have the

meaning ascribed to them in W.Va. 22-5-1 et seq.

§45-2-3. Visible Emissions of Smoke And/Or Particulate Matter Prohibited And

Standards of Measurement.

3.1. No person shall cause, suffer, allow, or permit emission of smoke and/or particulate

matter into the open air from any fuel burning unit which is darker in shade or appearance than ten (10)

percent opacity based on a six minute block average.

3.2. Compliance with the visible emission requirements of subsection 3.1 of this section shall

be determined in accordance with 40 CFR Part 60, Appendix A, Method 9 (July 1, 1994) or by using

measurements from continuous opacity monitoring systems approved by the Director. The Director

may require the installation, calibration, and operation of continuous opacity monitoring systems and
45 CSR 2- 6

may establish policies for the evaluation of continuous opacity monitoring results and the determination

of compliance with the visible emission requirements of subsection 3.1. of this section. Compliance

opacity monitors shall not be required on fuel burning units which employ wet scrubbing systems for

emission control.

3.3. If the owner or operator of a fuel burning unit can demonstrate to the satisfaction of the

Director that compliance with subsection 3.1 cannot practically be achieved with respect to soot

blowing operations or during the cleaning of a fire box, the Director may formally approve specific

visible emission standards applicable to the fuel burning unit for soot blowing periods; provided that the

exception period shall not exceed a total of six (6) minutes per eight hour period with visible emissions

limited to thirty percent (30%) opacity.

3.4. The Director may approve an alternative visible emission standard to that required

under subsection 3.1 of this section, not to exceed twenty (20) percent opacity, upon the filing of a

written petition by the owner or operator, which petition shall include a demonstration satisfactory to

the Director:

3.4.a. That it is technologically or economically infeasible to comply with section 3.1;

3.4.b. That emissions from the fuel burning unit for which an alternative visible

emission standard is proposed impact no area in which the National Ambient Air Quality Standards for

particulate matter are being exceeded nor will any such emissions cause or contribute to a violation of

the National Ambient Air Quality Standards for particulate matter in an area which currently meets such

standards;

3.4.c. That the particulate weight emission standards under section 4 of this rule are

being met, as determined in accordance with the Appendix to this rule--"Compliance Test Procedures

for 45CSR2";

3.4.d. That the fuel burning unit for which an alternative visible emission standard is

proposed is at all times operated and maintained in accordance with the provisions of subsection 9.2;

3.4.e. That the fuel burning unit for which an alternative visible emission standard is

proposed and its associated air pollution control equipment are incapable of being adjusted or operated

at normal operating loads to meet the applicable visible emission standard;

3.4.f. That the owner or operator will install, calibrate, and operate a continuous

opacity monitoring system approved by the Director, for the fuel burning unit for which an alternative

visible emission standard is proposed, and will submit the results of such monitoring system to the

Director on a calendar monthly basis in a format approved by the Director, provided that this provision

shall not apply to fuel burning units which employ wet scrubbing systems for emission control; and
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3.4.g. That all other requirements of law and rules enforced by the Director will be

met.

§45-2-4. Weight Emission Standards.

4.1. No person shall cause, suffer, allow, or permit the discharge of particulate matter into the

open air from all fuel burning units located at one plant, measured in terms of pounds per hour in excess

of the amount determined as follows:

4.1.a. For Type 'a' fuel burning units, the product of 0.05 and the total design heat

inputs for such units in million British Thermal Units (B.T.U.'s) per hour, provided however that no

more than twelve hundred (1200) pounds per hour of particulate matter shall be discharged into the

open air from all such units;

4.1.b. For Type 'b' fuel burning units, the product of 0.09 and the total design heat

inputs for such units in million B.T.U.'s per hour, provided however that no more than six hundred

(600) pounds per hour of particulate matter shall be discharged into the open air from all such units; and

4.1.c. For Type 'c' fuel burning units, in excess of the values listed in Table 45-2A,

provided however that no more than three hundred (300) pounds per hour of particulate matter shall be

discharged into the open air from all such units.

4.1.c.1. For values between any two corresponding consecutive values listed

in Table 45-2A, linear interpolation is to be used for both columns.

4.2. Subject to the provisions of this rule, allowable emission rates for individual stacks shall

be determined by the owner and/or operator and registered with the Director at the request of, and on

forms provided by, the Director. Such rates shall be subject to review and approval by the Director.

4.2.a. The approved set of individual stack allowable emission rates shall become an

official part of the compliance schedule and/or any permits concerning such source(s), and shall not be

changed without the prior written approval of the Director.

4.3. If the number of similar fuel burning units located at one plant, each of which is meeting the

requirements of this rule, is expanded by the addition of a new unit(s), the total allowable emission rate

for the new unit(s) shall be determined by the following formula. However, the maximum allowable

emission rates given in subsection 4.1. are not to be exceeded:
45 CSR 2- 8

Where,

Re is the total allowable emission rate in pounds per hour for the new fuel burning

unit(s);

Het is the total design heat input in million B.T.U.'s per hour of the existing and new

similar units;

Ret is the total allowable emission rate in pounds per hour corresponding to Het; and

He is the total design heat input in million B.T.U.'s per hour for the new fuel burning

unit(s).

4.4. The addition of sulfur oxides into a combustion unit gas stream for the purpose of

improving emissions control equipment efficiency shall be reviewed by the Director. No person shall

cause, suffer, allow, or permit the addition of sulfur oxides as described above unless written approval

for such addition is provided by the Director.

4.5. The provisions of subsection 4.4 of this section shall not apply to combustion units in

operation on or before September 1, 1974.

§45-2-5. Control of Fugitive Particulate Matter.

5.1. No person shall cause, suffer, allow, or permit any source of fugitive particulate matter

to operate that is not equipped with a fugitive particulate matter control system. This system shall be

operated and maintained in such a manner as to minimize the emission of fugitive particulate matter. 

Sources of fugitive particulate matter associated with fuel burning units shall include, but not be limited

to, the following:

5.1.a. Stockpiling of ash or fuel either in the open or in enclosures such as silos;

5.1.b. Transport of ash in vehicles or on conveying systems, to include spillage,

tracking, or blowing of particulate matter from or by such vehicles or equipment; and

5.1.c. Ash or fuel handling systems and ash disposal areas.

§45-2-6. Registration.

6.1. All persons owning and/or operating fuel burning units in existence on 

September 1, 1974 not previously registered shall have registered such units with the Director. The

information required for registration shall be determined and provided in the manner specified by the
45 CSR 2- 9

Director. Registration forms should be requested from the Director by the owner and/or operator of

fuel burning unit(s) subject to the provisions of this section.

6.2. The owner and/or operator of fuel burning units that were under construction or on

which construction was initiated as of October 1, 1974 not previously registered shall have registered

such fuel burning units with the Director.

§45-2-7. Permits.

7.1 No person shall construct, modify or relocate any fuel burning unit without first obtaining

a permit in accordance with the provisions of W. Va. Code 22-5-1 et seq., and Series 13 14, 19

[XIX] and 30 of Title 45. 

§45-2-8. Testing, Monitoring, Recordkeeping and Reporting

8.1. Testing.

8.1.a. The owner or operator of a fuel burning unit(s) shall demonstrate compliance

with section 3 by periodic testing in accordance with 40 CFR Part 60, Appendix A, Method 9, or a

certified continuous opacity monitoring system, as approved by the Director, and section 4 by periodic

particulate matter stack testing, conducted in accordance with the appropriate test method set forth in

the Appendix to this rule or other equivalent EPA approved method approved by the Director. The

owner or operator shall conduct such testing at a frequency to be established by the Director. 

8.1.b. At such reasonable times as the Director may designate, the owner or operator

of any fuel burning unit(s) may be required to conduct or have conducted tests to determine the

compliance of such unit(s) with the emission limitations of section 4. Such tests shall be conducted in

accordance with the appropriate method set forth in the Appendix to this rule or other equivalent EPA

approved method approved by the Director. The Director, or his duly authorized representative, may

at his option witness or conduct such tests. Should the Director exercise his option to conduct such

tests, the operator will provide all the necessary sampling connections and sampling ports to be located

in such manner as the Director may require, power for test equipment, and the required safety

equipment such as scaffolding, railings, and ladders to comply with generally accepted good safety

practices.

8.1.b.1. Sufficient information on temperatures, velocities, pressures, weights

and dimensional values shall be reported to the Director, with such necessary commentary as he may

require to allow an accurate evaluation of the reported test results and the conditions under which they

were obtained.

8.1.c. The Director, or his duly authorized representative, may conduct such other
45 CSR 2- 10

tests as he may deem necessary to evaluate air pollution emissions other than those noted in subsection

4.1.

8.2. Monitoring 

8.2.a. The owner or operator of a fuel burning unit(s) shall monitor compliance with

section 3 as set forth in an approved monitoring plan for each emission unit. Such monitoring plan(s)

shall include, but not be limited to, one or more of the following: continuous measurement of emissions,

monitoring of emission control equipment, periodic parametric monitoring, or such other monitoring as

approved by the Director.

8.2.a.1. Direct measurement with a certified continuous opacity monitoring

system (COMS) shall be deemed to satisfy the requirements for a monitoring plan. Such COMS shall

be installed, calibrated, operated and maintained as specified in 40 CFR Part 60, Appendix B,

Performance Specification 1 (PS1). COMS meeting the requirements of 40 CFR Part 75 (Acid Rain)

will be deemed to have satisfied the requirements of PS1.

8.2.a.2. Monitoring plans pursuant to subdivision 8.2.a. shall be submitted to

the Director within six (6) months of the effective date of this rule. Approval or denial of

such plans shall be within twelve (12) months of the effective date of this rule or six (6) months after

receipt of the monitoring plan, whichever is later. The owner or operator may presume approval until

notified otherwise.

8.2.a.3. Excursions outside the range of operating parameters associated with

control or process equipment which are established in an approved monitoring plan will

not necessarily constitute a violation of this rule.

8.3. Recordkeeping and Reporting.

8.3.a. The owner or operator of a fuel burning unit(s) shall maintain on-site all records

of monitored data established in the monitoring plan pursuant to subdivision

8.2.a. Such records shall be made available to the Director or his duly authorized representative upon

request. Such records shall be retained on-site for a minimum of five years.

8.3.b. The owner or operator shall submit a periodic exception report to the Director,

in a manner and at a frequency to be established by the Director. Such exception report shall provide

details of all excursions outside the range of measured emissions or monitored parameters established in

an approved monitoring plan, and shall include, but not be limited to, the time of the excursion, the

magnitude of the excursion, the duration of the excursion, the cause of the excursion and the corrective

action taken.
45 CSR 2- 11

8.3.c. The owner or operator shall maintain records of the operating schedule and the

quantity and quality of fuel consumed in each fuel burning unit in a manner to be established by the

Director. Such records are to be maintained onsite and made available to the Director or his duly

authorized representative upon request.

8.3.d. Where appropriate the owner or operator of a fuel burning unit(s) may maintain

such records in electronic form.

8.4. Exceptions.

8.4.a. The owner or operator of a fuel burning unit(s) may petition for alternatives to

testing, monitoring and reporting requirements prescribed pursuant to this rule for

conditions, including, but not limited to, the following:

8.4.a.1. Infrequent use of a fuel burning unit(s).

8.4.a.2. Continuous emission measurement equipment that does not meet the

design requirements of 40 CFR Part 60, Appendix B, Performance Specification 1(PS1) or 40 CFR

75 (Acid Rain), where it can be adequately demonstrated that there is a definite and consistent

relationship between its measurement and the measurements of opacity by a system complying with

PS1. The Director may require that such demonstration be performed for each fuel burning unit.

8.4.a.3. Where a single fuel burning unit may have more than one emission

point.

8.4.a.4. Where the desired location of the continuous monitoring system does

not meet the requirements of the applicable performance standard, when the owner or

operator can demonstrate that installation at alternative locations will enable accurate and representative

measurements.

8.4.b. The owner or operator of a fuel burning unit(s) which combusts only natural gas

shall be exempt from the requirements of subdivision 8.1.a and subsection 8.2.

8.4.c. The owner or operator of a fuel burning unit(s) with a Design Heat Input of less

than 100 mmBtu/hr shall be exempt from the periodic testing requirements of subdivision 8.1.a and the

monitoring requirements of subsection 8.2. The Director reserves the right to require testing pursuant to

subdivisions 8.1.b and 8.1.c.

8.5. Requests for Information.

8.5.a. The Director shall respond within five working days to requests for information
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generated or required under this rule. Requests for information not in the Director's custody shall be

promptly forwarded to the appropriate federal or state agency known to have such information.

8.5.b. Data relating to electric utilities and fuel quality and costs of fuels are available

from the Federal Energy Regulatory Commission (FERC) and the West Virginia Public Service

Commission (PSC). Requests for FERC data should be sent to David P. Boergers, Secretary, Federal

Energy Regulatory Commission, 888 First Street NE, Washington, D.C. 20426 or online at

http://www.ferc.fed.us/electric/f423/form423.htm. Requests for PSC data should be sent to: The West

Virginia Public Service Commission, Utility Division, P.O. Box 812, Charleston, W. Va. 25323-0812.

§45-2-9. Start-ups, Shut-downs and Malfunctions.

9.1. The visible emission standards set forth in section 3 shall apply at all times except in

periods of start-ups, shut-downs, and malfunctions. Where the Director believes that start-ups and

shut-downs are excessive in duration and/or frequency, the Director may require an owner or operator

to provide a written report demonstrating that such frequent start-ups and shut-downs are necessary.

9.2. At all times, including periods of start-ups, shutdowns, and malfunctions, owners and

operators shall, to the extent practicable, maintain and operate any fuel burning unit(s) including

associated air pollution control equipment in a manner consistent with good air pollution control practice

for minimizing emissions. Determination of whether acceptable operating and maintenance procedures

are being used will be based on information available to the Director which may include, but is not

limited to, monitoring results, visible emission observations, review of operating and maintenance

procedures, and inspection of the source.

9.3. The owner or operator of a fuel burning unit(s) subject to this rule shall report to the

Director, by telephone or telefax, any malfunction of such unit or its air pollution control equipment

which results in any excess particulate matter emission rate or excess opacity (i.e., emissions exceeding

the standards in section 3 and 4) as provided in one of the following subdivisions:

9.3.a. Excess opacity periods meeting the following conditions may be reported on a

quarterly basis unless otherwise required by the Director:

9.3.a.1. The excess opacity period does not exceed thirty (30) minutes within

any 24-hour period; 

9.3.a.2. Excess opacity does not exceed 40%.

9.3.b. The owner or operator shall report to the Director any malfunction resulting in

excess particulate matter or excess opacity, not meeting the criteria set forth in subdivision 9.3.a, by
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telephone, telefax, or e-mail by the end of the next business day after becoming aware of such

condition. The owner or operator shall file a certified written report concerning the malfunction with the

Director within thirty (30) days providing the following information: 

9.3.b.1. A detailed explanation of the factors involved or causes of the

malfunction.

9.3.b.2. The date and time of duration (with starting and ending times) of the

period of excess emissions.

9.3.b.3. An estimate of the mass of excess emissions discharged during the

malfunction period.

9.3.b.4. The maximum opacity measured or observed during the malfunction.

9.3.b.5. Immediate remedial actions taken at the time of the malfunction to

correct or mitigate the effects of the malfunction.

9.3.b.6. A detailed explanation of the corrective measures or program that will

be implemented to prevent a recurrence of the malfunction and a schedule for such implementation.

9.4. A malfunction, as defined under this rule, constitutes an affirmative defense to an action

brought for noncompliance with the weight emission standards under section 4 of this rule if the owner

or operator demonstrates to the satisfaction of the Director that the requirements of subsections 9.2 and

9.3 of this section have been met.

9.5. In any enforcement proceeding, the owner or operator seeking to establish the

occurrence of a malfunction has the burden of proof.

§45-2-10. Variances.

10.1. In the event of an unavoidable shortage of fuel having characteristics or specifications

necessary for a fuel burning unit to comply with the opacity standards set forth in section 3 or any

emergency situation or condition creating a threat to public safety or welfare, the Director may grant an

exception to the otherwise applicable visible emission standards for a period not to exceed fifteen (15)

days, provided that visible emissions during the exception period do not exceed a maximum six (6)

minute average of thirty (30) percent and that a reasonable demonstration is made by the owner or

operator that the emission standards under section 4 of this rule will not be exceeded during the

exemption period.

10.2. In the event a fuel burning unit employing a flue gas desulphurization system must by-
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pass such system because of necessary planned or unplanned maintenance, visible emissions may not

exceed twenty percent (20%) opacity during such period of maintenance. The Director may require

advance notice of necessary planned maintenance, including a description of the necessity of the

maintenance activity and its expected duration and may limit the duration of the variance or the amount

of the excess opacity exception herein allowed. The Director shall be notified of unplanned

maintenance and may limit the duration of the variance or the amount of excess opacity exception

allowed during unplanned maintenance.

§45-2-11. Exemptions.

11.1. All fuel burning units having a heat input under ten (10) million B.T.U.'s per hour will be

exempt from sections 4, 5, 6, 8 and 9. However, failure to attain acceptable air quality in parts of some

urban areas may require the mandatory control of these sources at a later date.

§45-2-12. Inconsistency Between Rules.

12.1. In the event of any inconsistency between this rule and Appendix and any other rule of

the West Virginia Division of Environmental Protection, such inconsistency shall be resolved by the

determination of the Director and such determination shall be based upon the application of the more

stringent provision, term, condition, method, or rule.
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TABLE 45-2A

Total Design Heat Input for All Total Allowable Particulate

Type 'c' Fuel Burning Units Matter Emission Rate for

Located at One Plant in All Type 'c' Fuel Burning

Millions of B.T.U.'s Per Hour Units Located at One Plant

in Pounds Per Hour

10 3.4

20 5.6

40 9.0

60 11.7

80 14.4

100 16.6

200 26.4

400 42.2

600 54.0

3,333 300.0

Appendix 45CSR2 -- Compliance Test Procedures for 45CSR2

[See separate file]