UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

	1650 Arch Street

	Philadelphia, Pennsylvania  19103

DATE:	August 6, 2010

SUBJECT:	Technical Support Document - West Virginia, Title 45,
Legislative Rule, Department of Environmental Protection, Air Quality,
Series 14, Permits for Construction and Major Modification of Major
Stationary Sources of Air Pollution for the Prevention of Significant
Deterioration 

		/s/	

FROM:	Sharon McCauley, Environmental Protection Specialist

Office of Permits and Air Toxics (3AP10) 

TO:		File

			

THRU: 	Kathleen Anderson, Associate Director

Office of Permits and Air Toxics (3AP10)

I.	BACKGROUND

On July 20, 2009, the West Virginia Department of Environmental
Protection submitted a SIP revision that replaces the current version of
45CSR14 last approved by EPA on December 4, 2006 at 71 FR 64470.  This
revision governs permits for constructing and significantly modifying
major stationary sources of air pollutants.  The references to pollution
control projects and clean units were deleted in accordance with a
federal appellate court decision vacating those provisions. The United
States Court of Appeals for the District of Columbia Circuit ruled in
New York v. EPA, 413 F.3d 3 (D.C. Cir. June 24, 2005) that EPA lacked
the authority to promulgate the Clean Unit provisions, and the Court
requested that EPA vacate that portion of the 2002 Federal regulation,
codified at 40 CFR 52.21(x), as contrary to the statute. Also, the Court
determined EPA lacked the authority to create PCP exceptions from NSR
and vacated those parts of the 1991 and 2002 rules, codified at 40 CFR
52.21(b)(32) and 52.21(z), as contrary to the Statute.   Also, this
revision will establish NOx as a precursor to ozone in the State of West
Virginia and will and include the “reasonable possibility” federal
provision equivalent. This revision was made effective as a legislative
rule in West Virginia on June 1, 2009.

The Federal PSD program has undergone several relevant changes since the
last State SIP approval of its PSD permitting program.  The following
provides a summary of the final federal provision changes that occurred
from December 4, 2006 through the present that will not be part of this
revision request to the West Virginia's regulatory PSD SIP approved
program.

1.   Final Rule to Revise Nonattainment New source Review Regulations:
Appendix S

On February 28, 2007 - This final rule updated the regulations that
apply to the process for permitting new or modified industrial
facilities in areas that do not meet EPA's health based national air
quality standards for ground-level ozone and fine particle pollution.
These areas are known as nonattainment areas.

2.   Final Changes for Certain Ethanol Production Facilities Under Three
Clean Air Act Permitting Programs

On April 12, 2007 EPA’s final action modified the definition of a
"chemical process plant" as it applies to three Clean Air Act permitting
programs.

3.  Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NSR): Removal of Vacated Elements

On June 5, 2007 EPA removed provisions for pollution control projects
(PCP) and clean units (CU) from its New Source Review (NSR) regulations.
These provisions were part of EPA’s NSR improvement rule issued on
December 31, 2002. On June 24, 2005, the United States Court of Appeals
for the District of Columbia Circuit vacated the portions of the 2002
and 1992 NSR rules that pertained to CU and PCP.

4.   Rule Clarification Assures that New Source Review Program is
Applied Appropriately

On December 14, 2007 EPA issued a final rule to clarify when facilities
must keep records and report emissions when a “reasonable
possibility” test shows that projected emissions increases could equal
or exceed 50 percent of the Clean Air Act’s NSR significant levels for
any pollutant. This rule does not change permitting requirements.

5.  EPA Issues Final Rules Governing the Implementation of NSR for Fine
Particulate Matter

On May 8, 2008, the Environmental Protection Agency (EPA) issued final
rules governing the implementation of the New Source Review (NSR)
program for particulate matter less then 2.5 micrometers in diameter
(PM2.5). PM2.5 also is known as fine particles. This rule finalizes
several NSR program requirements for sources that emit PM2.5 and other
pollutants that contribute to PM2.5

6.  EPA Finalizes Rule Reconsidering Inclusion of Fugitive Emissions

On December 10, 2008, EPA finalized revisions to the December 31, 2002
New Source Review (NSR) Improvement rules to change the requirements of
the major NSR programs regarding the treatment of fugitive emissions.

7.  EPA issues an interpretive memorandum entitled "EPA's Interpretation
of Regulations That Determine Pollutants Covered by Federal Prevention
of Significant Deterioration (PSD) Permit Program."

On December 18, 2008 the Administrator issued an interpretive memorandum
entitled "EPA's Interpretation of Regulations That Determine Pollutants
Covered by Federal Prevention of Significant Deterioration (PSD) Permit
Program."

8. Final Rule Defines Approach for Grouping Projects under the New
Source Review Permitting Program

On January 12, 2009, EPA issued a final rule that revises the agency’s
policy on “aggregation.” For the purpose of determining whether NSR
applies, this rule directs facilities and permitting authorities to
combine, or aggregate, emissions from plant modifications when those
projects are related. Thus, total emissions for the related projects
must be considered when permitting authorities determine whether NSR
applies. 

9. Denial of Petitions to Reconsider Aspects of the PM2.5 NSR
Requirements and Reasonable Possiblity Rule

January 15, 2009 - EPA has denied two petitions for reconsideration of
two final rules under the New Source Review permitting program for PM2.5
Requirements and Reasonable Possibility Rule.  Note well; West
Virginia’s regulations do comply with the Reasonable Possibility
rulemaking.  

10. EPA Reconsiders New Source Review Final Rule

February 9, 2009 - To allow further review of the January 15, 2009,
final rule modifying the NSR air permitting program’s
“aggregation” policy, EPA is extending the effective date of the
rule. This action is in response to the White House’s January 20,
2009, and the Office of Management and Budget’s January 21, 2009,
memoranda regarding regulatory review. EPA also will reconsider one or
more of the aspects of this final rule raised by the Natural Resources
Defense Council in a petition for reconsideration. To allow time for the
review and the reconsideration, EPA will stay the effective date of this
rule for 90 days, until May 18, 2009.

11. Granting of Petitions to Reconsider Aspects of the Reasonable
Possibility, Fugitive Emissions and PM2.5 NSR Permitting Rules

April 24, 2009 - EPA notified petitioners of its intent to reconsider
portions of three rules under its New Source Review (NSR) permitting
program.

12. EPA extends effective date of the aggregation rule for 1-year

May 8, 2009 - This final rule extends until May 18, 2010, the effective
date of the January 12, 2009 aggregation rule. During this time, EPA
will reconsider the final aggregation rule. 

13. Stays the "Grandfathering" Provision for the PM2.5 NSR Permitting
Rule for Nine Months

September 16, 2009 - EPA staying until June 22, 2010 the
"grandfathering" provision for particulate mater less than 2.5
micrometers (PM2.5) requirements in the Federal Prevention of
Significant Deterioration (PSD) program published in the Federal
Register on May 16, 2008.

14. Final Rule Facilitates the use of Flexible Air Permits

September 25, 2009 - Flexible air permits enable major air emissions
sources to implement operational plans and make anticipated changes to
these plans without further review and approval. These permits do not
provide approval for operational changes outside the scope authorized in
the initial permit and sources must still meet all Clean Air Act
requirements that apply to them. Pilot studies have shown that flexible
permitting approaches can minimize the need for permit revisions,
provide significant economic benefits, encourage innovation, and
increase public awareness -- all while ensuring equal or greater
environmental protection.

15. Approval and Promulgation of Wisconsin NSR Reform Regulations:
Denial of Petition for Reconsideration

January 20, 2010 - EPA responded to a petition from the NRDC and Sierra
Club. Their petition requested that EPA reconsider and stay of certain
parts of the Wisconsin's SIP. After carefully reviewing the petition for
reconsideration, EPA has denied it. EPA also denied NRDC's request for a
stay of the final rule approving the Wisconsin state plan. 

16. Stay of Fugitive Emissions Rule for 18 Months

March 24, 2010 - EPA has stayed for 18 additional months, the rule
establishing how fugitive emissions should be treated for New Source
Review permitting. A previous stay will expire on March 30, 2010. 

17. Stay of Aggregation Rule 

May 6, 2010 - EPA extended the effective date of the January 15, 2009
final rule that modified the New Source Review air permitting
program’s policy on “Aggregation.”

18.  Final GHG Tailoring Rule

May 13, 2010 - EPA sets greenhouse gas (GHG) emissions thresholds to
define when permits under the New Source Review Prevention Significant
Deterioration (PSD) and title V Operating Permit programs are required
for new and existing industrial facilities. The State has the authority
to regulate GHGs, however, the State will now need to adopt the
equivalent federal threshold levels for GHGs based on the Tailoring
Rule. 

In the previously approved NSR Reform SIP revision at 71 FR 64470 dated
December 4, 2006, West Virginia had requested that EPA not act upon the
provisions of 45 CSR 14.19.8 pertaining to the recordkeeping and
reporting requirements for sources that elect to use the
actual-to-projected actual emission test and where there is a
``reasonable possibility'' that a project may result in a significant
net emissions increase. EPA is now proposing to approve 45 CSR 14.19.8
into the West Virginia SIP revision with this proposed action as
regulatory corrections have been made to the State’s regulations dated
June 1, 2009.

EPA determined that the proposed amendments to West Virginia's
prevention of significant deterioration (PSD) permit program at 45 CSR
14, as submitted on July 20, 2009, meet the minimum requirements of 40
CFR 51.166 and the Clean Air Act. This amendment is being proposed for
approval as a revision to the West Virginia SIP.

 

II.	SUMMARY OF ACTION

This rule establishes a state construction permit program consistent
with the federal Clean Air Act’s Title I program and implementing
regulations at 40 CFR §51.166, “Prevention of Significant
Deterioration of Air Quality.” 45CSR14 is part of the State
Implementation Plan and sets forth the criteria and procedures for major
stationary sources to obtain a permit to construct, operate and/or
modify a major stationary source.

As required by 40 CFR Part 51, Subpart I - “Review of New Sources and
Modifications,” this rule adopts criteria and procedures for the
prevention of significant deterioration of air quality that are
consistent with the governing federal regulation at 40 CFR §51.166.
Promulgation of this rule by the Legislature is necessary for the State
to fulfill its responsibilities under 40 CFR Part 51 and the CAA, as
amended. Revisions to the WV rule have removed provisions for pollution
control projects (PCPs) and clean units (CUs) per a 2005 US Court of
Appeals for the District of Columbia Circuit court decision which
vacated these provisions in the federal counterpart.  These references
for PCPs and CUs now being deleted from the WV regulations, were never
part of the currently approved WV SIP.  This revision simply is adding
new references to include NOx as a precursor to ozone to comport with
federal counterpart language. The West Virginia Department of Air
Quality (DAQ) has now submitted a final rule 45CSR14 as a proposed
revision to the State Implementation Plan.

In the previously approved NSR Reform SIP revision at 71 FR 64470 dated
December 4, 2006, West Virginia had requested that EPA not act upon the
provisions of 45 CSR 14.19.8 pertaining to the recordkeeping and
reporting requirements for sources that elect to use the
actual-to-projected actual emission test and where there is a
``reasonable possibility'' that a project may result in a significant
net emissions increase. EPA is now proposing to approve 45 CSR 14.19.8
into the West Virginia SIP revision with this proposed action as
regulatory corrections have been made to the State’s regulations dated
June 1, 2009.

III.	PROGRAM REVIEW

A.	West Virginia Submittal

The West Virginia submittal includes revisions to the State rule to
remove provisions for pollution control projects and clean units per a
2005 U.S. Court of Appeals decision which vacated these provisions in
the federal counterpart.  These regulations were not part of the
previously approved PSD program approved at 71 FR 64470.  New references
were added to the State rule which include NOx as a precursor to ozone
in the proposed SIP revision package to comport with federal counterpart
language.

B.	Public Comment on the revised State rules contained in this SIP
approval– Comments were received from the Sierra Club, West Virginia
Chapter and the Environmental Protection Agency, Region III.  Changes as
described below, based on these comments, were included in this
submittal.

	

1. The Sierra Club requested several deletions of language,
specifically:

	2.40. d regarding use of fuel derived from municipal solid waste

	2.50 "plant-wide applicability limit"

    These deletions were not made in order for the rule to be consistent
with federal counterpart language.

2.  EPA sought clarification regarding West Virginia's intention to
revise their existing legislative language on the prevention of
significant deterioration (PSD) State Implementation Plan (SIP)
regarding NSR reform provisions that were not included in the regulatory
package received by EPA on August 11, 2008.  EPA commented on the
following:

a). Regarding New Source Review, §51.166, Reasonable Possibility in
Recordkeeping, EPA provided revised language for the amendments.

DAQ revised the rule to be consistent with EPA's comment and the current
federal counterpart language.

b). Regarding Major Emitting Facility Definition §51.166 Treatment of
Certain Ethanol Production Facilities Under Major Emitting Facility, EPA
provided revised language.

 

DAQ revised the rule to be consistent with EPA's comment and the current
federal counterpart language.

c). EPA provided revised language for §51.166 Prevention of Significant
Deterioration for Nitrogen Oxides Increment.

 

DAQ responded that the rule contains this language, which is consistent
with EPA's comment and current federal counterpart language.  The
language provided in EPA's comments simply provides flexibility to
states, and is not a necessary component of the state rule.

d). EPA provided revised language for §51.165 Permit Requirements
Clarification to add 'Replacement Unit' and PAL Baseline.

DAQ revised the rule by including the valid definition of "Replacement
Unit". However, DAQ has not included the following language in
parenthesis from that definition which reads (as discussed in paragraph
(y)(2) of this section),  as section (y) has been stayed indefinitely by
court order.  If the stay is lifted, DAQ will reinsert the phrase in
subsequent rulemaking.

DAQ has found that the rule already contains the following language
suggested by the commenter: Emissions from units on which actual
construction began after the 24-month period must be added to the PAL
level in an amount equal to the potential to emit of the units."

DAQ has revised the rule with a new subdivision 25.6.b, which contains
the language in (w)(6)(ii) above.

C.	Regulatory Review of Proposed SIP 

WV DAQ Series 14-2 Definitions

The following is a brief summary of the changes.

Section	Status	Description

Regulation 2.17	Deletion	Deleted definition of Clean Units (CUs)

Regulation 2.40.i.	Deletion	Deleted reference to Pollution Control
Projects (PCPs) in the definition of major modification.

Regulation 2.46.d.2 and g.4	Deletion	Deleted reference to CUs in the
definition of net emissions increase.

Regulation 

256	Deletion	Deleted definition of PCPs.

Regulation 

2.74a	Modified	Modified to include NOx as a precursor to Ozone

Regulation 

2.77	Clarification	Provided chart format for definition of significant
impact.  No text Change.



WV DAQ Series 14-3 Applicability

The following is a brief summary of the changes.

Section	Status	Description

Regulation 3.4.e and f	Deletion 	Deleted reference of CUs.

Regulation 3.6	Deletion	Deleted reference to PCPs.



WV DAQ Series 14-4 Ambient Air Quality and Ceilings

The following is a brief summary of the changes.

Section	Status	Description

Regulation 4.1	Clarification 	Provided chart format.  No text change.

Regulation 3.6	Deletion	Deleted reference to PCPs.



WV DAQ Series 14-13 Additional Requirements and Variances for Sources
Impacting Federal Class I Areas

The following is a brief summary of the changes.

Section	Status	Description

Regulation 13.6	Clarification 	Provided chart format.  No text change.



WV DAQ Series 14-16 Specific Exemptions

The following is a brief summary of the changes.

Section	Status	Description

Regulation 16.6.d	Modified	Modified to include NOx as a precursor to
ozone.  

Regulation 16.7	Modified text 	Table 2 De Minimus Air Quality Impacts
was moved to chart in 16.6.d...



WV DAQ Series 14-19 Permit Transfer, Cancellation and Responsibility

The following is a brief summary of the changes.

Section	Status	Description

Regulation 19.8	Modified	Modified to exclude CUs and added text
regarding reasonable possibility.  



WV DAQ Series 14-22 Clean Unit Test for Emission Units that are subject
to BACT or LAER

The following is a brief summary of the changes.

Section	Status	Description

Regulation 22.	Deleted	Deleted entire section.  



WV DAQ Series 14-23 Clean Unit Provisions for Emission Units that
Achieve an Emission Limitation Comparable to BACT

The following is a brief summary of the changes.

Section	Status	Description

Regulation 23.	Deleted	Deleted entire section.  



WV DAQ Series 14-24 PCP Exclusion Procedural Requirements

The following is a brief summary of the changes.

Section	Status	Description

Regulation 24.	Deleted	Deleted entire section.  



IV.  Infrastructure 

This SIP revision is also necessary to ensure that the SIP provides for
the attainment and maintenance of the NAAQS.  Section 110(a)(2)(C) of
the Act, 42 U.S.C. § 7410(a)(2)(C), requires the state SIP to have a
program for regulation of construction and modification of sources
including a permit program as required by Parts C of Title I of the Act
to assure NAAQS are achieved.   This action, upon approval will
establish NOx as a precursor to ozone and will accomplish programmatic
needs found in the Federal Register notice regarding infrastructure for
West Virginia dated March 27, 2008 73 FR 16205, page 16208. 

NOx as a precursor to ozone became regulated under 40 CFR Part 51.166
and 40 CFR 52.21 on November 29, 2005 in Federal Register 70 FR 71612. 
As such, this action would approve NOx as a precursor to ozone.

V.	RECOMMENDED AGENCY ACTION

EPA recommends approving the revision to West Virginia's SIP, 45CSR14 -
Permits for Construction and Major Modification of Major Stationary
Sources of Air Pollution for the Prevention of Significant
Deterioration. This revision will establish NOx as a precursor to ozone
and will also include “reasonable possibility” federal provision
equivalent. 

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