                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                  REGION III
	1650 Arch Street
	Philadelphia, Pennsylvania  19103


DATE:       	8/31/16

SUBJECT:	Technical Support Document for the West Virginia State Implementation Plan Regarding Infrastructure Requirements for the 2012 Particulate Matter National Ambient Air Quality Standards
			
FROM:	Ellen Schmitt, Life Scientist              
            Office of Air Program Planning

TO:		File
			
THRU: 	Maria A. Pino, Acting Associate Director      /s/
            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 2012 fine particulate matter (PM2.5) national ambient air quality standards (NAAQS).

B.  BACKGROUND

      On January 15, 2013, EPA promulgated a revised NAAQS for the annual primary and secondary PM2.5 standards at a level of 12.0 micrograms per cubic meter (ug/m[3]), based on the annual arithmetic mean, averaged over three years.  78 FR 3086.

	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 2012 PM2.5 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 particulate matter standards.

C.  EPA REQUIREMENTS

      For the 2012 PM2.5 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 November 17, 2015, EPA received a SIP revision submittal from the State of West Virginia through the West Virginia Department of Environmental Protection (WVDEP) in order to satisfy the requirements of section 110(a)(2) of the CAA for the 2012 PM2.5 NAAQS.  This submittal addressed the following infrastructure elements:  Section 110(a)(2)(A), (B), (C), (D)(i)(I), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA.  EPA is proposing to approve West Virginia's November 17, 2015 SIP submittal for the 2012 PM2.5 NAAQS with the exception of the portions of the submittal that address section (D)(i)(I) (interstate transport of emissions) and section (D)(i)(II) (visibility protection).  The submittal addressed section 110(a)(2)(D)(i)(I) but EPA will take separate action on that part of the West Virginia submittal.  EPA will also take separate action on the portion of the submittal that addresses section 110(a)(2)(D)(i)(II) as it relates to visibility protection.  West Virginia's infrastructure SIP submittal did not address section 110(a)(2)(I), referred to as "element (I)," which pertains to the nonattainment requirements of part D, title I of the CAA, since this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process if applicable and necessary.  

E.  EPA's APPROACH TO REVIEW INFRASTRUCTURE SIPS

      EPA's proposed action addresses West Virginia's SIP submission regarding the infrastructure requirements of section 110(a)(1) and (2) of the CAA for the 2012 PM2.5 NAAQS.  The requirement for states to make a SIP submission of this type arises out of section 110(a)(1).  Pursuant to section 110(a)(1), states must make SIP submissions "within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof)," and these SIP submissions are to provide for the "implementation, maintenance, and enforcement" of such NAAQS.  The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS.  Section 110(a)(2) includes a list of specific elements that "[e]ach such plan" submission must address. 

      EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and (2) as "infrastructure SIP" submissions.  Although the term "infrastructure SIP" does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as "nonattainment SIP" or "attainment plan SIP" submissions to address the nonattainment planning requirements of part D of title I of the CAA, "regional haze SIP" submissions required by EPA rule to address the visibility protection requirements of section 169A of the CAA, and nonattainment new source review (NSR) permit program submissions to address the permit requirements of CAA, title I, part D.

      Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions and section 110(a)(2) provides more details concerning the required contents of these submissions.  The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.  EPA believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous.  In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission. 

      The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS.  One example of ambiguity is that section 110(a)(2) requires that "each" SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the CAA, which specifically address nonattainment SIP requirements. Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due.  For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years or in some cases three years, for such designations to be promulgated.  This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission. 

      Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action.  Although section 110(a)(1) directs states to submit "a plan" to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS.  If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.  Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission.  For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.

      Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS.  Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS.  The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different.  For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS. 

      EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA.  Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions.  For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the "applicable requirements" of section 110(a)(2).  Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority.  By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements.  As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others. 

      Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission.  In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way.  Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

      Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.  EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Infrastructure Guidance).  EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS.  Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS.  EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.  The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2).  Significantly, EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others.  Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. 

      As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions.  Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers.  Thus, EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128.  The 2013 Infrastructure Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency).  However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128. 

      As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations.  Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including greenhouse gases (GHGs).  By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM2.5 NAAQS.  Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

      For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements.  For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources.  Thus, EPA evaluates whether the state has an EPA approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS.  In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs. 

      With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP.  These issues include:  (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to "director's variance" or "director's discretion" that may be contrary to the CAA because they purport to allow revisions to SIP approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's "Final NSR Improvement Rule," 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526  (June 13, 2007) (NSR Reform).  Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.  It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described. 

      EPA's approach to review infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission.  EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS.  Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts.  These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of "implementation, maintenance, and enforcement" of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission.  EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors. 

      For example, EPA's 2013 Infrastructure Guidance gives simpler recommendations with respect to carbon monoxide (CO) than other criteria pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because CO does not affect visibility.  As a result, an infrastructure SIP submission for any future new or revised NAAQS for CO need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

      Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and (2), because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs.  These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency.  Section 110(k)(5) authorizes EPA to issue a "SIP call" whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.  Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.  Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time.  For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action. 

F.  EVALUATION OF STATE SUBMITTAL

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

      Section 110(a)(2)(A) of the CAA requires each plan include a means to enforce emission limitations and other control measures, means or techniques as well as schedules and timetable for compliance as may be necessary to meet the applicable NAAQS. 

	West Virginia's November 17, 2015 SIP submittal for the 2012 PM2.5 NAAQS cites several state regulations relevant to PM2.5 and its precursors.  EPA has determined that West Virginia has established laws and regulations applicable to the 2012 PM2.5 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 PM2.5 to meet the applicable requirements of the CAA include the following SIP approved regulations:  45CSR2 (To Prevent and Control Particulate Air Pollution from Combustion of Fuel in Indirect Heat Exchangers), 45CSR3 (To Prevent and Control Air Pollution from the Operation of Coal Preparation Plants and Coal Handling Operations), 45CSR5 (To Prevent and Control Air Pollution from the Operation of Coal Preparation Plants and Coal Handling Operations), 45CSR6 (To Prevent and Control Air Pollution from Combustion of Refuse), 45CSR4 (To Prevent and Control Particulate Air Pollution from Manufacturing Process Operations), 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 45CSR29 (Rule Requiring the Submission of Emissions Statements for Volatile Organic Compound Emissions and Oxides of Nitrogen Emissions). 

	Additionally, the following state rules are applicable to particulate matter (PM) emission limitations and control measures:  45CSR16 (Standards of Performance for New Stationary Sources), 45CSR18 (Control of Air Pollution from Combustion of Solid Waste), 45CSR30 (Requirements for Operating Permits), and 45CSR33 (Acid Rain Provisions and Permits).  Rule 45CSR30 requires all federally enforceable nitrogen oxide (NOX), PM, coarse PM (PM10), PM2.5, or sulfur dioxide (SO2) emission limitations or control measures to be contained in a permit issued by the Secretary under West Virginia's established EPA approved title V operating permit program.  
      
	Furthermore, West Virginia is included in the Cross State Air Pollution Rule (CSAPR) which requires participating states to reduce power plant emissions that cross state lines and contribute to ground level ozone and fine particulate matter in other states.  CSAPR includes emission limits of annual SO2 and NOx (which are precursors to PM2.5) as well as ozone season NOx. 

	On June 3, 2015, West Virginia submitted a SIP revision to satisfy West Virginia's obligations pursuant to an earlier rulemaking in which EPA granted final conditional approval of West Virginia's PSD implementing regulations 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.  On August 11, 2016, EPA took final action approving West Virginia's June 3, 2015 submittal.  See 81 FR 53008.  West Virginia's SIP approved PSD permitting program is set forth in 45CSR14.  

	EPA is not approving or disapproving any existing provisions in the West Virginia SIP with regard to excess emissions during SSM of operations at a facility.  EPA also does not intend to reapprove any existing West Virginia SIP provisions which may address excess emissions during SSM by this infrastructure SIP rulemaking.  EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance.  On June 12, 2015, EPA issued a finding that certain SIP provisions in 36 states (applicable in 45 statewide and local jurisdictions) are substantially inadequate to meet CAA requirements and thus issued a "SIP call" for each of those 36 states.  80 FR 33840.  See also 78 FR 12460 (February 22, 2013) (proposed finding for SIP call).  West Virginia was among the 36 states for the SIP call.  EPA established a due date for states subject to the SIP call to submit corrective SIP revisions.  The June 12, 2015 final action also embodied EPA's updated SSM policy (2015 SSM Policy) as it applies to SIP provisions.  The 2015 SSM Policy provides guidance to states for compliance with CAA requirements for SIP provisions applicable to excess emissions during SSM events.  Thus EPA is addressing such state regulations in a separate rulemaking and not during review of infrastructure SIP submittals.  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 (nor reapprove any such rules already in the West Virginia SIP) with regard to director's discretion or variance provisions.  EPA believes that a number of states including West Virginia have such provisions which are contrary to the CAA and existing EPA guidance, and EPA is addressing such regulations in separate rulemaking action via its June 12, 2015 SIP Call.  See 80 FR 33840.  In the meantime, EPA encourages any state having director's discretion or variance provisions which are 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 November 17, 2015 infrastructure SIP submittal for the 2012 PM2.5 NAAQS meets the requirements of CAA section 110(a)(2)(A).

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

      Section 110(a)(2)(B) of the CAA requires each plan to provide for the establishment and operation of appropriate devices, methods, systems and procedures to monitor, compile and analyze data on ambient air quality and to make such data available to EPA upon request.

	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 2012 PM2.5 NAAQS.  All ambient air monitors within West Virginia's monitoring 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 PM2.5 monitors in the state for the purpose of assessing compliance with the 2012 PM2.5 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 2015 Annual Air Quality Monitoring Network Design Plan was approved by EPA on November 12, 2015.  West Virginia submitted to EPA the state's 2016 Annual Air Quality Monitoring Network Design Plan on June 27, 2016. 
      
	As provided in W.Va. Code sections 22-5-4(a)(2) and 22-5-10 and section 110(a)(2)(B) of the CAA, WVDEP collects and reports to EPA ambient air quality data for PM2.5.  West Virginia submits to EPA regular reports of air quality data to comply with the data submittal and archiving requirements of 40 CFR 58.16.  The air quality data for PM2.5 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 2012 PM2.5 NAAQS meets the requirements of section 110(a)(2)(B) of the CAA. 

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

      Section 110(a)(2)(C) of the CAA requires a state's plan to include a program to provide for enforcement of measures in 110(a)(2)(A) of the CAA and for regulation of modification and construction of stationary sources, including a permit program as required in parts C and D of title I of the CAA.  

	According to WVDEP, its Secretary has the statutory authority to enforce any control measures for the 2012 PM2.5 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 section 110(a)(2)(A) infrastructure element or contained in a permit issued under:  45CSR13, 45CSR14, 45CSR19, 45CSR30, and 45CSR33.  EPA finds the provisions described in West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS meet the requirements for enforcement of the measures described in section 110(a)(2)(C) of the CAA.

	Pursuant to CAA section 165(a)(3), the West Virginia DAQ is authorized to implement a PSD program in order to ensure that the construction and modification of major stationary sources will not cause or contribute to a violation of the 2012 PM2.5 NAAQS.  West Virginia's SIP approved PSD permitting program is set forth in 45CSR14.  

	EPA had previously approved West Virginia's PSD program with the narrow exception of the definition of regulated NSR pollutant for its failure to include condensables.  See 77 FR 63736 (October 17, 2012) and 78 FR 27062 (May 9, 2013).  On June 3, 2015, West Virginia submitted to EPA a revision to the state's PSD program addressing significant monitoring concentration (SMC) levels for PM2.5.  West Virginia had previously submitted a July 1, 2014 SIP revision to address adding condensables to the definition of regulated NSR pollutant which EPA conditionally approved because West Virginia had deleted a level for SMCs.  80 FR 36483 (June 25, 2015).  However, EPA gave final approval to the June 2015 submittal on August 11, 2016, removing the conditional approval on the program and thereby approving West Virginia's PSD permit program pertaining to preconstruction permitting requirements for sources of PM2.5.  See 81 FR 53008.  With these revisions fully approved (for condensables and SMCs for PM2.5), EPA finds West Virginia's SIP approved PSD program now contains all of the emission limitations, control measures, and other program elements required by part C of title I of the CAA and by 40 CFR 51.165 and 51.166 for all required pollutants (and "regulated NSR pollutants"), including PM2.5.  
      
      With respect to element (C), EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants.  West Virginia has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including GHGs.     

      On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions.  Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427.  The Supreme Court said that EPA may not treat GHGs as air pollutants for purposes of determining whether a source is a major source required to obtain a PSD permit.  The Court also said that EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of best available control technology (BACT).  In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, EPA is not continuing to apply EPA regulations that would require SIPs to include permitting requirements that the Supreme Court found impermissible.  Specifically, EPA is not applying the requirement that a state's SIP approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g. 40 CFR 51.166(b)(48)(v)).  EPA anticipates a need to revise federal PSD rules in light of the Supreme Court opinion.  In addition, EPA anticipates that many states will revise their existing SIP approved PSD programs in light of the Supreme Court's decision.  The timing and content of subsequent EPA actions with respect to the EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the United States Court of Appeals for the District of Columbia Circuit.  At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.
      
      At present, EPA has determined that West Virginia's SIP is sufficient to satisfy element (C) with respect to GHGs because the PSD permitting program previously approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT.  Although the approved West Virginia PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate to satisfy element (C).  The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision.  Accordingly, the Supreme Court decision does not affect EPA's proposed approval of West Virginia's infrastructure SIP as required by 110(a)(2)(C) and part C of title I of the CAA.

	In the approved West Virginia SIP, West Virginia has an EPA approved minor 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).  EPA finds West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS meets the requirements of section 110(a)(2)(C) of the CAA for enforcement and regulation of minor sources and minor modifications.

      Based upon EPA's review, EPA finds that West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS meets the requirements of section 110(a)(2)(C) of the CAA for enforcement of measures in 110(a)(2)(A) and regulation of minor sources and minor modifications.  Additionally, West Virginia has an approved permit program as required in part C of title I of the CAA.  EPA is not addressing the permit program required by part D of title I of the CAA, as that relates to NSR and the permit program required for nonattainment areas by sections 172 and 173 of the CAA.  Requirements for nonattainment areas will be addressed, if necessary, in separate actions. 

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

      Section 110(a)(2)(D)(i)(II) of the CAA consists of what EPA refers to as prong 3 (interference with PSD) and prong 4 (interference with visibility protection).  
      
      Prong 3 requires that each state's SIP must include provisions which will prevent emissions from sources within the state from interfering with the measures required to be in SIP by another state for implementing PSD.  In its November 17, 2015 infrastructure SIP submittal, West Virginia confirms that new major sources and major modifications in West Virginia are subject to their PSD permit program which is set forth in 45CSR14.  As discussed previously, EPA approved a revision to West Virginia's PSD program on August 11, 2016 (81 FR 53008).  West Virginia also has an EPA approved NNSR permit program, under legislative rule 45CSR19, which satisfies the NNSR requirements in CAA part D.  West Virginia's PSD and NNSR permit programs provide the state with the ability to prevent emissions of any regulated pollutant from both PSD and non-PSD subject sources from interfering with any other air agencies comprehensive PSD program.  Thus, EPA finds West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS meets requirements in section 110(a)(2)(D)(i)(II) of the CAA for PSD.

      With respect to prong 4, section 110(a)(2)(D)(i)(II) of the CAA 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 its submittal, West Virginia referred to EPA's March 23, 2012 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.  In describing how its infrastructure SIP submission for the 2012 PM2.5 NAAQS meets prong 4, West Virginia referred to a separate SIP submittal (dated September 16, 2015) regarding regional haze in which the state describes its intention to revise its regional haze SIP.  In the September 2015 regional haze SIP revision submittal, West Virginia seeks to replace its regional haze SIP reliance upon CAIR for certain CAA haze requirements with reliance upon CSAPR for the same requirements.  EPA has not yet acted upon the September 16, 2015 West Virginia regional haze SIP revision.  Thus, the 2012 regional haze SIP from West Virginia still has limited approval with a FIP for reliance upon CSAPR for certain regional haze requirements.  At this time, therefore, EPA is not reviewing the West Virginia infrastructure SIP submission for the prong 4 element (110(a)(2)(D)(i)(II)(visibility protection)) for the 2012 PM2.5 NAAQS even though West Virginia made a submission for this element.  
      
      In conclusion, EPA is not proposing action at this time on West Virginia's infrastructure SIP submission regarding section 110(a)(2)(D)(i)(II) of the CAA for visibility protection for the 2012 PM2.5 NAAQS.  Although West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS contains provisions addressing this element, EPA will take separate action on West Virginia's infrastructure submittal for this specific portion of element (D)(i)(II) at a later date.  EPA however does find the West Virginia infrastructure SIP submission meets requirements regarding section 110(a)(2)(D)(i)(II) of the CAA for PSD (prong 3) for the 2012 PM2.5 NAAQS.


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

      Section 110(a)(2)(D)(ii) of the CAA requires the SIP to contain adequate provisions to ensure compliance with applicable requirements of sections 115 and 126 of the CAA relating to interstate and international pollution abatement.

	EPA finds the West Virginia SIP meets obligations for CAA section 126, "Interstate Pollution Abatement," through 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 the state has no currently pending obligations pursuant to CAA Section 126(b) related to the 2012 PM2.5 NAAQS.  Additionally, there are no findings under CAA section 115, International Air Pollution, against West Virginia with respect to the 2012 PM2.5 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 2012 PM2.5 NAAQS meets the requirements of CAA section 110(a)(2)(D)(II). 

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

      Pursuant to section 110(a)(2)(E) of the CAA, a SIP should provide:  (1) Necessary assurances the state has adequate personnel, funding and authority to carry out the SIP; (2) requirements that the state complies with section 128 of the CAA regarding state boards; and (3) necessary assurances the state has responsibility to ensure adequate implementation of the SIP where the state relies on a local or regional government or agency for implementing any SIP provision.   
      
	EPA finds WVDEP has demonstrated it has adequate personnel to carry out its implementation plan with respect to the 2012 PM2.5 NAAQS.  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 in the next five years following the SIP submittal.  
      
	The Air Pollution Control Act of West Virginia (APCA) provides adequate funding under W.Va. Code sections 22-1-10(a) and 22-5-4(a)(17) to carry out 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.  See 81 FR 7463 (February 12, 2016).  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 PM2.5 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).  EPA finds West Virginia's November 17, 2015 infrastructure SIP submittal demonstrates that the state has adequate personnel, funding, and authority to carry out the SIP, thereby meeting the requirements of section 110(a)(2)(E)(i) of the CAA.
      
      Section 128(a) requires SIPs to contain provisions that:  (1) Any board or body which approves permits or enforcement orders under the CAA shall have at least a majority of its members represent the public interest and not derive any significant portion of their income from persons subject to permits or enforcement orders under the CAA; and (2) any potential conflict of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.  
      
	EPA finds that West Virginia complies with the requirements respecting state boards under section 128 of the CAA.  The requirements of section 128(a)(1) are not applicable to West Virginia because it does not have any board or body which approves air quality permits or enforcement orders.  The requirements of section 128(a)(2), however, are applicable because the Secretary of WVDEP, or his/her designees, approve permits or enforcement orders within West Virginia.

	On July 24, 2014, West Virginia submitted a SIP revision to address the requirements of section 128 for all criteria pollutants of the NAAQS in relation to state boards.  The SIP revision consisted of relevant portions of W.Va. Code 6B of the West Virginia Governmental Ethics Act for inclusion into the West Virginia SIP.  On March 9, 2015, EPA published a direct final rulemaking notice in the Federal Register, approving West Virginia's SIP revision that addresses the requirements of sections 128 and 110(a)(2)(E)(ii) of the CAA for all criteria pollutants of the NAAQS in relation to state boards.  See 80 FR 12345.  
      
      West Virginia states in its November 17, 2015 infrastructure SIP submittal that it has not relied on any local or regional government or agency for implementation of any SIP provision.  Therefore, EPA finds West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS meets the requirements of section 110(a)(2)(E)(iii) of the CAA.  
      
	Based upon EPA's review of the submittal, EPA finds West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS meets the requirements of CAA section 110(a)(2)(E)(i), (ii), and (iii). 

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

      According to section 110(a)(2)(F) of the CAA, a SIP shall require, as prescribed by EPA, the installation, maintenance and replacement of equipment to monitor emissions by owners or operators of stationary sources, periodic reports on emissions from such sources, and correlation of such emission reports by the state with emission limitations established by the CAA.  

	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 PM2.5 from such sources as the Secretary may prescribe, through permits issued under 45CSR13, 45CSR14, 45CSR19, 45CSR30, and 45CSR33 and via compliance orders, in accordance with 40 CFR 51.212(a).  
      
	For the emission reports and recordkeeping requirements, 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 of PM2.5 emissions.  Under W.Va. Code section 22-5-4(a)(15), the Secretary of WVDEP requires periodic reports on emissions and emissions-related data from stationary sources through permits issued under 45CSR13, 45CSR14, 45CSR19, 45CSR30, and 45CSR33 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.  This section of the W.Va. code provides the authority for the state to operate an emissions inventory program.  DAQ's emissions inventory program provides source-specific emissions data to EPA pursuant to the Air Emissions Reporting Rule (AERR) reporting requirements as well as the source emissions and state action reporting requirements set forth in 40 CFR 51.321-323.  

	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 PM, PM2.5, PM10, NOx, and SO2 emission limitation or standard established pursuant to 45CSR2, 45CSR3, 45CSR5, 45CSR6, 45CSR7, 45CSR10, 45CSR13, 45CSR14, 45CSR16, 45CSR18, 45CSR19, 45CSR30, and 45CSR33 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 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 2012 PM2.5 NAAQS meets the requirements of 110(a)(2)(F) of the CAA, including the authority to require installation, maintenance and replacement of equipment to monitor emissions of stationary sources, periodic reports on emissions from such sources, and correlation of such emission reports by the state with emission limitations established by the CAA. 
      
7.  Section 110(a)(2)(G) 

      Section 110(a)(2)(G) of the CAA requires states to provide its authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement emergency episode provisions in their SIPs.  

	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, and 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 PM2.5 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.  Therefore, EPA finds West Virginia has in its approved SIP an adequate contingency plan to implement the air agency's emergency episode authority.  

	EPA's regulations at 40 CFR part 51, subpart H (40 CFR 51.150-.153) provide specific ambient levels for contingency plan purposes for most NAAQS.  West Virginia's SIP approved rule 45CSR11 (Prevention of Air Pollution Emergency Episodes) provides a mechanism to prevent the buildup of concentrations of NO2 and SO2, particulate matter precursors, 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.  The Agency finds that 45CSR11 meets the applicable requirements of 40 CFR part 51, subpart H, and that West Virginia has in its approved SIP an adequate contingency plan to implement the air agency's emergency episode authority.  
      
	To address section 110(a)(2)(G) of the CAA, states with air quality control regions which are identified as either Priority I, Priority IA, or Priority II by the "Prevention of Air Pollution Emergency Episodes" rules at 40 CFR 51.150, must develop emergency episode contingency plans.  For the 2006 PM2.5 NAAQS, EPA had not promulgated regulations that provide the ambient levels to classify different priority levels, and thus EPA recommended these levels through guidance.  In promulgating the 2012 PM2.5 NAAQS, EPA retained the upper end of the "hazardous" Air Quality Index (AQI) category at 500 ug/m[3] based upon a 24-hour average, but did not establish a significant harm level (SHL) for PM2.5.  In the absence of a SHL, EPA continues to believe that the central components of a contingency plan would be to reduce emissions from the PM2.5 source(s) at issue and public communication as needed.  In addition, if an air agency believes, based on its inventory of PM2.5 sources and historic ambient monitoring data, that it does not need a more specific contingency plan beyond having authority to restrain any source from causing or contributing to an imminent and substantial endangerment, then the air agency could provide such a rationale as part of its infrastructure SIP submission.

	In the September 25, 2009 guidance for the 2006 PM2.5 NAAQS, EPA suggested that states that had monitored and recorded 24-hour PM2.5 levels greater than 140.4 ug/m[3], using the most recent three years of data, should develop emergency episode plans for the areas with the monitored values.  EPA also suggested that, if these levels had not been exceeded, states could certify that they had adequate general emergency authority to address PM2.5 episodes.  

      In this rulemaking action, in reviewing specifically West Virginia's infrastructure SIP for the 2012 PM2.5 NAAQS for element (G) of section 110(a)(2) of the CAA, EPA reviewed ambient PM2.5 monitor data for West Virginia for years 2006-2015.  West Virginia's monitoring data shows that no monitor in the state has monitored and recorded a 24-hour PM2.5 level greater than 140.4 ug/m3 since 2006.  West Virginia has not monitored any values above the 140.4 ug/m3 level for PM2.5 for at least the past nine years.  Because this level was not exceeded in any area of the state and because West Virginia has demonstrated that it has appropriate general emergency powers to address emergency episodes, EPA finds no specific emergency episode plans are necessary at this time for PM2.5. 

	Based upon EPA's review of the above referenced infrastructure SIP submittal, and air quality data (put into record), EPA finds West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS meets the requirements of section 110(a)(2)(G) of the CAA. 

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

      Section 110(a)(2)(H) of the CAA requires that SIPs provide for the revision of the plan from time to time as may be necessary to take account of revisions of the NAAQS or the availability of improved or more expeditious methods of attaining the standards and to revise the plan whenever EPA finds that the SIP is substantially inadequate to attain the NAAQS or to otherwise comply with any additional requirements under the CAA. 

	EPA finds that West Virginia has demonstrated that it has adequate authority to satisfy section 110(a)(2)(H) of the CAA.  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 79 FR 56513 (September 22, 2014).  

	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 2012 PM2.5 NAAQS meets the requirements of section 110(a)(2)(H) of the CAA. 

13.  Section 110(a)(2)(I) 

      West Virginia's November 17, 2015 SIP submittal for the 2012 PM2.5 NAAQS did not include or address section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, title I of the CAA.  EPA does not expect infrastructure SIP submissions to address this element because nonattainment area plans required under part D are required on a different schedule from section 110(a)(2) of the CAA infrastructure elements and, thus, will be reviewed and acted upon through a separate process as required. 

9.  Section 110(a)(2)(J) 
	
      Section 110(a)(2)(J) of the CAA states that each plan shall meet the applicable requirements of section 121 (relating to consultation), section 127 (relating to public notification) and part C (relating to PSD and visibility control).  

		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 2012 PM2.5 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 for the 1997 ozone NAAQS and through Federal Land Manager consultation for its West Virginia regional haze SIP.  EPA finds West Virginia has a process for consultation with local governments, designated organizations of elected local government officials, and federal land managers that have authority over federal land to which a 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 section 127 of the CAA.  Each year, WVDEP issues a comprehensive air quality annual report, which compares monitored air quality data with the NAAQS and tracks the AQI.  The Air Quality Annual Report contains emissions information and air quality highlights from the previous year, public awareness of criteria pollutants and their effects on health, and educational website links to tips that improve air quality.

      In West Virginia, permits for construction, modification, relocation, and operation of stationary sources are covered under 45CSR14.  West Virginia's 45CSR14 incorporates implementation of the 2012 PM2.5 NAAQS requirements including grandfathering provisions, significant impact levels, and significant monitoring concentration levels for PM2.5.  Revisions to 45CSR14 were federally approved on August 11, 2016 (81 FR 53008) and will be effectively incorporated into the West Virginia SIP on September 12, 2016.   
      
      With respect to element (J), EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants (or precursors).  West Virginia has shown that it currently has a PSD program in place that contains all of the emission limitations, control measures, and other program elements required by the CAA in part C of title I and by 40 CFR 51.165 and 51.166 for all required pollutants (and "regulated NSR pollutants"), including PM2.5 and GHGs. 

      On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions.  Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427.  The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit.  The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of BACT.  In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, EPA is not continuing to apply EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible.  Specifically, EPA is not applying the requirement that a state's SIP approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g. 40 CFR 51.166(b)(48)(v)).  EPA anticipates a need to revise federal PSD rules in light of the Supreme Court opinion.  In addition, EPA anticipates that many states will revise their existing SIP approved PSD programs in light of the Supreme Court's decision.  The timing and content of subsequent EPA actions with respect to the EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the United States Court of Appeals for the District of Columbia Circuit.  At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.
      
      At present, EPA has determined the West Virginia's SIP is sufficient to satisfy element (J) with respect to GHGs, because the PSD permitting program approved by EPA (August 11, 2016, 81 FR 53008) into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT.  Although the approved West Virginia PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate to satisfy element (J).  The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time.  Accordingly, the Supreme Court decision does not affect EPA's proposed approval of West Virginia's infrastructure SIP as to the requirements of element (J).
      
      With regard to the visibility protection aspect of section 110(a)(2)(J) of the CAA, 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) of the CAA when a new NAAQS becomes effective.  In EPA's 2013 Infrastructure Guidance, the Agency explained that state air agencies do not need to address the visibility subelement of element (J) in an infrastructure SIP submission.  West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS appropriately did not address requirements under section 110(a)(2)(J) of the CAA relating to visibility in accordance with EPA's 2013 Infrastructure Guidance.  

      EPA finds West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS meets the requirements of section 110(a)(2)(J) of the CAA relating to consultation, public notification, and part C of title I of the CAA.   
      
10.  Section 110(a)(2)(K)

      Section 110(a)(2)(K) of the CAA requires that each SIP provide for:  (i) The performance of such air quality modeling as EPA may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which EPA has established a NAAQS; and (ii) the submission, upon request, of data related to such air quality modeling to EPA.

	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 22-5-4(a)(1) and (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 is designated as unclassifiable/attainment for the 2012 PM2.5 NAAQS for each area in the state.  West Virginia's infrastructure SIP submittal demonstrates that WVDEP has the authority and capability to perform modeling, as required under the CAA to demonstrate attainment.  

	EPA also finds that inherent in the authority of WVDEP's Secretary is the capability to conduct  NSR modeling required under the CAA and included in West Virginia's PSD and NSR permit programs (45CSR14 and 45CSR19) included in West Virginia's SIP.  West Virginia's SIP includes PSD source impact and modeling requirements (45CSR14-9 and 14-10, 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.  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 that 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 November 17, 2015 submittal, EPA finds West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS meets the requirements of section 110(a)(2)(K).  

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

      Section 110(a)(2)(L) of the CAA requires SIPs to require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit by the CAA, a fee sufficient to cover:  (i) The reasonable costs of reviewing and acting upon any application for such a permit; and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit, until such fee requirement is superseded with respect to such sources by EPA's approval of a fee program under title V of the CAA.

	West Virginia's November 17, 2015 infrastructure SIP submittal for the 2012 PM2.5 NAAQS provides that West Virginia's approved title V operating permits program under 45CSR30 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.  See 81 FR 7463 (February 12, 2016). 

	Based upon EPA's review of the submittal, EPA finds West Virginia's infrastructure SIP submittal for the 2012 PM2.5 NAAQS meets the requirements of section 110(a)(2)(L) of the CAA. 

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

      Section 110(a)(2)(M) of the CAA requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.
      
	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, 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 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 2012 PM2.5 NAAQS meets the requirements of section 110(a)(2)(M) of the CAA. 

F.  CONCLUSIONS AND RECOMMENDED AGENCY ACTION

	EPA has analyzed West Virginia's November 17, 2015 infrastructure submittal for the 2012 PM2.5 NAAQS and the Agency finds West Virginia's submittal meets the requirements of sections 110(a)(2)(A), (B), (C), (D)(i)(II) (PSD), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, of the CAA.  It is recommended that EPA propose approval of West Virginia's November 17, 2015 infrastructure submittal for the elements identified herein for the 2012 PM2.5 NAAQS.  
