UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

	1650 Arch Street

	Philadelphia, Pennsylvania  19103

DATE:	April 4, 2011

SUBJECT:	Revised Technical Support Document for the State of West
Virginia State Implementation Plan for Section 110(a)(2) Infrastructure
Requirements for the 1997 8-hour Ozone and the 1997 and 2006 Fine
Particulate Matter National Ambient Air Quality Standards

			/s/

FROM:	Irene Shandruk, Physical Scientist

Office of Air Program Planning

TO:	File

			/s/

THRU: 	Cristina Fernandez, Associate Director

Office of Air Program Planning 

A.  INTRODUCTION

The Environmental Protection Agency (EPA) is taking action on certain
submittals made by West Virginia to meet the Clean Air Act (CAA) section
110(a)(2) requirements of the revised 1997 8-hour ozone national ambient
air quality standards (NAAQS), the 1997 fine particulate (PM2.5), and
the revised 2006 PM2.5 NAAQS.  As discussed in greater detail in section
E, below, in comparison to EPA’s technical support document (TSD)
dated April 21, 2010, this TSD revises EPA’s analysis of the
submissions with respect to section 110(a)(2)(D)(ii).

B.  BACKGROUND

1997 8-Hour Ozone and PM2.5 NAAQS

On July 18, 1997, EPA promulgated a revised NAAQS for ozone (62 FR
38856) and a new NAAQS for PM2.5 (62 FR 38652).  The new ozone NAAQS was
based on 8-hour average concentrations.  The 8-hour averaging period
replaced the previous 1-hour averaging period, and the level of the
NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm.  The
new PM2.5 NAAQS established a health-based PM2.5 standard of 15.0
micrograms per cubic meter (µg/m3) based on a 3-year average of annual
mean PM2.5 concentrations, and a twenty-four hour standard of 65µg/m3
based on a 3-year average of the 98th percentile of 24-hour
concentrations.  

Whenever a new or revised NAAQS is promulgated, section 110(a) of the
CAA imposes obligations upon States to submit State Implementation Plan
(SIP) revisions that provide for the implementation, maintenance, and
enforcement of the new or revised NAAQS within three years following the
promulgation of such NAAQS.  Although States typically have met many of
the basic program elements required in section 110(a)(2) through earlier
SIP submissions in connection with previous ozone and PM standards,
States (including all of the Region 3 States) were still required to
submit SIP revisions that address section 110(a)(2) for the 1997 NAAQS. 
These SIPs were due in July 2000.  However, intervening litigation over
the 1997 8-hour ozone and PM2.5 NAAQS created uncertainty about how to
proceed and, as of October 2007, States had not submitted SIPs to meet
these infrastructure requirements.

In March of 2004, Earthjustice initiated a lawsuit against EPA for
failure to take action against States that had not made SIP submissions
to meet the requirements of sections 110(a)(1) and (2), i.e., failure to
make a “finding of failure to submit the required SIP 110(a) SIP
elements.”  On March 10, 2005, EPA entered into a Consent Decree with
Earthjustice that obligated EPA to make official findings in accordance
with section 110(k)(1) of the CAA, as to whether States have made
complete SIP submissions, pursuant to sections 110(a)(1) and (2), by
December 15, 2007 for the 1997 8-hour ozone NAAQS and by October 5, 2008
for the 1997 PM2.5 NAAQS.  EPA made completeness findings for the 1997
8-hour ozone NAAQS on March 27, 2008 (73 FR 16205) and on October 22,
2008 (73 FR 62902) for the 1997 PM2.5 NAAQS.  These findings pertained
only to whether the submissions were complete, pursuant to 110(k)(1)(A),
and did not constitute EPA approval or disapproval of such submissions.

Two elements identified in section 110(a)(2) are not governed by the
three year submission deadline of section 110(a)(1) because SIPs
incorporating necessary local nonattainment area controls are not due
within three years after promulgation of a new or revised NAAQS, but
rather are due at the time the nonattainment area plan requirements are
due pursuant to section 172.  These elements are:  1) submissions
required by section 110(a)(2)(C) to the extent that subsection pertains
to a permit program in Part D Title I of the CAA; and 2) any submissions
required by section 110(a)(2)(I), which pertain to the nonattainment
planning requirements of Part D Title I of the CAA.  The determinations
required by the consent decree excluded any determination regarding such
portion of section 110(a)(2)(C) and section 110(a)(2)(I), therefore,
this action does not cover these specific elements for any of the NAAQS
at issue.  This action also does not address the requirements of
110(a)(2)(D)(i) for any of the NAAQS at issue since the requirements of
110(a)(2)(D)(i) for each of the NAAQS at issue have been addressed by a
separate finding issued by EPA.  See April 25, 2005 (70 FR 21147) and
June 9, 2010 (75 FR 32673).

With respect to West Virginia’s obligations pursuant to CAA sections
110(a)(1) and (2) for the 1997 8-hour ozone and PM2.5 NAAQS, except for
the portion of (C) and (J) relating to the Part C permit programs for
the 1997 8-hour ozone and 1997 PM2.5 NAAQS, this technical support
document will review only those elements which were the subject of
EPA’s completeness findings. The March 27, 2008 (73 FR 16205) action
made a completeness finding that the West Virginia submittals of
December 3, 2007 and April 3, 2008 addressed some but not all of the
110(a)(2) requirements.  Specifically, EPA found that West Virginia
failed to address sections 110(a)(2)(B), (E)(i), (G) (with respect to
authority comparable to section 303), (H) and (J) (relating to public
notification under section 127), (M), and Part C Prevention of
Significant Deterioration (PSD) permit program required by the November
29, 2005 (70 FR 71612, page 71699) final rule that made nitrogen oxides
(NOx) a precursor for ozone in the Part C regulations found in 40 CFR
51.166 and in 40 CFR 52.21.  The West Virginia submittal dated May 21,
2008 addressed these findings, with the exception of the Part C PSD,
which will be taken as a separate action.  

EPA will take separate action on the portions of section 110(a)(2)(C)
and (J) for the 1997 8-hour ozone NAAQS as they relate to West
Virginia’s PSD permit program.  With respect to this permit program,
on November 29, 2005 (70 FR 71612), EPA promulgated a change that made
NOx a precursor for ozone in the Part C regulations at 40 CFR 51.166 and
40 CFR 52.21.  In the March 27, 2008 completeness findings, it was
determined that while West Virginia had an approved PSD program in its
SIP codified at 40 CFR 52.2520, West Virginia’s regulation, 45CSR14,
did not fully incorporate NOx as a precursor for ozone.  On July 20,
2009, West Virginia submitted revisions to 45CSR14 to include NOx as a
precursor for ozone.  Action on this PSD SIP revision is being taken
separately, and element 110(a)(2)(C) as it pertains to the PSD permit
program for the 1997 8-hour ozone NAAQS is being addressed in this
separate action as well.  A notice of proposed rulemaking was published
on December 17, 2010 (75 FR 78949).

2006 PM2.5 NAAQS

On October 17, 2006 (71 FR 61144), EPA revised the twenty-four hour
average PM2.5 primary and secondary NAAQS from 65 µg/m3 to 35 µg/m3. 
As required by section 110(a)(1) of the CAA, the 110(a)(2) submittals
were due within three years after promulgation of the revised standard,
with the exception of 110(a)(2)(C) pertaining to the Part D permit
program and 110(a)(2)(I) for the reasons discussed above for the 1997
8-hour ozone and PM2.5 standards.

C.  EPA REQUIREMENTS

As discussed above, for the 1997 8-hour ozone and PM2.5 NAAQS, States
must provide SIP submissions, or provide certification that address
section 110(a)(2)(A) through (M), with the exception of the portion of
110(a)(2)(C) pertaining to a permit program in Part D Title I of the
CAA, 110(a)(2)(I) and (D)(i).  To help States meet this statutory
requirement, EPA issued guidance on October 2, 2007 entitled “Guidance
on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997
8-Hour Ozone and PM2.5 National Ambient Air Quality Standards,” which
listed the basic elements that States must include in their SIPs. 

On September 25, 2009, EPA issued an updated guidance document entitled
Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for
the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS), which clarifies, in further detail, expectations for
certain elements to meet the requirements of sections 110(a)(1) and (2)
of the CAA for both the 1997 and 2006 PM2.5 NAAQS.  Specifically,
guidance is provided for satisfying the section 110(a)(2)(D)
requirements for the 2006 PM2.5 NAAQS, as well as guidance for
satisfying the section 110(a)(2)(G) requirements that addresses both the
1997 and 2006 PM2.5 NAAQS.  EPA notes, however, that the requirements
under 110(a)(2)(D)(i) are being addressed separately and are not
included in this action.

D.  STATE’S SUBMITTAL 

West Virginia provided multiple submittals to satisfy the requirements
of section 110(a)(1) and (2) of the CAA for the 1997 8-hour ozone and
1997 PM2.5 NAAQS, and the 2006 PM2.5 NAAQS.  Submittals dated December
3, 2007, May 21, 2008, and October 1, 2009 addressed the 110(a)(2)
requirements for 8-hour ozone.  Submittals dated April 3, 2008, May 21,
2008, July 9, 2008, October 1, 2009, and March 18, 2010 addressed the
110(a)(2) requirements for the 1997 PM2.5 NAAQS.   To satisfy the
requirements of section 110(a)(1) and (2) for the 2006 PM2.5 NAAQS, the
West Virginia Department of Environmental Protection (WVDEP) provided a
submittal dated October 1, 2009, in accordance with the September 25,
2009 guidance.  West Virginia’s October 1, 2009 SIP submittal
originally included the infrastructure elements for the 2008 8-hour
ozone NAAQS.  On March 18, 2010, WVDEP submitted a withdrawal request
for the 110(a)(2)(A)-(M) elements for the 2008 8-hour ozone NAAQS from
the October 1, 2009 submittal, leaving only the 2006 PM2.5 portion of
the submittal in place for action.  Therefore, action will only be taken
on the PM2.5 portion of the October 1, 2009 submittal.  On March 18,
2010, West Virginia made an additional submittal for the 110(a)(2)(G)
element for both the 1997 and 2006 PM2.5 NAAQS.  The submittals shown in
Table 1 address the infrastructure elements, or portions thereof,
identified in section 110(a)(2) that EPA is proposing to approve.

Table 1:  110(a)(2) Elements, or Portions Thereof, EPA is Proposing to
Approve for the 1997 Ozone and PM2.5 and 2006 PM2.5 NAAQS

Submittal Date	1997 8-Hour Ozone	1997 PM2.5	2006 PM2.5



December 3, 2007	A, C, D(ii), E, F, G, J, K, L



April 3, 2008

A, C, D(ii), E, F, J, L

	May 21, 2008	B, E, F, G, H, J, K, M	B, E, F, G, H, J, K, M

	July 9, 2008

G

	October 1, 2009	C	C	A, B, C, D(ii), E, F, G, H, J, K, L, M

March 18, 2010

G	G



E.  EVALUATION OF STATE SUBMITTAL

As noted above, West Virginia provided multiple submittals for the 1997
8-hour ozone and PM2.5 NAAQS, and for the 2006 PM2.5 NAAQS.  However,
the demonstrations submitted by West Virginia for how it is meeting many
of the elements are substantively identical for both the ozone and PM2.5
NAAQS, therefore, the following evaluation of each element pertains to
all standards except as otherwise noted.

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

Pursuant to West Virginia Code section 22-5-4(a)(1) and (3), the
Secretary has the authority to “develop ways and means for the
regulation and control of pollution of the air of the State” and
“conduct such studies and research relating to air pollution and its
control and abatement.”  The Secretary has the authority under West
Virginia Code sections 22-1-3(a), 22-5-4(a), and 22-5-4(a)(17) to
promulgate rules in accordance with the Administrative Procedures Act
(West Virginia Code section 29A3-1 et seq.).

For the ozone NAAQS, enforceable emission limits, control measures, and
compliance schedules are contained in those provisions of West
Virginia’s federally approved NOx SIP Call Regulations (71 FR 56881
and 67 FR 31733).  Additional emission limitations and schedules are
found in West Virginia’s volatile organic compound (VOC) control
regulations (60 FR 6022 and 60 FR 39855).  Control measures are
identified in approved maintenance plans for the Charleston (71 FR
39001), Huntington (71 FR 54421), Parkersburg (72 FR 25967), Wheeling
(72 FR 27060), and Weirton (72 FR 27247) areas.

For the PM2.5 NAAQS, the pertinent emission limitations and other
control measures are contained in West Virginia’s SIP-approved State
Rules 45CSR2, 45CSR3, 45CSR5, 45CSR6, 45CSR7, 45CSR8, and 45CSR10. 
Additionally, the requirements for section 110(a)(2)(A) for PM2.5 are
also found in West Virginia’s approved permitting program, which
includes three SIP-approved rules: minor New Source Review (NSR) (68 FR
9559), PSD rule (71 FR 64470), and major NSR (71 FR 64468).  The State
also has an approved Title V operating permit program (66 FR 50325).

EPA does not consider SIP requirements triggered by the nonattainment
area mandates in part D of Title I of the CAA to be governed by the
submission deadline of section 110(a)(1).  Nevertheless, the State of
West Virginia may have included some previously EPA-approved SIP
provisions originally submitted in response to part D in its submission
documenting its compliance with the requirements of sections 110(a)(1)
and (2) of the CAA.  For the purposes of this action, EPA has reviewed
certain West Virginia 110(a)(2) submittals, including any rules
originally submitted in response to part D, or references thereto,
solely for the purposes of determining whether such submittals support a
finding that the state has met the basic infrastructure requirements
under section 110(a)(2).

2.  Section 110(a)(2)(B) 

Under manifold statute authority, pursuant to West Virginia Code
sections 22-1-1(a)(1), 22-1-1(a)(2), 22-1-1(b), 22-5-1, 22-1-1(b)(5),
22-1-6(a), 22-5-4(a)(1) and (3), West Virginia operates and maintains an
established network of ambient air monitors in West Virginia for the
purpose of assessing compliance with the national ambient air quality
standards, which Congress provided for in the CAA, and such standards
promulgated by EPA to protect the health and welfare of individual
citizens.

To assess NAAQS compliance, the Division of Air Quality (DAQ) operates a
network of monitors in West Virginia that have been designated by EPA as
either Reference or Equivalent monitors. All ambient air monitors are
subjected to the Quality Assurance requirements of 40 CFR Part 58,
Appendix A.  In addition, all monitors have met the minimum sitting
requirements of Part 58, Appendix E.

In order to keep EPA informed of planned changes to the monitoring
network, WVDEP provides EPA Region III with adequate prior notification.
 Details of these changes and anticipated approvals of the changes are
communicated to EPA. On an annual basis, WVDEP submits to EPA a network
design plan required under 40 CFR 58.10, of any changes to the network.
This plan also provides for a description of each change, the reason for
each change, and any other information relevant to the change.

As provided in West Virginia Code sections 22-5-4(a)(2) and 22-5-10,
WVDEP collects and reports to EPA ambient air quality data for sulfur
dioxide (SO2), carbon monoxide (CO), ozone (O3), PM10, and PM2.5. The
reports comply with the federal requirements of 40 CFR 58.16. The data
is reviewed, edited, validated, and entered into the EPA air quality
system (AQS) for updating pursuant to prescribed AQS procedures. The EPA
AQS receives each report within 90 days after the end of the quarterly
reporting period. Data is certified annually as required under 40 CFR
58.15.

WVDEP analyzes such air quality data to determine attainment status or
progress, as demonstrated by the 8-hour ozone redesignation and
maintenance plan requests submitted and/or approved during calendar
years 2006, 2007, and first quarter of 2008.

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

Pursuant to West Virginia Code sections 22-1-6(a), 22-1-3(a), 22-5-4(a),
22-5-5, and 22-5-6, the West Virginia Cabinet Secretary has enforcement
authority of emission limitations and control measures for ozone and
PM2.5 NAAQS.

For the ozone NAAQS, monitoring, recordkeeping, and reporting
requirements are found in West Virginia’s approved NOx SIP Call rules
(71 FR 56881 and 67 FR 31733), in West Virginia’s VOC control
regulations (60 FR 6022), and in State Rule 45CSR40.  An additional
approved provision includes submission of VOC and NOx emissions
statements for sources in Putnam, Kanawha, Cabell, Wayne, Wood, and
Greenbrier Counties.  For the PM2.5 NAAQS, monitoring, recordkeeping,
and reporting requirements are found in State Rules 45CSR39 and 45CSR41.


For both the ozone and PM2.5 NAAQS, additional provisions are found in
West Virginia’s current permitting program, which includes three
SIP-approved rules: minor NSR rule 45CSR13 (68 FR 9559), PSD rule
45CSR14 (71 FR 64470), and major NSR 45CSR19 (71 FR 64468).  The State
also has an approved Title V operating permit program (66 FR 50325). 

EPA will take separate action on the portion of section 110(a)(2)(C) for
the 1997 8-hour ozone NAAQS as it relates to West Virginia’s PSD
permit program.  On July 20, 2009, West Virginia submitted revisions to
regulation 45CSR14 to include NOx as a precursor for ozone.  Action on
this PSD SIP revision is being taken separately, and element
110(a)(2)(C) as it pertains to the PSD permit program for the 1997
8-hour ozone NAAQS is being addressed in this separate action as well. 
A notice of proposed rulemaking was published on December 17, 2010 (75
FR 78949).

In addition, the requirements of section 110(a)(2)(C) that pertain to a
permit program in Part D Title I of the CAA are outside of the scope of
the 110(a)(2) requirements addressed through this action, therefore,
this subset of 110(a)(2)(C) requirements will be addressed separately
and are not included in this action.

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

The original TSD stated that West Virginia is not subject to the
requirements of sections 126 and 115 of the CAA.  However, a
clarification is necessary because although West Virginia is subject to
CAA section 126, West Virginia has demonstrated that it has met its
obligations pursuant to CAA section 126(a) and it has no currently
pending obligations pursuant to CAA section 126(b).  West Virginia has
made the necessary submittals to demonstrate that West Virginia has
adequate provisions insuring future compliance with the requirements of
sections 126 and 115 of the CAA as may be necessary.  

5.  Section 110(a)(2)(E) 

West Virginia has adequate authority under the West Virginia Air
Pollution Control Act (APCA), West Virginia Code section 22-5-1, to
carry out its SIP obligations with respect to the 8-hour ozone and PM2.5
NAAQS and to revise the SIP as necessary.  

The WVDEP Cabinet Secretary is authorized under West Virginia Code
sections 22-1-6(c)(1) and 22-5-4(a)(12) to carry out and represent the
State in any and all matters pertaining to the implementation plan, and
under West Virginia Code section 22-5-4(a)(16) to do all things
necessary and convenient to prepare and submit a plan. The Secretary is
not prohibited by any provision of federal or state law from carrying
out the implementation plan or portion thereof. The Secretary has the
authority under West Virginia Code sections 22-1-3(a), 22-5-4(a)(4), and
22-5-4(a)(17) to promulgate rules in accordance with the Administrative
Procedures Act (West Virginia Code sections 29A3-1 et seq.). 
Approximately forty rules revised under the auspices of the Air
Pollution Control Act (APCA) are currently in effect and codified at
Title 45 of the Code of State Rules, including the ambient air quality
standards for criteria pollutants contained in 45CSR8.  Statutory
permitting requirements are set forth in West Virginia Code sections
22-5-11 and 12. 

WVDEP has adequate personnel to carry out the implementation plan with
respect to 8-hour ozone and PM2.5 NAAQS requirements. The Secretary
employs adequate personnel and retains specialists under West Virginia
Code section 22-5-4(a)(8) that are "necessary, incident or convenient"
to accomplish the statutory mandate to carry out the implementation
plan.

The APCA provides adequate funding under West Virginia Code sections
22-1-10(a) and 2-5-4(a)(17) to carry out the implementation plan. West
Virginia Code section 22-5-12 sets forth the statutory operating permit
requirements for stationary sources under Title V of the CAA. Regulation
45CSR30 establishes fees sufficient to cover the direct and indirect
costs of administering the air pollution control planning process, Title
V operating permit program, and support the air pollution control
program authorized by statute. The APCA also authorizes the
establishment of fees to cover non-Title V permitting costs under
45CSR22. The air quality program also receives revenue from fines and
penalties (Air Pollution Control Fund) and federal funds under section
105 and 103 of the CAA, special federal funds for PM2.5, and state
general appropriations.

The requirements of section 110(a)(2)(E)(ii) are not applicable to West
Virginia because it does not have a board which approves air quality
permits or enforcement orders.  Likewise, the requirements of section
110(a)(2)(E)(iii) are not applicable to West Virginia because it does
not rely on local or regional entities for specific SIP implementation.

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

West Virginia Code section 22-5-4(a)(15) authorizes the Secretary to
require the installation, maintenance and replacement of equipment, and
the implementation of other necessary steps by owners or operators of
stationary sources to monitor emissions from such sources as the
Secretary may prescribe. Under this authority, West Virginia requires
the installation, maintenance, and replacement of monitoring equipment
at stationary sources through permits issued under 45CSR13, 45CSR14,
45CSR19, 45CSR30, and via compliance orders. The State’s NOx SIP Call
Regulations (45CSR1 & 45CSR26) also require the installation,
maintenance, and replacement of monitoring equipment.

West Virginia Code sections 22-5-4(a)(15) authorizes the Secretary to
require periodic reports on the nature and amounts of emissions and
emissions-related data from owners or operators of stationary sources
(monitoring data). Pursuant to West Virginia Code sections
22-5-4(a)(14), the Secretary is authorized to require such information
as the Secretary may require in a form or manner prescribed by the
Secretary (emissions inventory program). Under this authority, West
Virginia requires periodic reports on the nature and amounts of
emissions and emissions-related data from stationary sources through
permits issued under 45CSR13, 45CSR14, 45CSR19, 45CSR30, and via
compliance orders. The State’s NOx SIP Call Regulations (45CSR1 &
45CSR26) also require periodic reporting of emissions data.

West Virginia Code section 22-1-6(d)(3) authorizes the Secretary to
“investigate for violations of statutes or rules which the department
is charged with enforcing.” Section 22-5-4(a)(3) authorizes the
Secretary to correlate periodic emissions reports with any emission
limitations or standards established pursuant to 45CSR13, 45CSR14,
45CSR19, 45CSR30, or the CAA. As set forth in West Virginia Code section
22-5-10, the Secretary makes available at reasonable times for public
inspection the periodic emissions reported under sections 22-5-4(a)(14)
and (15). The Secretary has the responsibility of making all records,
reports or information obtained by the Department or referred to at
public hearings under the provisions of the APCA available to the
public, except to the extent the records, reports or information are
protected by confidentiality pursuant to 45CSR31. The types of records
DEP routinely provides access to include notifications, inspection
reports, notices of violation, enforcement orders, applications, permit
review letters, sample results, monitoring reports, permits, approvals,
and denials that would relate to section 110(a)(2)(F). WVDEP generally
makes information available for public access through its website, but
also makes hard copy reports available upon written request.

7.  Section 110(a)(2)(G) 

West Virginia Code section 22-5-5 authorizes the Secretary to issue an
order to cease and desist any activity that violates the APCA. The
Secretary may also suspend, modify or revoke a source’s permit. Under
section 22-5-6, the Secretary may also institute lawsuits for civil
penalties. Section 22-5-7 authorizes the Secretary to seek applications
for injunctive relief. Section 22-5-8 authorizes the Secretary, with the
written authorization of the governor, to shut down a source, thereby
preventing the emission of air pollutants which substantially
contributes to an emergency that requires immediate action to protect
public health. As provided in West Virginia Code, sections 22-5-4(a)(2)
and 22-5-10, the Secretary may consult with EPA to affirm accuracy of
any information considered while executing authority under sections
22-5-5, -6, -7, or -8.

	

In order to address the 110(a)(2)(G) requirement relating to “adequate
contingency plans” on March 18, 2010, West Virginia submitted a
certification of classification as a priority III emergency episode plan
region.  This submission is consistent with the recommendations set
forth in EPA’s September 25, 2009 memorandum issued by William T.
Harnett, Director, OAQPS/AQPD, entitled “Guidance on SIP Elements
Required Under section 110(a)(1) and (2) for the 2006 24-Hour Fine
Particulate (PM2.5) National Ambient Air Quality Standards (NAAQS).” 
With respect to the requirement that states have adequate contingency
plans as part of their SIPs, this guidance recommended that unless the
state had monitored ambient values above a specific level, no
contingency plan would be necessary.

In accordance with the above cited guidance, the requirement for a State
to submit an emergency episode plan is based on a priority region
classification.  For States with a 24-hour PM2.5 concentration above
140.5 µg/m3, using the most recent three years of data, are required to
develop an emergency episode plan.  States that do not meet this
threshold would be classified as priority III and would not be required
to adopt an emergency episode plan for PM2.5.  PM2.5 monitors in West
Virginia show that PM2.5 concentration levels for the past three years
are below the 140.5 µg/m3 threshold. Therefore , in accordance with EPA
guidance, West Virginia has certified through a SIP revision that it has
appropriate general emergency powers to address PM2.5-related episodes
and that it is not specifically required to submit an emergency episode
plan and contingency measures for PM2.5 at this time given monitored
PM2.5 levels.  In accordance with the above cited guidance, West
Virginia has met its statutory obligations to provide adequate
contingency plans to implement the authority that it has comparable to
that in CAA section 303 and West Virginia is not, at this time, required
to adopt any additional emergency episode plan for PM2.5. 

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

West Virginia Code section 22-5-4(a)(16) authorizes the Secretary to do
all things necessary and convenient to prepare and submit a plan. WVDEP
has historically revised, and will continue to revise its NAAQS rules as
necessary to take account of revisions of the national primary or
secondary ambient air quality standards or improved or more expeditious
methods of attaining the standards.

When, if ever, EPA finds the SIP is substantially inadequate to attain
the NAAQS which it implements or otherwise to comply with the CAA, West
Virginia will revise the plan as necessary for adequacy.

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

The APCA provides adequate authority under West Virginia Code section
22-5-4(a)(2) for West Virginia’s practices of consultation with local
governments, organizations and Land Managers with respect to SIP
development. WVDEP also consults with such entities regarding
implementation plans for air quality maintenance requirements,
preconstruction review of direct sources, nonattainment requirements,
and prevention of significant deterioration. As an example, WVDEP
consulted with Federal Land Managers on the development of West
Virginia’s Regional Haze SIP revision, and provided an additional
30-day review and comment period beyond the general public review
period.

West Virginia Code section 22-1-12 provides authority for the public
notification of NAAQS violations and education efforts as required by
CAA Section 127. Each year, WVDEP issues a comprehensive Air Quality
Annual Report, which compares monitored air quality data with the NAAQS,
and tracks the Air Quality Index. The Report contains emissions
information and air quality highlights from the previous year, and
provides public awareness of criteria pollutants and their effects on
health; educational website links to tips that improve air quality,
links to technical websites and outreach efforts.  West Virginia has
also implemented an anti-idling program to reduce pollutants from school
buses and vehicles at public schools.

For the ozone and PM2.5 NAAQS, West Virginia’s permitting program
includes three SIP approved rules:  minor NSR rule 45CSR13 (68 FR 9559),
PSD rule 45CSR14 (71 FR 64470), and major NSR 45CSR19 (71 FR 64468). 
The State also has an approved Title V operating permit program (66 FR
50325). 

EPA will take separate action on the portion of section 110(a)(2)(J) for
the 1997 8-hour ozone NAAQS as it relates to West Virginia’s PSD
permit program.  On July 20, 2009, West Virginia submitted revisions to
45CSR14 to include NOx as a precursor for ozone.  Action on this PSD SIP
revision is being taken separately, and element 110(a)(2)(C) as it
pertains to the PSD permit program for the 1997 8-hour ozone NAAQS is
being addressed in this separate action as well.  A notice of proposed
rulemaking was published on December 17, 2010 (75 FR 78949).

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

Through the submissions referenced above, West Virginia has demonstrated
that it:  1) has the authority and technical capability to conduct air
quality modeling, or that the State participates with a group of states
to conduct air quality modeling, in order to assess the effect on
ambient air quality relevant pollutant emissions; and 2) can provide
relevant data as part of the permitting and NAAQS implementation
processes.

	

West Virginia Code, sections 22-5-4(a)(1) and (3), authorizes the
Secretary to “develop ways and means for the regulation and control of
pollution of the air of the state” and “conduct such studies and
research relating to air pollution and its control and abatement.” 
Inherent in West Virginia's authority to meet the NAAQS and to conduct
studies and research is the obligation for WVDEP to perform modeling as
required under the CAA to demonstrate attainment of the NAAQS, as
prescribed by the Administrator. WVDEP participates in regional planning
organizations such as the Association for Southeastern Integrated
Planning (ASIP), which performs NAAQS modeling for member states. West
Virginia will continue to perform modeling, as required under the CAA to
demonstrate attainment of the NAAQS.

West Virginia Code sections 22-5-4(a)(2), 22-5-10, and 22-5-4(a)(16)
authorizes the Secretary to submit, upon request by the Administrator,
modeling data predicting the effect on ambient air quality of any
emissions of any air pollutant for which the Administrator has
established a national ambient air quality standard. West Virginia will
continue to submit the air quality modeling data as part of its relevant
SIP submissions and through Federal grant commitments or in other ways
that EPA may request.

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

West Virginia’s submissions adequately address this requirement by
explaining that fees are collected according to West Virginia’s
approved SIP under PSD rule 45CSR14 (71 FR 64470) and major NSR rule
45CSR19 (71 FR 64468), as well as under their Title V permit program
45CSR30 (66 FR 50325).

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

	

West Virginia Code section 22-5-4(a)(2), authorizes the Secretary to
advise, consult and cooperate with local political subdivisions affected
by the implementation plan. West Virginia consults with local
governments, organizations and Land Managers with respect to SIP
development. WVDEP also consults with such entities regarding
implementation plans for air quality maintenance requirements,
preconstruction review of direct sources, nonattainment requirements,
and prevention of significant deterioration.	

	

F.  CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA’s analysis of West Virginia’s infrastructure submittals for the
1997 8-hour ozone and PM2.5 NAAQS, and the 2006 PM2.5 NAAQS concludes
that West Virginia’s submittals meet the requirements of section
110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and
(M), or portions thereof.  It is recommended that a notice of final
rulemaking be prepared approving West Virginia’s infrastructure
submittals for the 1997 8-hour ozone and 1997 PM2.5 NAAQS and the 2006
PM2.5 NAAQS.

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