W. Va. Code R. § 45-30-2

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 45-30-2 - Definitions

2.1. "Actual emissions" means, for the purpose of sections 7 and 8, the actual total mass of regulated air pollutants emitted to the atmosphere during a particular calendar year and includes all routine as well as non-routine (e.g. abnormal or emergency operations) emissions.

2.2. "Affected source" means a source that includes one or more affected units under 45CSR33 and Title IV of the Clean Air Act (Acid Deposition Control).

2.3. "Affected states" are all states:

2.3.a. Whose air quality may be affected and that are contiguous to the state in which a Title V operating permit, permit modification or permit renewal is being proposed; or

2.3.b. That are within fifty (50) miles of the permitted source.

2.4. "Affected unit" means a fossil fuel-fired combustion device that is subject to emission reduction requirements or limitations under 45CSR33 and Title IV of the Clean Air Act.

2.5. "Air pollutant" has the meaning ascribed to it in §302 of the Clean Air Act.

2.6. "Alternative operating scenario" or "AOS" means a scenario authorized in a permit pursuant to section 3 that involves a change at the source for a particular emissions unit, and that either results in the unit being subject to one or more applicable requirements which differ from those applicable to the emissions unit prior to implementation of the change or renders inapplicable one or more requirements previously applicable to the emissions unit prior to implementation of the change.

2.7. "Applicable requirements" means all of the following as they apply to emissions units in a Title V source.

2.7.a. Any standard or other requirement provided for in the State Implementation Plan approved by U.S. EPA or promulgated by U. S. EPA through rulemaking under Title I of the Clean Air Act that implements the relevant requirements of the Act, including any revisions to that State Implementation Plan;

2.7.b. Any term or condition of any preconstruction permits issued pursuant to regulations approved or promulgated through rulemaking under Title I, including parts C or D, of the Clean Air Act, including any permits issued under 45CSR13, 45CSR14, and 45CSR19;

2.7.c. Any standard or other requirement under §111, including §111(d), of the Clean Air Act;

2.7.d. Any standard or other requirements under §112 of the Clean Air Act, including any requirement concerning accident prevention under §112(r)(7) of the Clean Air Act, but not including the contents of any risk management plan required under §112(r) of the Clean Air Act;

2.7.e. Any standard or other requirement of the acid deposition control program under Title IV of the Clean Air Act or the regulations promulgated thereunder;

2.7.f. Any requirements established pursuant to §504(b) or §114(a)(3) of the Clean Air Act;

2.7.g. Any standard or other requirement under §§126(a)(1) and (c) of the Clean Air Act;

2.7.h. Any standard or other requirement governing solid waste incineration under §129 of the Clean Air Act;

2.7.i. Any standard or other requirement for consumer and commercial products under §183(e) of the Clean Air Act;

2.7.j. Any standard or other requirement for tank vessels under §183(f) of the Clean Air Act;

2.7.k. Any standard or other requirement of the regulations promulgated to protect stratospheric ozone under Title VI of the Clean Air Act, unless the Secretary determines that such requirements need not be contained in a Title V permit pursuant to an exemption by U.S. EPA;

2.7.l. Any national ambient air quality standard or increment or visibility requirement under part C of Title I of the Clean Air Act, but only as it would apply to temporary sources permitted pursuant to §504(e) of the Clean Air Act;

2.7.m. Any emissions cap and related requirements established for the source by agreement with the Secretary and U.S. EPA or otherwise applicable under the rules of the West Virginia Department of Environmental Protection; and

2.7.n. Any requirement imposed pursuant to the provisions of 45CSR4 and 45CSR27 and any other state-only requirement for state enforceable purposes only.

2.8. "Approved replicable methodology" or "ARM" means terms in a permit pursuant to section 3 that:

2.8.a. Specify a protocol which is consistent with and implements an applicable requirement, or requirement of this rule, such that the protocol is based on sound scientific and/or mathematical principles and provides reproducible results using the same inputs; and

2.8.b. Require the results of that protocol to be recorded and used for assuring compliance with such applicable requirement, any other applicable requirement implicated by implementation of the ARM, or requirement of this rule, including where an ARM is used for determining applicability of a specific requirement to a particular change.

2.9 "Area source" means any non-major source subject to a standard or other requirement under §112 of the Clean Air Act.

2.10. "Clean Air Act" ("CAA") means the federal Clean Air Act, as amended, 42 U.S.C. § 7401, et seq..

2.11. "Construction" means any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emission unit) which would result in a change in actual emissions.

2.12. "Department of Environmental Protection" or "DEP" means the Department of Environmental Protection as created by the provisions of W.Va. Code § 22-1-1 et seq.

2.13. "Designated representative" shall have the meaning given to it in §402(26) of the Clean Air Act and the regulations promulgated thereunder.

2.14. "Draft permit" means the version of a permit for which the Secretary offers public participation under subsection 6.8 or affected state review under subsection 7.2.

2.15. "Effective date of the operating permit program" means the date that U.S. EPA formally provides interim, partial, or full approval of the operating permit programs established under this rule.

2.16. "Emissions allowable under the permit" means a federally enforceable permit term or condition determined at issuance to be required by an applicable requirement that establishes an emissions limit (including a work practice standard) or an enforceable emissions cap that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject.

2.17. "Emission point" means a stack, vent, process unit, or a definable area (such as an open materials storage yard) from which the emission of any air pollutant occurs.

2.18. "Emissions unit" means any part or activity of a stationary source that emits or has the potential to emit any regulated air pollutant or any pollutant listed under §112(b) of the Clean Air Act. This term is not meant to alter or affect the definition of the term "affected unit" for purposes of Title IV of the Clean Air Act (Acid Deposition Control).

2.19. "Enforceable" means enforceable by the Secretary and U.S. EPA, unless specifically designated to mean otherwise.

2.20. "EPA" or "U.S. EPA" means the United States Environmental Protection Agency.

2.21. "Final permit" means the Title V operating permit issued pursuant to this rule that has completed all review procedures required under sections 6 and 7.

2.22. "Fugitive emissions" are those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally-equivalent opening.

2.23. "General permit" means a Title V operating permit that meets the requirements of subsection 5.4.

2.24. "Hazardous air pollutant" or "HAP" means any substance listed pursuant to section 112(b) of the Clean Air Act.

2.25. "Case-by-case maximum achievable control technology" or "MACT" means an emissions limitation requiring the application of the maximum degree of reduction and control which the Secretary determines is achievable for each source or category of source which requires a case-by-case MACT determination pursuant to the provisions of subsections 12.1 and 12.3.

2.25.a. In the case of sources constructed or modified after the effective date of this rule, MACT shall not be less stringent than the most stringent emissions level that is achieved in practice by similar sources or processes.

2.25.b. For existing sources, MACT may be less stringent than MACT requirements for new or modified sources in the same category, but shall not be less stringent than the following:

2.25.b.1. For categories or subcategories with thirty (30) or more sources, the average emission limitation achieved by the best performing twelve (12) percent of the existing sources in the United States (for which the Secretary has or can reasonably obtain emission information). In making this determination the Secretary shall exclude sources that have achieved a level of emission rate or emission reduction equivalent to the lowest achievable emission rate (as defined in §171 of the Clean Air Act) applicable to the source category and prevailing at the time; or

2.25.b.2. The average emission limitation achieved by the best performing five (5) sources in the United States (for which the Secretary has or could reasonably obtain emissions information) within a category or subcategory with fewer than thirty (30) sources in the United States.

2.25.c. For all facilities, MACT shall represent the maximum degree of emission reduction that the Secretary determines is achievable taking into consideration the cost of achieving such emission reduction, and public health and environmental impacts.

2.25.d. MACT measures shall include but not be limited to measures which:

2.25.d.1. Reduce or eliminate the emission rate of hazardous air pollutants through process changes or substitution of materials;

2.25.d.2. Enclose or seal equipment or systems to eliminate hazardous air pollutant emissions;

2.25.d.3. Collect, capture, destroy and/or otherwise treat hazardous air pollutants released from a process, stack storage, or fugitive emissions point;

2.25.d.4. Are work practice or operational methods; or

2.25.d.5. Are a combination of the above.

2.26. "Major source" means any stationary source (or any group of stationary sources that are located on one or more contiguous or adjacent properties, and are under common control of the same person (or persons under common control)) belonging to a single major industrial grouping and that is described in subdivisions 2.26.a, 2.26.b, or 2.26.c. For the purpose of defining "major source," a stationary source or group of stationary sources shall be considered part of a single industrial grouping if all of the pollutant emitting activities at such source or group of sources on contiguous or adjacent properties belong to same Major Group (i.e., all have the same two-digit code) as described in the Standard Industrial Classification Manual, 1987, except that a research and development facility may be treated as a separate source from other stationary sources that are part of the same industrial grouping, are located on contiguous or adjacent property, and are under common control.

2.26.a. A major source under §112 of the Clean Air Act, which is defined as:

2.26.a.1. For pollutants other than radionuclides, any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit, in the aggregate, ten (10) tons per year (tpy) or more of any hazardous air pollutant which has been listed pursuant to §112(b) of the Clean Air Act, or twenty-five (25) tpy or more of any combination of such hazardous air pollutants. Emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources; or

2.26.a.2. Radionuclides. -- In the event the Secretary obtains regulatory authority to implement federal requirements regarding radionuclides, the Secretary shall define "major source" consistent with the federal requirements.

2.26.b. A major stationary source of air pollutants, as defined in §302 of the Clean Air Act, that directly emits or has the potential to emit, one hundred (100) tpy or more of any air pollutant subject to regulation (including any major source of fugitive emissions of any such pollutant, as determined by rule of the Secretary). The fugitive emissions of a stationary source shall not be considered in determining whether it is a major stationary source for the purposes of §302(j) of the Clean Air Act, unless the source belongs to one of the following categories of stationary sources:

2.26.b.1. Coal cleaning plants (with thermal dryers);

2.26.b.2. Kraft pulp mills;

2.26.b.3. Portland cement plants;

2.26.b.4. Primary zinc smelters;

2.26.b.5. Iron and steel mills;

2.26.b.6. Primary aluminum ore reduction plants;

2.26.b.7. Primary copper smelters;

2.26.b.8. Municipal incinerators (or combination thereof) capable of charging more than fifty (50) tons of refuse per day;

2.26.b.9. Hydrofluoric, sulfuric, or nitric acid plants;

2.26.b.10. Petroleum refineries;

2.26.b.11. Lime plants;

2.26.b.12. Phosphate rock processing plants;

2.26.b.13. Coke oven batteries;

2.26.b.14. Sulfur recovery plants;

2.26.b.15. Carbon black plants (furnace process);

2.26.b.16. Primary lead smelters;

2.26.b.17. Fuel conversion plants;

2.26.b.18. Sintering plants;

2.26.b.19. Secondary metal production plants;

2.26.b.20. Chemical process plants - the term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140;

2.26.b.21. Fossil-fuel boilers (or combination thereof) totaling more than 150 million British thermal units per hour heat input;

2.26.b.22. Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

2.26.b.23. Taconite ore processing plants;

2.26.b.24. Glass fiber processing plants;

2.26.b.25. Charcoal production plants;

2.26.b.26. Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input;

2.26.b.27. Ammonium sulfate manufacturing plants;

2.26.b.28. Asphalt concrete plants;

2.26.b.29. Asphalt processing/roofing manufacturing plants;

2.26.b.30. Bulk gasoline terminals;

2.26.b.31. Dry cleaning plants;

2.26.b.32. Glass manufacturing plants;

2.26.b.33. Grain elevators;

2.26.b.34. Graphic arts (rotogravure) plants;

2.26.b.35. Hazardous waste incineration facilities;

2.26.b.36. Lead-acid battery manufacturing plants;

2.26.b.37. Mineral processing plants;

2.26.b.38. Natural gas processing facilities;

2.26.b.39. Phosphate fertilizer production and storage facilities;

2.26.b.40. Rubber tire manufacturing plants;

2.26.b.41. Sewage treatment plants;

2.26.b.42. Synthetic fiber production plants;

2.26.b.43. Surface coating and printing operations; and

2.26.b.44. Any other stationary source category, which as of August 7, 1980 is being regulated under §§111 or 112 of the Clean Air Act.

2.26.c. A major stationary source as defined in Part D of Title I of the Clean Air Act, including:

2.26.c.1. For ozone nonattainment areas, sources with the potential to emit one hundred (100) tons or more per year of volatile organic compounds (VOCs) or oxides of nitrogen (NOX) in areas classified as "marginal" or "moderate," fifty (50) tons or more per year in areas classified as "serious," twenty-five (25) tons or more per year in areas classified as "severe," and ten (10) tons or more per year in areas classified as "extreme"; except that the references in this clause to one hundred (100), fifty (50), twenty-five (25), and ten (10) tons per year of nitrogen oxides shall not apply with respect to any source for which U.S. EPA has made a finding, under §182(f)(1) or (2) of the Clean Air Act, that requirements under §182(f) of the Clean Air Act do not apply;

2.26.c.2. For ozone transport regions established pursuant to §184 of the Clean Air Act, sources with the potential to emit fifty (50) tons or more per year of volatile organic compounds (VOCs);

2.26.c.3. For carbon monoxide ("CO") nonattainment areas that are classified as "serious," and in which stationary sources contribute significantly to carbon monoxide levels, sources with the potential to emit fifty (50) tons or more per year of carbon monoxide; and

2.26.c.4. For particulate matter (PM10) nonattainment areas classified as "serious," sources with the potential to emit seventy (70) tons or more per year of PM10.

2.27. "Permit" means any permit or group of permits covering a source or sources of emissions that are issued, renewed, amended, or revised pursuant to this rule.

2.28. "Permit modification" means a revision to a Title V operating permit issued under this rule that meets the requirements of subsection 6.5.

2.29. "Permit revision" means any permit modification or administrative permit amendment.

2.30. "Person" means any and all persons, natural or artificial, including the State of West Virginia or any other State, the United States of America, any municipal, statutory, public, or private corporation organized or existing under the laws of this or any other state or country, and any firm, partnership, or association of whatever nature.

2.31. "Potential to emit" means the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design. Any physical or operational limitation on the capacity of a source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is enforceable. This term does not alter or affect the use of this term for any other purposes under the Clean Air Act, or the term "capacity factor" as used in Title IV of the Clean Air Act (Acid Deposition Control) or the regulations promulgated thereunder.

2.32. "Proposed permit" means the version of a permit that the Secretary proposes to issue and forwards to U.S. EPA for review in compliance with section 7.

2.33. "Regulated air pollutant" means the following:

2.33.a. Nitrogen oxides (NOX) or any volatile organic compound;

2.33.b. Any pollutant for which a national ambient air quality standard has been promulgated;

2.33.c. Any pollutant that is subject to any standard promulgated under §111 of the Clean Air Act;

2.33.d. Any Class I or II substance subject to a standard promulgated under or established by Title VI of the Clean Air Act (§602);

2.33.e. Any pollutant subject to a standard or other requirement under §112 of the Clean Air Act, including §§112(g), (j), and (r), including the following:

2.33.e.1. Any pollutant subject to requirements under §112(j) of the Clean Air Act. If the U.S. EPA fails to promulgate a standard by the date established pursuant to §112(e) of the Clean Air Act, any pollutant for which a subject source would be major shall be considered to be regulated on the date 18 months after the applicable date established pursuant to §112(e) of the Clean Air Act.

2.33.e.2. Any pollutant for which the requirements of §112(g)(2) of the Clean Air Act have been met, but only with respect to the individual source subject to that §112(g)(2) requirement.

2.33.f. Any other pollutant regulated by the West Virginia Department of Environmental Protection under an emission standard or ambient air quality standard.

2.34. "Regulated pollutant (for fee calculation)," which is used only for purposes of section 8, excludes greenhouse gases as defined in 40 CFR § 86.1818-12(a) and means any "regulated air pollutant" except the following:

2.34.a. Carbon monoxide provided that emissions of carbon monoxide do not fall under the provisions of paragraph 2.26.c.3;

2.34.b. Any Class I or II substance which is a regulated air pollutant solely because it is listed pursuant to §602 of the Clean Air Act;

2.34.c. Any pollutant that is a regulated air pollutant only because it is subject to a standard or regulation under §112(r) of the Clean Air Act; or

2.34.d. Any pollutant that is a regulated air pollutant solely because it is listed in 45CSR27.

2.35. "Relocation" means the physical movement of a source outside its existing plant boundaries.

2.36. "Renewal" means the process by which a permit is reissued at the end of its term.

2.37. "Research and development facility" means sources whose activities are conducted for nonprofit scientific or educational purposes; sources whose activities are conducted to test more efficient production processes or methods for preventing or reducing adverse environmental impacts, provided that the activities do not include the production of an intermediate or final product for sale or exchange for commercial profit; a research or laboratory facility the primary purpose of which is to conduct research and development into new processes and products, that is operated under the close supervision of technically trained personnel, and that is not engaged in the manufacture of products for sale or exchange for commercial profit; or the experimental firing of any fuel or combination of fuels in a boiler, heater, furnace, or dryer for the purpose of conducting research and development of more efficient combustion or more effective prevention or control of air pollutant emissions, provided that the heat generated is not used for production purposes or for producing a product for sale or exchange for commercial profit.

2.38. "Responsible official" means one of the following:

2.38.a. For a corporation: a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either:

2.38.a.1. The facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars), or

2.38.a.2. The delegation of authority to such representative is approved in advance by the Secretary;

2.38.b. For a partnership or sole proprietorship: a general partner or the proprietor, respectively;

2.38.c. For a municipality, State, Federal, or other public agency: either a principal executive officer or ranking elected official. For the purposes of this rule, a principal executive officer of a Federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a Regional Administrator of U.S. EPA); or

2.38.d. For affected sources:

2.38.d.1. The designated representative in so far as actions, standards, requirements, or prohibitions under Title IV of the Clean Air Act (Acid Deposition Control) or the regulations promulgated thereunder are concerned; and

2.38.d.2. The designated representative for any other purposes under this rule.

2.39. "Secretary" means the Secretary of the Department of Environmental Protection or other person to whom the Secretary has delegated authority or duties pursuant to W.Va. Code §§ 22-1-6 or 22-1-8.

2.40. "Section 502(b)(10)" changes or "§502(b)(10)" changes are changes that contravene an express permit term. Such changes do not include changes that would violate applicable requirements or contravene enforceable permit terms and conditions that are monitoring (including test methods), recordkeeping, reporting, or compliance certification requirements.

2.41. "Source" or " stationary source" means, for the purpose of this rule, any building, structure, facility, or installation that emits or may emit any regulated air pollutant or any pollutant listed under §112(b) of the Clean Air Act.

2.42. "Source-specific permit" means a single Title V operating permit addressing all of the relevant emission units and operations which are subject to applicable requirements at a particular source or major source.

2.43. "Subject to regulation" means, for any air pollutant, that the pollutant is subject to either a provision in the Clean Air Act, or a nationally applicable regulation codified by the Administrator, that requires actual control of the quantity of emissions of that pollutant, and that such a control requirement has taken effect and is operative to control, limit or restrict the quantity of emissions of that pollutant released from the regulated activity. Except that:

2.43.a. Greenhouse gases, the air pollutant defined in 40 CFR § 86.1818-12(a) as the aggregate group of six greenhouse gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, shall not be subject to regulation unless, as of July 1, 2011, the greenhouse gas emissions are at a stationary source emitting or having the potential to emit 100,000 tpy CO2 equivalent emissions; and

2.43.b. The term tpy CO2 equivalent emissions (CO2e) shall represent an amount of GHGs emitted, and shall be computed by multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant greenhouse gases, by the gas's associated global warming potential published at Table A-1 to Subpart A of 40 CFR Part 98 - Global Warming Potentials, and summing the resultant value for each to compute a tpy CO2e. For purposes of this subdivision, prior to July 21, 2014, the mass of the greenhouse gas carbon dioxide shall not include carbon dioxide emissions resulting from the combustion or decomposition of non-fossilized and biodegradable organic material originating from plants, animals, or micro-organisms (including products, by-products, residues and waste from agriculture, forestry and related industries as well as the non-fossilized and biodegradable organic fractions of industrial and municipal wastes, including gases and liquids recovered from the decomposition of non-fossilized and biodegradable organic material).

2.44. "Title V operating permit" means a permit issued under the provisions of this rule.

2.45. "Title V source" means a source required to obtain a Title V operating permit.

2.46. "Volatile organic compound" (VOC) means the term as defined in 40 CFR § 51.100(s).

2.47. Other words and phrases used in this rule, unless otherwise indicated, shall have the meaning ascribed to them in W.Va. Code § 22-5-1 et seq. and 40 CFR § 70.2.

W. Va. Code R. § 45-30-2