W. Va. Code R. § 45-30-6

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

Section 45-30-6 - Permit Issuance, Renewal, Reopening and Revisions

6.1. Action on application.

6.1.a. A permit, permit modification, or renewal may be issued only if all of the following conditions have been met:

6.1.a.1. The Secretary has received a complete application for a permit, permit modification, or permit renewal, except that a complete application need not be received before issuance of a general permit under subsection 5.4;

6.1.a.2. Except for modifications qualifying for minor permit modification procedures under subdivision 6.5.a, the Secretary has complied with the public participation procedures for permit issuance specified under subsection 6.8;

6.1.a.3. The Secretary has complied with the requirements for notifying and responding to affected States as required by subsection 7.2;

6.1.a.4. The conditions of the permit provide for compliance with all applicable requirements and the requirements of this rule; and

6.1.a.5. The Secretary has provided a copy of the permit and any notices required under subsections 7.1 and 7.2 to U.S. EPA, and U.S. EPA has not objected to issuance of the permit under subsection 7.3 within the time period specified therein.

6.1.b. Except as may be required by 45CSR33, the Secretary shall take final action on each permit application within twelve (12) months after the application is deemed complete.

6.1.c. Priority shall be given to taking action on applications for construction or modification under 45CSR13, 45CSR14 or 45CSR19.

6.1.d. The Secretary shall promptly provide notice of the completeness to the applicant. Unless the Secretary requests additional information or otherwise notifies the applicant of incompleteness within sixty (60) days of receipt of an application, the application shall be deemed complete. No completeness determination need be made for minor permit modification applications pursuant to subdivision 6.5.a.

6.1.e. Following receipt and review of an application, the Secretary shall issue a draft permit, significant permit modification or renewal for public comment. In accordance with subsection 6.9, the Secretary shall develop a statement that sets forth the legal and factual basis for the draft permit conditions (including references to the applicable statutory or regulatory provisions). The Secretary shall send this statement to the U.S. EPA and to any person who requests it.

6.1.f. The submittal of a complete application shall not affect the requirement that any source have all preconstruction permits required under the rules of the West Virginia Department of Environmental Protection except that a source may, with approval of the Secretary, elect to file a single permit application to obtain any required preconstruction permits and a Title V operating permit or permit revision, if the procedures required by the applicable preconstruction rule and all requirements of the preconstruction permitting rules are complied with in the issuance of a Title V operating permit.

6.2. Requirement for a permit. -- Except as provided in paragraph 6.5.a.5, subsection 5.8, and as further provided in this subsection, no source may operate after the time that it is required to submit a timely and complete application under this rule except in compliance with an effective permit under this rule. If a source submits a timely and complete application for permit issuance (including for renewal), the source's failure to have a Title V operating permit is not a violation of this rule until the Secretary takes final action on the permit application, except as noted in this subsection. This protection shall cease to apply if, subsequent to the completeness determination made pursuant to subdivision 6.1.d and as required by subdivision 4.1.b, the applicant fails to submit by the deadline specified in writing by the Secretary any additional information identified as being needed to process the application.

6.3. Permit renewal and expiration.

6.3.a. Permits being renewed are subject to the same procedural requirements, including those for public participation, that apply to initial permit issuance.

6.3.b. Permit expiration terminates the source's right to operate unless a timely and complete renewal application has been submitted consistent with subsection 6.2 and paragraph 4.1.a.3.

6.3.c. If the Secretary fails to take final action to deny or approve a timely and complete permit application before the end of the term of the previous permit, the permit shall not expire until the renewal permit has been issued or denied, and any permit shield granted for the permit shall continue in effect during that time.

6.4. Administrative permit amendments.

6.4.a. An "administrative permit amendment" is a permit revision that:

6.4.a.1. Corrects typographical errors;

6.4.a.2. Identifies a change in the name, address, or phone number of any person identified in the permit, or provides a similar minor administrative change at the source;

6.4.a.3. Requires more frequent monitoring or reporting by the permittee;

6.4.a.4. Allows for a change in ownership or operational control of a source where the Secretary determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the Secretary;

6.4.a.5. Incorporate into the Title V operating permit all provisions required under 45CSR13,_45CSR14 and 45CSR19 provided that procedural requirements substantially equivalent to sections 6 and 7 and compliance requirements substantially equivalent to section 5 have been satisfied, as applicable if the change was subject to review as a significant permit modification; or

6.4.a.6. Is approved pursuant to 45CSR33.

6.4.b. An administrative permit amendment may be made by the Secretary consistent with the following:

6.4.b.1. The Secretary shall take no more than sixty (60) days from receipt of a request for an administrative permit amendment to take final action on such request, and may incorporate such changes without providing notice to the public or affected states provided that the Secretary designates any such permit revisions as having been made pursuant to subsection 6.4.

6.4.b.2. The Secretary shall submit a copy of the revised permit to the U.S. EPA.

6.4.b.3. The source may implement the changes addressed in the request for an administrative amendment immediately upon submittal of the request.

6.4.c. The Secretary may, upon taking final action granting a request for an administrative permit amendment, allow coverage by the permit shield in subsection 5.6 for administrative permit amendments made pursuant to paragraph 6.4.a.5, which meets the relevant requirements of sections 5, 6, and 7 for significant permit modifications.

6.5. Permit modification. -- A permit modification is any revision or modification to a Title V operating permit that cannot be accomplished under the provisions for administrative permit amendments under subsection 6.4. Permit modifications for the purposes of the acid deposition control portion of the permit shall be governed by 45CSR33.

6.5.a. Minor permit modification procedures.

6.5.a.1. Criteria.

6.5.a.1.A. Minor permit modification procedures may be used only for those permit modifications that:

6.5.a.1.A.1. Do not violate any applicable requirement;

6.5.a.1.A.2. Do not involve significant changes to existing monitoring, reporting, or recordkeeping requirements in the permit;

6.5.a.1.A.3. Do not require or change a case-by-case determination of an emission limitation or other standard, or a source-specific determination for temporary sources of ambient air quality impacts, or a visibility or increment analysis;

6.5.a.1.A.4. Do not seek to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and which permit or condition has been used to avoid an applicable requirement to which the source would otherwise be subject. Such terms and conditions include, but are not limited to, a federally enforceable emissions cap used to avoid classification as a modification under any provision of Title I or any alternative emissions limit approved pursuant to regulations promulgated under §112(i)(5) of the Clean Air Act;

6.5.a.1.A.5. Do not involve preconstruction review under Title I of the Clean Air Act or 45CSR14 and 45CSR19; and

6.5.a.1.A.6. Are not required under any rule of the Secretary to be processed as a significant modification.

6.5.a.1.B. Notwithstanding subparagraph 6.5.a.1.A, minor permit modification procedures may be used for permit modifications involving the use of economic incentives, marketable permits, emissions trading, and other similar approaches, to the extent that such minor permit modification procedures are explicitly provided for in rules of the West Virginia Department of Environmental Protection which are approved by U.S. EPA as part of the State Implementation Plan under the Clean Air Act, or which may be otherwise provided for in the Title V operating permit issued under this rule.

6.5.a.1.C. When a permit is modified, only the conditions subject to modification can be reopened, and all other conditions of the permit remain in effect.

6.5.a.2. Application. -- An application requesting the use of minor permit modification procedures shall meet the requirements of subsection 4.3 and shall include the following:

6.5.a.2.A. A description of the change, the emissions resulting from the change, and any new applicable requirements that will apply if the change occurs;

6.5.a.2.B. The source's suggested draft permit;

6.5.a.2.C. Certification by a responsible official, consistent with subsection 4.4, that the proposed modification meets the criteria for use of minor permit modification procedures and a request that such procedures be used; and

6.5.a.2.D. Completed forms for the Secretary to use to notify U.S. EPA and affected states as required under section 7.

6.5.a.3. U.S. EPA and affected states notification. --

6.5.a.3.A. Within five (5) working days of receipt of a complete permit modification application, the Secretary shall meet the obligation under subdivisions 7.1.a and 7.2.a to notify U.S. EPA and affected states of the requested permit modification. The proposed permit shall be the same as the draft permit for this purpose.

6.5.a.3.B. The Secretary shall promptly send any notice required under subdivision 7.2.b to U.S. EPA.

6.5.a.3.C. All notifications shall be made in writing.

6.5.a.4. Timetable for issuance. -- The Secretary shall not issue a final permit modification until after U.S. EPA's forty-five (45) day review period or until U.S. EPA has notified the Secretary that U.S. EPA will not object to the issuance of the permit modification, whichever is first, although the Secretary may approve the permit modification prior to that time. Within ninety (90) days of the Secretary's receipt of an application under minor permit modification procedure or fifteen (15) days after the end of U.S. EPA's forty-five (45) day review period under subsection 7.3, whichever is later, the Secretary shall:

6.5.a.4.A. Issue the permit modification as proposed;

6.5.a.4.B. Deny the permit modification application;

6.5.a.4.C. Determine that the requested modification does not meet the minor permit modification procedure criteria and should be reviewed under the significant modification procedures; or

6.5.a.4.D. Revise the draft permit modification and transmit to U.S. EPA, and, if appropriate, affected states, the new proposed permit modification in accordance with subdivisions 7.1.a and 7.2. In the event that draft permit modifications are made, the Secretary shall utilize the same procedures outlined in paragraph 6.5.a.4.

6.5.a.5. Permittee's ability to make change. -- A permittee may not make a change to a source proposed in a minor permit modification application unless it has submitted the permit application at least seven (7) days prior to making the proposed change. After the source makes the proposed change allowed by the preceding sentence, and until the Secretary takes any of the actions specified in subparagraphs 6.5.a.4.A through 6.5.a.4.C, the source must comply with both the applicable requirements governing the change and the proposed permit terms and conditions. During this time period, the source need not comply with the existing permit terms and conditions it seeks to modify. However, if the source fails to comply with its proposed permit terms and conditions during this time period, the existing permit terms and conditions it seeks to modify may be enforced against it and violation of the proposed terms and conditions is relevant in considering any sanction.

6.5.a.6. Permit shield. -- The permit shield under subsection 5.6 shall not extend to minor permit modifications.

6.5.b. Significant modification procedures.

6.5.b.1. Criteria. -- Significant modification procedures shall be used for applications requesting significant permit modifications that do not qualify as minor permit modifications or as administrative amendments including, but not limited to, the following:

6.5.b.1.A. Modifications under any provision of Title I of the Clean Air Act, except those that qualify for processing as administrative permit amendments under subsection 6.4 or any rule of the Secretary required under Title I of the Clean Air Act;

6.5.b.1.B. A significant change in existing monitoring permit terms or conditions, or constitute a relaxation of reporting or recordkeeping permit terms or conditions;

6.5.b.1.C. A change to a case-by-case determination of an emission limitation or other standard, or a source-specific determination for temporary sources of ambient impacts, or a visibility or increment analysis;

6.5.b.1.D. Establishment of or change to a permit or condition for which there is no corresponding underlying applicable requirement, and

6.5.b.1.E. Proposed changes which in the judgement of the Secretary would require decisions to be made on significant or complex issues that generate or are likely to generate significant material adverse comment from the public, affected states, or U.S. EPA with respect to the determination of applicable requirements or air quality impacts.

6.5.b.2. Significant permit modifications shall meet all requirements of sections 6 and 7, including those for applications, for public participation, review by affected states and review by U.S. EPA as they apply to permit issuance and permit renewal. The Secretary shall complete the review process for significant permit modifications within six (6) months after receipt of a complete application.

6.5.b.3. When a permit is modified, only the conditions subject to modification can be reopened, and all other conditions of the permit remain in effect.

6.6. Reopening for cause.

6.6.a. Each issued permit shall include provisions specifying the conditions under which the permit will be opened prior to the expiration of the permit. A permit shall be reopened and revised under any of the following circumstances:

6.6.a.1. Additional applicable requirements under the Clean Air Act or the Secretary's rules become applicable to a major source with a remaining permit term of three (3) or more years. Such a reopening shall be completed not later than eighteen (18) months after promulgation of the applicable requirement. No such reopening is required if the effective date of the requirement is later than the date on which the permit is due to expire, unless the original permit or any of its terms and conditions has been extended pursuant to one of the following:

6.6.a.1.A. The permit shall not expire until the renewal permit has been issued or denied and any permit shield that may be granted pursuant to subsection 5.6 may extend beyond the original permit term until renewal; or

6.6.a.1.B. All the terms and conditions of the permit including any permit shield that may be granted pursuant to subsection 5.6 shall remain in effect until the renewal permit has been issued or denied.

6.6.a.2. Additional requirements (including excess emissions requirements) become applicable to an affected source under 45CSR33 and Title IV of the Clean Air Act or other rules of the West Virginia Department of Environmental Protection. Upon approval by U.S. EPA, excess emissions offset plans shall be incorporated into the permit.

6.6.a.3. The Secretary or U.S. EPA determines that the permit contains a material mistake or that inaccurate statements were made in establishing the emissions standards or other terms or conditions of the permit.

6.6.a.4. The Secretary or U.S. EPA determines that the permit must be revised or revoked and reissued to assure compliance with the applicable requirements.

6.6.b. Proceedings to reopen and issue a permit shall follow the same procedures as apply to initial permit issuance and shall affect only those parts of the permit for which cause to reopen exists. Such reopening shall be made as expeditiously as practicable.

6.6.c. Reopenings under subdivision 6.6.a shall not be initiated before a notice of such intent is provided to the source by the Secretary at least thirty (30) days in advance of the date that the permit will be reopened, except that the Secretary may provide a shorter time period in the case of an emergency. The notice shall include a statement of the reasons for the reopening of the permit. Until such time as a permit is reissued pursuant to the reopening, the source shall be entitled to the continued protection of any permit shield provided in the permit, unless the Secretary specifically suspends the shield upon a finding that such suspension is necessary to implement applicable requirements.

6.7. Reopenings for cause resulting from U.S. EPA notice.

6.7.a. The Secretary shall, within ninety (90) days after receipt of a notification from U.S. EPA that cause exists to terminate, modify, or revoke and reissue a permit, forward to U.S. EPA a proposed determination of termination, modification, or revocation and reissuance, as is appropriate. The Secretary may request an extension of this ninety (90) day period for an additional ninety (90) days if the Secretary finds that a new or revised permit application is necessary or that the Secretary must require the permittee to submit additional information.

6.7.b. The Secretary shall have ninety (90) days from receipt of a U.S. EPA objection to resolve any objection that U.S. EPA makes and to terminate, modify, or revoke and reissue the permit in accordance with U.S. EPA's objection. In accordance with the Clean Air Act and federal rules promulgated thereunder, U.S. EPA has authority to terminate, modify, or revoke and reissue a Title V operating permit after failure of the State and permit holder to resolve a U.S. EPA objection and upon proper notice to the permit holder.

6.8. Public participation. -- Except for modifications qualifying for minor permit modification procedures, all permit proceedings, including initial permit issuance, significant modifications, and renewals, shall provide adequate procedures for public notice including offering an opportunity for public comment and a hearing on the draft permit. These procedures shall include the following:

6.8.a. Public notice.

6.8.a.1. Scope:

6.8.a.1.A. Public notice shall be given that the following actions have occurred:

6.8.a.1.A.1. A draft permit has been prepared, and

6.8.a.1.A.2. A hearing has been scheduled pursuant to subparagraph 6.8.a.2.B.

6.8.a.1.B. Public notices may describe more than one (1) permit or permit part.

6.8.a.2. Timing.

6.8.a.2.A. Public notice of the preparation of a draft permit shall allow at least thirty (30) days for public comment. Upon request of the permit applicant the public comment period may be extended for an additional thirty (30) days. Further extension of the comment period may be granted by the Secretary for good cause shown but in no case may the further extension exceed an additional thirty (30) days.

6.8.a.2.B. Public notice of a public hearing shall be given at least thirty (30) days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit and the two (2) notices may be combined.

6.8.a.3. Methods. -- Public notice shall be given by the following methods:

6.8.a.3.A. By mailing or emailing a copy of a notice to the following persons (any person otherwise entitled to receive notice under this subparagraph may waive his or her rights to receive notice for any classes and categories or permits):

6.8.a.3.A.1. The applicant;

6.8.a.3.A.2. Any other State or Federal agency which the Secretary knows has issued or is required to issue a permit for the same facility or activity under the Federal Resource Conservation and Recovery Act (RCRA) or other relevant statutes;

6.8.a.3.A.3. Other appropriate government authorities, including the Federal Land Manager when Federal Class I areas, as defined in 45CSR14, are potentially affected; and

6.8.a.3.A.4. Persons on a mailing list developed by the Secretary using generally accepted methods that enable interested parties to subscribe to the mailing list. The Secretary may update the mailing list from time to time by requesting written indication of continued interest from those listed. The Secretary may delete from the list the name of any person who fails to respond to such a request within a reasonable timeframe.

6.8.a.3.B. By the Secretary publishing the public notice as a Class I legal advertisement in a newspaper of general circulation in the area where the emission will occur.

6.8.a.3.C. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

6.8.a.4. Contents.

6.8.a.4.A. All public notices. -- All public notices issued under this rule shall contain the following minimum information:

6.8.a.4.A.1. Name and address of the Division of Air Quality;

6.8.a.4.A.2. Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit, except in the case of general permits;

6.8.a.4.A.3. A brief description of the business conducted at the facility or activity described in the permit application or in the draft permit, when there is no application;

6.8.a.4.A.4. The emissions change associated with any significant permit modification.

6.8.a.4.A.5. Name, address, and telephone number or an email or website address of the Secretary from whom interested persons may obtain further information, including copies of the draft permit or draft general permit, fact sheet, and the application;

6.8.a.4.A.6. A brief description of the comment procedures required by subdivisions 6.8.b and 6.8.c and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision; and

6.8.a.4.B. Public notices for hearings. -- In addition to the requirements of subparagraph 6.8.a.4.A, public notice of a hearing shall contain the following information:

6.8.a.4.B.1. Reference to the date of previous public notices relating to the permit;

6.8.a.4.B.2. Date, time, and place of the hearing; and

6.8.a.4.B.3. A brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

6.8.b. Public comments and requests for public hearings. -- During the public comment period provided under subdivision 6.8.a, any interested person may submit written comments on the draft permit and may request a public hearing, if no public hearing has already been scheduled. The Secretary shall grant such a request for a hearing if he or she concludes that a public hearing is appropriate after consideration of the criteria in paragraph 6.8.c.1. Any request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the final decision and shall be responded to as provided in subdivision 6.8.e.

6.8.c. Public hearings.

6.8.c.1. The Secretary shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest on issues relevant to the draft permit(s). The Secretary may also hold a public hearing at his or her discretion, whenever, for instance, such a hearing might clarify one (1) or more issues involved in the permit decision.

6.8.c.2. Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing under paragraph 6.8.a.2 shall automatically be extended to ten (10) days after the close of any public hearings under subdivision 6.8.c.

6.8.c.3. A recording or written transcript of the hearing shall be made available to the public, upon request.

6.8.c.4. Any public hearing required under the provisions of subsection 6.8 shall be held in the general area or the county in which a facility is located.

6.8.d. Reopening of the public comment period.

6.8.d.1. If any data, information or arguments submitted during the public comment period raise substantial new questions concerning a permit, or if as a result of comments submitted by someone other than the permit applicant, the Secretary determines to revise any condition of the permit that has been subject to initial public notice, the Secretary shall take one (1) or more of the following actions:

6.8.d.1.A. Prepare a new draft permit, appropriately modified, under section 5;

6.8.d.1.B. Prepare a revised fact sheet under subsection 6.9; or

6.8.d.1.C. Reopen or extend the comment period under subdivision 6.8.a. to give interested persons an opportunity to comment on the information or arguments submitted.

6.8.d.2. Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice shall define the scope of the reopening.

6.8.e. Response to comments.

6.8.e.1. At the time that any final permit is issued, the Secretary shall issue a response to comments. This response shall:

6.8.e.1.A. Specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and

6.8.e.1.B. Briefly describe and respond to all significant comments on the draft permit raised during the public comment period, or during any hearing.

6.8.e.2. The response to comments shall be provided to any person who commented or any person who requests the same.

6.8.e.3. The Secretary shall keep a record of the commenters, the issues raised, and written comments received during the public participation process.

6.9. Fact sheet.

6.9.a. A fact sheet shall be prepared for every draft permit (including general permits) and for every facility or activity subject to this rule. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The Secretary shall send this fact sheet to the applicant and, on request, to any other person and to the persons required under paragraph 6.8.a.3.

6.9.b. When a term or condition of the final permit differs from the draft permit the Secretary shall prepare a statement of basis that briefly describes each change from the changes in the draft permit and the reasons for the changes. The statement of basis shall be sent to the applicant, and to any other person upon request.

6.9.c. The fact sheet shall include, when applicable:

6.9.c.1. A brief description of the type of facility or activity which is the subject of the draft permit;

6.9.c.2. The type and quantity of emissions which are proposed to be or are being discharged;

6.9.c.3. A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions;

6.9.c.4. Reasons why any requested variances or alternatives to required standards do or do not appear justified;

6.9.c.5. A description of the procedures for reaching a final decision on the draft permit including;

6.9.c.5.A. The beginning and ending dates of the comment period under subdivision 6.8.a and the address where comments will be received;

6.9.c.5.B. Procedures for requesting a hearing and the nature of that hearing; and

6.9.c.5.C. Any other procedures by which the public may participate in the final decision.

6.9.c.6. Name, telephone number, and email of a person to contact for additional information;

6.9.c.7. Any calculations or other necessary explanation of the derivation of specific emissions limitations and conditions including a citation to the applicable emission regulations, control technology guideline, or performance standard provisions and reasons why they are applicable or an explanation of how any alternative emission limitations were developed; and

6.9.c.8. When appropriate, a sketch or detailed description of the location of the emission source(s) described in the application.

W. Va. Code R. § 45-30-6