UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

	1650 Arch Street

	Philadelphia, Pennsylvania  19103

DATE:       	April 30, 2014

SUBJECT:	Technical Support Document for the West Virginia State
Implementation Plan for the Infrastructure Requirements for the 2010
Sulfur Dioxide National Ambient Air Quality Standards

			

FROM:	Ellen Schmitt, Life Scientist              /s/  4/30/14 

Office of Air Program Planning

TO:		File

			

THRU: 	Cristina Fernandez, Associate Director      /s/  4/30/14

Office of Air Program Planning 

A.  INTRODUCTION

The Environmental Protection Agency (EPA) is taking action on a
submittal made by the State of West Virginia to meet the Clean Air Act
(CAA) section 110(a)(2) infrastructure requirements for the 2010 sulfur
dioxide (SO2) national ambient air quality standards (NAAQS).

B.  BACKGROUND

On June 22, 2010 (75 FR 35520), EPA promulgated a revised NAAQS for the
1-hour primary SO2 at a level of 75 parts per billion (ppb), based on a
3-year average of the annual 99th percentile of 1-hour daily maximum
concentrations.

Section 110(a) of the CAA requires states to submit state implementation
plans (SIPs) that provide for the implementation, maintenance, and
enforcement of new or revised NAAQS within three years following the
promulgation of such NAAQS.  Section 110(a)(2) of the CAA lists specific
elements that states must meet or continue to meet in these SIP
submissions.  The requirements include SIP infrastructure elements such
as requirements for modeling, monitoring, and emissions inventories that
are designed to assure attainment and maintenance of the NAAQS.  For the
2010 SO2 NAAQS, states typically have met many of the basic program
elements required in section 110(a)(2) of the CAA through earlier SIP
submissions in connection with previous SO2 standards.  

C.  EPA REQUIREMENTS

For the  2010 SO2 NAAQS, states must provide SIP submissions, or provide
certification that the existing SIP contains provisions addressing
relevant infrastructure SIP elements from sections 110(a)(2)(A) through
(M) of the CAA.  

D.  STATE’S SUBMITTAL

On July 1, 2013, EPA received West Virginia Department of Environmental
Protection’s (WVDEP) submittal to satisfy the requirements of section
110(a)(2) of the CAA for the 2010 SO2 NAAQS.  This SIP revision, which
was submitted by WVDEP on June 25, 2013, addressed for the 2010 SO2
NAAQS the following infrastructure elements, or portions thereof, that
EPA is proposing to approve:  section 110(a)(2)(A), (B), (C), (D), (E),
(F), (G), (H), (J), (K), (L), and (M) of the CAA.  EPA will take
separate action on the portions of CAA section 110(a)(2) infrastructure
elements for the 2010 SO2 NAAQS as they relate to West Virginia’s
Prevention of Significant Deterioration (PSD) program, as required by
part C of Title I of the CAA, including portions of CAA section
110(a)(2)(C), (D)(i)(II) and (J).  EPA will also take later separate
action on CAA section 110(a)(2)(D)(i)(I), (D)(i)(II) (visibility
protection) and (E)(ii) for the 2010 SO2 NAAQS as it relates to
interstate transport of emissions, visibility protection, and CAA
section 128, “State Boards.”  EPA is not proposing any action for
CAA 110(a)(2)(I) and portions of elements that pertain to Part D
nonattainment area requirements.   

E.  EVALUATION OF STATE SUBMITTAL

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

EPA has determined that West Virginia has established laws and
regulations applicable to the 2010 SO2 NAAQS that include enforceable
emissions limitations and other control measures, means or techniques,
as well as schedules and timetables for compliance to meet the
applicable requirements of the CAA.  EPA finds the Secretary of WVDEP
holds the legislative authority to promulgate regulations concerning air
pollution control in accordance with the West Virginia Administrative
Procedures Act (W.Va. Code section 29A3-1 et seq.) and W.Va. Code
sections 22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17).  Enforceable
emission limitations and other control measures for SO2 to meet the
applicable requirements of the CAA include the following SIP-approved
regulations: 45CSR10 (To Prevent and Control Air Pollution from the
Emissions of Sulfur  Oxides), 45CSR11 (Prevention of Air Pollution
Emergency Episodes), 45CSR13 (Permits for Construction, Modification,
Relocation and Operation of Stationary Sources of Air Pollutants,
Notification Requirements, Temporary Permits, General Permits, and
Procedures for Evaluation), 45CSR14 (Permits for Construction and Major
Modification of Major Stationary Sources of Air Pollution for the
Prevention of Significant Deterioration), 45CSR19 (Permits for
Construction and Major Modification of Major Stationary Sources of Air
Pollution Which Cause or Contribute to Nonattainment), and 45CSR41
(“Control of Annual Sulfur Dioxide Emissions to Mitigate Interstate
Transport of Fine Particulate Matter and Sulfur Dioxide”),

Additionally, the following state rules are applicable to sulfur oxide
emission limitations and control measures:  45CSR10A (Testing,
Monitoring, Recordkeeping and Reporting Requirements Under 45CSR10),
45CSR16 (Standards of Performance for New Stationary Sources), 45CSR18
(Control of Air Pollution from Combustion of Solid Waste), 45CSR33
(“Acid Rain Provisions and Permits”), and 45CSR30 (“Requirements
for Operating Permits”).  The latter rule, 45CSR30, which establishes
an EPA-approved Title V operating permit program, includes all the
enforceable emission limitations or control measures pursuant to
45CSR10, 45CSR11, 45CSR13, 45CSR14, 45CSR16, 45CSR18, 45CSR19, 45CSR33,
and 45CSR41.   

Furthermore, in 2012, EPA granted limited approval and limited
disapproval of West Virginia’s regional haze SIP which also includes
emission measures related to SO2.  See 77 FR 16932 (March 23, 2012). 
West Virginia’s regional haze SIP and the status of its approval are
discussed in greater detail for CAA 110(a)(2)(D)(i)(II) below.

West Virginia has two partial counties (Brooke and Marshall) designated
as nonattainment for the 2010 SO2 NAAQS.  Emissions limitations and
other control measures needed to attain the NAAQS in areas designated
nonattainment for the SO2 NAAQS are due on a different schedule from the
section 110 infrastructure elements and will be reviewed and acted upon
through a separate process at a later time. 

On May 9, 2013, EPA finalized a narrow disapproval of a previous West
Virginia SIP submittal for PSD requirements because the West Virginia
PSD regulations did not properly address condensable emissions of
particulate matter within the definition of “regulated NSR
pollutant.”  See 78 FR 27062.   There are no sanctions associated with
this disapproval; however, EPA is required to promulgate a Federal
Implementation Plan (FIP) within two years of final disapproval if the
definition of “regulated NSR pollutant” is not corrected.  EPA had
previously approved West Virginia’s PSD program with the narrow
exception of the definition of regulated new source review pollutant for
its failure to include condensables.  See 77 FR 63736 (October 17,
2012).

In this action, EPA is not proposing to approve or disapprove any
existing State provisions with regard to excess emissions during
Startup, Shutdown, and Malfunction (SSM) of operations at a facility. 
EPA believes that a number of states have SSM provisions which are
contrary to the CAA and existing EPA guidance (August 11, 1999 Steven
Herman and Robert Perciasepe Guidance Memorandum, “State
Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown”), and the Agency is addressing
such state regulations in a separate rulemaking.  See 78 FR 12460
(February 22, 2013).  In the meantime, EPA encourages any state having a
deficient SSM provision to take steps to correct it as soon as possible.

Also in this action, EPA is not proposing to approve or disapprove any
existing West Virginia rules with regard to director’s discretion or
variance provisions.  EPA believes that a number of states have such
provisions which are contrary to the CAA and existing EPA guidance (see
52 FR 45109, November 1987), and the Agency is addressing such state
regulations in a separate rulemaking.  See 78 FR 12460.   In the
meantime, EPA encourages any state having a director’s discretion or
variance provision which is contrary to the CAA and EPA guidance to take
steps to correct the deficiency as soon as possible.

Based upon EPA’s review of the infrastructure SIP submittal, EPA finds
West Virginia’s June 25, 2013 infrastructure SIP submittal for the
2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(A).

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

According to WVDEP, the Secretary of WVDEP has the authority under W.Va.
Code section 22-5-4(a)(1) & (3) “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 Division of Air Quality (DAQ) of WVDEP
currently operates and maintains an established network of ambient air
monitors in West Virginia for the purpose of assessing compliance with
the 2010 SO2NAAQS.  All ambient air monitors within West Virginia’s
network are a) subject to the Quality Assurance requirements of 40 CFR
Part 58, Appendix A and b) have met the minimum siting requirements of
40 CFR Part 58, Appendix E.  

West Virginia operates and maintains an established network of fourteen
ambient SO2 monitors in the state for the purpose of assessing
compliance with the 2010 SO2 NAAQS.  WVDEP informs EPA of planned
changes to the monitoring site by providing adequate prior notification.
 Pursuant to 40 CFR 58.10, WVDEP submits to EPA, on an annual basis, a
monitoring network plan, which describes how West Virginia is complying
with monitoring requirements and explains any changes to the monitoring
network.  West Virginia’s 2012 Annual Air Quality Monitoring Network
Design Plan was approved by EPA on February 21, 2013 and its 2013 Annual
Air Quality Monitoring Network Design Plan was approved by EPA on
December 10, 2013. 

As provided in W.Va. Code sections 22-5-4(a)(2) and 22-5-10 and CAA
section 110(a)(2)(B), WVDEP collects and reports to EPA ambient air
quality data for SO2.  In accordance with EPA’s revised SO2 NAAQs
Amendments to Ambient Monitoring and Reporting Requirements, WVDAQ
collects and reports SO2 5-minute average data from the state’s
fourteen SO2 monitoring sites.  West Virginia submits to EPA quarterly
reports of air quality data to comply with the requirements of 40 CFR
58.16.  The air quality data for SO2 is reviewed, edited, validated, and
entered into the EPA air quality system (AQS) for updating pursuant to
prescribed AQS procedures, and is certified annually as required under
40 CFR 58.15.  

Based upon EPA’s review of the SIP submittal, EPA finds West
Virginia’s infrastructure SIP submittal for the 2010 SO2 NAAQS meets
the requirements of CAA section 110(a)(2)(B). 

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

According to WVDEP, its Secretary has the statutory authority to enforce
any control measures for the 2010 SO2 NAAQS, pursuant to W.Va. Code
sections 22-1-3(a), 22-5-4(a)(4), 22-5-4(a)(5), 22-5-4(a)(9),
22-5-4(a)(16), 22-5-4(a)(17), 22-5-5, and 22-5-6.  West Virginia has an
established legal framework and ability to provide for the enforcement
of the measures described in the CAA section 110(a)(2)(A) infrastructure
element or contained in a permit issued under:  45CSR10, 45CSR13,
45CSR14, 45CSR18, 45CSR19, 45CSR30, 45CSR33, and 45CSR41.  EPA finds the
provisions described in West Virginia’s infrastructure SIP submittal
for the 2010 SO2 NAAQS meet the requirements for enforcement of the
measures described in section 110(a)(2)(C) of the CAA. 

EPA will take separate action on the portion of section 110(a)(2)(C) of
the CAA for the 2010 SO2 NAAQS as it relates to West Virginia’s PSD
program as required by part C of Title I of the CAA.  EPA has previously
approved West Virginia’s PSD program with the narrow exception of the
definition of regulated new source review pollutant for its failure to
include condensables.  See 77 FR 63736 (October 17, 2012) and 78 FR
27062 (May 9, 2013).

In the approved West Virginia SIP, West Virginia has an EPA-approved
minor new source review (NSR) permitting program for regulation of minor
sources and minor modifications located in 45CSR13 (Permits for
Construction, Modification, Relocation and Operation of Stationary
Sources of Air Pollutants, Notification Requirements, Temporary Permits,
General Permits, and Procedures for Evaluation).  

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(C) for enforcement of measures in
110(a)(2)(A) and regulation of minor sources and minor modifications.  

  

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

Section 110(a)(2)(D)(i)(I)

West Virginia’s June 25, 2013 infrastructure SIP submission for the
2010 SO2 NAAQS did not include a component to address
110(a)(2)(D)(i)(I).  At the time of West Virginia’s submission on June
25, 2013, a submission to address Section 110(a)(2)(D)(i)(I) was not
required.  See EME Homer City Generation, LP v. EPA, 696 F.3d 7 (D.C.
Cir. 2012), cert. granted, 133 U.S. 2857 (2013).  However, that
situation has since changed due to the decision by the United States
Supreme Court in EME Homer City on April 29, 2014.  Thus, in this
rulemaking action, EPA is not proposing to act on 110(a)(2)(D)(i)(I) for
West Virginia’s June 25, 2013 infrastructure SIP submission for the
2010 SO2 NAAQS and will take separate, later action on West Virginia’s
obligations for Section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS.  

Section 110(a)(2)(D)(i)(II)

As discussed previously, EPA will take separate action on the portion of
the June 25, 2013 infrastructure SIP submittal which addresses section
110(a)(2)(D)(i)(II) of the CAA for the 2010 SO2 NAAQS for West
Virginia’s PSD program as required by part C of Title I of the CAA. 
On May 9, 2013, EPA finalized a narrow disapproval of a previous West
Virginia SIP submittal for PSD requirements because the West Virginia
PSD regulations did not properly address condensable emissions of
particulate matter within the definition of “regulated NSR
pollutant.”  See 78 FR 27062.  There are no sanctions associated with
this disapproval; however, EPA is required to promulgate a FIP within
two years of final disapproval if the definition of “regulated NSR
pollutant” is not corrected.  EPA had previously approved West
Virginia’s PSD program with the narrow exception of the definition of
regulated new source review pollutant for its failure to include
condensables.  See 77 FR 63736 (October 17, 2012).

Prong 4 of section 110(a)(2)(D)(i)(II) requires that SIPs include
provisions prohibiting any source or other type of emissions activity in
one state from interfering with measures to protect visibility required
to be included in another state’s SIP.  In describing how its
submission meets this requirement, West Virginia referred to its June
18, 2008 regional haze SIP submittal which included reliance on the
Clean Air Interstate Rule (CAIR) for electrical generating units (EGUs).
Subsequently, EPA granted limited approval and limited disapproval of
West Virginia’s regional haze SIP based on West Virginia’s reliance
upon CAIR which had been remanded by the time of EPA’s action on the
West Virginia regional haze SIP.  See 77 FR 16932 (March 23, 2012).  At
this time EPA is not proposing action on Section 110(a)(2)(D)(i)(II) for
visibility protection for the 2010 SO2 NAAQS.  Although West
Virginia’s infrastructure SIP submittal for the 2010 SO2 NAAQS
referred to West Virginia’s regional haze SIP for section
110(a)(2)(D)(i)(II) for visibility protection, EPA intends to take
separate action on West Virginia’s submittal for this specific element
of 110(a)(2)(D)(i)(II) at a later date.  (Section 110(a)(2)(D)(ii) 

EPA finds the West Virginia SIP meets obligations for CAA section 126,
“Interstate Pollution Abatement,” through the 45CSR§14-7, Public
Review Procedures, which requires a new or modified source to notify
other states of potential impacts from a source in accordance with 40
CFR 51.166(q)(2)(iv).  EPA concurs with West Virginia that West Virginia
has no currently pending obligations pursuant to CAA Section 126(b)
related to the 2010 SO2 NAAQS.  Additionally, there are no findings
under CAA section 115, “International Air Pollution”, against West
Virginia with respect to the 2010 SO2 NAAQs.  According to the
infrastructure SIP submittal, the State has adequate provisions insuring
future compliance with the requirements of sections 126 and 115 of the
CAA as may be necessary.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(D)(II). 

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

EPA finds WVDEP has demonstrated it has adequate personnel to carry out
its implementation plan with respect to the 2010 SO2NAAQS.  At present,
a staff of approximately 90 full time employees is employed at WVDEP’s
DAQ.  West Virginia’s Air Director supervises the air monitoring,
compliance and enforcement, hazardous waste, permitting and planning
sections, as well as three regional DAQ offices, and answers to the
Secretary.  DAQ states in its SIP submittal that its funding sources are
sufficient to provide adequate personnel for those purposes and does not
anticipate any changes in resources considered necessary during 5 years
following SIP submittal.  There are no other organizations in West
Virginia that participate in developing, implementing and enforcing the
SIP.

The Air Pollution Control Act of West Virginia (APCA) provides adequate
funding under W.Va. Code sections 22-1-10(a) and 22-5-4(a)(17) to carry
out West Virginia’s SIP.  W.Va. Code section 22-5-12 sets forth the
statutory operating permit requirements for stationary sources under
Title V of the CAA.  EPA-approved rule 45CSR30 establishes fees
sufficient to cover the direct and indirect costs of administering the
air pollution control planning process and Title V operating permit
program and to support the air pollution control program authorized by
statute. The APCA also authorizes the establishment of fees to cover
non-Title V permitting costs under 45CSR22 “Air Quality Management Fee
Program.”  Additionally, the air quality program receives revenue from
fines and penalties (Air Pollution Control Fund) and federal funds under
sections 105 and 103 of the CAA, and state general appropriations. 

The APCA, under W.Va. Code section 22-5-1, declares the state's policy
"to fulfill its primary responsibility for assuring air quality"
pursuant to the CAA.  The WVDEP Secretary is authorized under W.Va. Code
sections 22-1-6(c)(1) and 22-5-4(a)(12) to carry out and represent the
state in any and all matters pertaining to the implementation plan.  The
Secretary has the authority under W.Va. Code section 22-5-4(a)(16) “to
do all things necessary and convenient to prepare and submit a plan or
plans for the implementation, maintenance and enforcement of the Federal
Clean Air Act.”  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 W.Va. Code sections 22-1-3(a),
22-5-4(a)(4) and 22-5-4(a)(17) to promulgate rules in accordance with
the West Virginia Administrative Procedures Act (W.Va. Code section
29A3-1 et seq.).  Approximately forty rules are currently in effect and
codified at Title 45 of the Code of State Rules, including the ambient
air quality standards for SO2 and other criteria pollutants contained in
45CSR8.  West Virginia has an EPA-approved air permitting program for
both major and minor facilities, under state rules 45CSR13, 45CSR14,
45CSR19 and 45CSR30 (as applicable).  

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(E)(i) and (iii). 

As to CAA section 110(a)(2)(E)(ii) requirements, EPA will take later
separate action on this portion of section 110(a)(2)(E) as it relates to
CAA section 128, “State Boards” for the 2010 SO2 NAAQS.  

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

EPA finds W.Va. Code section 22-5-4(a)(15) authorizes the Secretary to
require the installation, maintenance and replacement of equipment, and
the implementation of other necessary steps by owners or operators of
stationary sources to monitor and report emissions of SO2 from such
sources as the Secretary may prescribe, through permits issued under
45CSR13, 45CSR14, 45CSR19, 45CSR30, 45CSR41, under WV regulation
45CSR10A and via compliance orders.   Pursuant to the 40 CFR Part 51,
subpart A, “Air Emission Reporting Rule” (AERR), DAQ’s emissions
inventory program provides source-specific emissions data to EPA.  

For the emission reports and recordkeeping requirements set forth in 40
CFR Part 51, subpart K, W.Va. Code section 22-5-4(a)(15) authorizes the
WVDEP Secretary to require periodic reports on the nature and amounts of
emissions and emissions-related data from owners or operators of
stationary sources (monitoring data) of SO2 emissions through permits
issued under 45CSR10, 45CSR13, 45CSR14, 45CSR18, 45CSR19, 45CSR30,
45CSR33, and 45CSR41, through 45CSR10A, and via compliance orders. 
Pursuant to W.Va. Code section 22-5-4(a)(14), the Secretary is
authorized to require such information as the Secretary may require in a
form or manner prescribed by the Secretary (emissions inventory
program).  DAQ periodically reports emission inventory information to
EPA as required by 40 CFR Part 51, subparts A and K.

EPA finds W.Va. Code section 22-1-6(d)(3) authorizes the WVDEP Secretary
to “investigate for violations of statutes or rules which the
department is charged with enforcing.”  W.Va. Code section
22-5-4(a)(3) authorizes the Secretary to correlate periodic emissions
reports with any SO2 emission limitations or standards established
pursuant to 45CSR10, 45CSR13, 45CSR14, 45CSR18, 45CSR19, 45CSR30,
45CSR33, 45CSR41, 45CSR10A, compliance orders, or the CAA.  As set forth
in W.Va. Code section 22-5-10, the Secretary makes available at
reasonable times for public inspection the periodic emissions reported
under W.Va. Code sections 22-5-4(a)(14) & (15).  The Secretary has the
responsibility of making all records, reports or information obtained by
the WVDEP or referred to at public hearings under the provisions of the
APCA, available to the public, except to the extent the records, reports
or information are protected by confidentiality.  The types of records
WVDEP routinely provides access to include notifications, inspection
reports, notices of violation, enforcement orders, applications, permit
review letters, sample results, monitoring reports, permits, approvals
and denials that would relate to section 110(a)(2)(F) of the CAA.  WVDEP
generally makes information available for public access through its
website, but also makes hard copy reports available upon written
request. 

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(F). 

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

EPA finds West Virginia has authority comparable to that in section 303
of the CAA and adequate contingency plans to implement such authority. 
Section 303 of the CAA provides authority to the EPA’s Administrator
to restrain any source from causing or contributing to emissions which
present an “imminent and substantial endangerment to public health or
welfare, or the environment.”  W.Va. Code section 22-5-5 authorizes
the WVDEP 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 W.Va. Code section 22-5-6, the
Secretary may also institute lawsuits for civil penalties.  W.Va. Code
section 22-5-7 authorizes the Secretary to seek applications for
injunctive relief.  W.Va. Code section 22-5-8 authorizes the Secretary,
with the written authorization of the Governor, to shut down a source of
SO2 emissions, thereby preventing the emission of air pollutants which
substantially contributes to an emergency that requires immediate action
to protect public health.  As provided in W.Va. Code sections
22-5-4(a)(2) and 22-5-10, the Secretary may consult with EPA to affirm
accuracy of any information considered while executing authority under
W.Va. Code sections 22-5-5, 22-5-6, 22-5-7 or 22-5-8.  

In addition, West Virginia’s SIP-approved rule 45CSR11 (Prevention of
Air Pollution Emergency Episodes) provides a mechanism to prevent the
buildup of SO2 concentrations during periods of adverse meteorological
conditions in which air pollutants may accumulate, thereby preventing
the occurrence of an emergency due to the effects of these pollutants on
health.  West Virginia initiates the use of specific emission reduction
plans for three stages of pollutant concentration levels to prevent
further deterioration of the air quality in the State.  Therefore, EPA
finds West Virginia has in its approved SIP an adequate contingency plan
to implement the air agency’s emergency episode authority.  45CSR11
meets the applicable requirements of 40 CFR Part 51, subpart H (40 CFR
51.150 through 51.153) (“Prevention of Air Pollution Emergency
Episodes”) for the 2010 SO2 NAAQS. 

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(G) of the CAA. 

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

EPA finds that West Virginia has demonstrated that it has adequate
authority to satisfy CAA Section 110(a)(2)(H).  West Virginia has
adequate authority to address revisions to SIPs, as set forth in 40 CFR
51.104.  Specifically, W.Va. Code section 22-5-4(a)(16) authorizes the
Secretary to do all things necessary and convenient to prepare and
submit a plan for the implementation, maintenance and enforcement of the
CAA.  WVDEP has historically revised, and will continue to revise, its
NAAQS 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.  West Virginia’s
45CSR8 “Ambient Air Quality Standards” incorporates by reference all
relevant primary and secondary NAAQS and is included in the West
Virginia SIP.  See 77 FR 65493 (updating 45CSR8 in West Virginia SIP). 

EPA finds W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all
things necessary and convenient to prepare and submit a plan for
implementation, maintenance, and enforcement of the CAA.  Therefore, if
EPA finds the West Virginia SIP substantially inadequate to attain the
NAAQS, West Virginia has authority to revise the plan as necessary for
adequacy.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(H). 

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

	

As mentioned previously, EPA will take separate action on the portion of
section 110(a)(2)(J) of the CAA for the 2010 SO2 NAAQS as it relates to
West Virginia’s PSD program as required by part C of Title I of the
CAA.  On May 9, 2013, EPA finalized a narrow disapproval of a previous
West Virginia SIP submittal for PSD requirements because the West
Virginia PSD regulations did not properly address condensable emissions
of particulate matter within the definition of “regulated NSR
pollutant.”  See 78 FR 27062.  There are no sanctions associated with
this disapproval; however, EPA is required to promulgate a FIP within
two years of final disapproval if the definition of “regulated NSR
pollutant” is not corrected.  EPA had previously approved West
Virginia’s PSD program with the narrow exception of the definition of
regulated new source review pollutant for its failure to include
condensables.  See 77 FR 63736.

EPA finds West Virginia satisfies the applicable requirements of section
121 of the CAA relating to consultation.  The APCA provides adequate
authority under W.Va. Code section 22-5-4(a)(2) for West Virginia’s
practices of consultation with local governments, organizations and Land
Managers for purposes of air pollution control.  WVDEP also consults
with such entities regarding implementation plans for air quality
maintenance requirements, preconstruction review of direct sources,
nonattainment requirements, and prevention of significant deterioration.
 To address consultation for the 2010 SO2 NAAQS, West Virginia’s
permitting program includes three SIP-approved rules: minor NSR rule
45CSR13, PSD rule 45CSR14, and major NSR rule 45CSR19.  West Virginia
also has an approved Title V operating permit program (66 FR 50325).  

West Virginia stated in its infrastructure SIP submittal that it has
demonstrated its commitment to consultation through encouragement and
support for an Early Action Compact and through Federal Land Manager
consultation for its West Virginia regional haze SIP.  EPA finds West
Virginia has a process for consultation with general-purpose local
governments, designated organizations of elected officials of local
governments, and any federal land manager having authority over federal
land to which the plan applies, consistent with CAA section 121.

EPA finds W.Va. Code section 22-4-(a)(10) addresses requirements in
Section 127 of the CAA for public notification because the Code
authorizes WVDEP’s DAQ to notify the public of imminent and serious
hazards to public health.  W.Va. Code section 22-1-12 provides authority
for the public notification of NAAQS violations and education efforts as
required 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 Air Quality Annual
Report contains emissions information and air quality highlights from
the previous year, provides public awareness of criteria pollutants and
their effects on health, and provides educational website links to tips
that improve air quality, links to technical websites and outreach
efforts.

With regard to the visibility protection aspect of 110(a)(2)(J), EPA
recognizes that states are subject to visibility and regional haze
program requirements under part C of the CAA (which includes sections
169A and 169B).  In the event of the establishment of a new NAAQS,
however, the visibility and regional haze program requirements under
part C do not change.  Thus, EPA finds that there are no applicable
visibility obligations under part C “triggered” under section
110(a)(2)(J) when a new NAAQS becomes effective.  West Virginia has
submitted SIP revisions to satisfy the requirements of the CAA Section
169A and 169B, and the regional haze and BART rules contained in 40 CFR
51.308.  On March 23, 2012, EPA published a final rulemaking regarding
West Virginia’s regional haze program, consisting of a limited
approval and a limited disapproval.  See 77 FR 16932.  

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(J) (except for the portion of this
element related to PSD upon which EPA will take separate action). 

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

EPA finds that West Virginia has the authority and technical capability
to conduct air quality modeling in order to assess the effect on ambient
air quality relevant pollutant emissions. W.Va. Code sections
2-5-4(a)(1) & (3) authorize the WVDEP 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 EPA’s
Administrator.  West Virginia states in its infrastructure SIP submittal
that a source-oriented dispersion model such as AERMOD will be the air
quality model that WVDEP will use to demonstrate the adequacy of a
control strategy to provide for the timely attainment and maintenance of
the NAAQS, pursuant to 40 CFR §§51.112 and 51.115(b).  WVDEP’s DAQ
employs one full time technical employee who is responsible for air
quality modeling.  West Virginia’s 2010 SO2 infrastructure SIP
submittal demonstrates WVDEP has the authority and will perform
modeling, as required under the CAA, to demonstrate attainment of the
2010 1-hour SO2 NAAQS.  

EPA also finds that inherent in the authority of WVDEP’s Secretary is
the capability to conduct new source review modeling required under the
CAA and included in West Virginia’s PSD and NSR permit programs
(45CSR14 and 45 CSR19) included in West Virginia’s SIP.  West
Virginia’s SIP includes PSD source impact and modeling requirements
(45CSR14-§§9 and 10, in accordance with 40 CFR §§51.166(k) and (l)).
 In addition, all applications of air quality modeling, where
appropriate, for PSD purposes are based on the applicable air quality
models, databases, and other requirements specified in the Appendix W of
40 CFR Part 51 (Guideline on Air Quality Models).  Pursuant to
45CSR14-§10.2, where an air quality impact model specified in Appendix
W of 40 CFR Part 51 is inappropriate, the model may be modified or
another model substituted, provided that the modification or
substitution is approved in writing by the EPA Administrator.

Finally, EPA finds West Virginia can provide relevant ambient air
quality data as part of the permitting and NAAQS implementation process.
 W.Va. Code sections 22-5-10, 22-5-4(a)(2) and 22-5-4(a)(16) authorize
the Secretary to submit, upon request by EPA , modeling data predicting
the effect on ambient air quality of any emissions of any air pollutant
for which EPA has established a NAAQS.  The infrastructure SIP submittal
states West Virginia will submit to EPA current and future air quality
modeling data as part of its relevant SIP submissions and through
Federal grant commitments or in other ways that EPA may request.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(K).  

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

West Virginia’s June 25, 2013 infrastructure SIP submittal for the
2010 SO2 NAAQS provides that West Virginia’s approved Title V
operating permits program under 45CSR30 (see 66FR50325 (Nov. 19, 2001))
provides for sufficient fees to cover the reasonable costs of reviewing
and acting upon any application for permits and the reasonable costs of
implementing and enforcing the terms and conditions of any such permit. 


Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(L). 

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

EPA finds the WVDEP Secretary has the authority under W.Va. Code section
22-5-4(a)(16) “to do all things necessary and convenient to prepare
and submit a plan or plans for the implementation, maintenance and
enforcement of the Federal Clean Air Act.”  Under this statute, and
pursuant to the General Plan Requirements set forth in 40 CFR 51.240,
the WVDEP’s DAQ is the organization authorized to develop, implement
and enforce the West Virginia SIP.  W.Va. Code section 22-5-4(a)(2)
authorizes the Secretary to advise, consult, and cooperate with local
political subdivisions affected by the implementation plan.  West
Virginia consults with local governments, organizations and Federal Land
Managers with respect to SIP development.  DAQ also consults with such
entities regarding implementation plans for air quality maintenance
requirements, preconstruction review of direct sources, nonattainment
requirements, and PSD.

In accordance with the Federal procedural requirements at 40 CFR 51.102,
any plan or plan revision, or individual compliance schedule, prepared
by DAQ is subject to a 30 day public notice period with public hearing,
or in cases where there is little anticipated public interest, the
opportunity for a public hearing.  State rules which contain such public
notice procedures include permitting rules 45CSR13, 45CSR14, 45CSR19 and
45CSR30.  The West Virginia SIP includes 45CSR13, 45CSR14 and 45CSR19. 
The public notice and hearing processes fulfill the requirements for
consultation with local political subdivisions affected by the SIP. 

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(M). 

F.  CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA has analyzed West Virginia’s June 25, 2013 infrastructure
submittal for the 2010 SO2 NAAQS and the Agency finds West Virginia’s
submittal meets the requirements of section 110(a)(2)(A), (B), (C), (D),
(E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, of the
CAA.  EPA will take separate action on the portions of CAA section
110(a)(2) infrastructure elements for the 2010 SO2 NAAQS as they relate
to the West Virginia’s PSD program, as required by part C of Title I
of the CAA, including portions of CAA section 110(a)(2)(C), (D) and (J).
 Additionally, EPA will take separate action on requirements of
110(a)(2)(D)(i)(I)(transport), (D)(i)(II)(visibility protection), and
(E)(ii). It is recommended that a notice of proposed rulemaking be
prepared approving West Virginia’s June 25, 2013 infrastructure
submittal for the elements identified herein for the 2010 1-hour SO2
NAAQS.  

 On May 12, 2005, EPA published CAIR, which requires significant
reductions in emissions of SO2 and nitrogen oxides (NOx) from EGUs to
limit the interstate transport of these pollutants and the ozone and
fine particulate matter they form in the atmosphere.  70 FR 25162.  At
the time the West Virginia regional haze SIP was being developed, the
State’s reliance on CAIR was fully consistent with EPA’s
regulations.  

 EPA has discussed previously in this document the limited disapproval
of West Virginia’s PSD program due to failure to include condensables
within the definition of regulated NSR pollutant.

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