FORM1-SOTICEOF-%Pt'BLICHEARISGORCO~IllFJSTPERIODUS-4PROPOSEDRrLE(Page1)AGESCYAirQualityRULEWPELegislativeAbfESDMESTTOEXISTISGRULEYesTITLE-SERIES45-14RULESAMEPermitsforConsructionandMajorlfodificationofMajorStationan-sourcesforthePreventionofSignificantDeteriorationof.AirQualityAU~ORI~I\-\-coatgr2-w,t,#/tl''#&/5,,I)4ESTpp.,,*'k<J%WESTVIRGINIA..'9%SECRETARYOFSTATEa:J;.-.FG514?I..0&:&--.8NATALIEE.TENNANT=tC%C*.*:I*.,*.-.b:+.P.I.**+,,,,,l:JmADMINISTRATlVELAWDIV1SIONCOl#IESTSLIMITEDTOOralAndWritteneFILED6/4/201411:84:55M..b*-:c.L,,&.v,L~.-vlw~~~~.~,~-.LGHL~.-.wv~,~..l,-.,LDATEOFPUBLICHEARISG51oaday:Sub-07,20146:00Pa1\Test1-irgiiiaDepartmentofEnvironmentalProtectionDo&-SodsConferenceRoom(Room1125)60157thStreet,SECharleston,Ilkst1-irginia25304DATE1'tRTTTESCOM5ESTPERIODESDSMonday,JubO?,20147:00PSI!lXITIZSCO.MMESTS.MAYBEMAILEDTOPublicInformtionOffice-7'DepamentofEnvironmentalProtectidnDab-SodsConferenceRoom(Ftoorn1125)60157thStreet,SECharleston,WestVirginia25304LegislativeRule-MakingReviewCommitteeBYCHQOSISG'ITS,IATTESTTHATTHEPREVIOUSSTATEMESTSAREITRUEASDCORRECT.YesKristin-4Boggrs--B?-mysignature,Ired>-thatXamthepersonauthorizedtofielegislath-erules,inaccordancewith\VestVirginiaCode429.4-3-11-and839.4-3-2.lIllI1Il1IllllllllOIllIll-,,Title-5eriee:45-14lllllllllllllAllllllllRuleId:5479Document:25839FOR111-SOTICEOFAPlBLICHEARISGORCOAISIESTPERIODOX-4PROPOSEDRKLEeaee2)AGESCYAirQualityRULEWPELegishiveANZESDMESTTOEXISTIXGRULEYesTITLE-SERIES45-14RULESAMEPermitsforConsructionandMajorlIodifiearionofMajorStationav-sau-esforthePreventionofSignificant~eterioratidnoi.4i.rQualityCITE.A~ORI~\\TCode321-5-4WESTVlRGlNlASECRETARYOFSTATENATALIEE.TENNANTADMINISTRATIVELAWDIVISIONPROVIDEABRIEFSUlDS.ARYOFYOURPROPOSALcFILED6/4/201411:84:55AM.:b*.:cLt,,.,,...,,,,::.:,-.-.,,,,,,-.,,,,,..,,,,ThisruleestablishesastateconstructionpermitprogramconsistentwiththefederalCleanAirAct'sTitleIprogramandimplementingregulationsat40CFR951.166,"PrerentionofSignificantDete&rationof.AirQuality."JSCSRIJispanoftheStateImplementationPlanandsetsforththecriteriaandpmeduresformajorsiationar?.sourcestoobtainapermittocoastruct,operateandimmodifyamajorstahnaqsource.BYCHOOSISG'IZS,fATTESTTHATTHEPREVIOUSSTATEhEXTSARETRUEAXDCORRECTYesKristin-4Boggs-Bymysignature,IcertifythatIamthepersonauthorizedtofilelegblah-erules,inaccordancewithWest1-irginiaCode329A-2-11andg39-43-2.llUYllllNlllllllllllllllTitle-Series:45-14lllllllllllWlllllRuleId:9179llllllllllllllllllllllIIlRlDocument:25839FORM11--FISCALSOTEFORPROPOSEDRCLES(Page1)WESTVIRGINIASECRETARYOFSTATENATALIEE.TENNANTADMINISTRATIVELAWDMSlONAGESCYAirQualityRULE?YPELe&la*eAMESDSSTTOESISTISGRULEYesTITLE-SERIES45-14RULESAMEPermitsforConsmctionandMajorModificationofMajorStatiana~sourcesforthePre~entionofSignificantDeteriorationof-4kQualipCITE.nUT'ORIp\\TCodeg22-5-4cFILED6/4/2014llt04:SSAH,;&r.:cLcrt.,,-.-u,uu:~.:n,-.**.IC..,r-.lSUSWRIZEISACLEARASDCOSCISE?M?;SER\INATIJ'ZPACTTHIS.MEASUREKILLHAVECISCOSTSAXDREYESUESOFSTATEGOI'ERS-MEST.Soimpactabarethatresuhingfromcurrmntbapplicablefcdwrlemissionstandards.Kriitin-4Boggs-Bymysignature,IcertifythatIamthepersonauthorizedtofielegislah-cmks,inaccordaatewith\Vest1-iiaCode429.43-11andS39-4-3-2.Title-Series:45-14RuleId:9479Document:25839FOR1111--FISCALSOTEFORPROPOSEDRtLES(Page2)WESTVIRGINIASECRETARYOFSTATENATALIEE.TENNANTAGESCYAirQualit?.RULETYPELegislath-eAMESDLESTTOESISTISGRULEYeslTTLE-SERIES45-14RULESAWPermitsforConsruetianandMajorModificationoflfajorStatioaaq-sourcesfortheProventionofSignificantDeteriorationof.airQualityeFlLED6/4/201411t04:SSAMFfSCALSOT'EDETAIL--SHOWOVER-ALLEFFECTISITEM1ASD2ASD,ISTfEM3,GIVEASEXPLASATIOSOFBREAKDOITSBYFISCALISCLUDfXGLOSG-RASGEEFFECT.a;&I.:CLr~r.ADMINISTRATIVELAWDIVISIONLe,LIL..-VIWcj:~.:,-.hwYCl+--I,-.EffectOfProposalCurrentIncreaseiDecreaseSextIncreaserDecreaseFiscalSear(use'-')(use'-')FullImplemcntatian)ESlIlLATEDTOTALCOSTCIXRJCSTEXPESSESASSETSKristin-4Boggs-B:-mysignature,IcertifythatIamthepersonauthorizedtofile1egHlah-erules,inaccordancewith\TestViiaCode529-4-3-11and939-4-3-2.Title-Series:45-14RuleId:9179Document:25839FORM11--FTSC.4LSOTEFORPROPOSEDRIL'LES(Page3)WESTVIRGINIASECRETARYOFSTATENATALIEE.TENNANTADMINISTRATIVELAWDIVISIONAGESCYAirQuslivRULETYPELegislativeAMESDMESTTOEXISTISGRULEYesTITLE-SERIES45-14RULESA-MEPermitsforConsructioaandMajorIIodificationofMajorStationarysourcesforthePre~entionofSignificantDeteriorationof,airQualityCIEAmORIm\\r\-Code522-5-4eF1LED6/4/281411:04:55AM.:tt.:L:L<,s.L-,L-.-kn,wci:~.:,-...LcHLr;.wv~l~..,~,,L3.ESPLASATIOSOFABOVEESTILUTES(ISCLUDISGLOSG-RASGEEFFECT).PLEASEIXCLUDEASYISCREASEORDECREASEISFEESISYOURESTI,MATEDTOTALREVESUES.CostsanticipatedtobeincurredbyrevishotothisruleareincludedinpriorcostestimatespreparedforstateimplementationofTitte1'oftheCleanAirAct,asamended,under45CSILtO.FullTitkVpmgramapprovalwashuedbytheK.S.EnvironmentalPrateclion-4gtncyonSo\.ember19,2001.Kristin-4Boggs--8:-mysignature,Icertif!.thatIamthepemnauthorizedtofilelegislativerules,inaccardarrtewithIlkstt-bghiaCode329A-3-1and$39-4-3-2.Title-Series:45-14R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TITLE 45 LEGISLATIVE RULE DEPARTMENT OF ENVIRONMENTAL PROTECTION AIR QUALITY

SERIES 14 PERMITS FOR CONSTRUCTION AND MAJOR MODIFICATION OF MAJOR STATIONARY SOURCES FOR THE PREVENTION OF SIGNIFICANT DETERIORATION OF AIR QUALITY

§45-14-1. General.

1.1. Scope. -- This rule establishes and adopts a pr econstruction permit program in accordance with the policy of §101(b)(1) of the Clean Air Act (CAA), the purposes of §160 of the CAA, and the prevention of significant deterioration of air quality requirement s of 40 CFR §51.166. Preconstruction permits issued pursuant to this rule shall contain emission limitati ons and such other measures as may be necessary for the prevention significant deterioration of air quality. This rule provides:

1.1.a. A mechanism to ensure that economic grow th will occur in harmony with the preservation of existing clean air resources; to prevent the developmen t of any new non-attainment problems; to protect the public health and welfare from any adverse effects whic h might occur even at air quality levels better than the National Ambient Air Quality Standards; and to preserve, protect, and enhance the air quality in areas of special natural, recreational, scenic, or historic value. It is the intent of the Secretary to register and evaluate sources of air pollutants and to preclude the construction or relocation of any major stationary source or major modification in any area classified as attaining Nationa l Ambient Air Quality Standards or unclassifiable in which the establishment of such source or modificati on may interfere with the goals of the prevention of significant deterioration of air quality levels; and

1.1.b. A method to quantitatively define significant deterioration of air quality with respect to the desired degree of preservation of air quality for various areas and to set forth procedures for registration and reporting, and the criteria for obtaining a permit to cons truct or relocate a major stationary source or make a major modification to a stationary source within a d esignated attainment or unclassified area of the State of West Virginia. Such construction, modification, or relocation without such a permit is a violation of this rule.

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

1.3. Filing Date. -- April 3, 2014

.
1.4. Effective Date. -- June 1, 2014

. 1.5. Federal Regulation. -- Unless otherwise indicat ed, where reference to a federal regulation or standard appears in this rule, such regulation or standa rd will, for the purpose of this rule, be construed as that version which was in effect as of June 1, 2013 June 1, 2014

. 1.6. Former Rules. -- This legislative rule ame nds 45CSR14 - “Permits for Construction and Major Modification of Major Stationary Sources for the Prevention of Significant Deterioration of Air Quality”

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which was filed on May 1, 2013 April 3, 2014 and became effective on June 1, 2013 June 1, 2014

.
§45-14-2. Definitions.

2.1. “Actual emissions” means the actual rate of em issions of a pollutant from an emissions unit, as described below, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under sec tion 25. Instead, subsections 2.63 and 2.8 shall apply for those purposes.

2.1.a. In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the particular date and which is representative of normal source operation. The Secretary may allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit’s actual ope rating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

2.1.b. The Secretary may presume that source-specifi c allowable emissions for the unit are equivalent to the actual emissions of the unit.

2.1.c. For any emissions unit which has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.

2.1.d. For an electric utility steam generating unit (other than a new unit or the replacement of an existing unit) actual emissions of the unit following the physical or operational change shall equal the representative actual annual emissions of the unit follo wing the physical or operational change, provided the source owner or operator maintains a nd submits to the Director, on an a nnual basis for a period of five (5) years from the date the unit resumes regular operati on, information demonstrating that the physical or operational change did not result in an emissions increase. A longer period, not to exceed ten (10) years, may be required by the Director if the Director determ ines such a period to be more representative of normal source operations following the phy sical or operational change.

2.2. “Actuals PAL” for a major stationary sour ce means a PAL based on the baseline actual emissions (as defined in subsection 2.8) of all emissions units (a s defined in subsection 2.27) at the source, that emit or have the potential to emit the PAL pollutant.

2.3. “Administrator” means the Administrator of the United States Environmental Protection Agency.

2.4. “Adverse impact on visibility” means visibility impairment which interferes with the management, protection, preservation or enjoyment of the visitor's visual experience of the Federal Class I area. This determination must be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency and time of visibility impairment, a nd how these factors correlate with (1) times of visitor use of the Federal Class I area, and (2) the frequency a nd timing of natural conditions that reduce visibility.

2.5. “Air pollutants” means solids, liquids, or gases wh ich, if discharged into the air, may result in statutory air pollution.

2.6. “Air pollution” or “statutory air pollution” means and is limited to the discharge into the air by the act of man substances (liquid, solid, gaseous, organic or inorganic) in a locality, manner and amount as to be injurious to human health or welfare, animal or plan t life, or property, or which would interfere with the

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enjoyment of life or property.

2.7. “Allowable emissions” means the emission rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally enforceable limits or limits enforceable by the Secretary which restrict the opera ting rate, or hours of operation, or both) and the most stringent of the following:

2.7.a. The applicable standards as set forth in 40 CFR Parts 60 and 61;

2.7.b. The applicable State of West Virginia emi ssions limitations or permit conditions, including those with a future compliance date; or

2.7.c. The applicable federally enforceable emissi ons limitations or permit conditions, including those with a future compliance date.

2.8. “Baseline actual emissions” means the rate of emissions, in tons per year, of a regulated NSR pollutant, as determined in accordance with subdivisions 2.8.a through 2.8.d.

2.8.a. For any existing electric utility steam generating unit, baseline actual emissions means the average emission rate, in tons per year, at which th e unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 5-year period immediately preceding when the owner or operator begins actual constr uction of the project. The Secretary shall allow the use of a different time period upon a determination that it is mo re representative of normal source operation.

2.8.a.1. The average rate shall include fugitive em issions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

2.8.a.2. The average rate shall be adjusted dow nward to exclude any noncompliant emissions that occurred while the source was operating above any emi ssion limitation that was legally enforceable during the consecutive 24-month period.

2.8.a.3. For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to determin e the baseline actual emissions for the emissions units being changed. A different consecutive 24-month pe riod can be used for each regulated NSR pollutant.

2.8.a.4. The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emi ssions, in tons per year, and for adjusting this amount if required by paragraph 2.8.a.2.

2.8.b. For an existing emissions unit (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year period immediately preceding either the date the owner or opera tor begins actual construction of the project, or the date a complete permit application is received by the Secretary for a permit required under this rule, whichever is earlier, except that the 10-year period sh all not include any period earlier than November 15, 1990.

2.8.b.1. The average rate shall include fugitive em issions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

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2.8.b.2. The average rate shall be adjusted dow nward to exclude any noncompliant emissions that occurred while the source was operating above an emissi on limitation that was legally enforceable during the consecutive 24-month period.

2.8.b.3. The average rate shall be adjusted dow nward to exclude any emissions that would have exceeded an emission limitation with which the major stationary source must currently comply, had such major stationary source been required to comply with such limitations during the consecutive 24-month period. However, if an emission limitation is part of a maximum achievable control technology standard that the Administrator proposed or promulgated under 40 CF R Part 63, the baseline actual emissions need only be adjusted if the State has taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of 45CSR19-8.6.

2.8.b.4. For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to determin e the baseline actual emissions for all the emissions units being changed. A different consecutive 24-month period can be used for each regulated NSR pollutant.

2.8.b.5. The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emi ssions, in tons per year, and for adjusting this amount if required by paragra phs 2.8.b.2 and 2.8.b.3.

2.8.c. For a new emissions unit, the baseline act ual emissions for purposes of determining the emissions increase that will result from the initial cons truction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit’s potential to emit.

2.8.d. For a PAL for a stationary source, the baselin e actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in subdivision 2.8.a, for other existing emissions units in accordance with the pr ocedures contained in subdivision 2.8.b, and for a new emissions unit in accordance with the procedures contained in subdivision 2.8.c.

2.9. Baseline Area.

2.9.a. “Baseline area” means any intrastate area (and every part thereof) designated as attainment or unclassifiable under §107(d)(1)(A)(ii) or (iii) of the C AA in which the major source or major modification establishing the minor source baseline date would constr uct or would have an air quality impact for the pollutant for which the baseline date is establis hed, equal to or greater than the following:

Pollutant Air Quality Impact (annual average)

SO 2 1 μg/m 3

NO 2 1 μg/m 3

PM 10 1 μg/m 3

PM 2.5 0.3 μg/m 3

2.9.b. Area redesignations under §107(d)(1)(A)(ii) or ( iii) of the CAA cannot intersect or be smaller than the area of impact of any major stationary source or major modification which:

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2.9.b.1. Establishes a minor source baseline date; or

2.9.b.2. Is subject to 40 CFR §52.21 or this rule, and would be constructed in the same state as the state proposing the redesignation.

2.9.c. Any baseline area established originally for the TSP increments shall remain in effect and shall apply for purposes of determining the amount of available PM 10 increments, except th at such baseline area shall not remain in effect if the Secretary rescinds the corresponding minor source baseline date in accordance with subdivision 2.42.d.

2.10. “Baseline concentration” means that ambient con centration level which exists in the baseline area at the time of the applicable minor source baseline date. A baseline concentration is determined for each pollutant for which a minor source baseline date is established and includes:

2.10.a. The allowable emissions of major stati onary sources which commenced construction before the major source baseline date, but were not in opera tion by the applicable minor source baseline date.

2.10.b. The actual emissions representative of sour ces in existence on the applicable minor source baseline date. However, the following will not be incl uded in the baseline concentration and will affect the applicable maximum allowable increase(s):

2.10.b.1. actual emissions from any major sta tionary source on which construction commenced after the major source baseline date; and

2.10.b.2. actual emissions increases and decreases at any stationary source occurring after the minor source baseline date.

2.11. “Begin actual construction” means, in general, initiation of physical on-s ite construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of undergr ound pipework, and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those onsite activities, other than preparatory activiti es, which mark the initiation of the change.

2.12. “Best available control technology (BACT)” means an emissions limitation (including a visible emissions standard) based on the maximum degree of reduction for each regulated NSR pollutant which would be emitted from any proposed major stationary source or major modification which the Secretary, on a case-by-case basis, taking into account energy, envi ronmental and economic impacts and other costs, determines is achievable for such source or modi fication through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant whic h would exceed the emissions allowed by any federally enforceable emissions limitations or emissions limitations enforceable by the Secretary. If the Secretary determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment work practice, operational standard or combination thereof, may be prescribed instead to satisfy the requirement for the application of best available cont rol technology. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for complia nce by means which achieve equivalent results.

545CSR14

2.13. “Building, Structure, Facility, or Installation” means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons unde r common control). Pollutant-emitting activities are a part of the same industrial grouping if they belong to the same “Major Group” (i.e., which have the same two (2)-digit code) as described in the Standard Industrial Classification Manual, 1987 (United States Government Printing Office stock number GPO 1987 0-185-718:QL 3).

2.14. “CAA” means the Clean Air Act, 42 U.S.C. 7401, et seq., as amended by Pub. L. No. 101-549 (November 15, 1990).

2.15. “Clean Coal Technology” means any technology, including technologies applied at the precombustion, combustion, or post combustion stage, at a new or existing facility which will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of electricity, or process st eam which was not in widespread use as of November 15, 1990.

2.16. “Clean coal technology demonstration project” means a project using funds appropriated under the heading “Department of Energy -- Clean Coal Technology”, up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar projects funded through appropriations for USEPA. The Federal contribution for a qualifying project sh all be at least twenty (20) percent of the total cost of the demonstration project.

2.17. [Reserved].

2.18. “Commence” as applied to construction of a majo r stationary source or major modification means that the owner or operator has all necessary precons truction approvals or permits and either has:

2.18.a. begun, or caused to begin, a continuous progr am of actual on-site construction of the source, to be completed within a reasonable time; or

2.18.b. entered into binding agreements or cont ractual obligations, which cannot be canceled or modified without substantial loss to the owner or ope rator, to undertake a program of actual construction of the source to be completed within a reasonable time.

2.19. “Complete” means, in reference to an applicati on for a permit, that the application contains all of the information necessary for processing the application. Designating an application complete for purposes of permit processing does not preclude the Secretary from requesting or accepting any additional information.

2.20. “Construction” means any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modi fication of an emissions unit) which would result in a change in actual emissions.

2.21. “Continuous emissions monitoring system (CEMS)” means all of the equipment that may be required to meet the data acquisition and availability requirements, to sample, condition (if applicable), analyze, and provide a record of emissions on a continuous basis.

2.22. “Continuous emissions rate monitoring system (CERMS)” means the total equipment required for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

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2.23. “Continuous parameter monitoring system (CPMS)” means all of the equipment necessary to meet the data acquisition and availability requirements, to monitor process and control device operational parameters (for example, control device secondary volta ges and electric currents) and other information (for example, gas flow rate, O2 or CO2 concentrations), and to record average operational parameter value(s) on a continuous basis.

2.24. “Department of Environmenta l Protection” or “DEP” means the Department of Environmental Protection as defined in W. Va. Code §22-1-4.

2.25. “Electric utility steam generating unit” means any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than twenty-five (25) MW electrical output to any utility pow er distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining th e electrical energy output capacity of the affected facility.

2.26. “Emission” means the release, escape or di scharge of air pollutants into the air.

2.27. “Emissions unit” means any part of a stationary source that emits or would have the potential to emit any regulated NSR pollutant and includes an electric utility steam generating unit as defined in subsection 2.25. For purposes of this rule, there are tw o types of emissions units as described in subdivisions 2.27.a and 2.27.b.

2.27.a. A new emissions unit is any emissions unit that is (or will be) newly c onstructed and that has existed for less than 2 years from the da te such emissions unit first operated.

2.27.b. An existing emissions unit is any emissi ons unit that does not meet the requirements in subdivision 2.27.a. A replacement unit, as defined in subsection 2.68, is an existing emissions unit.

2.28. “Federal Land Manager” means, with respect to any lands in the United States, the Secretary of the department with authority over such lands.

2.29. “Federally enforceable” means all limitations and conditions which are enforceable by the Administrator including those requirements developed pur suant to 40 CFR Parts 60, 61 and 63, rules of the approved West Virginia State Implementation Plan, any permit requirements established pursuant to 40 CFR §52.21 or this rule, and any operating permits issued unde r a program that is incorporated into the State Implementation Plan and expressly requires adherence to any permit issued under such program.

2.30. [Reserved.]

2.31. “Fugitive emissions” means t hose emissions which could not reasonably pass through a stack, chimney, vent or other f unctionally equivalent opening.

2.32. [Reserved.]

2.33. [Reserved.]

2.34. [Reserved.]

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2.35. [Reserved.]

2.36. “Innovative control technology” means any system of air pollution control that has not been adequately demonstrated in practice, but would have a substantial likelihood of achieving greater continuous emissions reduction than any control system in current practice or of achieving at least comparable reductions at lower cost in terms of energy, economics, or non-air quality environmental impacts.

2.37. “Lowest achievable emission rate (LAER)” means, for any source, the more stringent of the following:

2.37.a. The most stringent emissions limitation which is contained in the implementation plan of any State for such class or category of stationary source, unless the owner or operator of the proposed stationary source demonstrates that such limitations are not achievable; or

2.37.b. The most stringent emissions limitation which is achieved in practice by such class or category of stationary sources. This limitation, when applied to a modification, means the lowest achievable emission rate for the new or modified emissions units within the stationary source. In no event shall the application of the term permit a new or proposed new or modified stationary source to emit any pollutant in excess of the amount allowable under an appli cable new source standard of performance.

2.38. [Reserved.]

2.39. Major emissions unit means:

2.39.a. Any emissions unit that emits or has the potential to emit 100 tons per year or more of the PAL pollutant in an attainment area; or

2.39.b. Any emissions unit that emits or has the pot ential to emit the PAL pollutant in an amount that is equal to or greater than the major source thres hold for the PAL pollutant as defined by the CAA for nonattainment areas. For example, in accordance with the definition of major stationary source in §182(c) of the CAA, an emissions unit would be a major emissions unit for VOC if the unit is located in a serious ozone non attainment area and it emits or has the pot ential to emit 50 or more tons of VOC per year.

2.40. “Major modification” means any physical change in or change in the method of operation of a major stationary source which results in: a significan t emissions increase (as defined in subsection 2.75) of any regulated NSR pollutant (as defined in subsecti on 2.66); and a significant net emissions increase of that pollutant from the major stationary source. Any signi ficant emissions increase (as defined at subsection 2.75) from any emissions units or net emissions increase (as defi ned in subsection 2.46) at a major stationary source that is significant for volatile organic compounds or NO X shall be considered significant for ozone. However, the following actions do not constitute a physical change or change in the method of operation:

2.40.a. Routine maintenance, repair, and replacement.

2.40.b. Use of an alternative fuel or raw material by reason of any order under sections 2(a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment pl an pursuant to the Federal Power Act.

2.40.c. Use of an alternative fuel by reas on of an order or rule under §125 of the CAA.

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2.40.d. Use of fuel generated from municipal solid w aste as an alternative fuel at a steam generating unit.

2.40.e. Use of an alternative fuel or raw mate rial by a stationary source, provided that:

2.40.e.1. Prior to January 6, 1975, the source w as capable of accommodating such alternative fuel or raw material, unless such change would be prohi bited under any federally enforceable permit condition which was established after January 6, 1975 pursuant to 40 CFR §52.21 or under any permit issued or order entered pursuant to any rule of the Secretary after January 6, 1975;

2.40.e.2. The source is approved to use the alterna tive fuel or raw material under any permit issued under 40 CFR §52.21 or under any permit issued or order entered pursuant to any rule of the Secretary.

2.40.f. An increase in the hours of operation unless such increase would be prohibited by a Federal permit issued pursuant to 40 CFR §52.21 or by any permit i ssued or order entered pursuant to any rule of the Secretary.

2.40.g. An increase in the production rate unless such increase would be prohibited by a Federal permit issued pursuant to 40 CFR §52.21 or by any permit i ssued or order entered pursuant to any rule of the Secretary.

2.40.h. Any change in ownership at a stationary source.

2.40.i. [Reserved.]

2.40.j. The installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with:

2.40.j.1. The State Implementation Plan; and

2.40.j.2. Other requirements necessary to attain and maintain the National Ambient Air Quality Standards during the project and after it is terminated.

2.40.k. The installation or operation of a permanent clean coal technology demonstration project that constitutes repowering, provided that the project does not result in an increase in the potential to emit of any regulated NSR pollutant emitted by the unit. This ex emption shall apply on a pollutant-by-pollutant basis.

2.40.l. The reactivation of a very clean coal-fired electric utility steam generating unit.

2.40.m. This definition shall not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requi rements under section 25 for a PAL for that pollutant. Instead, the definition at subsection 2.53 shall apply.

2.41. “Major modification for ozone” means a major modification for volatile organic compounds or NO X . 2.42. “Major and minor source baseline date.”

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2.42.a. “Major source baseline date” means:

2.42.a.1. In the case of PM 10 and sulfur dioxide, January 6, 1975; and

2.42.a.2. In the case of nitrogen dioxide, February 8, 1988; and

2.42.a.3. In the case of PM 2.5 ,October 20, 2010.

2.42.b. “Minor source baseline date” means the earliest date after the trigger date on which a major stationary source or a major modification subject to th e requirements of 40 CFR §52.21 or to this rule submits a complete application under this rule. The trigger date is:

2.42.b.1. In the case of PM 10 and sulfur dioxide, August 7, 1977, and

2.42.b.2. In the case of nitrogen dioxide, February 8, 1988; and

2.42.b.3. In the case of PM 2.5 , October 20, 2011.

2.42.c. The baseline date is established for each pollu tant for which increments or other equivalent measures have been established if:

2.42.c.1. The area in which the proposed source or modification would construct is designated as attainment or unclassifiable under §107(d)(1)(A)(ii) or ( iii) of the CAA for the pollutant on the date of its complete application under 40 CFR §52.21 or this rule; and

2.42.c.2. In the case of a major stationary source, the pollutant would be emitted in significant amounts, or in the case of a major modification, there would be a significant net emissions increase of the pollutant.

2.42.d. Any minor source baseline date established originally for the TSP increments shall remain in effect and shall apply for purposes of determining the amount of available PM 10 increments, except that the Secretary may rescind any such minor source base line date where it can be demonstrated to the Secretary’s satisfaction that the emissions increase fro m the major stationary source, or the net emissions increase from the major modification, responsible for triggering that date did not result in a significant amount of PM 10 emissions.

2.43. “Major stationary source” means:

2.43.a. Any of the following stationary sources of air pollutants which emits or has the potential to emit, one hundred (100) tons per year or more of any regulated NSR pollutant:

• Fossil Fuel-fired Steam Electric Plants of More than 250 Million Btu/hr Heat Input, • Coal Cleaning Plants (with thermal dryers), • Kraft Pulp Mills, • Portland Cement Plants, • Primary Zinc Smelters, • Iron and Steel Mill Plants, • Primary Aluminum Ore Reduction Plants (with thermal dryers),

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• Primary Copper Smelters, • Municipal Incinerators Capable of Chargi ng More than 250 Tons of Refuse per Day, • Hydroflouric, Sulfuric and Nitric Acid Plants, • Petroleum Refineries, • Lime Plants, • Phosphate Rock Processing Plants, • Coke Oven Batteries, • Sulfur Recovery Plants, • Carbon Black Plants (furnace process), • Primary Lead Smelters, • Fuel Conversion Plants, • Sintering Plants, • Secondary Metal Production Plants, • Chemical Process Plants (which does not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140), • Fossil Fuel Boilers (or combinations thereof) Totaling More than 250 Million Btu/hour Heat Input, • Petroleum Storage and Transfer Units with a Total Storage Capacity Exceeding 300,000 Barrels, • Taconite Ore Processing Plants, • Glass Fiber Processing Plants, and • Charcoal Production Plants;

2.43.b. Notwithstanding the stationary source size specified in subdivision 2.43.a, any stationary source which emits or has the potential to emit, two hundred fifty (250) tons per year or more of any regulated NSR pollutant; or

2.43.c. Any physical change at a stationary source, not otherwise qualifying under subdivision 2.43.a as a major stationary source, if the change it self would constitute a major stationary source.

2.43.d. A major source that is major for volatile organic compounds or NO X shall be considered major for ozone.

2.43.e. The fugitive emissions of a stationary sour ce shall not be included in determining whether it is a major stationary source, unless the source is listed in Table 1.

Table 1 SOURCE CATEGORIES WHICH MUST INCLUDE FUGITIVE EMISSIONS

• Fossil-Fuel-Fired Steam Electric Plants Greater Than 250 Million Btu/Hour Heat Input • Coal Cleaning Plants (with thermal dryers) • Kraft Pulp Mills • Portland Cement Plants • Primary Zinc Smelters • Iron and Steel Mill Plants • Primary Aluminum Ore Reduction Plants • Primary Copper Smelters • Municipal Incinerators Capable of Char ging Greater Than 250 Tons of Refuse/Day • Hydrofluoric, Sulfuric, and Nitric Acid Plants • Petroleum Refineries

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• Lime Plants • Phosphate Rock Processing Plants • Coke Oven Batteries • Sulfur Recovery Plants • Carbon Black Plants (furnace process) • Primary Lead Smelters • Fuel Conversion Plants • Sintering Plants • Secondary Metal Production Plants • Chemical Process Plants - The term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fe rmentation included in NAICS codes 325193 or 312140 • Fossil Fuel Boilers (or combinations thereof) Totaling More Than 250 Million Btu/Hour Heat Input • Petroleum Storage and Transfer Units with a Total Storage Capacity Exceeding 300,000 Barrels • Taconite Ore Processing Plants • Glass Fiber Processing Plants • Charcoal Production Plants • Any other stationary source category which, as of August 7, 1980, is bei ng regulated under §§111 or 112 of the CAA.

2.43.f. In addition to those facilities covered under subdivision 2.43.e, all coal preparation plants as defined under 40 CFR §60.251(a) which process more th an 200 tons per day shall count fugitive emissions from all “affected facilities” at the source.

2.43.g. For the purpose of subdivision 2.43.f, the term “affected facilities” means those facilities which are listed or identified as “affected facilities” in the applicable standard promulgated under §§111 or 112 of the CAA.”

2.44. “Major stationary source for ozone” means a major stationary source of volatile organic compounds or NO X . 2.45. “Necessary preconstruction approvals or permits” means those permits or approvals required under the CAA and rules promulgated under W.Va. Code §22-5-4.

2.46. “Net emissions increase” means, with respect to any regulated NSR pollutant emitted by a major stationary source, the amount of emissions by which the sum of the following exceeds zero:

2.46.a. The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to subsection 3.4;

2.46.b. Any other increases and decreases in actual emissions at the major source that are contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for calculating increases and decreases under subdivision 2.46.b shall be determined as provided in subsection 2.8 , except that paragraphs 2.8.a.3 and 2.8.b.4 shall not apply;

2.46.c. An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs not more than five (5) years prior to the date on which construction on the particular change commences nor later than the date on which the increase from the particular change occurs.

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2.46.d. An increase or decrease in actual emissions is creditable only if:

2.46.d.1. The increase or decrease in actual emissions has not been relied upon by the United States Environmental Protection Agency in issuing a permit pursuant to 40 CFR §52.21; or

2.46.d.2. By the Secretary in issuing a permit pursuan t to this rule and such permit is in effect on the date on which the increase in emissions from the particular change occurs.

2.46.e. The increase or decrease in actual emissions of particulate matter, sulfur dioxide, or nitrogen oxides which occurred prior to the applicable minor s ource baseline date was required to be considered and calculated in determining the amount of maximum allowable increases remaining available.;

2.46.f. An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level;

2.46.g. A decrease in actual emissions is creditable only to the extent that:

2.46.g.1. The old level of actual emissions or th e old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;

2.46.g.2. It is federally enforceable and is enfor ceable by the Secretary at and after the time that the actual construction on the particular change begins;

2.46.g.3. The decrease in actual emissions must have approximately the same qualitative significance for public health and welfare as that attr ibuted to the increase from the particular change;

2.46.g.4. [Reserved.]

2.46.h. An increase that results from a physical cha nge at a source occurs when the emissions unit on which construction occurred becomes operational a nd begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes opera tional only after a reasonable shakedown period, not to exceed one hundred eighty (180) days.

2.46.i. Subdivision 2.1.a shall not apply for determining creditable increases and decreases.

2.47. “PM 10 " means particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers as measured by a reference method based on Appendix J of 40 CFR Part 50 and designated in accordance with 40 CFR Part 53 or by an equivalent method designated in accordance with 40 CFR Part 53.

2.48. “Particulate matter emissions” means all finely divided solid or liquid material, other than uncombined water, emitted to the ambient air as measured by applicable reference methods, or an equivalent or alternative method, specified in 40 CFR Part 60, Appendix B, or by a test method specified in any rule of the Secretary which has been incorporated as part of the federally approved State Implementation Plan. All references to particulate or particulate matter in this rule shall mean particulate matter emissions.

2.49. “Person” means any and all persons, natural or artificial, including the State of West Virginia or any other state and all agencies or divisions thereof, any state political subdivision, the United States of America, any municipal, public, statutory or private corporation or association organized or existing under

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the laws of this or any state or country, and any fi rm, partnership, or association of whatever nature.

2.50. “Plantwide applicability limitation (PAL)” means an emission limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established sourcewide in accordance with subsections 25.1 through 25.15.

2.51. “PAL effective date” generally means the date of issuance of the PAL permit. However, the PAL effective date for an increased PAL is the date any emi ssions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

2.52. “PAL effective period” means the period beginni ng with the PAL effective date and ending 10 years later.

2.53. “PAL major modification” means, notwithstandi ng subsections 2.40 and 2. 46 (the definitions for major modification and net emissions increase), any physical change in or change in the method of operation of the PAL source that causes it to emit the PAL polluta nt at a level equal to or greater than the PAL.

2.54. “PAL permit” means the major NSR permit, the minor NSR permit, or the State operating permit under a program that is approved into the State Impl ementation Plan, or the title V permit issued by the Secretary that establishes a PAL for a major stationary source.

2.55. “PAL pollutant” means the pollutant for which a PAL is established at a major stationary source.

2.56. [Reserved.]

2.57. “Pollution prevention” means any activity that through process changes, product reformulation or redesign, or substitution of less polluting raw materials, eliminates or reduces the release of air pollutants (including fugitive emissions) and other pollutants to the environment prior to recycling, treatment, or disposal; it does not mean recycling (other than certa in “in-process recycling” practices), energy recovery, treatment, or disposal.

2.58. “Potential to emit” means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipm ent and restrictions on hours of operation or on the type or amount of material combusted, stored, or pro cessed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is fede rally enforceable or is enforceable by the Secretary in any permit and/or consent order issued by the Un ited States Environmental Protection Agency or by the Secretary. Secondary emissions do not count in dete rmining the potential to emit of a stationary source.

2.59. “Predictive emissions monitoring system (PEMS) ” means all of the equipment necessary to monitor process and control device operational parameters (fo r example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O 2 or CO 2 concentrations), and calculate and record the mass emissions rate (fo r example, lb/hr) on a continuous basis.

2.60. “Prevention of Significant Deterioration ( PSD) program” means a major source preconstruction permit program that has been approved by the Administ rator and incorporated into the State Implementation Plan, or the program in 40 CFR §52.21. Any permit issued under such a program is a major new source review (NSR) permit.

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2.61. [Reserved.]

2.62. “Project” means a physical change in, or change in the method of operation of, an existing major stationary source.

2.63. “Projected actual emissions” means the maximum a nnual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR po llutant in any one of the 5 years (12-month period) following the date the unit resumes regular operation afte r the project, or in any one of the 10 years following that date, if the project involves increasing the emissi ons unit’s design capacity or its potential to emit that regulated NSR pollutant and full utilization of the un it would result in a significant emissions increase or a significant net emissions increase at the major stationary source.

2.63.a. In determining the projected actual emissions under subsection 2.63 (before beginning actual construction), the owner or operato r of the major stationary source:

2.63.a.1. Shall consider all relevant information, including but not limited to, historical operational data, the company's own representations, the company' s expected business activity and the company's highest projections of business activity, the company's filings w ith the State or Federal regulatory authorities, and compliance plans under the approved State Implementation Plan; and

2.63.a.2. Shall include fugitive emissions to the ex tent quantifiable, and emissions associated with startups, shutdowns, and malfunctions; and

2.63.a.3. Shall exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit’s emissions follo wing the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions under subsection 2.8 and that are also unrelated to the pa rticular project, including any increased utilization due to product demand growth; or

2.63.a.4. In lieu of using the method set out in paragraphs 2.63.a.1 through 2.63.a.3, may elect to use the emissions unit’s potential to emit, in tons per year, as defined under subsection 2.58.

2.64. “Reactivation of a very clean coal-fired electric utility steam generating unit” means any physical change or change in the method of operation associ ated with the commencement of commercial operations by a coal-fired utility unit after a period of discontinued operation where the unit:

2.64.a. Has not been in operation for the two-year pe riod prior to the enactment of the Clean Air Act Amendments of 1990, and the emissions from such unit c ontinue to be carried in the Secretary’s emissions inventory at the time of enactment;

2.64.b. Was equipped prior to shutdown with a conti nuous system of emissions control that achieves a removal efficiency for sulfur dioxide of no less than eighty-five (85) percent and a removal efficiency for particulates of no less than ninety-eight (98) percent;

2.64.c. Is equipped with low-NO X burners prior to the time of commencement of operations following reactivation; and

2.64.d. Is otherwise in compliance with the requirements of the CAA.

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2.65. [Reserved.]

2.66. “Regulated NSR pollutant” means the following:

2.66.a. Any pollutant for which a National Ambient Air Quality Standard has been promulgated. This includes, but is not limited to, the following:

2.66.a.1. PM 2.5 emissions, and PM 10 emissions shall include gaseous emissions from a source or activity which condense to form particulate matter at am bient temperatures. On or after January 1, 2011, such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM 2.5 and PM 10 in PSD permits. Compliance with emissions limitations for PM 2.5 and PM 10 issued prior to this date shall not be based on condensable particular matter unless required by the terms and conditions of the permit or the applicable implementation plan. Applicability determinations made prior to this date without accounting for condensable pa rticular matter shall not be considered in violation unless the applicable implementation plan required condensable particular matter to be included;

2.66.a.2. Any pollutant identified under this paragr aph as a constituent or precursor to a pollutant for which a national ambient air quality standard has been promulgated. Precursors identified by the Administrator for purposes of NSR are the following:

2.66.a.2.A. Volatile organic compounds and nitr ogen oxides are precursors to ozone in all attainment and unclassifiable areas.

2.66.a.2.B. Sulfur dioxide is a precursor to PM 2.5 in all attainment and unclassifiable areas.

2.66.a.2.C. Nitrogen oxides are presumed to be precursors to PM 2.5 in all attainment and unclassifiable areas, unless the Secretary demonstrates to the Administrator’s satisfaction or EPA demonstrates that emissions of nitrogen oxides from s ources in a specific area are not a significant contributor to that area’s ambient PM 2.5 concentrations.

2.66.a.2.D. Volatile organic compounds are presumed not to be precursors to PM 2.5 in any attainment or unclassifiable area, unless the Secretary de monstrates to the Administra tor’s satisfaction or EPA demonstrates that emissions of volatile organic co mpounds from sources in a specific area are a significant contributor to that area’s ambient PM 2.5 concentrations.

2.66.b. Any pollutant that is subject to an y standard promulgated under §111 of the CAA;

2.66.c. Any Class I or II substance subject to a standard promulgated under or established by title VI of the CAA;

2.66.d. Any pollutant that otherwise is subject to regulation under the CAA as defined in subsection 2.80.

2.66.e. Notwithstanding subdivisions 2.66.a through 2. 66.d, the term regulated NSR pollutant shall not include any or all hazardous air pollutants either lis ted in §112 of the CAA, or added to the list pursuant to §112(b)(2) of the CAA, and which have not been delisted pursuant to §112(b)(3) of the CAA, unless the listed hazardous air pollutant is also regulated as a cons tituent or precursor of a general pollutant listed under §108 of the CAA.

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2.67. “Relocate” or “Relocation” means the physical movement of a source outside of its existing plant boundaries.

2.68. “Replacement unit” means an emissions unit for which all the criteria listed in subdivisions 2.68.a through 2.68.d are met. No creditable emission reducti ons shall be generated fro m shutting down the existing emissions unit that is replaced.

2.68.a. The emissions unit is a reconstructed unit within the meaning of 40 CFR §60.15(b)(1), or the emissions unit completely takes the place of an existing emissions unit;

2.68.b. The emissions unit is identical to or func tionally equivalent to the replaced emissions unit;

2.68.c. The replacement does not change the basi c design parameter(s) of the process unit; and

2.68.d. The replaced emissions unit is permanently removed from the major stationary source, otherwise permanently disabled, or permanently barre d from operation by a permit that is enforceable as a practical matter. If the replaced emissions unit is brought back into operation, it shall constitute a new emissions unit.

2.69. “Repowering” means replacement of an existi ng coal-fired boiler with one of the following clean coal technologies: atmospheric or pressurized fluidized bed combustion, integrated gasification combined cycle, magnetohydrodynamics, direct and indirect coal-fired turbines, integrated gasification fuel cells, or as determined by the Administrator, in consultation with the Secretary of Energy, a derivative of one or more of these technologies, and any othe r technology capable of controlling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of technology in wi despread commercial use as of November 15, 1990.

2.69.a. Repowering shall also include any oil and/ or gas-fired unit which has been awarded clean coal technology demonstration funding as of Janua ry 1, 1991, by the Department of Energy.

2.69.b. The Secretary shall give expedited consider ation to permit applications for any source that satisfies the requirements of this subsection 2.69 and is granted an extension under §409 of the CAA.

2.70. [Reserved.]

2.71. “Representative actual annual emissions” means the average rate, in tons per year, at which the source is projected to emit a pollutant for the two-year period after a physical change or change in the method of operation of a unit, (or a different consecutive two-year period within ten (10) years after that change, where the Secretary determines that such period is more representative of normal source operations), considering the effect any such change will have on increasing or decreasing the hourly emissions rate and on projected capacity utilization. In projecting future emissions the Secretary shall:

2.71.a. Consider all relevant information, includi ng but not limited to, hist orical operational data, the company's own representations, filings with the St ate or Federal regulatory authorities, and compliance plans under Title IV of the CAA; and

2.71.b. Exclude, in calculating any increase in emi ssions that results from the particular physical change or change in the method of operation at an electric utility steam generating unit, that portion of the

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unit's emissions following the change that could ha ve been accommodated during the representative baseline period and is attributable to an increase in projected cap acity utilization at the unit that is unrelated to the particular change, including any increased utilization due to the rate of electricity demand growth for the utility system as a whole.

2.72. “Secondary emissions” means emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this rule, secondary emissions must be specific, well defined, quantifiable, and impact the same general ar ea as the stationary source or modification which causes the secondary emissions. Secondary emissions include , but are not limited to emissions from any off-site support facility which would not otherw ise be constructed or increase its emissions except as a result of the construction or operation of the majo r stationary source or major modification. Secondary emissions do not include any emissions which come directly from a mob ile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.

2.73. “Secretary” means the Secretary of the Department of Environmental Protection as defined in W. Va. Code §§22-1-6 or 22-1-8.

2.74. “Significant” means:

2.74.a. In reference to a net emission increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

Pollutant and Pollutant Emission Rate (tons per year)
Carbon monoxide: 100 tpy
Nitrogen oxides: 40 tpy

Sulfur dioxide: 40 tpy
Particulate matter: 25 tpy

PM 10 : 15 tpy

PM 2.5 : 10 tpy of direct PM 2.5 emissions

PM 2.5 : 40 tpy of SO 2 emissions

PM 2.5 : 40 tpy of NO X emissions (unless demonstrated not to be a PM 2.5 precursor under subsection 2.66).

Ozone: 40 tpy of VOC or NO X
Lead: 0.6 tpy

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Fluorides: 3 tpy
Sulfuric acid mist: 7 tpy
Hydrogen sulfide (H 2 S): 10 tpy
Total reduced sulfur: 10 tpy (including H 2 S)
Reduced sulfur compounds (including H 2 S): 10 tpy

Municipal waste combustor organics (as total tetra- through octachlorinated dibenzo-p-dioxins a nd dibenzofurans): 3.5x10 -6 tpy

Municipal waste combustor metals (as particulate matter): 15 tpy
Municipal waste combustor acid gases (as the sum of SO 2 and HCl): 40 tpy
Municipal solid waste landfill emissions (as nonmethane organic compounds): 50 tpy

2.74.b. In reference to a net emissions increase or the potential of a source to emit a regulated NSR pollutant that is not listed in subdivision 2.74.a, any emissions rate; and

2.74.c. Notwithstanding subdivision 2.74.a, any em issions rate or any net emissions increase associated with a major stationary source or major modification, which would construct within ten (10) kilometers of any Class I area, and have an im pact on such area equal to or greater than 1 μ g/m 3 (twenty-four (24) hour average).

2.75. “Significant emissions increase” means, for a regul ated NSR pollutant, an increase in emissions that is significant (as defined in subsection 2.74) for that pollutant.

2.76. “Significant emissions unit” means an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is equal to or greater th an the significant level (as defined in subsection 2.74 or in the CAA, whichever is lower) for that PAL polluta nt, but less than the amount that would qualify the unit as a major emissions unit as defined in subsection 2.39.

2.77. “Significant impact” means an increase in the ambient air concentr ation for a particular pollutant as follows:

Averaging time (hours)

Annual 24 8 3 1
Ambient Air Concentration Increase ( μ g/m 3 )

SO 2 1.0 5.0 25.0

PM 10 1.0 5.0

NO 2 1.0

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Ambient Air Concentration Increase (mg/m 3 )

CO 0.5 2.0

2.78. “Small emissions unit” means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant, as defined in subsection 2.74 or in the CAA, whichever is lower.

2.79. “Source” or “Stationary source” means, for the purpo se of this rule, any building, structure, facility, or installation which emits or may emit a regulated NSR pollutant.

2.80. “Subject to regulation” means, for any air pollutant , that the pollutant is subject to either a provision in the Clean Air Act, or a nationally-applicable re gulation codified by the Administrator under Title 40, Chapter I, Subchapter C of the Code of Federal Regul ations, that requires actual control of the quantity of emissions of that pollutant, and that such a control re quirement has taken effect and is operative to control, limit or restrict the quantity of emissions of that po llutant released from the regul ated activity. Except that:

2.80.a. Greenhouse gases (GHGs), the air pollutant defined in 40 CFR §86.1818–12(a) as the aggregate group of six greenhouse gases: carbon dioxide , nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, shall no t be subject to regulation except as provided in subdivisions 2.80.d and 2.80.e.

2.80.b. For purposes of subdivisions 2.80.c through 2.80.e, the term tpy CO 2 equivalent emissions (CO 2 e) shall represent an amount of GHGs emitted, and shall be computed as follows:

2.80.b.1. Multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHGs, by the gas’s associated global wa rming potential published at Table A-1 to Subpart A of 40 CFR Part 98 - Global Warming Potentials.

2.80.b.2. Sum the resultant value from paragra ph 2.80.b.1 for each gas to compute a tpy CO 2 e.

2.80.c. The term emissions increase as used in subdivisions 2.80.d and 2.80.e shall mean that both a significant emissions increase (as calculated using the procedures in subsection 3.4) and a significant net emissions increase (as defined in subsections 2.46 and 2.74) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO 2 e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and “significant” is defined as 75,000 tpy CO 2 e instead of applying the value in subdivision 2.74.b.

2.80.d. Beginning January 2, 2011, the polluta nt GHGs is subject to regulation if:

2.80.d.1. The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO 2 e or more; or

2.80.d.2. The stationary source is an existing majo r stationary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO 2 e or more; and,

2.80.e. Beginning July 1, 2011, in addition to th e provisions in subdivision 2.80.d, the pollutant GHGs shall also be subject to regulation:

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2.80.e.1. At a new stationary source that will emit or have the potential to emit 100,000 tpy CO 2 e;

or

2.80.e.2. At an existing stationary source that emits or has the potential to emit 100,000 tpy CO 2 e, when such stationary source undertakes a physical cha nge or change in the method of operation that will result in an emissions increase of 75,000 tpy CO 2 e or more.

2.80.f. Notwithstanding subdivisions 2.80.d. a nd 2.80.e., and subject to the public notice requirements set forth in subdivision 2.80.g., the prec onstruction permit requirements of this rule shall not apply to a source’s GHG emissions if any of the following actions result in GHGs not being subject to regulation under the otherwise applicable federal prevention of significant deterioration requirements set forth in 40 CFR §51.166:

2.80.f.1. A US EPA final rule;

2.80.f.2. An act of the United States Congress;

2.80.f.3. A Presidential Executive Order;

2.80.f.4. A final order of the District of Columbia Circuit Court of Appeals, if the specified time for appealing the order has lapsed and no appeals, pe titions seeking clarification or rehearing, or other petitions regarding the order have been filed, or, if any appeals or petitions are filed, the resolution of any and all appeals and petitions regarding the final order are co mplete and have upheld the relevant determination(s). Moreover, a stay shall also create an exemption duri ng the effective length of the stay. These two specific exemptions shall become effective only if US EPA do es not object in writing by the end of the notice period set forth in subdivision 2.80.g.; or

2.80.f.5. An order of the United States Supreme Court.

2.80.g. The exemption set forth in subdivision 2.80. f. shall become effect ive after the Secretary provides a thirty day notice of such exemption to US EPA and the public. Such notice shall be published in the West Virginia Register and explain the circumstances justifying the exemption.

2.81. “TSP” or “Total suspended par ticulate matter” means particulate matter as measured by the methods described in Appendix B of 40 CFR Part 50.

2.82. “Temporary clean coal technology demonstration project” means a clean coal technology demonstration project that is operated for a period of fi ve (5) years or less, and which complies with the State Implementation Plan and other requirements necessary to attain and maintain the National Ambient Air Quality Standards during and after the project is terminated.

2.83. [Reserved.]

2.84. “US EPA” means the United States Environmental Protection Agency.

2.85. “Volatile organic compounds (VOC)” is as defined in 40 CFR §51.100(s).

§45-14-3. Applicability.

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3.1. The requirements of this rule apply to the c onstruction of any new major stationary source (as defined in subsection 2.43) or any proposed project at an existing major stationary source in an area designated as attainment or unclassifiable under §§107(d)(1)(A)(ii) or (iii) of the CAA.

3.2. The requirements of sections 7 through 13 and sections 17 through 19 apply to the construction of any new major stationary source or the major modifica tion of any existing major stationary source, except as this rule otherwise provides.

3.3. No new major stationary source or major modi fication to which the requirements of sections 7 through 13 and sections 17 through subsection 19.7 appl y shall begin actual construction without a permit issued by the Secretary that states that the major stationary source or major modification will meet those requirements.

3.4. Determination of major modification. -- The de termination as to whether a proposed project is a major modification for a regulated NSR pollutant sh all be determined in acco rdance with the specific provisions set forth in subdivisions 3.4.a through 3.4.f.

3.4.a. Except as otherwise provided in subsections 3. 5 and 3.6, and consistent with the definition of major modification contained in subsection 2.40, a pr oject is a major modification for a regulated NSR pollutant if it causes two types of emissions incr eases -- a significant emissions increase (as defined in subsection 2.75), and a significant net emissions incr ease (as defined in subsections 2.46 and 2.74). The proposed project is not a major modification if it does not cause a significant emissions increase. If the proposed project causes a significant emissions increase, th en the project is a major modification only if it also results in a significant net emissions increase.

3.4.b. The procedure for calculating (before beginning actual construction) whether a significant emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units being modified, according to subdivisions 3.4.c through 3.4.f. The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source (i.e., the second step of the process) is containe d in the definition in subsection 2.46. Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase.

3.4.c. Actual-to-projected-actual applicability test for projects that only involve existing emissions units. -- A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the projected actual emissions (as defined in subsection 2.63) and the baseline actual emissions (as defined in subdivisions 2.8.a and 2.8.b), for each existing emissions unit, equals or exceeds the significant amount for that pollutant (as defined in subsection 2.74).

3.4.d. Actual-to-potential test for projects that only involve construction of a new emissions unit(s). -- A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the potential to emit (as defined in sub section 2.58) from each new emissions unit following completion of the project and the baseline actual emissions (as defined in subdivision 2.8.c) of these units before the project equals or exceeds the significant amount for that pollutant (as defined in subsection 2.74).

3.4.e. [Reserved]

3.4.f. Hybrid test for projects that involve multiple types of emissions units. -- A significant emissions

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increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each emissions unit, using the method specified in subdivisions 3.4.c through 3.4.d as applicable with respect to each emissions unit, for each type of emissions unit e quals or exceeds the significant amount for that pollutant (as defined in subsection 2.74).

3.5. For any major stationary source subject to a PA L for a regulated NSR pollutant, the major stationary source shall comply with the requirements set forth in section 25.

§45-14-4. Ambient Air Quality Increments and Ceilings.

4.1. No increases in pollutant concentrations over th e baseline concentrations are allowed in excess of those listed below:

Maximum Allowable Pollutant Concentra tion Increase over Baseline Concentration ( μ g/m 3 )

Class I Areas

Particulate matter: PM 2.5 , Annual arithmetic mean 1 PM 2.5 , 24-hour maximum 2 PM 10 , Annual arithmetic mean 4 PM 10 , 24-hour maximum 8

Sulfur dioxide: Annual arithmetic mean 2 24-hour maximum 5 3-hour maximum 25
Nitrogen dioxide: Annual arithmetic mean 2.5

Class II Areas

Particulate matter: PM 2.5 , Annual arithmetic mean 4 PM 2.5 , 24-hour maximum 9 PM 10 , Annual arithmetic mean 17 PM 10 , 24-hour maximum 30

Sulfur dioxide: Annual arithmetic mean 20 24-hour maximum 91 3-hour maximum 512
Nitrogen dioxide: Annual arithmetic mean 25

Class III

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Particulate matter: PM 2.5 , Annual arithmetic mean 8 PM 2.5 , 24-hour maximum 18 PM 10 , Annual arithmetic mean 34 PM 10 , 24-hour maximum 60

Sulfur dioxide: Annual arithmetic mean 40 24-hour maximum 182 3-hour maximum 700
Nitrogen dioxide: Annual arithmetic mean 50

4.2. For any period other than an annual period, the applicable maximum allowable increase may be exceeded during one (1) such period per year at any one location.

4.3. No pollutant concentration sh all exceed any primary or secondary air quality standard promulgated:

4.3.a. by the Secretary; or

4.3.b. by the US EPA.

§45-14-5. Area Classification.

5.1. Dolly Sods Wilderness Area and Otter Creek Wilderness Area are designated as Class I Areas;

5.2. The Spruce Knob-Seneca Rocks National Recrea tional Area, the Cranberry National Wilderness, and the New River Gorge National Scenic River are designated as Class II Areas; and

5.3. The remainder of the State of West Virginia is designated as a Class II Area.

§45-14-6. Prohibition of Dispersion Enhancement Techniques.

6.1. The use of stack heights which exceed good engi neering practice or any dispersion techniques to reduce the concentration of any air pollutant and ther eby, affect the degree of emission limitation required is prohibited unless a stack existed or dispersion technique was implemented before December 31, 1970.

§45-14-7. Registration, Reporting and Permit Re quirements for Major Stationary Sources and Major Modifications.

7.1. No person shall allow the cons truction or relocation of any major stationary source or a major modification to be commenced after the effective date of this rule in any area designated as attainment or unclassifiable under §107 of the CAA, without notifying the Secretary of such intent and obtaining prior to beginning actual construction, or modification (as defi ned by subsection 2.10) a permit(s) to so construct, modify, or relocate the major stationary source or major modification as herein provided. If the area in which such source would be constructed or the area in wh ich such modification would occur is designated as nonattainment under §107 of the CAA, as amended, for an y pollutant which the source or modification would

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emit in significant amounts (as defined by subsection 45CSR19-2.65), the source or modification shall meet all requirements of 45CSR19 for that pollutant and shall not be subject to the requirements of this rule for that pollutant.

7.2. The owner or operator of the source shall file with the Secretary a timely and complete permit application containing sufficient information as, in the judgment of the Secretary, will enable the Secretary to determine whether such source construction, modifica tion, or relocation will be in conformance with the provisions of any rules promulgated by the Secretary in general and with the requirements of this rule. Such information may include, but not be limited to:

7.2.a. A description of the nature, location, design capacity, and typical operating schedule of the source or modification, including specifications a nd drawings showing its design and plant layout;

7.2.b. A detailed schedule for construc tion of the source or modification;

7.2.c. A detailed description as to what system of continuous emission reduction is planned by the source or modification, emission estimates, and any other information as necessary to determine that best available control technology as applicable would be applied;

7.2.d. The air quality impact of the source or m odification, including meteorological and topographical data necessary to estimate such impact; and

7.2.e. The air quality impacts and the nature and exte nt of any or all general commercial, residential, industrial, and other growth which has occurred since August 7, 1977, in the area the source or modification would affect.

7.3. Each permit application shall be signed by the owner or operator of the major stationary source or major modification, and such signature shall cons titute an agreement that the applicant will assume responsibility for the construction, modification, or re location, and operation of the major stationary source or major modification in accordance with applicable rules of the Secretar y, the permit application, and any permit issued pursuant to this rule.

7.4. Within thirty (30) days of the receipt of a permit application for construction or relocation of a major stationary source or for a major modification, the Secretary shall determine if the application is complete or if there exists any deficiency in the a pplication or information submitted, and shall notify the applicant of all such deficiencies, if any. In the event of such a defi ciency, the date of receipt of the application shall be the date on which the Secretary received all required information.

7.5. Within six (6) months of the receipt of a comp lete permit application for construction or relocation of a major stationary source or for a major modificati on, the Secretary shall issue such a permit unless the Secretary determines that the proposed major stationary source or major modification has not satisfied the requirements of this rule, will violate applicable emi ssion standards, will interfere with the attainment or maintenance of applicable ambient air quality standards, or will be inconsistent with the intent and purpose of this rule, in which case the Secretary shall issu e an order for the prevention of such construction, modification, or relocation.

7.6. If the Secretary denies a permit application for th e proposed construction or relocation of any major stationary source or major modification, the order shall set forth the Secretary’s reasons with reasonable

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specificity.

7.7. The Secretary may impose any reasonable c onditions as part of a granted construction, modification, or relocation permit. Such conditions may include, but not be limited to, the submission of periodic progress or operation reports, the provisions of a suitable sampling site, the installation of pollutant monitoring devices, and the operation and maintena nce of ambient air quality monitoring stations.

§45-14-8. Control Technology Requirements.

8.1. Any person proposing to construct or relocate a ma jor stationary source or major modification shall meet each applicable emissions limitation promulgate d by the Secretary and any applicable emissions standard or standard of performance under 40 CFR Parts 60, 61 and 63.

8.2. Any person proposing to construct a new major sta tionary source shall apply best available control technology for each regulated NSR pollutant that it w ould have the potential to emit in significant amounts.

8.3. Any person proposing a major modification of a sta tionary source shall apply best available control technology for each regulated NSR pollutant for wh ich such proposed major modification would cause a significant net emissions increase from such source. This requirement applies to each proposed emissions unit at which a net emissions increase in the pollutant would occur as a result of a physical change or change in the method of operation in the unit.

8.4. For any proposed construction of a major stati onary source or major modification which is a phased construction project, the determination of best availa ble control technology shall be reviewed and modified as appropriate at the last reasonable time which o ccurs no later than eighteen (18) months prior to commencement of construction of each independent phase of the project. At such time, the owner or operator of the applicable stationary source may be requi red to demonstrate the adequacy of any previous determination of best available control technology for the source.

§45-14-9. Requirements Relating to the Source’s Impact on Air Quality.

9.1. Required Demonstration. -- Any person proposing to construct or re locate a major stationary source or to make a major modification shall demonstrate that allowable emission increases from the proposed source or modification, in conjunction with all other a pplicable emission increases or reductions (including secondary emissions) would not cause or contribute to air pollution in violation of:

9.1.a. Any National Ambient Air Quality Standard in any air quality control region; or

9.1.b. Any applicable maximum allowable incr ease over the baseline concentration in any area.

9.2. [Reserved.]

§45-14-10. Modeling Requirements.

10.1. All estimates of ambient concentrations requi red under section 9 shall be based on the applicable air quality models, data bases, and other requirement s specified in the Appendix W of 40 CFR Part 51 (Guideline on Air Quality Models).

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10.2. Where an air quality impact model specified in Appendix W of 40 CFR Part 51 (Guideline on Air Quality Models) is inappropriate, the model may be modified or another model substituted, provided that said modification or substitution is approve d in writing by the Administrator.

§45-14-11. Air Quality Monitoring Requirements.

11.1. Any person proposing to construct or relocate a major stationary source shall provide an analysis of the ambient air quality in the area that the major st ationary source would affect for each pollutant that it would have the potential to emit in a significant amount.

11.2. Any person proposing to make a major modification to a stationary source shall provide an analysis of the ambient air quality in the area that the major modification would affect for each pollutant for which it would result in a significant net emissions increase.

11.3. For those pollutants for which no National or West Virginia Ambient Air Quality Standard exists, the analysis shall contain such air quality monitori ng data as the Secretary determines is necessary to assess ambient air quality for that pollutant in any area th at the emissions of that pollutant would affect.

11.4. For those pollutants (other than non-methane hydrocarbons) for which such an ambient air quality standard does exist, the analysis shall contain con tinuous air quality monitoring data gathered for purposes of determining whether emissions of that pollutant w ould cause or contribute to a violation of the standard or any maximum allowable increase.

11.5. All ambient air quality monitoring data that is required shall have been gathered over a period of one (1) year and shall represent the year preceding receipt of the application, except that, if the Secretary determines that a complete and adequate analysis can be accomplished with monitoring data gathered over a period shorter than one (1) year (but not to be less than four (4) months), the data that is required shall have been gathered over at least that shorter period.

11.6. Any person proposing to construct or relocat e a major stationary source or make a major modification shall, after construction of the stati onary source or modification, conduct such ambient monitoring as the Secretary determines is necessary to determine the effect emissions from the stationary source or modification may have, or are having, on air quality in any area.

11.7. Operation of monitoring stations required by section 11 shall meet the requirements of Appendix B of 40 CFR Part 58 during the operation of the monitoring stations.

§45-14-12. Additional Impact Analysis Requirements.

12.1. Any person proposing to constr uct or relocate a major stationary source or make a major modification shall provide:

12.1.a. An analysis of the impairment to visibility, soils, and vegetation that would occur as a result of the source or modification and general commercial, resi dential, industrial, and other growth associated with the source or modification. The owner or operator need not provide an analysis of the impact on vegetation having no significant commercial or recreational value; and

12.1.b. An analysis of the air quality impact proj ected for the area as a result of general commercial,

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residential, industrial and other growth associated with the source or modification.

§45-14-13. Additional Requirements and Variances for Sources Impacting Federal Class I Areas.

13.1. Notice to EPA. -- The Secretary shall transm it to the Administrator a copy of each permit application relating to a major stationary source or major modification impacting a Class I area and provide notice to the Administrator of every action re lated to the consideration of such permit.

13.2. Notice to Federal land managers. -- The Secr etary shall provide written notice of any permit application for a proposed major stationary source or major modification, the emissions from which may affect a Class I area, to the Federa l land manager or the Federal offici al, charged with direct responsibility for management of any lands within any such area. Su ch notification shall include a copy of all information relevant to the permit application and shall be given w ithin 30 days of receipt and at least 60 days prior to any public hearing on the application for a permit to cons truct. Such notification shall include an analysis of the proposed source's anticipated impact s on visibility in the Federal Class I area.

13.3. The Secretary shall also provide the Federal land manager or such Federal officials with a copy of the preliminary determination require d under subsection 17.2, and shall make available to them any materials used in making that determination, promptly after th e Secretary makes such determination. Finally, the Secretary shall also notify all affected Federal land managers within 30 days of receipt of any advance notification of any such permit application.

13.4. Federal Land Manager. -- The Fe deral Land Manager or the Federa l official, charged with direct responsibility for management of such lands has an affi rmative responsibility to protect the air quality related values (including visibility) of such lands and to cons ider, in consultation with the Secretary, whether a proposed source or modification will have an adverse impact on such values.

13.5. The Federal Land Manager of the affected Class I area may present to the Secretary during the public review process described in section 17 a demons tration that the emissions from the proposed major stationary source or major modification would have an adverse impact on the air quality-related values (including visibility) of any Federal mandatory Class I lands, notwithstanding that the change in air quality resulting from emissions from such source or modification would not cause or contribute to concentrations which would exceed the maximum allowable increases for a Class I area. If the Secretary concurs with such demonstration, the Secretary shall deny the permit to construct.

13.6. Class I variances. -- The owner or operator of a proposed source or modification may demonstrate to the Federal Land Manage r that the emissions from such source or modification would have no adverse impact on the air quality related values of any such lands (including visibility), notwithstanding that the change in air quality resulting from emissions from such source or modification would cause or contribute to concentrations which would exceed the maximum allowable increases for a Class I area. If the Federal land manager concurs with such de monstration and he so certifies, the Secretary may issue the permit: Provided, That the applicable requirements of this sec tion are otherwise met, to issue the permit with such emission limitations as may be necessary to assure that emissions of sulfur dioxide, PM 2.5 , PM 10 , and nitrogen oxides would not exceed the following maximum allowable increases over minor source baseline concentration for such pollutants:

Maximum Allowable Pollutant Concentration In crease over Minor Source Baseline Concentration ( μ g/m 3 )

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Particulate Matter: PM 2.5 , Annual arithmetic mean 4 PM 2.5 , 24-hr maximum 9 PM 10 , Annual arithmetic mean 17 PM 10 , 24-hr maximum 30

Sulfur dioxide: Annual arithmetic mean 20 24-hr maximum 91 3-hr maximum 325
Nitrogen dioxide: Annual arithmetic mean 25

13.7. An applicant for a permit pursuant to this rule shall be allowed the Class I variances as provided in 40 CFR §§51.166(p)(4), (5), (6), and (7) as contained in the Code of Federal Regulations on July 1, 1994, provided, that all requirements of said 40 CFR §§51. 166(p)(4), (5), (6), and (7) are met and written notification of variance in accordance with said section(s) is provided to the Secretary.

§45-14-14. Procedures for Sources Employing Innovative Control Technology.

14.1. Any person proposing to construct or modify a major stationary source or major modification may petition the Secretary to approve a system of innovative control technology in lieu of best available control technology. Any such proposed innovative control technology shall meet the following conditions:

14.1.a. The proposed control system would not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function;

14.1.b. The proposed source or modification must ach ieve a level of continuous emissions reduction equivalent to that which would ha ve been required under section 8 by a date specified by the Secretary;

14.1.c. The source or modification would meet requi rements equivalent to all requirements of this rule that a stationary source employing a system of best available control tec hnology would be required to meet;

14.1.d. Before the date specified in subsec tion 14.4, the source or modification would:

14.1.d.1. Not cause or contribute to any violation of an applicable National Ambient Air Quality Standard;

14.1.d.2. Not impact any area where an appli cable increment is known to be violated;

14.1.d.3. Meet all other applicable requirement s including those for public participation; and

14.1.e. The provisions of 40 CFR §51.166(p) (rela ting to Class I areas) have been satisfied with respect to all periods during the life of the source or modification.

14.2. The Secretary shall consult with the governor(s) of other state(s) and the Federal Land Manager(s)

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of areas impacted by the proposed source or modification.

14.3. The Secretary, with the concurrence of the governor(s) of other state(s) and the Federal Land Manager(s), may make a determination that the s ource or modification would be employing innovative control technology.

14.4. The Secretary shall specify a date by which the source or modification must meet the requirements and conditions of subsection 14.1. Su ch date shall not be later than four (4) years from the time of start-up or seven (7) years from permit issuance.

14.5. The Secretary shall withdraw any approval to employ a system of innovative control technology made under this section 14 if:

14.5.a. The proposed system fails by the specified date to achieve the required continuous emissions reduction rate; or

14.5.b. The proposed system fails before the specifi ed date so as to contribute to an unreasonable risk to public health, welfare, or safety; or

14.5.c. The Secretary decides at any time that the pr oposed system is unlikely to achieve the required level of control or to protect the public health, welfare, or safety.

14.6. If the source or modification fails to meet th e required level of con tinuous emissions reduction within the specified time period, or if the approval is withdrawn in accordance with subsection 14.5, the Secretary shall specify a date by which the source or modification shall meet the requirement for the application of best available control technology through u se of a demonstrated system of control. This date shall not exceed three (3) years from the date of the e nd of the specified time period or the date that the approval is withdrawn, whichever is earlier.

§45-14-15. Exclusions From Increment Consumption.

15.1. The following concentrations shall be excl uded in determining compliance with a maximum allowable increase:

15.1.a. Concentrations attributable to the incr ease in emissions from stationary sources which have converted from the use of petroleum products, natural g as, or both by reason of an order in effect under sections 2(a) and (b) of the Energy Supply and Envi ronmental Coordination Act of 1974 (or any superseding legislation as of the effective date of this rule) over the emissions from such sources before the effective date of such an order;

15.1.b. Concentrations attributable to the incr ease in emissions from sources which have converted from using natural gas by reason of natural gas curtailm ent plan in effect pursuant to the Federal Power Act over the emissions from such sources before the effective date of such plan;

15.1.c. Concentrations of particulate matter attributable to the increase in emissions from construction or other temporary emission-relate d activities of new or modified sources; and

15.1.d. Concentrations attributable to the temporary increase in emissions of sulfur dioxide,

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particulate matter, or nitrogen oxides from stationary sources so long as such exclusion meets the following requirements:

15.1.d.1. The temporary emissions increase of su lfur dioxide, particulate matter or nitrogen dioxides does not exceed two (2) years in duration;

15.1.d.2. The exclusion period for the temporary emissions increase is not renewable; and

15.1.d.3. The exclusion allows no emissions increases from a stationary source which would:

15.1.d.3.A. Impact a Class I area or an area where an applicable increment is known to be violated; or

15.1.d.3.B. Cause or contribute to a violation of a National Ambient Air Quality Standard.

15.1.d.4. The exclusion requires limitations to be in effect at the end of the exclusion period specified in paragraph 15.1.d.1, which ensures that the emissions levels from stationary sources would not exceed those levels occurring from such sources before the temporary increase.

15.2. No exclusion of such concentrations shall apply more than five (5) years after the effective date of the order to which subdivision 15.1.a refers or the plan to which subdivision 15.1.b refers, whichever is applicable. If both such order and plan are applicable, no such exclusion shall apply more than five (5) years after the later of such effective dates.

§45-14-16. Specific Exemptions.

16.1. A non-profit health or non-profit educational ins titution proposing to construct or relocate a major stationary source or to make a major modification may petition the Secretary for an exemption from the requirements of subsections 8.2, 8. 3 and 8.4 and sections 9, 11 and 12.

16.2. The source or modification that would be a ma jor stationary source or major modification only if fugitive emissions, to the extent quantifiable, are c onsidered in calculating the potential to emit of the stationary source or modification and such source do es not belong to any of the source categories listed in Table 1 may petition the Secretary for exemption from the requirements of subsections 8.2, 8.3, 8.4 and sections 9, 11 and 12.

16.3. Any person proposing to relocate a source or modifi cation that is a portable stationary source which has previously received a permit under this rule ma y petition the Secretary for an exemption from the requirements of subsections 8.2, 8.3 and 8.4 and sec tions 9, 11 and 12. The Secretary shall grant this exemption if the following conditions are met:

16.3.a. The source proposes to relocate and emissions of the source at the new location would not exceed two (2) years;

16.3.b. The emissions from the source would not exceed its allowable emissions;

16.3.c. The emissions from the source would impact no Class I area and no area where an applicable increment is known to be violated;

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16.3.d. The source identifies the proposed new lo cation and the probable duration of operation at the new location; and

16.3.e. Such petition shall be submitted to the Secretary not less than ten (10) days in advance of the proposed relocation unless a different time dura tion is previously approved by the Secretary.

16.4. Requirements equivalent to those contained in subsections 8.2, 8.3 and 8.4 and sections 9, 11 and 12 do not apply to a major stationary source or major modi fication with respect to a particular pollutant if the owner or operator demonstrates that, as to that pollutant, the source or modification is located in an area designated as nonattainment under §107 of the CAA.

16.5. Any person proposing to construct or relocat e a major stationary source or make a major modification may petition the Secretary for an exemption from the requirements of sections 9 through 12 with respect to a particular pollutant and the Secretary sha ll grant such exemption, if the allowable emissions of that pollutant from a new source, or the net emissions increase of that pollutant from a modification, would not exceed two (2) years, would not impact any Class I area and would not impact any area where an applicable increment is known to be violated.

16.6. Any person proposing to modify a major statio nary source located in a Class II area that was in existence prior to March 1, 1978 may petition the S ecretary for an exemption from the requirements of sections 9, 11 and 12 as they relate to any maximum allowable increase for a Class II area. The Secretary shall grant such exemption if the net increase in allo wable emissions of each regulated NSR pollutant from the modification after the application of best availabl e control technology would be less than fifty (50) tons
per year.

16.7. Any person proposing to construct or relocat e a major stationary source or make a major modification may petition the Secretary for an exemp tion from the requirements of section 11 with respect to a particular pollutant if:

16.7.a. The applicant demonstrates that the emissi ons increase of the pollutant from a new stationary source or the net emissions increase of the pollutant from a modification would cause, in any area, an air quality impact less than the amounts listed in Table 2; or

16.7.b. The applicant demonstrates that the concentra tions of the pollutant in the area that the source or modification would affect are less than the concentrations listed in Table 2; or

16.7.c. The applicant’s request is for any pollutant which is not listed in Table 2.

Table 2 - De Minimis Air Quality Impacts

Pollutant Concentration ( μ g/m 3 ) Averaging Time

Carbon Monoxide 575 8-hour
Nitrogen Dioxide 14 annual

PM 2.5 2 0

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PM 10 10 24-hour

Sulfur Dioxide 13 24-hour

Ozone 1 None NA

Lead 0.1 3-month

Fluorides 0.25 24-hour
Hydrogen Sulfide 0.2 1-hour

Total Reduced Sulfur 10 1-hour
Reduced Sulfur Compounds 10 1-hour

1 No de minimis air quality level is provided for ozone. However, any net emissions increase of 100 tons per year or more of vo latile organic compounds or nitrogen oxides subject to PSD would be required to perform an ambient impact analysis, including the gathering of air quality data.

2 In accordance with Sierra Club v. EPA, 706 F.3d 428 (D.C. Cir. 2013), no exemption is available with regard to PM 2.5 .

16.8. The permitting requirements contained in subdivi sion 9.1.b do not apply to a stationary source or modification with respect to any maximum allowable increase for nitrogen oxides if the owner or operator of the source or modification submitted an applicati on for a permit to the Secretary before the provisions embodying the maximum allowable increase took effect as part of the plan and the Secretary subsequently determines that the application as subm itted before that date was complete.

16.9. The permitting requirements contained in subdivisi on 9.1.b shall not apply to a stationary source or modification with respect to any maximum allowable increase for PM 10 if:

16.9.a. The owner or operator of the source or m odification submitted an application for a permit to the Secretary before the provisions embodying the maximum allowable increases for PM 10 took effect as part of the plan, and

16.9.b. The Secretary subsequently determines that the application as submitted before that date was complete. Instead, the applicable requirements of subdi vision 9.1.b shall apply with respect to the maximum allowable increases for TSP as in effect on the date the application was submitted.

16.10. The requirements of subsection 9.1 shall not a pply to a stationary source or modification with respect to the national ambient air quality standards for PM 2.5 in effect on March 18, 2013 if:

16.10.a. The Secretary has determined a permit appli cation subject to this section to be complete on or before December 14, 2012. Instead, the requirements in subsection 9.1 shall apply with respect to the national ambient air quality standards for PM 2.5 in effect at the time the Secretary determined the permit application to be complete; or

16.10.b. The Secretary has first published before March 18, 2013 a public notice of a preliminary determination for the permit application subject to this section. Instead, the requirements in subsection 9.1 shall apply with respect to the national ambient air quality standards for PM 2.5 in effect at the time of first publication of a public notice on the preliminary determination.

§45-14-17. Public Review Procedures.

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17.1. At the time that an application for a constructi on, modification or relocation permit is filed, the applicant shall place a Class I legal advertisement in a ne wspaper of general circulation in the area where the source will be located. No permit shall be issued to an y applicant until at least th irty (30) days notice has been provided to the public. The advertisement shall c ontain at a minimum, the name of the applicant, the type and location of the source, the type and amount of air pollutants proposed to be discharged, the nature of the permit being sought, the proposed start-up date for the source and a contact telephone number for more information.

17.2. After finishing the review of a complete application, the Secretary shall make a preliminary determination whether a permit should be appr oved, approved with c onditions, or disapproved.

17.3. The Secretary shall make available in at l east one location in the region in which the proposed source would be constructed a copy of all materials the applicant submitted (excluding data entitled to protection as confidential information under 45CSR31), a c opy of the preliminary determination, and a copy or summary of other materials, if any, cons idered in making the preliminary determination.

17.4. The Secretary shall place a Class I legal advertisement in a paper of general circulation in the area where the proposed source would be constructed, modifi ed, or relocated. The advertisement shall contain, as a minimum, the name of the applicant, the type a nd location of the source, the proposed start-up date, the preliminary determination, the degree of incremen t consumption that is expected from the source or modification, notification of the opportunity for wr itten public comment, provisions for requesting a public meeting, details concerning the time and place of such a meeting if one is scheduled, and notification of the opportunity for comment at a public meeting if such m eeting is to be conducted. A public comment period of thirty (30) days shall be provided and so stated in the advertisement.

17.5. The Secretary shall send a copy of the advertisem ent to the applicant, to the Administrator, and to officials and agencies having cognizance over the loca tion where the proposed construction would occur as follows: any other State or local air pollution control agencies, the chief executives of the city and county where the source would be located; any comprehensive regional land use planning agency, any State, and any Federal Land Manager, whose lands may be affected by emissions from the source or modification.

17.6. The Secretary shall consider public comments submitte d within thirty (30) days after the Secretary’s public notification of an opportunity for comment upon a proposed construction or relocation of a major stationary source or major modification, and comments submitted within a specified period not to exceed fifteen (15) days after any public meeting to receive comment on such proposed construction, modification, or relocation before making a final decision on the approva bility of the application. The Secretary shall make copies of all comments available for public inspecti on in the same locations where the Secretary made available preconstruction information relati ng to the proposed source or modification.

17.7. The Secretary shall make a final determinati on whether construction shoul d be approved, approved with conditions, or disapproved.

17.8. The Secretary shall notify the applicant in writing of the final determination and make a copy of such notification available for public inspection at the same location where the Secretary made available preconstruction information and public comments re lating to the proposed source or modification.

§45-14-18. Public Meetings.

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18.1. Public meetings to receive comments on permit app lications shall be held when the Secretary deems it appropriate or when substantial interest is expr essed, in writing, by pers ons who might reasonably be expected to be affected by the proposed major source or major modification.

18.2. The Secretary or the Secretary’s designee shall preside over such meetings and ensure that all interested parties have ample opportunity to present comme nts. Such meetings shall be held at a convenient place as near as practicable to the location of the proposed major source or major modification.

18.3. At a reasonable time prior to such meetings, th e Secretary shall provide appropriate information to news media in the area where the proposed source or modification is to be located.

§45-14-19. Permit Transfer, Cancellation and Responsibility.

19.1. A permittee may petition the Secretary for a transf er of a permit previously issued in accordance with this rule. The Secretary shall approve such permit transfer provided the following conditions are met:

19.1.a. The permittee, in the petition, describes th e reasons for the requested permit transfer and certifies that the subject source is in compliance with all the provisions and requirements of its permit, and

19.1.b. The transferee provides written acknowledgment that it accepts and will comply with all the requirements, terms, and conditions as contained in the subject permit.

19.2. The Secretary shall suspend or revoke a permit if, after eighteen (18) months from the date of issuance the holder of the permit cannot provide the Secr etary, at the Secretary’s request, with written proof of a good faith effort that such construction, modifi cation, or relocation has commenced and remains ongoing. Such proof shall be provided not later than th irty (30) days after the Secretary’s request.

19.3. The Secretary may suspend, modify, or revoke the permit if the plans and specifications upon which the approval was based or the conditions established in the permit are not adhered to. Upon notice of the Secretary’s intent to suspend, modify or revoke a permit, the permittee may request a conference with the Secretary in accordance with the provisions of W.Va . Code §22-5-5 to show cause why the permit should not be suspended, modified or revoked.

19.4. Any owner or operator who c onstructs, modifies or relocat es any stationary source not in accordance with the application submitted pursuant to this rule or with the terms of any permit to construct, modify or relocate, or any owner or operator of a s ource subject to this rule who commences construction after the effective date of this rule without appl ying for and receiving approval hereunder, shall be subject to appropriate enforcement action.

19.5. Possession of a permit does not relieve any person of the responsibility of complying with any and all rules of the Secretary or W.Va. Code § 22-1-1 et seq.

19.6. [Reserved.]

19.7. Any person who owns or opera tes any particular source or modification which becomes a major stationary source or major modification solely by virtue of a relaxation in any limitation, enforceable by the Administrator or the Secretary, on the capacity of the source or modification otherwise to emit a pollutant (such as a restriction on hours of operation), shall become subject to the requirements of this rule as though

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construction had not yet commenced on the source or modification.

19.8. Except as otherwise provided in subdivision 19.8.f, the following specific provisions apply with respect to any regulated NSR pollutant emitted from proj ects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of subdivision 19.8.f, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs 2.63.a.1 through 2.63.a.3 for calculating projected actual emissions.

19.8.a. Before beginning actual cons truction of the project, the owner or operator shall document and maintain a record of the following information:

19.8.a.1. A description of the proposed project;

19.8.a.2. Identification of the emissions unit(s) w hose emissions of a regulated NSR pollutant could be affected by the proposed project; and

19.8.a.3. A description of the applicability test used to determine that the proposed project is not a major modification for any regulated NSR pollutant , including the baseline actual emissions, the projected actual emissions, the amount of emissions excluded under paragraph 2.63.a.2 and an explanation for why such amount was excluded, and any netting calculations, if applicable.

19.8.b. If the emissions unit is an existing electric utility steam generating unit, before beginning actual construction, the owner or ope rator shall provide a copy of the information required under subdivision 19.8.a to the Secretary. Nothing in subdivision 19.8.b shall be construed to requi re the owner or operator of such a unit to obtain any determination from th e Secretary before beginning actual construction.

19.8.c. The owner or operator shall monitor the emi ssions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions unit identified in paragraph 19.8.a.1. The owner or operator shall calculate and maintain a r ecord of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular opera tions after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity of or potential to emit that regulated NSR pollutant at such emissions unit.

19.8.d. If the unit is an existing electric utility st eam generating unit, the owner or operator shall submit a report to the Secretary within 60 days after the end of each year during which records must be generated under subdivision 19.8.c setting out the unit’ s annual emissions during the calendar year that preceded submission of the report.

19.8.e. If the unit is an existing unit other than an electric utility steam generating unit, the owner or operator shall submit a report to the Secretary if the annual emissions, in tons per year, from the project identified in subdivision 19.8.a, exceed the baseline actual emissions (as documented and maintained pursuant to paragraph 19.8.a.3), by a significant amount (as defined in subsection 2.74) for that regulated NSR pollutant, and if such emissions differ from the pr econstruction projection as documented and maintained pursuant to paragraph 19.8.a.3. Such report shall be submitted to the Secretary within 60 days after the end of such year. The report shall contain the following:

19.8.e.1. The name, address and telephone num ber of the major stationary source;

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19.8.e.2. The annual emissions as calculated pursuant to subdivision 19.8.c; and

19.8.e.3. Any other information that the owner or operator wishes to include in the report (e.g., an explanation as to why the emissions differ from the preconstruction projection).

19.8.f. A “reasonable possibility” under subsection 19.8 occurs when the owner or operator calculates the project to result in either:

19.8.f.1. A projected actual emissions increase of at least 50 percent of the amount that is a “significant emissions increase,” as de fined under subsection 2. 75 (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant; or

19.8.f.2. A projected actual emissions increase that, added to the amount of emissions excluded under paragraph 2.63.a.3, sums to at least 50 percent of the amount that is a “significant emissions increase,” as defined under subsection 2.75 (without reference to th e amount that is a significant net emissions increase), for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only within the meaning of this paragraph, and not also within th e meaning of paragraph 19.8.f.1, then provisions under subdivisions 19.8.b through 19.8.e do not apply to the project.

19.9. The owner or operator of the source shall make available the information required to be documented and maintained pursuant to subsection 19.8 for review upon a request for inspection by the Secretary or the general public pursuant to the re quirements contained in 45CSR30.

§45-14-20. Disposition of Permits.

20.1. In the event that the Secretary promulgates chang es to this rule or in the event of a redesignation of an attainment or non-attainment area (in accordance with § 107 of the CAA) prior to final disposition of a permit, the Secretary shall make final disposition of the permit application in accordance with such newly promulgated standards or redesignation.

§45-14-21. Conflict with Other Permitting Rules.

21.1. For sources required to obtain a permit under th is rule, the provisions of 45CSR13 requiring a permit do not apply, so that only a single permit is required; provided, however, that:

21.1.a. The base permit application fee of $1,000 pursu ant to 45CSR22, subdivision 3.4.a shall apply to such sources in addition to other applicable fees; and

21.1.b. Any permit issued under this rule includ es conditions that ensure compliance with the provisions of 45CSR13 to the extent applicable to any regulated air po llutant (as defined in 45CSR13) not otherwise covered under this rule.

21.2. For sources that may be subject to 45CSR 13, 45CSR14 and/or 45CSR19, the more stringent provisions of each applicable rule shall apply.

§45-14-22. [Reserved.]

§45-14-23. [Reserved.]

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§45-14-24. [Reserved].

§45-14-25. Actuals PALs.

25.1. Applicability.

25.1.a. The Secretary may approve the use of an actuals PAL for any existing major stationary source if the PAL meets the requirements in subsections 25.1 through 25.15. The term “PAL” shall mean “actuals PAL” throughout section 25.

25.1.b. Any physical change in or change in the method of operation of a major stationary source that maintains its total source-wide emissions below the PAL level, meets the requirements in subsections 25.1 through 25.15, and complies with the PAL permit:

25.1.b.1. Is not a major modification for the PAL pollutant;

25.1.b.2. Does not have to be approved through the PSD program; and

25.1.b.3. Is not subject to the provisions in s ubsection 19.4 (restrictions on relaxing enforceable emission limitations that the major stationary source u sed to avoid applicability of the major NSR program).

25.1.c. Except as provided under paragraph 25.1.b.3, a major stationary source shall continue to comply with all applicable Federal or State re quirements, emission limitations, and work practice requirements that were established prio r to the effective date of the PAL.

25.2. Definitions. -- For the purposes of this section 25, the definition in subdivision 25.2.a applies. When a term is not defined in these paragraphs, it sha ll have the meaning given in section 2 or in the CAA.

25.2.a. Allowable emissions means “allowable emi ssions” as defined in subsection 2.6, except as modified according to paragraphs 25.2.a.1 and 25.2.a.2.

25.2.a.1. The allowable emissions for any emissions unit shall be calculated considering any emission limitations that are enforceable as a practi cal matter on the emissions unit’s potential to emit.

25.2.a.2. An emissions unit’s potential to emit shall be determined using the definition in subsection 2.58, except that the word s “or enforceable as a practical matter” should be added after “federally enforceable.”

25.3. Permit application requirements. -- As part of a permit application requesting a PAL, the owner or operator of a major stationary source shall submit th e following information to the Secretary for approval:

25.3.a. A list of all emissions units at the source designated as small, significant or major based on their potential to emit. In addition, the owner or opera tor of the source shall indicate which, if any, Federal or State applicable requirements, emission limitations, or work practices apply to each unit.

25.3.b. Calculations of the baseline actual emi ssions (with supporting doc umentation). Baseline actual emissions are to include emissions associated not only with operation of the unit, but also emissions associated with startup, shutdown, and malfunction.

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25.3.c. The calculation procedures that the major stationary source owner or operator proposes to use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by subdivision 25.13.a.

25.4. General requirements for establishing PALs.

25.4.a. The Secretary is allowed to establish a PAL at a major stationary source, provided that at a minimum, the requirements in paragraphs 25.4.a.1 through 25.4.a.7 are met.

25.4.a.1. The PAL shall impose an annual emission limitation in tons per year, that is enforceable as a practical matter, for the entire major stationary source. For each month during the PAL effective period after the first 12 months of establishing a PAL, the majo r stationary source owner or operator shall show that the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11 months from the PAL effective date, the major stationary sour ce owner or operator shall show that the sum of the preceding monthly emissions from the PAL effective da te for each emissions unit under the PAL is less than the PAL.

25.4.a.2. The PAL shall be established in a PAL permit that meets the public participation requirements in section 17.

25.4.a.3. The PAL permit shall contain a ll the requirements of subsection 25.7.

25.4.a.4. The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source.

25.4.a.5. Each PAL shall regulate emissions of only one pollutant.

25.4.a.6. Each PAL shall have a PAL effective period of 10 years.

25.4.a.7. The owner or operator of the major stati onary source with a PAL shall comply with the monitoring, recordkeeping, and reporting requireme nts provided in subsections 25.12 through 25.14 for each emissions unit under the PAL through the PAL effective period.

25.4.b. At no time during or after the PAL effec tive period are emissions reductions of a PAL pollutant that occur during the PAL effective peri od creditable as decreases for purposes of offsets pursuant to 45CSR19 unless the level of the PAL is reduced by the amount of such emissions reductions and such reductions would be creditable in the absence of the PAL.

25.5. Public participation requirements for PALs. -- PALs for existing major stationary sources shall be established, renewed, or increased through a procedure th at is consistent with 45CSR13. This includes the requirement that the Secretary provide the public with notice of the proposed approval of a PAL permit and at least a 30-day period for submittal of public comment. The Secretary must address all material comments before taking final action on the permit.

25.6. Setting the 10-year actuals PAL level.

25.6.a. Except as provided in subdivision 25.6.b, actuals PAL level for a major stationary source

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shall be established as the sum of the baseline actual em issions (as defined in subsection 2.8) of the PAL pollutant for each emissions unit at the source; plus an amount equal to the applicable significant level for the PAL pollutant under subsection 2.74 or under the C AA, whichever is lower. When establishing the actuals PAL level, for a PAL pollutant, only one consecu tive 24-month period must be used to determine the baseline actual emissions for all existing emissions un its. However, a different consecutive 24-month period may be used for each different PAL pollutant. Emi ssions associated with units that were permanently shutdown after this 24-month period must be subtracted from the PAL level. Emissions from units on which actual construction began after the 24- month period must be added to th e PAL level in an amount equal to the potential to emit of the units. The Secretary shall specify a reduced PAL level(s) (in tons/yr) in the PAL permit to become effective on the future compliance da te(s) of any applicable Federal or State regulatory requirement(s) that the Secretary is aware of prior to issuance of the PAL permit. For instance, if the source owner or operator will be required to reduce emissions from industrial boilers in half from baseline emissions of 60 ppm NO X to a new rule limit of 30 ppm, then the permit shall contain a future effective PAL level that is equal to the current PAL level reduced by half of the original baseline emissions of such unit(s).

25.6.b. For newly constructed units (which do not include modifications to existing units) on which actual construction began after the 24-month period, in lieu of adding the baseline actual emissions as specified in subdivision 25.6.a, the emissions must be added to the PAL level in an amount equal to the potential to emit of the units.

25.7. Contents of the PAL permit. -- The PAL permit must contain, at a minimum, the information in subdivisions 25.7.a through 25.7.j.

25.7.a. The PAL pollutant and the applicable s ource-wide emission limitation in tons per year.

25.7.b. The PAL permit effective date and the expi ration date of the PAL (PAL effective period).

25.7.c. Specification in the PAL permit that if a ma jor stationary source owner or operator applies to renew a PAL in accordance with subsection 25.10 before the end of the PAL effective period, then the PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a revised PAL permit is issued by the Secretary.

25.7.d. A requirement that emission calculations for compliance purposes must include emissions from startups, shutdowns, and malfunctions.

25.7.e. A requirement that, once the PAL expires, the major stationary source is subject to the requirements of subsection 25.9.

25.7.f. The calculation procedures that the major st ationary source owner or operator shall use to convert the monitoring system data to monthly emi ssions and annual emissions based on a 12-month rolling total as required by subdivision 25.13.a.

25.7.g. A requirement that the major stationary s ource owner or operator monitor all emissions units in accordance with the provisions under subsection 25.12.

25.7.h. A requirement to retain the records requi red under subsection 25.13 on site. Such records may be retained in an electronic format.

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25.7.i. A requirement to submit the reports required under subsection 25.14 by the required deadlines.

25.7.j. Any other requirements that the Secretar y deems necessary to implement and enforce the PAL.

25.8. PAL effective period and reopening of the PAL permit. -- The requirements in subdivisions 25.8.a and 25.8.b apply to actuals PALs.

25.8.a. PAL effective period. -- The Secretary shall specify a PAL effective period of 10 years.

25.8.b. Reopening of the PAL permit.

25.8.b.1. During the PAL effective period, the Secretary must reopen the PAL permit to:

25.8.b.1.A. Correct typographical or calculation e rrors made in setting the PAL or reflect a more accurate determination of emissions used to establish the PAL;

25.8.b.1.B. Reduce the PAL if the owner or operator of the major stationary source creates creditable emissions reductions for use as offsets pursuant to 45CSR19; and

25.8.b.1.C. Revise the PAL to reflect an in crease in the PAL as provided under subsection 25.11.

25.8.b.2. The Secretary shall have discretion to reopen the PAL permit for the following:

25.8.b.2.A. Reduce the PAL to reflect newly a pplicable Federal requirements (for example, NSPS) with compliance dates after the PAL effective date;

25.8.b.2.B. Reduce the PAL consistent with any other requirement, that is enforceable as a practical matter, and that the State may impose on the major stationary source under the State Implementation Plan; and

25.8.b.2.C. Reduce the PAL if the Secretary de termines that a reduction is necessary to avoid causing or contributing to a National Ambient Air Quality Standard (NAAQS) or PSD increment violation, or to an adverse impact on an air quality related valu e that has been identified for a Federal Class I area by a Federal Land Manager and for which inform ation is available to the general public.

25.8.b.3. Except for the permit reopening in subparagraph 25.8.b.1.A for the correction of typographical/calculation errors that do not increase the PAL level, all other reope nings shall be carried out in accordance with the public participation requirements of subsection 25.5.

25.9. Expiration of a PAL. -- Any PAL that is not renewed in accordance with the procedures in subsection 25.10 shall expire at the end of the PAL effective period, and the requirements in subdivisions 25.9.a through 25.9.e shall apply.

25.9.a. Each emissions unit (or each group of emissions units) that existed under the PAL shall comply with an allowable emission limitation under a revised permit established according to the procedures

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in paragraphs 25.9.a.1 and 25.9.a.2.

25.9.a.1. Within the time frame specified for PAL renewals in subdivision 25.10.b, the major stationary source shall submit a proposed allowable emission limitation for each em issions unit (or each group of emissions units, if such a distribution is more appropriate as decided by the Secretary) by distributing the PAL allowable emissions for the major stationary sour ce among each of the emissions units that existed under the PAL. If the PAL had not yet been adjusted for an applicable requirement that became effective during the PAL effective period, as required under subdivision 25.10. e, such distribution shall be made as if the PAL had been adjusted.

25.9.a.2. The Secretary shall decide whether and how the PAL allowa ble emissions will be distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as the Secretary determines is appropriate.

25.9.b. Each emissions unit(s) shall comply with the allowable emission limitation on a 12-month rolling basis. The Secretary may approve the use of monitoring systems (source testing, emission factors, etc.) other than CEMS, CERMS, PEMS, or CPMS to demonstrate compliance with the allowable emission limitation.

25.9.c. Until the Secretary issues the revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as required under paragraph 25.9.a.2, the source shall continue to comply with a source-wide, multi-unit emissi ons cap equivalent to the level of the PAL emission limitation.

25.9.d. Any physical change or change in the met hod of operation at the major stationary source will be subject to major NSR requirements if such change meets the definition of major modification in subsection 2.40.

25.9.e. The major stationary source owner or operato r shall continue to comply with any State or Federal applicable requirements (BACT, RACT, NSPS, etc.) that may have applied either during the PAL effective period or prior to the PAL effective peri od except for those emission limitations that had been established pursuant to subsection 19.4, but were elim inated by the PAL in acco rdance with the provisions in paragraph 25.1.b.3.

25.10. Renewal of a PAL. -- The Secretary shall fo llow the procedures specified in subsection 25.5 in approving any request to renew a PAL for a major stati onary source, and shall provide both the proposed PAL level and a written rationale for the proposed PAL leve l to the public for review and comment. During such public review, any person may propose a PAL level fo r the source for consideration by the Secretary.

25.10.a. Application deadline. -- A major stationary source owner or operator shall submit a timely application to the Secretary to request renewal of a PAL. A timely application is one that is submitted at least 6 months prior to, but not earlier than 18 months from, the date of permit expiration. This deadline for application submittal is to ensure that the permit will not expire before the permit is renewed. If the owner or operator of a major stationary source submits a comp lete application to renew the PAL within this time period, then the PAL shall continue to be effective until the revised permit with the renewed PAL is issued.

25.10.b. Application requirements. -- The applica tion to renew a PAL permit shall contain the information required in paragr aphs 25.10.c.1 through 25.10.c.4.

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25.10.b.1. The information required in subdivisions 25.3.a through 25.3.c.

25.10.b.2. A proposed PAL level.

25.10.b.3. The sum of the potential to emit of all emissions units under the PAL (with supporting documentation).

25.10.b.4. Any other information the owner or operator wishes the Secretary to consider in determining the appropriate level for renewing the PAL.

25.10.c. PAL adjustment. -- In determining whether a nd how to adjust the PAL, the Secretary shall consider the options outlined in paragraphs 25.10. d.1 and 25.10.d.2. However, in no case may any such adjustment fail to comply with paragraph 25.10.d.3.

25.10.c.1. If the emissions level calculated in accordance with subsection 25.6 is equal to or greater than 80 percent of the PAL level, the Secretary may renew the PAL at the same level without considering the factors set forth in paragraph 25.10.d.2; or

25.10.c.2. The Secretary may set the PAL at a level that he or she determines to be more representative of the source's baseline actual emissions, or that he or she determines to be more appropriate considering air quality needs, advances in control tec hnology, anticipated economic growth in the area, desire to reward or encourage the source's voluntary emissions reductions, or other factors as specifically identified by the Secretary in his or her written rationale.

25.10.c.3. Notwithstanding paragr aphs 25.10.d.1 and 25.10.d.2:

25.10.c.3.A. If the potential to emit of the major stationary source is less than the PAL, the Secretary shall adjust the PAL to a level no great er than the potential to emit of the source; and

25.10.c.3.B. The Secretary shall not approve a re newed PAL level higher than the current PAL, unless the major stationary source has complied with the provisions of subsection 25.11 (increasing a PAL).

25.10.d. If the compliance date for a State or Fede ral requirement that applies to the PAL source occurs during the PAL effective period, and if the Secr etary has not already adjust ed for such requirement, the PAL shall be adjusted at the time of PAL permit re newal or title V permit renewal, whichever occurs first.

25.11. Increasing a PAL during the PAL effective period.

25.11.a. The Secretary may increase a PAL emission limitation only if the major stationary source complies with the provisions in paragraphs 25.11.a.1 and 25.11.a.2.

25.11.a.1. The owner or operator of the majo r stationary source shall submit a complete application to request an increase in the PAL limit for a PAL major modification. Such application shall identify the emissions unit(s) contributing to the incr ease in emissions so as to cause the major stationary source's emissions to equal or exceed its PAL.

25.11.a.2. As part of this application, the ma jor stationary source owner or operator shall demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of the

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baseline actual emissions of the significant and major emissions units assuming application of BACT equivalent controls, plus the sum of the allowable emi ssions of the new or modified emissions unit(s) exceeds the PAL. The level of control that would result from BACT equivalent controls on each significant or major emissions unit shall be determined by conducting a new BACT analysis at the time the application is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement that was established within the preceding 10 years. In su ch a case, the assumed control level for that emissions unit shall be equal to the level of BACT or LAER w ith which that emissions unit must currently comply.

25.11.a.3. The owner or operator obtains a major NSR permit for all emissions unit(s) identified in paragraph 25.11.a.1, regardless of the magnitude of the emissions increase resulting from them (that is, no significant levels apply). These emissions unit(s) sh all comply with any emissions requirements resulting from the major NSR process (for exampl e, BACT), even though they have also become subject to the PAL or continue to be subject to the PAL.

25.11.a.4. The PAL permit shall require that the increased PAL level shall be effective on the day any emissions unit that is part of the PAL majo r modification becomes operational and begins to emit the PAL pollutant.

25.11.b. The Secretary shall calculate the new PA L as the sum of the allowable emissions for each modified or new emissions unit, plus the sum of th e baseline actual emissions of the significant and major emissions units (assuming application of BACT equi valent controls as determined in accordance with paragraph 25.11.a.2), plus the sum of the baselin e actual emissions of the small emissions units.

25.11.c. The PAL permit shall be revised to refl ect the increased PAL level pursuant to the public notice requirements of subsection 25.5.

25.12. Monitoring requirements for PALs.

25.12.a. General requirements.

25.12.a.1. Each PAL permit must contain enforceable requirements for the monitoring system that accurately determines plantwide emissions of the PA L pollutant in terms of mass per unit of time. Any monitoring system authorized for use in the PAL pe rmit must be based on sound science and meet generally acceptable scientific procedures for data quality and mani pulation. Additionally, the information generated by such system must meet minimum legal requirements for admissibility in a judicial proceeding to enforce the PAL permit.

25.12.a.2. The PAL monitoring system must employ one or more of the four general monitoring approaches meeting the minimum requirements set fort h in paragraphs 25.12.b.1 through 25.12.b.4 and must be approved by the Secretary.

25.12.a.3. Notwithstanding paragraph 25.12.a.2, you may also employ an alternative monitoring approach that meets paragraph 25.12.a.1 if approved by the Secretary.

25.12.a.4. Failure to use a monitoring system that meets the requirements of this rule renders the PAL invalid.

25.12.b. Minimum performance requirements for approved monitoring approaches. The following

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are acceptable general monitoring approaches when c onducted in accordance with the minimum requirements in subdivisions 25.12.c through 25.12.i:

25.12.b.1. Mass balance calculations for activities using coatings or solvents;

25.12.b.2. CEMS;

25.12.b.3. CPMS or PEMS; and

25.12.b.4. Emission factors.

25.12.c. Mass balance calculations. -- An owner or operator using mass balance calculations to monitor PAL pollutant emissions from activities usi ng coating or solvents shall meet the following requirements:

25.12.c.1. Provide a demonstrated means of valid ating the published content of the PAL pollutant that is contained in or created by all materials used in or at the emissions unit;

25.12.c.2. Assume that the emissions unit emits all of the PAL pollutant that is contained in or created by any raw material or fuel used in or at the emissions unit, if it cannot otherwise be accounted for in the process; and

25.12.c.3. Where the vendor of a material or fuel, which is used in or at the emissions unit, publishes a range of pollutant content from such materi al, the owner or operator must use the highest value of the range to calculate the PAL pollutant emissions unless the Secretary determines there is site-specific data or a site-specific monitoring program to support another content within the range.

25.12.d. CEMS. An owner or operator using CEMS to monitor PAL pollutant emissions shall meet the following requirements:

25.12.d.1. CEMS must comply with applicable Performance Specifications found in 40 CFR Part 60, appendix B; and

25.12.d.2. CEMS must sample, analyze and record data at least every 15 minutes while the emissions unit is operating.

25.12.e. CPMS or PEMS. An owner or operator using CPMS or PEMS to monitor PAL pollutant emissions shall meet the following requirements:

25.12.e.1. The CPMS or the PEMS must be based on current site-specific data demonstrating a correlation between the monitore d parameter(s) and the PAL polluta nt emissions across the range of operation of the emissions unit; and

25.12.e.2. Each CPMS or PEMS must sample, analyze, and record data at least every 15 minutes, or at another less frequent interval approved by th e Secretary, while the emissions unit is operating.

25.12.f. Emission factors. -- An owner or operator using emission factors to monitor PAL pollutant emissions shall meet the following requirements:

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25.12.f.1. All emission factors shall be adjusted , if appropriate, to account for the degree of uncertainty or limitations in the factors' development;

25.12.f.2. The emissions unit shall operate within the designated range of use for the emission factor, if applicable; and

25.12.f.3. If technically practicable, the owner or operator of a significant emissions unit that relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine a site-specific emission factor within 6 months of PAL permit issuance, unless the Secretary determines that testing is not required.

25.12.g. A source owner or operator must record and report maximum potential emissions without considering enforceable emission limitations or operati onal restrictions for an emissions unit during any period of time that there is no monitoring data, unless another method for determining emissions during such periods is specified in the PAL permit.

25.12.h. Notwithstanding the requirements in subdi visions 25.12.c through 25.12.g, where an owner or operator of an emissions unit cannot demonstrate a correlation betw een the monitored parameter(s) and the PAL pollutant emissions rate at all operating points of the emissions unit, the Secretary shall, at the time of permit issuance:

25.12.h.1. Establish default value(s) for dete rmining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating point(s); or

25.12.h.2. Determine that operation of the emissi ons unit during operating conditions when there is no correlation between monitored pa rameter(s) and the PAL pollutant emissions is a violation of the PAL.

25.12.i. Re-validation. -- All data used to establis h the PAL pollutant must be re-validated through performance testing or other scientifically valid means a pproved by the Secretary. Such testing must occur at least once every 5 years after issuance of the PAL.

25.13. Recordkeeping requirements.

25.13.a. The PAL permit shall require an owner or ope rator to retain a copy of all records necessary to determine compliance with any requirement of sec tion 28 and of the PAL, including a determination of each emissions unit’s 12-month rolling total emissions , for 5 years from the date of such record.

25.13.b. The PAL permit shall require an owner or ope rator to retain a copy of the following records for the duration of the PAL effective period plus 5 years:

25.13.b.1. A copy of the PAL permit application a nd any applications for revisions to the PAL; and

25.13.b.2. Each annual certification of complian ce pursuant to title V and the data relied on in certifying the compliance.

25.14. Reporting and notification requirements. -- The owner or operator shall submit semi-annual monitoring reports and prompt devia tion reports to the Secretary in accordance with the applicable title V

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operating permit program. The reports shall meet th e requirements in subdivisions 25.14.a through 25.14.c.

25.14.a. Semi-annual report. -- The semi-annual report shall be submitted to the Secretary within 30 days of the end of each reporting period. This repor t shall contain the information required in paragraphs 25.14.a.1 through 25.14.a.7.

25.14.a.1. The identification of owne r and operator and the permit number.

25.14.a.2. Total annual emissions (tons/year) based on a 12-month rolling total for each month in the reporting period recorded pursuant to subdivision 25.13.a.

25.14.a.3. All data relied upon, including, but not limited to, any Quality Assurance or Quality Control data, in calculating the monthl y and annual PAL pollutant emissions.

25.14.a.4. A list of any emissions units modified or added to the major stationary source during the preceding 6-month period.

25.14.a.5. The number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with zero and span ca libration checks), and any corrective action taken.

25.14.a.6. A notification of a shutdown of any monitoring system, whether the shutdown was permanent or temporary, the reason for the shutdown, th e anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the monitoring system continued to operate, and the cal culation of the emissions of the pollutant or the number determined by method included in th e permit, as provided by subdivision 25.12.g.

25.14.a.7. A signed statement by the responsible official (as defined by the 45CSR30-2.38) certifying the truth, accuracy, and completeness of the information provided in the report.

25.14.b. Deviation report. -- The major stationary source owner or operator shall promptly submit reports of any deviations or exceedance of the PAL requirements, including periods where no monitoring is available. A report submitted pursuant to 45CSR30-5.1. c.3 shall satisfy this reporting requirement. The deviation reports shall be submitted within the time lim its prescribed by the appli cable program implementing 45CSR30-5.1.c.3. The reports shall contain the following information:

25.14.b.1. The identification of owner and operator and the permit number;

25.14.b.2. The PAL requirement that experienced the deviation or that was exceeded;

25.14.b.3. Emissions resulting from the deviation or the exceedance; and

25.14.b.4. A signed statement by the responsible o fficial (as defined by the applicable title V operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

25.14.c. Re-validation results. -- The owner or opera tor shall submit to the Secretary the results of any re-validation test or method within 3 mont hs after completion of such test or method.

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25.15. Transition requirements.

25.15.a. The Secretary may not issue a PAL that does not comply with the requirements in subsections 25.1 through 25.15 after the effective date of EPA approval and promulgation of a revision to the WV SIP incorporating this rule.

25.15.b. The Secretary may supersede any PAL that w as established prior to the effective date of EPA approval and promulgation of a revision to the WV SIP in corporating this rule with a PAL that complies with the requirements of subsections 25.1 through 25.15.

§45-14-26. Inconsistency Between Rules.

26.1. In the event of any inconsistency between this rule and any other rule of the West Virginia Department of Environmental Protecti on, such inconsistency shall be reso lved by the determination of the Secretary and such determination shall be based upon th e application of the more stringent provision, term, condition, method or rule.

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