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West Virginia Administrative Code
Agency 45 - Air QualityTitle 45 - LEGISLATIVE RULE DEPARTMENT OF ENVIRONMENTAL PROTECTION AIR QUALITY
Series 45-13 - Permits for Construction, Modification, Relocation and Operation of Stationary Sources of Air Pollutants, Notification Requirements, Admin. Updates, Temporary Permits, General Permits, Permission to Commence Contruction and Procedures for Evaluation
Section 45-13-16 - Application for Permission to Commence Construction in Advance of Permit Issuance

W. Va. Code R. § 45-13-16

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Current through Register Vol. XLI, No. 50, December 13, 2024
Section 45-13-16 - Application for Permission to Commence Construction in Advance of Permit Issuance
16.1. With respect to the modifications of non-major stationary sources, or modifications which are not major modifications to existing major stationary sources, any person who holds an active West Virginia air quality permit issued under this rule at an existing source, and who has applied for permission to alter, expand or modify that source or to allow a new emissions unit at that source, may begin the construction of any such alteration, expansion, modification or new emission unit in advance of permit issuance in accordance with this section. The person may not operate any altered, expanded, modified or new emission unit without first obtaining an air quality permit as required by this rule.
16.2. Eligibility requirements. The following sources are ineligible for permission to commence construction in advance of permit issuance:
16.2.a. Sources subject to the "Federal Clean Air Act" subsections 112(g) or 112(j).
16.2.b. Sources seeking federally enforceable permit conditions in order to avoid otherwise applicable standards.
16.2.c. Sources requiring a specific case-by-case emission limitation or standard under 45CSR21 or 45CSR27.
16.3. Application requirements. To qualify for the authorization to construct in advance of permit issuance as provided in this section, the permittee shall submit to the Secretary an application for permission to commence construction in advance of permit issuance. An application for permission to commence construction shall include all of the following:
16.3.a. The name and location of the source and the name and address of the permittee;
16.3.b. The permit number of each active permit issued under this rule for such source;
16.3.c. The nature of the sources and equipment associated with such alteration, expansion, modification or new emission unit;
16.3.d. An estimate of the maximum hourly and annual emissions of regulated air pollutants increased as a result of such alteration, expansion, modification or new emission unit;
16.3.e. The air pollution control devices or methods that are to be employed in connection with the alteration, expansion, modification or new emission unit;
16.3.f. A listing of the applicable State and federal air quality regulatory requirements for alteration, expansion, modification or new emission unit and sufficient information which, in the judgment of the Secretary, will demonstrate compliance with any applicable State and federal air quality regulatory requirements;
16.3.g. The anticipated construction or building schedule for alteration, expansion, modification or new emission unit;
16.3.h. A certification signed by the responsible official that the source, equipment, and devices that are subject to a request for construction authorization will not be operated until the permittee has obtained a permit under rules promulgated by the Secretary;
16.3.i. A certification by the responsible official that any construction undertaken prior to the issuance of a final permit under rules of the Secretary is undertaken at the permittee's own risk and with the knowledge that the permittee may be denied a permit or permit modification without regard to the permittee's financial investment or addition to or modification of the source; and
16.3.j. A certification signed by the responsible official that all of the information contained in the application is complete and accurate to the best of the responsible official's knowledge and belief.
16.4. Public Notice. Upon submission of the application for permission to construct, the applicant shall give notice by publishing a Class I legal advertisement of the applicant's intent to alter or expand the physical arrangement or operation of an existing stationary source and the opportunity to provide written comment to the Secretary within thirty (30) calendar days of the publication.
16.4.a. The applicant shall post a visible and accessible sign, at a minimum two (2) feet square, at the entrance to the source or proposed site. The sign must be clearly marked indicating that the applicant is seeking permission to construct in advance of permit issuance and include the West Virginia Division of Air Quality permitting section telephone number and website for additional information. The applicant must post the sign for the duration of the public notice period.
16.4.b. Public notice shall be in a newspaper having general circulation in the county or counties where the facility is located. The advertisement shall contain at a minimum, the name of the applicant, the type and location of the source, the type and amount of air pollutants that will be discharged, the fact that the applicant has applied for permission to construct in advance of permit issuance, the proposed start-up date for the source and a contact telephone number for more information.
16.4.c. Within fifteen (15) days of completion of the public comment period, the Secretary shall consider and respond to all written comments. If the Secretary finds that concerns raised by the public comment period give rise to issues or concerns that would cause a construction or operational permit not to be issued, the Secretary may issue a revocation or stay of the authorization to construct until those issues or concerns are resolved.
16.5. Completeness determination. The Secretary shall determine whether an application for permission to commence construction in advance of permit issuance is complete within fifteen (15) calendar days after receipt of the application at which time the Secretary shall notify the applicant in writing as to whether the application is complete or specify any additional information required for the application to be complete.
16.6. Determination regarding permission to commence construction. Within fifteen (15) calendar days after the Secretary has made a determination that an application for permission to commence construction in advance of permit issuance is complete, unless the Secretary for good cause shown extends the fifteen (15) day time period for up to an additional fifteen (15) calendar days, the Secretary shall notify the applicant in writing of his or her determination as to whether each of the following conditions has or has not been satisfied:
16.6.a. The applicant is and has been for a period of at least three years in substantial compliance with all other active permits and applicable State and federal air quality regulatory requirements under all applicable air quality rules;
16.6.b. The applicant has demonstrated that the alteration, expansion, modification or new emission unit will be in compliance with all applicable State and federal air quality regulatory requirements;
16.6.c. The alteration, expansion, modification or new emission unit will not interfere with attainment or maintenance of an applicable ambient air quality standard, cause or contribute to a violation of an applicable air quality increment or be inconsistent with the intent and purpose of W. Va. Code § 22-5-1, et. seq.;
16.6.d. The facility will be altered or expanded so that it will be used for either the same or a similar use as the use already permitted;
16.6.e. The alteration or expansion will not result in a disproportionate increase in size of the facility already permitted; and
16.6.f. The alteration or expansion will result in the same or substantially similar emissions as the facility already permitted.
16.7. If the Secretary finds that all of the conditions of subsection 16.6 have been satisfied, the Secretary shall notify the applicant in writing of his or her determination that construction of the alteration, expansion, modification or new emission unit in advance of permit issuance may begin immediately. If the Secretary finds that one or more of the conditions has not been met, the notice of determination shall state that the requested construction, alteration, expansion, modification or new emission unit may not begin prior to issuance of a new or modified permit under this rule.
16.8. If at any time during the construction of such alteration, expansion, modification or new emission unit, the Secretary determines that the source is not likely to qualify for a permit or permit modification under this rule, the Secretary may order that construction cease until the Secretary makes a decision on the application for a permit or permit modification.
16.9. If the Secretary orders that construction cease, than construction of the alteration, expansion, modification or new emission unit may resume only if the Secretary either makes a subsequent written determination that the circumstances that resulted in such order have been adequately addressed or issues a permit or registration under this rule that authorizes construction to resume.
16.10. The Secretary shall evaluate any application for a permit or registration under this rule and make a decision on the same basis as if the construction of the alteration, expansion, modification or new emission unit in advance of permit issuance had not been authorized pursuant to this section. No evidence regarding any contract entered into, financial investment made, construction undertaken, or economic loss incurred by any person or permittee who proceeds under this section without first obtaining a permit under this rule is admissible in any contested case or judicial proceeding involving any permit or registration required under this rule. No evidence as to any determination or order by the Secretary pursuant to this section shall be admissible in any contested case or judicial proceeding related to any permit or registration required under this rule.
16.11. Any permittee who proceeds under this section shall be precluded from bringing any action, suit or proceeding against the State, the officials, agents or employees of the State or the Secretary for any loss resulting from any contract entered into, financial investment made, construction undertaken, or economic loss incurred by the permittee in reliance upon the provisions of this section.
16.12. This section does not relieve any person of the obligation to comply with any other requirement of State law, including any requirement to obtain any other permit or approval prior to undertaking any activity associated with preparation of the site or the alteration or expansion of the physical arrangement or method of operation of a source at a facility for which a permit or registration is required under this rule.
16.13. This section does not relieve any person from any preconstruction or construction prohibition imposed by any federal requirement, federal delegation, federally approved requirement in any State Implementation Plan, or federally approved requirement under the Title V permitting program, as determined solely by the Secretary. This section does not apply to any construction, alteration, or expansion that is subject to requirements for prevention of significant deterioration or federal nonattainment new source review, as determined solely by the Secretary. This section does not apply if it is inconsistent with any federal requirement, federal delegation, federally approved requirement in any State Implementation Plan, or federally approved requirement under the Title V permitting program, as determined solely by the Secretary.
16.14. Application fee. A permittee who submits an application to commence construction in advance of permit issuance under this section shall pay a fee of $200 for each application submitted to cover a portion of the administrative costs of implementing this section.

W. Va. Code R. § 45-13-16