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 - H our Nitrogen Dioxide (NO 2 ) 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 Diox ide (NO 2 ) national ambient air quality standards (NAAQS ) . **B. BACKGROUND** EPA first set standards for NO 2 in 1971, setting both a primary standard (to protect health) and a secondary standard (to protect the public welfare) at 0.053 parts per b illion (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, av eraged 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 qualit y statistic used to determine if an area meets the standard. The form2

for the 1 - hour NO 2 standard is the 3 - ye ar 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 NO 2 NAAQS, based on the existing community - wide monitoring network. As previousl y mentioned, EPA established a one hour standard of 100 ppb for NO 2 on January 22, 2010 . On March 20, 2012, EPA took final action to retain the current secondary NAAQS for NO 2 , 53 ppb averaged over a ye ar, to address direct effects on vegetation. Pursuant to section 110(a) of the CAA, states are required to submit SI Ps to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three y ears following the promulgation o f such NAAQS, or within a shorter period as EPA may prescribe. More specifically , section 110(a)(1) provides the procedural a nd timing requirements for SI Ps and s ection 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 SI P elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQ S. 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 anal yt ical 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 SI P alread y contains. This propose d rulemaking pertains t o the Clean Air Act requirements for the 2010 1 - hour NO 2 NAAQS infrastructure SIP . **C. EPA REQUIREMENTS** F or the 2010 1 - hour NO 2 NAAQS , states must provide SI P submissions, or provide certification that the existing SIP contains provisions addressing relevant infrastructure SI P elements from sections 110(a)(2)(A) through (M) of the CAA.3

**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 NO 2 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 NO 2 NAAQS as they relate to West Virginia’s permit program for Prevention of Significant Deterioration (PSD), as re quired by part C of Title Iof 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 NO 2 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 NO 2 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 revie w (NSR) pollutant” which received a narrow disapproval as the definition did not include condensable emission s 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 m ake a submission rectifying the deficiency regarding conden sables, 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 NO 2 NAAQS at that time.4

 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 te chnology (BART) rates ) . 2 See 77 FR 16937 (Mar. 23, 2012). Additionally , the EPA - approved operating permit program is applicable to NO 2 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 “St andards 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 NO x 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 O ffices I - X, September 7, 1992, (1992 Calcagni Mem orandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf .5

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 particul ate 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 y ears of final disapproval if the definition of “regulated NSR pollutant” is not corrected. EPA anticipates acting on West Virginia's expected submission o f this revised definition within the two y ear 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 disappro ve an y existing s tate 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 su ch state regulations in a separate rulemaking. See 78 FR 12460 . Inthe meantime, EPA encourages an y s tate 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 an y 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), an d 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 corre ct the deficiency as soon as possible. EPA is proposing to determine that the S tate of West Virginia has met its obligations pursuant to section 110(a)(2)(A) of the CAA. **2. Section 110(a)(2)(B)**6

The Secretary

of WVDEP has the authority under W.Va. Code sections 22 - 5 - 4(a)(1) & (3) “to develop way s 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 c ontrol and abatement.” WVDEP inform s EPA of planned changes to monitoring site s 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 monitorin g network. West Virginia’s 2011 Annual Air Quality Monitoring Network Design Plan was submitted to EPA on June 22, 2011, and was consequently approved b y EPA on December 6, 2011. EPA approved West Virginia’s 2012 Annual Air Quality Monitoring Network Des ign Plan on February

21, 2013. No monitoring of NO 2 is required in West Virginia since it has no NO 2 nonattainment areas and is well below the thresholds of criteria to establish NO 2 monitoring. As provided in W.Va. Code sections 22 - 5 - 4(a)(2) and 22 - 5 - 1 0 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 5 8.16. The air qualit y data is reviewed, edited, vali dated, and entered into the EPA air quality s ys tem (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 n etwork and data s ys tem satisfy the requ irements of CAA section 110(a)(2)(B) for the 2010 NO 2 NAAQS . **3. Section 110(a)(2)(C)** The Secretary

has the sta tutory

authorit y to enforce control measures for the 2010 NO 2 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 EPA approved Title V program codified in 45CSR30. The provisions described meet the requirements for7

enforcement of measures described in section 110(a)(2)(C) of the CAA, which EP A is proposing to approve. EPA will take separate action on the portion of section 110(a)(2)(C) of the CAA for the 2010 NO 2 NAAQS as it relates to West Virginia’s PSD program as required b y part C of Title Iof 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 e nsure the NAAQS are achieved. See 45CSR13. EPA is proposing to determine that the state of West Virginia has met its obligati ons 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 1 10(a)(2)(D)(i)(I) of the Clean Air Act prohibits any source or other ty

pe 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 i nterfere with maintenance b y an y other stat e with respect to any primary or secondary

NAAQS. In this action, EP A is proposing to approve the 1 10(a)(2)(D)(i)(I) portion of the W est V irginia SIP

submission and determine that the existing We st Vi rginia SIP contains provisions suf

ficient to satisfy

al l of the requirements of 11 0(a)(2)(D)(i)(I) for the NO 2 NAAQS. 3 EPA reviewed West Virginia’s December 13, 2012 infrastructure SIP submittal for the 2010 NO 2 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 fo r 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 NO 2 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. Cir cuit decision in EME Homer City during the Court’s 2013 term. Regardless of whether a particular SIP submission is considered “required,” how ever, section 110(k)(2) of the CAA requires EPA to act on the submission.8

(NO x ) in amounts that will contribute significantl y to nonattainment or interfere with maintenan ce by any other state with respect specificall y to the NO 2 NAAQS. NO 2 is a component of NO x . The EPA - approved West Virginia SIP includes requirements for emissions limits on NO x 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 NO 2 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 NO 2 emitting source significantl y 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”

 45CS R39 - “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 p rogram 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).9

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

(BART) rates). 5 See ( 77 FR 16937 , Mar. 23, 2012 ). In addition, all major stationary sources of NO 2 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 NO 2 emitting source will cause or contribute to an y potential exceedances of the NO 2 NAAQS. 6 See 45CSR14 and 45CSR19. On February

17, 2012 (77 FR 9532), EPA promulgated a rule that established air qualit y designations for all areas of the country for the 2010 NO 2 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 NO 2 NAAQS. While there are no NO 2 monitors in WV, EPA reviewed N O 2 air qualit y monitoring data for monitors within a 50 kilometer radius from the State, including monitors in Virginia, Ohio, Kentucky and Pennsylvania. EPA selected fift y kilometers from West Virginia for reviewing design values at monitors because 50 kilometers is the standard distance for modeling analy sis 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 values 7 (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 S ys tem (AQS). Data for 2008 - 2010, 2009 - 2011 and 2010 - 2012 for monitors in states surroun ding 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 NO 2 . The level of the 1 - hour NAAQS for NO 2 is 100 parts per billion (ppb) and the form is the 3 - ye ar average of the annual 98 th percentile of the daily 1 - hour maximum. In the states surrounding and bordering West Virginia within the 50 kilometers reviewed b y 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 ha s 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 NO x emissions in West Virginia . In addition, as dis cussed 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 Mem orandum) 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 .10

values for 2008 - 2010, 2009 - 2011 and 2010 - 2012 that exceed the 2010 NO 2 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 200 8 - 2010 Final DV (ppb) 2009 - 2011

Final DV (ppb) 2010 - 2012

Final DV (ppb) KY Bo yd 210190017 38 34 32 OH Athens 390090004 27 24 23 PA Alleghen y 420030008 55 44 44 PA Alleghen y 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 anal ys is and EPA’s review of NO x emission trends within West Virginia, EPA does not expect NO x 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 ye ar of total NO x emissions in West Virginia from 2008 to 2011. EPA’s anal ys is of the air quality monitoring data and emission trends (in addition to West Virginia’s SI P provisions) also demonstrate that NO 2 emissions are not increasing significantl y in the state s surrounding West Virginia. EPA therefore does not expect monitors identified in the table above which all have DVs well below the NO 2 NAAQS to have difficulty maintaining the NAAQS for NO 2 . This data thus also supports EPA’s proposed conclusion that We st Virginia emission sources are not significantly contributing to nonattainment in another state for the NO 2 NAAQS and are not interfering with maintenance of the NO 2 NAAQS in another state. For all these reasons, EPA proposes to find that West Virginia’ s federally enforceable SIP provisions with NO x11

emission limits for NO x 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 NO 2 NAAQS. Based upon EPA’s review of th e 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 NO 2 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 NO 2 NAAQS as it relates to West Virginia’s PSD program as required b y part C of Title I of the CAA . N o nonattainment areas for the 2010 NO 2 NAAQS currentl y exist in West Virginia. Prong 4 of section 110(a)(2)(D)(i) (II) requires that SIPs include provisions prohibiting any source or other t ype of emissions activity in one state from interfering with measures to protect visibility required to be inc luded in another state’s SIP. On March 23, 2012, EPA granted limited appr oval 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 provisio ns , specificall y those provisions that require electric generating units ( EGUs ) to compl y 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 . T hus , 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 - approv ed SIP for West Virginia as an alternative to the requirement that the regional haze SIPs provide for source - specific BART emission limits for SO 2 and NO x 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 SO 2 and NO x to limit the interstate transport of these pollutants, and EPA’s determination that states could rel y on CAIR as an alternative to requiring BART for CAIR - subject EGUs had12

specificall y been upheld in Utility Air Regulatory Group v. EPA , 471 F.3d 1333 (D.C . Cir. 2006). Moreover, the states with Class Iareas affected b y 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, how ever, 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 CAI R to be inconsistent with the requirements of the CAA, see North Carolina v. EPA , 531 F.3d 896 (D.C. Cir. 2008), but ultimatel y 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 temporaril y preserve the environmental values covered by CAIR.” North Ca rolina , 550 F.3d at 1178. After the remand of CAIR by the D.C. Circuit and the promulgation b y 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 NO x and SO 2 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. L exis 4801 (20 13). 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 dec ision 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 revisio n. Processing of State Implementation Plan (SIP) Revisions , EPA Memorandum from John Calcagni, Director, Air Quality Manageme nt Division, OAQPS, to Air Division Directors, EPA Regional Offices I - X, September 7, 1992, (1992 Calcagni Mem orandum) located at http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf .13

or otherwise modified b y the Supreme Court . T he 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 SI Ps; EPA has reviewed the SIPs to determi ne 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 rel y on CAIR emission red uctions as permanent and enforceable for purposes of assessing the adequacy

of West Virginia’s infrastructure SI P with respect to prong 4 while a valid replacement rule is developed and until implementation plans complying with any new rule are submitted b y the states and acted upon by EPA or until an y 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 Virgini a SIP, CAIR remains part of the EPA - approved SIP and can be considered in determining whether the SI P 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 bec ause West Virginia’s regional haze SIP which EPA has given a limited approval in combination with its SI P provisions to implement CAI R 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 SI P, EPA will reconsider appropriate action regarding West Virginia’s regiona l haze SIP as necessary . **6. Section 110(a)(2)(D)(ii)**  According to the submittal, the State has adequate provisions e nsuring 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, requires14

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 NO 2 . EPA is p roposing to determine that the S tate 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 NO 2 NAAQS requirements. At present, a staff of approximately 90 full time employ ees is employ ed 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 . D AQ believes its funding sources are sufficient to provide adequate personnel for those purposes and does not anticipate an y changes in resources considered necessary during 5 ye ars 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 fo r 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 Qualit y 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 revie w (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.15

The APCA, under W.Va. Cod e section 22 - 5 - 1, declares the S tate's policy "to fulfill its primary responsibility

for ass uring 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 S tate in any and all matters pertaining to the implementation plan. The Secretary has the authorit y 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

an y provision o f federal or S tate 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 NO 2 and other criteria pollutants contained in 45CSR8. West Virginia has an EPA approved air permitting program for both major and minor fac ilities under S tate 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 an y local or regional agency for the implementation of an y state implementation plan provision for th e 2010 1 - hour NO 2 NAAQS and the S tate will retain primacy with respect to an y 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 NO 2 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 NO 2 from such sources as the Secretary may16

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

progr am 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 NO 2 emissions through permits issu ed under 45CSR 13, 45 CSR14, 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 b y the Secretary (emi ssions inventory

program). As required, DAQ periodicall y 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 NO 2 emission limitations or standards established pursuant to 45CSR 11, 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 b y confidentiality . The t ypes 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 generall y makes information available for public access through its website, but also makes hard cop y r eports 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)** 17

West Virginia has authority comparable to that in section 303 of the CAA and adequate contingency

plans to implement such authorit y. Section 303 of the CAA provides authority to the EPA’s Administrator to restrain any source from causing or contributing t o 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 Secret ary m ay 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 app lications 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 NO 2 emissions, thereby

preventing the emission of air pollutants which substantially contributes to an emergency

that r equires 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 authorit y 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, thereb y 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 an y 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 NO 2 . 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 SI Ps, 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 rules18

as n ecessary

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 Qua lity 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 NO 2 NAAQS as it relates to West Virginia’s PSD program as required b y part C of Title Iof 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 det erioration. For the 2010 NO 2 NAAQS, West Virginia’s permitting program includes three SIP - approved rules: minor NSR rule 45CSR13 (6 8 FR 9559), PSD rule 45CSR14 (77 FR 63736 ) (with the exception of the definition of regulated NSR pollutant as explained pre viously 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).19

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 b y CAA section 127. Each ye ar, WVDEP issues a comprehe nsive Air Qualit y Annual Report, which compares monitored air quality data with the NAAQS and tracks the Air Qualit y Index. The Air Qualit y Annual Report contains emissions information and air quality highlights from the previous y ear, 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 reco gnizes 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 pro gram 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 SI P 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 ap proval and a limited disapproval. See 77 FR 16937 . In EPA’s view, the current status of West Virginia’s regional haze SI P 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 prop osing 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 r egional 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 p roposing to determine that the S tate 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)** 20

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 Secre tary to “develop way s 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 b y the EPA’s Administrator. WVDEP’s DAQ emplo ys one full time technical emplo ye e who is resp onsible for air quality modeling. West Virginia will perform modeling, as required under the CAA to demonstrate attainment of the 2010 1 - hour NO 2 NAAQS. An y air quality modeling to be conducted in West Virginia with respect to the NO 2 NAAQS may employ so urce - 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 Secre tary

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 fut ure air quality

modeling data as part of its relevant SIP submissions and through Federal grant commitments or in other way s 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 - appr oved 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.21

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 complianc e 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 inclu de permitting rules 45CSR13, 45CSR14, 45CSR19 and 45CSR30. The public notice and hearing processes fulfill the requirements for consultation with local political subdivisions affected b y the SIP. Based upon EPA’s review of the above referenced submittal s, 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 anal yz ed West Virginia’s infrastructure submittal for the 2010 1 - hour NO 2 NAAQS and the Agency

proposes to conclude that West Virginia’s submittal meets the requirements of section22

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 porti ons of section 110(a)(2) infrastructure elements for the 2010 NO 2 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 se parate action on section 110(a)(2)(E)(ii) for the 2010 NO 2 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 identif ied herein, for the 2010 1 - hour NO 2 NAAQS.