45CSR13

TITLE 45
LEGISLATIVE RULE
DEPARTMENT OF ENVIRONMENTAL PROTECTION
AIR QUALITY
SERIES 13
PERMITS FOR CONSTRUCTION, MODIFICATION, RELOCATION
AND OPERATION OF STATIONARY SOURCES OF AIR POLLUTANTS, NOTIFICATION
REQUIREMENTS, ADMINISTRATIVE UPDATES, TEMPORARY PERMITS, GENERAL
PERMITS, PERMISSION TO COMMENCE CONSTRUCTION, AND PROCEDURES FOR
EVALUATION

§45-13-1. General.
1.1. Scope. -- The purpose of this rule is to set forth the procedures for stationary source reporting,
and the criteria for obtaining a permit to construct and operate a new stationary source which is not a
major stationary source, to modify a non-major stationary source, to make modifications which are not
major modifications to an existing major stationary source, to relocate non-major stationary sources
within the state of West Virginia, and to set forth procedures to allow facilities to commence construction
in advance of permit issuance. Such construction, modification, relocation, and operation without a
required permit is a violation of this rule. This rule also establishes the requirements for obtaining an
administrative update to an existing permit, a temporary permit or a general permit registration, and for
filing notifications and maintaining records of changes not otherwise subject to the permit requirements of
this rule. This rule does not apply to nonroad engines, nonroad vehicles, motor vehicles, or other emission
sources regulated under Subchapter II of the federal Clean Air Act; however, the Secretary may regulate
such sources pursuant to another rule promulgated for that purpose.
1.2. Authority. -- W. Va. Code §§ 22-5-1 et seq. 11 and 11a
1.3. Filing Date. -- May 8, 2009.
1.4. Effective Date. -- June 1, 2009.
1.5. Former Rules. -- This legislative rule amends and replaces 45CSR13 “Permits for Construction,
Modification, Relocation and Operation of Stationary Sources of Air Pollutants, Notification
Requirements, Administrative Updates, Temporary Permits, General Permits and Procedures for
Evaluation” which was filed on April 21, 2003, and which became effective June 1, 2003.
§45-13-2. Definitions.
2.1. "Actual emissions" means the actual rate of emissions of a pollutant from an emissions unit, as
described below:
2.1.a. In general, actual emissions as of a particular date shall equal the average rate, in tons per
year, at which the unit actually emitted the pollutant during a two (2)-year period which precedes the
particular date and which is representative of normal source operation. The Secretary may allow the use
of a different time period upon a determination that it is more representative of normal source operation.
Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of
materials processed, stored, or combusted during the selected time period.
2.1.b. The Secretary may presume that source-specific allowable or permitted emissions for the
unit are equivalent to the actual emissions of the unit.

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2.1.c. For any emissions unit which has not begun normal operations on the particular date, actual
emissions shall equal the potential to emit of the unit on that date or the actual emissions of an existing
source with similar operations and production levels at the Secretary’s discretion.
2.2. “Administrative update” means any revision of a current and valid permit or general permit
registration which meets the provisions of Section 4 of this Rule.
2.3. "Clean Air Act" ("CAA") means the federal Clean Air Act, as found at 42 U.S.C. § 7401 et seq.,
as amended.
2.4. "Commenced" means that an owner or operator has all necessary preconstruction approval or
permits and has undertaken a continuous program of physical site preparation, construction, modification,
or relocation, or that a binding general construction contract has been entered into which obligates one (1)
party to such contract to perform the physical work involved in such program of construction,
modification, or relocation of a source or emissions unit. Interruptions resulting from acts of God, strikes,
or other matters beyond the control of the owner shall be disregarded in determining whether a
construction, modification, or relocation program is continuous unless otherwise specifically provided
within this rule.
2.5. "Construction" means any physical change or change in the method of operation (including onsite
fabrication, erection, installation, demolition, or modification of an emissions unit) which would result in
an increase in the potential to emit or an increase in actual emissions of regulated air pollutants unless
otherwise specifically provided within this rule.
2.6. “De minimis source” means any emissions unit listed in Table 45-13B below, whether individual
or a part of a common plan (i.e., a common set of new sources or physical changes in or changes in the
method of operation of any existing stationary source). A “de minimis source” is deemed to have
insignificant emissions and/or is not usually a source of quantifiable emissions which can be practically
regulated in determining potential to emit or actual emissions for the purpose of determining whether a
permit is required under this rule. Emissions to the extent quantifiable from emissions units listed in
Table 45-13B do not need to be added together by the source unless otherwise required by the Secretary.
2.6.a. Unless otherwise determined by the Secretary, emissions from a de minimis source shall not
be included in determining the “potential to emit” for purposes of applicability under this rule. However,
in implementing the permitting program under this rule, the Secretary may require emissions information
for de minimis sources for inclusion in a permit review. Sources located in nonattainment areas may not
be eligible to use Table 45-13B for the pollutant or its precursors for which the area is in nonattainment.
Inclusion of an emissions unit in Table 45-13B does not preclude the source’s duty to comply with W.
Va. Code § 22-5-1, et seq. and all applicable State rules and federal regulations, including 45CSR4.
2.6.b. Emissions units listed in Table 45-13B do not require any monitoring, recordkeeping or
reporting unless specifically requested by the Secretary.
2.6.c. Notwithstanding any other requirements and standards of this rule, a source may use the
procedures described in subsection 5.13 5.12 to petition the Secretary for a determination of regulatory
applicability for a particular emissions unit that may meet the criteria for a “de minimis source” but which
is not specifically listed in Table 45-13B.
2.7. “Secretary” means the Secretary of the Department of Environmental Protection or such other
person to whom the Secretary has delegated authority or duties pursuant to W. Va. Code §§ 22-1-6 or 221-8.

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2.8. "Discharge" means the release, escape, or emission of air pollutants into the air.
2.9. "Emissions unit" means any part or activity of a stationary source that emits or discharges or has
the potential to discharge or emit any regulated air pollutant.
2.10. "Enforceable” means enforceable by the Secretary and U. S. EPA unless specifically designated
to mean otherwise in this rule.
2.11. "EPA" or "U. S. EPA" means the United States Environmental Protection Agency.
2.12. "Existing stationary source operating permit" means a permit issued by the Secretary at the
request of an owner or operator of a stationary source which establishes enforceable emission rates,
operating conditions, and compliance determination procedures for that source based upon applicable
rules and terms agreed to by the Secretary and the owner or operator.
2.13. "Fugitive emissions" means those emissions which could not reasonably pass through a stack,
chimney, vent or other functionally equivalent opening.
2.14. "Hazardous air pollutant" or “HAP” means any substance listed pursuant to section 112(b) of
the Clean Air Act.
2.15. "Major modification" has the meanings ascribed to this term in 45CSR14 or 45CSR19
depending upon the attainment status, with respect to the National Ambient Air Quality Standards, of the
area in which a particular stationary source is located.
2.16. "Major stationary source" has the meaning ascribed to this term in 45CSR14, 45CSR19 or
45CSR30.
2.17. "Modification" for the purpose of this rule means any physical change in or change in the
method of operation of any existing stationary source, excluding any emissions unit which meets or falls
below the criteria delineated in Table 45-13B, which:
2.17.a. Results in an emissions increase of six (6) pounds per hour and ten (10) tons per year or
more, or more than 144 pounds per calendar day, of any regulated air pollutant, other than emissions of
any one or the aggregate of all Greenhouse Gases (GHG’s), the air pollutant defined in 40 C.F.R. §
86.1818-12(a) as the aggregate group of six greenhouse gases: carbon dioxide, nitrous oxide, methane,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride;
2.17.b. Results in an emissions increase of two (2) pounds per hour or five (5) tons per year of
hazardous air pollutants considered on an aggregated basis;
2.17.c. Results in an increase in emissions of an air pollutant listed in Table 45-13A below of ten
percent (10%) or more of the amount set forth in Table 45-13A at a facility which, prior to the physical
change or change in method of operation, has the potential to emit the air pollutant at or above the amount
set forth in Table 45-13A; provided that nothing in this subdivision shall affect the facility’s obligation to
comply with 45 C.S.R. 27;
2.17.d. Results in an increase in emissions of any air pollutant listed in Table 45-13A that would in
turn result in total emissions of the air pollutant at the stationary source equal to or greater than the
amounts in Table 45-13A; or

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2.17.e. Results in any regulated air pollutant emissions increase for which the owner or operator of
a source voluntarily chooses to obtain a modification permit pursuant to this rule, even though the owner
or operator is not otherwise required to do so.
2.17.f. The following actions, however, shall not constitute a modification of a stationary source:
2.17.f.1. Installation or replacement of air pollution control equipment, provided that such new
equipment is at least as effective in the control of air pollutant emissions as any equipment replaced and
that no new air pollutant discharge results from its installation;
2.17.f.2. Routine maintenance, repair, and replacement (excluding such activities that are
subject to new source performance standards under 45CSR16);
2.17.f.3. An increase in hours of operation, unless a limitation has been explicitly placed upon
hours of operation in an applicable permit or order;
2.17.f.4. An increase in throughput or production rate, if such increase does not exceed the
design capacity of the source or emissions unit, or increase emissions above the levels provided in this
paragraph and there is no explicit limitation of production rate or throughput in an applicable permit or
order; or
2.17.f.5. Use of an alternative fuel or raw material, provided that the source is designed to
accommodate such alternative use without increasing emissions above the levels provided in this
paragraph and such usage is not prohibited by an applicable permit or order.
2.17.f.6. An emissions reduction for each regulated pollutant from current actual emissions to
new potential emissions from any replacement of a natural gas compressor engine not previously required
to obtain a permit under this rule with another natural gas compressor engine: provided that the owner or
operator of the source shall notify the Secretary of such replacement and the emissions reduction within
ten (10) working days of the replacement.
2.18. "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,
association or business entity of whatever nature.
2.19. "Potential to emit" means the maximum design capacity of a stationary source or emissions unit
to emit a pollutant under its physical and operational design. Any physical or operational limitation on
the capacity of the source or emissions unit to emit a 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 or the effect it would have on emissions is
enforceable by the Secretary and U. S. EPA in any permit or consent order. Secondary emissions shall
not be included in any determination of a stationary sources potential to emit.
2.19.a. Notwithstanding the provisions of subsection 2.19, any natural gas compressor which is
equipped with a catalytic converter which is integral to the unit shall have its potential to emit determined
taking into consideration reductions achieved by the catalytic converter Said catalytic converter must be
interlocked in such a way as to not allow operation of the engine without operation of the catalytic
converter. The catalytic converter shall have the catalyst replaced every 45,000 hours of operation or
every ten (10) years, whichever is earlier, as established by records kept by the source, unless the
Secretary approves an alternative method of verifying catalyst effectiveness.

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2.19.b. Upon written petition by a facility that an air pollution control device is inherent to the
emission unit, the Secretary may rule on a case-by-case basis that potential to emit may be determined
taking into consideration reductions achieved by the control device. “Inherent to the emission unit”
means that the emission unit cannot be operated without the air pollution control device being properly
maintained.
2.20. "Regulated air pollutant" for the purpose of this rule means the following:
2.20.a. Nitrogen oxides (NOx), volatile organic compounds (VOC), or particulate matter;
2.20.b. Any air pollutant for which a national ambient air quality standard has been promulgated
including particulate matter (PM10), sulfur dioxide, carbon monoxide, nitrogen dioxide, ozone, and lead or
lead compounds;
2.20.c. Any air pollutant listed on table 45-13A below;
2.20.d. Any air pollutant subject to an emission standard promulgated by the Secretary including
mineral acids in 45CSR7;
2.20.e. Any air pollutant subject to a new source performance standard (NSPS) promulgated under
section 111 of the Clean Air Act (including section 111(d)) , which requires new and modified sources to
satisfy emissions standards, work practice standards and other requirements;
2.20.f.
Any of the ozone-depleting substances specified as a Class I (primarily
chlorofluorocarbons) or Class II substance (hydrochlorofluorocarbons) under Title VI of the Clean Air
Act; or
2.20.g. Any air pollutant subject to a standard or other requirement promulgated under section 112
of the Clean Air Act, specifically excluding air pollutants listed only in 112(r).
2.21. "Relocation" means the physical movement of a stationary source outside the existing plant
boundaries.
2.22. "Responsible official" means one of the following:
2.22.a. For a corporation or other business entity: a president, secretary, treasurer, or vicepresident of the corporation or business entity in charge of a principal business function, or any other
person who performs similar policy or decision-making functions for the corporation or business entity,
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 (i) the facilities employ more than two hundred fifty (250) persons or have gross annual
sales or expenditures exceeding twenty-five million dollars ($25,000,000) (in second quarter 1990
dollars), or (ii) a representative delegated with such authority and approved in advance by the Secretary;
2.22.b. For a partnership or sole proprietorship: a general partner or the proprietor, respectively;
2.22.c. For a municipality, State, Federal, or other public entity: 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
2.22.d. The designated representative delegated with such authority and approved in advance by
the Secretary.

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2.23. "Secondary emissions" means emissions which would occur as a result of the construction or
operation of a stationary source or of a modification, but do not come from the stationary source or
modification itself. For the purpose of this rule, secondary emissions must be specific, well defined,
quantifiable, and impact the same general area as the stationary source or modification which causes the
secondary emissions. Secondary emissions include, but are not limited to, emissions from any off-site
support facility which would not otherwise be constructed or increase its emissions except as a result of
the construction or operation of the stationary source or modification.
2.24. "Stationary source" means, for the purpose of this rule, any building, structure, facility,
installation, or emission unit or combination thereof, excluding any emissions unit which meets or falls
below the criteria delineated in Table 45-13B, which:
2.24.a. Is subject to any substantive requirement of an emission control rule promulgated by the
Secretary;
2.24.b. Discharges or has the potential to discharge more than six (6) pounds per hour and ten (10)
tons per year, or has the potential to discharge more than 144 pounds per calendar day, of any regulated
air pollutant, other than emissions of any one or the aggregate of all Greenhouse Gases (GHG’s), the air
pollutant defined in 40 C.F.R. § 86.1818-12(a) as the aggregate group of six greenhouse gases: carbon
dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride;
2.24.c. Discharges or has the potential to discharge more than two (2) pounds per hour or five (5)
tons per year of hazardous air pollutants considered on an aggregated basis;
2.24.d. Discharges or has the potential to discharge any air pollutant(s) listed in Table 45-13A in
the amounts shown in Table 45-13A or greater; or
2.24.e. An owner or operator voluntarily chooses to be subject to a construction or modification
permit pursuant to this rule, even though not otherwise required to do so.
2.25. “Statutory air pollution” means and is limited to the discharge into the air by the act of man of
substances (liquid, solid, gaseous, organic or inorganic) in a locality, manner and amount as to be
injurious to human health or welfare, animal or plant life, or property, or which would interfere with the
enjoyment of life or property.
2.26. “Store on-site” means that any equipment, supplies, emission unit or any support equipment
which make up in part or in whole an emission unit or any support equipment may be received and
located at a stationary source, including on its permanent pad or foundation, but it shall not be modified,
constructed, erected or installed. Any equipment, supplies, emission unit or any support equipment which
make up in part or in whole an emission unit or any support equipment which are “stored on-site” shall be
kept in the same condition as it was received, except that packaging material may be removed.
2.27. "Volatile Organic Compounds" (VOC) has the same meaning as defined in 40 CFR § 51.100(s).
2.28. “WVDEP/DAQ webpage” means any webpage maintained by the West Virginia Department of
Environmental Protection’s (WVDEP) Division of Air Quality (DAQ) used to provide the public access
to Division of Air Quality documents such as permits, applications, evaluations, etc.
2.27 2.29. Other words and phrases used in this rule, unless otherwise indicated, have the meaning
ascribed to them in W. Va. Code § 22-5-1, et seq. and any rules promulgated thereunder.
§45-13-3. Reporting Requirements for Stationary Sources.

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3.1. The owner or operator of a stationary source may be required by the Secretary to collect, report
and maintain data on the operation of such stationary source. The Secretary may request reports of such
data in a reasonable manner and detail as the Secretary may specify. If requested, such reports shall be
filed within thirty (30) days of the end of the established reporting period. However, reports on such data
shall not exceed one (1) per month.
§45-13-4. Administrative Updates to Existing Permits and General Permit Registrations.
4.1. Upon the request of the permittee, or with the permittee’s consent, the Secretary may revise or
update a valid existing permit or general permit registration issued pursuant to this rule as necessary to
incorporate any administrative update identified in subsection 4.2, provided that no administrative update
to a general permit registration shall be inconsistent with the terms and conditions of the applicable
general permit.
4.1.a. At the Secretary’s discretion a determination may be made that an applicant is not eligible
for an administrative update pursuant to this section.
4.1.b. Any final decision on an administrative update application shall be issued by the Secretary
within a reasonable time not to exceed sixty calendar days after receipt of a complete application by:
4.1.b.1. Issuing the administrative update;
4.1.b.2. Issuing the administrative update with reasonable conditions in addition to those
requested;
4.1.b.3. Denying the administrative update request; or
4.1.b.4. Determining that the requested change does not meet the criteria of this section and
should be reviewed under other provisions of this rule or other rules of the Secretary.
4.1.c. Should the Secretary deny an administrative update request, he or she shall do so in writing,
providing the reasons therefor. The denial is not subject to public notice or comment nor is it subject to
appeal under W. Va. Code §§ 22-5-14 or 22B-1-7. Any permit which is issued as amended pursuant to
this section may be appealed under W. Va. Code §§ 22-5-14 or 22B-1-7.
4.1.d. The Secretary may incorporate changes to a permit or general permit registration as an
administrative update without providing notice to the public, provided that such permit revisions are
designated as Class I administrative updates as defined in subdivision 4.2.a. Class II administrative
updates as defined in subdivision 4.2.b must be noticed require public notice by the applicant at the time
of application in accordance with the provisions of subsection 8.3 8.2.
4.1.e. Should the Secretary intend to make an administrative update to a permit pursuant to this
section with the permittee’s consent, or to make changes to the permittee’s application for an
administrative update, the Secretary shall provide the permittee with no less than fifteen (15) days written
notice of that intent in order to provide an opportunity for the permittee to comment on that intent before
the Secretary takes any of the actions specified in subdivision 4.1.b.
4.2. Administrative updates to a valid existing permit or general permit registration issued pursuant to
this rule are authorized with respect to any change under subdivision 4.2.a or 4.2.b that does not otherwise
constitute a modification as defined by this rule. No applicant shall seek an administrative update
pursuant to this section to circumvent any part of this rule or any other state or federal rule or regulation.

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Any notification request under subsection 5.13 5.12 that the Secretary determines will require an
administrative update shall comply with this section.
4.2.a. Class I administrative updates are limited to the following:
4.2.a.1. Correction of typographical errors;
4.2.a.2. Corrections or updates to mailing addresses, contact personnel or telephone numbers if
contained in the permit, or change in the name of the permittee which does not involve any change in the
ownership or operational control of a permitted source or unit;
4.2.a.3. Change in the construction schedule with regard to any interim schedule requirement to
the extent that such a change does not interfere with any obligation under the existing permit to have
pollution control equipment installed and in operation and to the extent that such a change is allowed by
subsection 10.2;
4.2.a.4. Change in a permit condition to incorporate any new more stringent requirements
related to an applicable rule promulgated after the existing permit was issued and that do not result in a
physical change in or change in the method of operation of the source;
4.2.a.5. Change in a permit condition to incorporate any new more stringent requirements
related to new information not considered at the time the existing permit was issued;
4.2.a.6. Permanent removal of equipment, not including air pollution control equipment;
4.2.a.7. Change in monitoring, recordkeeping or reporting requirements for sources which are
not major sources which are determined by the Secretary to be equivalent or superior to the existing
permit requirements; or
4.2.a.8. Change in a permit condition as necessary to allow changes in operating parameters,
emission points, control equipment or any other aspect of a source which results in a decrease no increase
in the emission of any existing regulated air pollutant or any new regulated air pollutant.
4.2.b. Class II administrative updates are limited to the following:
4.2.b.1. Change in a permit condition as necessary to allow changes in operating parameters,
emission points, control equipment or any other aspect of a source which results in an increase or no
change in the emission of any existing regulated air pollutant or any new regulated air pollutant; or
4.2.b.2. Other minor changes as may be allowed on a case-by-case basis by the Secretary.
4.3. A person requesting an administrative update of a permit or general permit registration shall
submit any information the Secretary may request describing the effect of the proposed change, if any, on
emissions and ambient air quality from the source. The information submitted must be certified to be true,
accurate and complete by a responsible official in the manner required for a permit application. Upon a
determination by the Secretary that there is a potential for significant ambient air quality impact, the
source may be required to submit appropriate additional information or to apply for the appropriate
permit. When requested, it is the duty of the applicant to supply sufficient information to the Secretary to
demonstrate there will be no significant air quality impact.
4.4. Any permittee other than a small business as defined in section 507(c) of the federal Clean Air
Act which requests a Class II administrative update to a valid existing permit pursuant to this section shall
submit a permit application fee of three hundred dollars ($300).

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4.5. The permittee may implement the changes addressed in the request for a Class I administrative
update immediately upon submittal of the request. After the permittee makes the requested Class I
changes, and until the Secretary takes any of the actions specified in subdivision 4.1.b, the permittee must
comply with the proposed changes to the permit. During this time period, the source need not comply
with the existing permit terms and conditions it seeks to change. However, if the permittee fails to
comply with its proposed permit change during this period, the existing permit terms and conditions it
seeks to modify may be enforced against it. Should the permittee implement such a change immediately,
the permittee will do so at its sole risk, and the permittee shall not assert as any argument, including legal
or equitable, in any proceeding (administrative, civil or criminal) that such action occurred.
§45-13-5. Permit Application and Reporting Requirements for Construction of and Modifications
to Stationary Sources.
5.1. No person shall cause, suffer, allow or permit the construction or modification or relocation and
operation of any stationary source to be commenced without notifying the Secretary of such intent and
obtaining a permit to construct, modify, relocate and operate the stationary source as required in this rule
or any other applicable rule promulgated by the Secretary. Construction of a major stationary source or a
major modification shall be subject to the pre-construction permit requirements of 45CSR14 or 45CSR19
depending upon the air pollutants involved and the attainment status of the area in which the source or
modification would occur. A source subject to 45CSR14 or 45CSR19 is not subject to the requirements
of this rule. For the purposes of this rule, the following do not constitute activities pursuant to
subsections 2.4 and 2.5, and prior to obtaining a permit to construct, modify, relocate and operate, a
source may:
5.1.a. Clear land;
5.1.b. Grub stumps, roots and other natural impediments to site development;
5.1.c. Excavate, grade and compact topsoil to establish temporary and final grade;
5.1.d. Dig and construct foundations and/or caissons and grade beams;
5.1.e. Demolish existing structures, provided that all activity must comply and comport with all
existing State rules and federal regulations including, but not limited to, asbestos requirements pursuant to
45CSR1545CSR34, applicable National Emission Standards for Hazardous Air Pollutants pursuant to
section 112 of the Clean Air Act, applicable requirements of the Resource Conservation and Recovery
Act (42 U.S.C. § 6901 et seq.), and applicable solid waste requirements the West Virginia Solid Waste
Management Act, W. Va. Code § 22-15-1, et seq and the rules promulgated thereunder, including
45CSR25;
5.1.f. Upgrade the utility support facilities, provided that in no instance shall these upgrades cause
or contribute to new or increased emissions unto themselves or increase emissions from any other unit;
5.1.g. Construct or modify structures which are strictly office buildings, warehouses or buildings
that could potentially be used for those purposes;
5.1.h. Order equipment and procure supplies with which an emissions unit could be composed,
provided that such ordering and procuring is not in violation of any other state rule; or
5.1.i. Receive or store on-site or off-site any equipment or supplies which make up in part or in
whole an emission unit or any support equipment, facilities, building or structure. A source may store on-

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site any equipment, supplies, emission unit or any support equipment on its permanent pad or foundation
or at any other location at the stationary source.
5.2. Prior to obtaining a permit to construct and operate, a source may not cause the erection or
installation of an emissions unit unless granted permission under section 16.
5.3. All activities listed under subdivisions 5.1.a. through 5.1.i. shall be conducted solely at the risk of
the owner or operator of the stationary source and, in undertaking any such activities, the owner or
operator shall not assert as any argument, including legal or equitable, in any proceeding (administrative,
civil or criminal) that such activities or investment has occurred.
5.4. Any person proposing to construct, modify, relocate and operate a stationary source after the
effective date of this rule shall file a complete permit application with the Secretary and shall not
construct, modify, relocate and operate the stationary source until the Secretary issues a permit approving
of the construction, modification, relocation and operation. The application shall contain sufficient
information as, in the judgment of the Secretary, will enable the Secretary to determine whether the
source construction, modification, relocation and operation will be in conformance with the provisions of
any applicable rules promulgated by the Secretary. Such information may include, but not be limited to,
site information, plans, descriptions, specifications, and drawings relating to the proposed construction,
modification, or relocation of the source, the manner in which it will be operated, maximum emission
rates and emissions control equipment data.
5.5. Any person who owns or operates an existing stationary source may voluntarily request a permit
to operate the stationary source under enforceable terms established in an existing stationary source
operating permit issued pursuant to this rule. The owner or operator shall submit a complete permit
application requesting coverage under the terms and conditions of an existing source operating permit
issued in accordance with the permit application and all applicable rules of the Secretary. The issuance of
existing stationary source operating permits by the Secretary shall be in accordance with all provisions of
this rule including public participation provisions under section 8.
5.6. All permit applications under this rule shall be signed by a responsible official of the entity which
will own or operate the stationary source. The signature shall constitute an agreement that the applicant
will assume responsibility for the construction, modification, or relocation and operation of the stationary
source in accordance with the permit application, permit, applicable rules promulgated by the Secretary,
and W. Va. Code § 22-5-1, et seq.
5.7. The Secretary shall issue such permit or registration unless he or she determines that the proposed
construction, modification, registration or relocation will violate applicable emission standards, will
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 this
rule or W. Va. Code § 22-5-1, et seq., in which case the Secretary shall issue an order denying such
construction, modification, relocation and operation. The Secretary shall, to the extent possible, give
priority to the issuance of any such permit so as to avoid undue delay and hardship.
5.7.a. The Secretary shall issue a permit for all construction or modifications and operation of a
stationary source within a reasonable time not to exceed ninety (90) calendar days, after the date the
Secretary determines the application is complete. The Secretary may extend this time by thirty (30)
calendar days to allow for public comment.
5.7.b. The Secretary shall, within a reasonable time not to exceed forty-five (45) days calendar
days after the date the Secretary determines that an application is complete, issue a registration under a
general permit, unless he or she determines that the proposed construction, modification, relocation and
operation will not be in accordance with this rule.

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5.7.c. The Secretary shall, within a reasonable time not to exceed forty-five (45) calendar days
after receipt of a complete application, issue a temporary permit or a relocation permit, unless he or she
determines that the proposed construction, modification, relocation and operation will not be in
accordance with this rule.
5.8. The Secretary shall complete a review of any application for an existing stationary source
operating permit within one hundred eighty (180) days of receipt of a complete application and either
issue an operating permit or deny coverage under an existing stationary source operating permit if a
determination is made that the source or some portion thereof does not comply with applicable rules of
the Secretary or if the Secretary determines that acceptable compliance determination provisions cannot
be incorporated to satisfy permit terms requested by the permit applicant.
5.9. The Secretary shall review all permit applications for completeness within thirty (30) days from
receipt and notify the applicant in writing as to whether the application is complete or specify any
information required. Any determination of completeness or lack thereof shall not relieve the permit
applicant of the requirement to subsequently submit, in a timely manner, any additional or corrected
information deemed by the Secretary to be necessary for permit or general permit registration approval.
The Secretary shall act upon all applications; however, the periods set forth in this section for application
review by the Secretary shall not be deemed to have begun until such time as the permit application is
deemed complete.
5.10 5.9. Any denial order for a permit application for the proposed construction, modification,
relocation, registration for a general permit and operation of any source shall set forth the reasons of such
denial with reasonable specificity.
5.11 5.10. The Secretary may impose any reasonable condition as part of a granted administrative
update, construction, modification, existing stationary source operating permit or relocation permit. Such
condition may include, but not be limited to, the submission of periodic progress, operation or emissions
reports, the provisions for a suitable emissions sampling site and the installation of air pollutant
monitoring devices. The Secretary shall impose or incorporate, consistent with all applicable rules,
enforcement conditions which assure that all emission limitations contained within the permit are
quantifiable, permanent and practicably enforceable. The Secretary may, on the basis of information
provided in a permit application or with the agreement of the permit applicant, impose source-specific
emission limitations, limits on the hours of operation or production rates, or other constraints to minimize
air pollutant discharges or establish enforceable emission caps for a stationary source not otherwise
specifically required by a rule of the Secretary promulgated pursuant to W. Va. Code § 22-5-1, et seq.
Any portions of the permit application, other than plans and specifications, that are to be made permit
conditions must be specifically identified in the permit itself.
5.12 5.11. The Secretary may develop and issue Class I and Class II general permits under this rule
authorizing the construction, modification, relocation and operation of a category of sources by the same
owner or operator or involving the same or similar processes or pollutants upon the terms and conditions
specified in the general permit.
5.12.a 5.11.a. Class I general permits may be issued by the Secretary for those types of sources
considered less significant than sources for which the Secretary issues Class II general permits. In
making this determination as to significance, the Secretary shall consider the nature and volume of
emissions from the source, whether the source operates on a continuous or an intermittent basis, the
proximity of the source to any location occupied by the public and the length of time the source is
expected to remain in place. The designation of Class I or Class II for a general permit shall be made at
the time the permit goes through public comment and adoption for the source category governed by the
general permit.

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5.12.b 5.11.b. Class I and II general permits shall be subject to public notice requirements and
application fees as specified under sections 8 and 12, respectively.
5.13 5.12. The owner or operator of any stationary source which adds an additional emissions unit or
makes a change in the method of operation which results in an emissions increase, or in the discharge of a
new regulated air pollutant, in an amount below the levels which require a permit to modify, excluding
the emissions units listed in Table 45-13B, may notify the Secretary in writing even though a permit is not
required. The notification shall briefly describe the emission unit or change, the pollutants involved, the
potential to emit for each pollutant increased or added and supporting calculations. Within thirty (30)
working days of receipt of such a notice, the Secretary shall notify the owner or operator in writing if the
Secretary believes a permit is required, setting forth the reasons with reasonable specificity or shall notify
the owner or operator that insufficient information was submitted to enable a determination to be made
and specify the information required.
5.14 5.13. The owner or operator of any stationary source which adds an additional emissions unit or
makes a change in the method of operation which results in an emissions increase, or in the discharge of a
new regulated air pollutant, in an amount below the levels which require a permit to modify, excluding
the emissions units listed in Table 45-13B, shall maintain records briefly describing the emission unit or
change, the pollutants involved, the potential to emit for each pollutant increased or added and supporting
calculations. Such records shall be maintained by the owner or operator for at least two (2) years and
shall be made available to the Secretary upon request.
5.15 5.14. Any person holding a permit issued pursuant to subsection 5.5 may make a written request
to the Secretary for a cancellation of such permit. If granted by the Secretary, such a cancellation shall
not excuse any violation of the permit terms or conditions prior to the Secretary’s cancellation of such
permit. In no case shall such a permit cancellation become effective until the permittee and U.S. EPA are
provided with a sixty (60) day written notice of such a permit cancellation.
§45-13-6. Determination of Compliance of Stationary Sources.
6.1. At the time a stationary source is alleged to be in compliance with an applicable emission
standard and at reasonable times to be determined by the Secretary thereafter, appropriate tests consisting
of visual determinations or conventional in-stack measurements or other tests the Secretary may specify
shall be conducted to determine compliance.
6.2. For cause, the Secretary may request the owner or operator of a stationary source to install stack
gas monitoring devices the Secretary deems necessary to determine continuing compliance. The data from
such devices shall be readily available for review at the source location or other reasonable location that
the Secretary may specify. At the request of the Secretary, the data shall be made available for inspection
or copying, and the Secretary may require periodic submission of excess emission reports.
6.3. If, after completion of a stack test required by the Secretary, a source fails to prove compliance
with permit conditions, W. Va. Code § 22-5-1, et seq., or any rules promulgated thereunder, the source
shall immediately take steps approvable by the Secretary which shall assure compliance. These steps may
include a reduction in throughput capacity or additional and enhanced control devices.
§45-13-7. Modeling.
7.1. Any source required to obtain a permit pursuant to this rule may be required to conduct modeling
to assist the Secretary in determining whether the proposed construction, modification, relocation and
operation will 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

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and purpose of this rule or W. Va. Code § 22-5-1, et seq. Any modeling required under this subsection
shall be conducted in accordance with 40CFR Part 51, Appendix W, or an alternative modeling protocol
approved by the Secretary.
§45-13-8. Public Review Procedures.
8.1. The Secretary shall maintain for public review a permit application list of proposed new
stationary sources, source modifications, relocations, operating permits, Class II administrative updates,
temporary permits, Class II general permit applications/registrations, and sources seeking permission to
construct commence construction in advance of permit issuance containing the name of the applicant, the
type and location of the source, and the proposed start-up date for the stationary source.
8.2. During the time period that an applicant's name appears on the permit application list, the
Secretary will receive and evaluate written comments relating to the permit application.
8.3. Notice Level A. At the time that an application for a construction, modification, relocation,
operating permit, Class II administrative update, temporary permit or Class II general permit registration
is filed, the applicant shall also place a Class I legal advertisement in a newspaper of general circulation
in the area where the source is or will be located. No such permit or general permit registration shall be
issued to any applicant until at least thirty (30) days notice has been provided to the public. 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 nature of the permit being sought, the
proposed start-up date for the source and a contact telephone number for more information.
Notice Level A. Relocation, Class II Administrative Update, temporary permit or Class II general
permit registration applications shall have a thirty (30) day public comment period. The public comment
period shall begin after the application is received and has been posted on the WVDEP/DAQ webpage.
No such permit or general permit registration shall be issued to any applicant until at least thirty (30)
days’ notice has been provided to the public. The information provided on the webpage shall be available
for the duration of the public comment period and 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
nature of the permit being sought and a contact telephone number for more information.
8.4. Notice Level B. In addition to the notice requirements under subsection 8.3, for construction and
modification applications, applications for sources subject to 45CSR15, 45CSR16, 45CSR27 and
45CSR34, and all other applications not subject to the provisions of subsections 8.3 or 8.5, the Secretary
shall place a Class I legal advertisement of the agency’s intent to issue in a newspaper of general
circulation in the area where the source is or will be located, provided that applications for Class I
administrative updates and Class I general permit registrations are not subject to public notice. No
construction, modification or operating permit shall be issued to any applicant until at least thirty (30)
days notice has been provided to the public. 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 nature of the permit being sought and the proposed start-up date for the source.
Additionally, at the Secretary’s discretion, the applicant may be required to place a commercial display
advertisement as set forth in subdivision 8.4.a.
8.3. Notice Level B. Permit applications for construction, modification, and sources subject to 45CSR16,
45CSR27 and 45CSR34 shall have a thirty (30) day public comment period. The public comment period
shall begin after the application, an engineering evaluation and draft permit have been posted on the
WVDEP/DAQ webpage. No such permit shall be issued to any applicant until at least thirty (30) days’
notice has been provided to the public. The information provided on the webpage shall be available for
the duration of the public comment period and shall contain at a minimum, the name of the applicant, the

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type and location of the source, the type and amount of air pollutants that will be discharged, the nature of
the permit being sought and a contact telephone number for more information.
8.4.a. Within one week prior to the Secretary’s placement of a Class I legal advertisement of intent
to issue or within three (3) working days of the Secretary’s placement of the advertisement, the applicant
shall publish a commercial display advertisement in a newspaper of general circulation in the area where
the source is or will be located. The commercial display advertisement shall be at least 3 inches by 5
inches and 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 nature of the permit being sought, the proposed
start-up date for the source and a contact telephone number for more information.
8.3.a In addition to the notice requirements under subsection 8.3, for eligible sources for which the
agency intends to issue a permit to limit physical and operational capacity below major stationary source
thresholds (including 45CSR14, 45CSR19, 45CSR30 and 45CSR34), the Secretary shall clearly identify
the application seeking such a restriction by identifying these sources as “Synthetic Minor” on the
WVDEP/DAQ webpage. Within one week of submittal of a permit application subject to this subsection,
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 an air quality permit has
been applied for and include the West Virginia Division of Air Quality permitting section telephone
number for additional information. The applicant must post the sign for the duration of the application
review period until final action is made (e.g., permit issuance, withdrawal, permit denial).
8.5. Notice Level C. In addition to the notice requirements under subsection 8.3, for eligible sources
for which the agency intends to issue a permit to limit physical and operational capacity below major
stationary source thresholds (including 45CSR14, 45CSR19, 45CSR30 and 45CSR34), the Secretary shall
place a Class I legal advertisement of the agency’s intent to issue in a newspaper of general circulation in
the area where the source is or will be located. No permit shall be issued to any applicant until at least
thirty (30) days notice has been provided to the public. 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 nature of the permit being sought and the proposed start-up date for the source.
Additionally, the applicant shall be required to place a commercial display advertisement as set forth in
subdivision 8.4a. and a sign as set forth in subdivision 8.5.a.
8.5.a. Within one week prior to the Secretary’s placement of a Class I legal advertisement of intent
to issue or within three (3) working days of the Secretary’s placement of the advertisement of submittal of
a permit application, the applicant shall post a visible and accessible sign, at a minimum 2 feet square, at
the entrance to the source or proposed site. The sign must be clearly marked indicating that an air quality
permit has been applied for and include the West Virginia Division of Air Quality permitting section
telephone number for additional information. The applicant must post the sign for the duration of the
public notice period.
8.6. At the Secretary’s discretion, public notice requirements of subsection 8.4 may be moved to the
next higher notice level.
8.4. Applications for Class I administrative updates and Class I general permit registrations are not
subject to public notice.
8.7 8.5. The Secretary shall, prior to issuance of any permit subject to public notice under subsections
8.4 or 8.5 subsection 8.3, prepare an engineering evaluation supporting his or her stated intent to issue
such a permit. The Secretary shall make available for the duration of the public comment period on the
WVDEP/DAQ webpage and shall transmit to U. S. EPA and any other interested party which so requests,
a non-confidential copy of the engineering evaluation and a draft copy of the permit which is proposed for

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issuance. Concurrently, the Secretary shall notify the public through a Class I legal advertisement in
accordance with the provisions of subsections 8.4 or 8.5 subsection 8.3.
8.8 8.6. The Secretary shall review and appropriately address any comments received from the public
and U. S. EPA prior to permit issuance.
8.9 8.7. Public notice of any proposed new or revised general permit, Class I or Class II, must be
conducted by the agency in accordance with the provisions of subsection 8.4 8.3. The Secretary shall,
prior to issuance or revision of any general permit, prepare a rationale document supporting his or her
stated intent to issue or revise such general permit and shall transmit to U. S. EPA and any other
interested party which so requests, a non-confidential copy of the rationale document and a draft copy of
the general permit which is proposed for issuance or revision. The Secretary shall review and
appropriately address any comments received from the public and U. S. EPA prior to the issuance or
revision of any general permit.
§45-13-9. Public Meetings.
9.1. A public meeting(s) to provide information and receive comments on permit applications may be
held when the Secretary deems it appropriate or when substantial interest is expressed, in writing, by
persons who might reasonably be expected to be affected by the stationary source.
9.2. The Secretary shall preside over such meeting and assure that all interested parties have ample
opportunity to present comments. Such meeting shall be held at a convenient place as near as practicable
to the location or proposed location of the stationary source.
9.3. At a reasonable time prior to such meeting, the Secretary shall provide appropriate information to
news media in the area where the stationary source or proposed stationary source is located or to be
located or otherwise provide notice of the meeting.
§45-13-10. Permit Transfer, Suspension, Revocation and Responsibility.
10.1. Any permit issued under this rule may be transferred from a permittee to another person by
modification of an existing permit or by transfer under this subsection. Any permit may be transferred to
a new permittee if the Secretary determines that the proposed permittee has all necessary permit
responsibility and the current permittee notifies the Secretary in writing at least 30 days in advance of the
proposed transfer date. The proposed new permittee must certify to the Secretary, at least thirty (30) days
in advance of the proposed transfer date, that a complete copy of the existing permit application and
permit has been obtained and reviewed and that the new permittee shall adhere to the design and
operating parameters contained in the application and comply with all terms and conditions in the permit.
The notice must include a written agreement between the existing permittee and proposed new permittee
containing a specific date for transfer of the permit and explaining the extent of permit responsibility
between them. The Secretary shall notify the existing and proposed new permittee in writing of his or her
intent to require the transfer through permit amendment, the filing of a new application or deny the
transfer request. If such notification from the Secretary is not received by the existing permittee and
proposed new permittee within thirty (30) days after the Secretary’s receipt of their respective notices,
then the transfer is effective on the date specified in the written agreement between the permittees.
10.2. The Secretary may suspend or revoke a permit or general permit registration if, after six (6)
months from the date of issuance, the holder of the permit cannot provide the Secretary, at the Secretary’s
request, with written proof of a good faith effort that construction, modification, or relocation, if
applicable, has commenced. Such proof shall be provided not later than thirty (30) days after the
Secretary’s request. If construction or modification of a stationary source is discontinued for a period of

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eighteen (18) months or longer, the Secretary may suspend or revoke the permit or general permit
registration.
10.3. The Secretary may suspend or revoke a permit or general permit registration if the plans and
specifications upon which the approval was based or the conditions established in the permit are not
adhered to. Upon notice of the Secretary’s intent to suspend, modify or revoke a permit, the permit
holder may request a conference with the Secretary in accordance with the provisions of W. Va. Code §
22-5-5 to show cause why the permit or general permit registration should not be suspended, modified or
revoked. After that conference, or if no conference is requested, the Secretary shall issue an order
suspending, modifying or revoking the permit and send a copy of the same to the permit holder. If the
permittee is aggrieved by the Secretary’s order, the permittee may appeal the same to the Air Quality
Board in accordance with the provisions of W. Va. Code § 22B-1-1, et seq.
10.4. Possession of a permit does not relieve any person of the responsibility of complying with any
and all applicable provisions of Chapter 22 of the West Virginia Code or any applicable rules of the
Secretary or W. Va. Code §22-1-1 et seq promulgated thereunder.
10.5. A source which has not operated at least 500 hours in one 12-month period within the previous
five (5)-year time period may be considered permanently shutdown, unless such source can provide to the
Secretary, with reasonable specificity, information to the contrary. All permits or general permit
registrations may be modified or revoked and/or reapplication or application for new permits may be
required for any source determined to be permanently shutdown.
§45-13-11. Temporary Construction or Modification Permits.
11.1. Upon written request by an owner or operator of a source, the Secretary may allow the owner or
operator to make limited changes for experimental, testing, commercial development and other temporary
purposes for limited periods of time without applying for a construction permit or permit modification
otherwise required under the provisions of this rule for such activity. If granted, the temporary permit
shall indicate the nature of the activity being approved, the time period for which the approval is being
granted, and any conditions to be imposed on the approved activity.
11.2. To permit experimental, testing, commercial development and other temporary purposes, the
Secretary may issue temporary permits for periods up to six (6) months (which may be extended in
writing for up to twelve (12) additional months at the Secretary’s discretion) upon the submission of a
written application for such extension to the Secretary by the owner or operator. The Secretary may
impose any reasonable conditions as part of a temporary permit which may include, but not be limited to,
the submission of periodic progress or operation reports, the provision of suitable sampling sites for tests,
emissions testing by the permittee, and the installation, operation, and maintenance of air pollutant
monitoring devices.
11.2.a. The Secretary shall maintain for public review a permit application list of all pending
applications for temporary permits containing, at a minimum, the name of the applicant, the type and
location of the source, and the proposed start-up date for the stationary source. At the same time that an
application for a temporary permit is filed with the Secretary, the applicant shall also place a Class I legal
advertisement in a newspaper of general circulation where the source is or will be located application
shall be made available for the duration of the public comment period on the WVDEP/DAQ webpage as
required under subsection 8.2. The advertisement information provided shall contain the information
required under subsection 8.3 8.2. No temporary permit may be issued by the Secretary until a thirty (30)
day comment period is provided. During this time, the Secretary will receive and evaluate written
comments relating to the application.

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11.2.b. The Secretary may suspend or revoke any temporary permit upon 24-hour notice to the
permittee if the Secretary determines that suspension or revocation is appropriate to protect human health
or the environment. Notice may be given verbally, but shall be confirmed in writing by the Secretary
immediately thereafter.
11.3. Any temporary permit issued under this section which has expired is not eligible for extension
nor is the permittee eligible to reapply for a temporary permit. The activities shall be solely at the risk of
the owner or operator of the stationary source and, in undertaking any such activities, the owner or
operator shall not assert as any argument, including legal or equitable, in any proceeding (administrative,
civil or criminal) that such activities or investment has occurred.
11.4. Upon written request by an owner or operator of a source subject to a temporary permit, the
Secretary may allow the owner or operator to conduct emissions testing under an approved protocol. If
granted, the approval shall indicate the nature of the activity being approved, the time period for which
the approval is being granted and any conditions to be imposed on the approved activity.
§45-13-12. Permit Application Fees.
12.1. Applications for permits required under sections 5 and 11 shall be subject to the fee provisions
of section 3 of 45CSR22, provided that Class I general permit registrations shall be subject to a $250
application fee and Class II general permit registrations shall be subject to a $500 application fee, in lieu
of the $1000 fee required under subdivision 3.4.a of 45CSR22. However, a source applying for a Class I
general permit which qualifies as a small business under section 507(c) of the federal Clean Air Act shall
not be subject to any application fees. The provisions of subdivision 3.4.b of 45CSR22 relating to
additional fees shall not be applicable to sources applying for Class I general permits, but shall be
applicable to sources applying for Class II general permits. Applications for permits under section 4 of
this rule shall be subject to the fee provisions of that section.
§45-13-13. Inconsistency Between Rules.
13.1. In the event of any inconsistency between this rule and any other rule of the Secretary the
Division of Air Quality, such inconsistency shall be resolved by the determination of the Secretary and
such determination shall be based upon the application of the more stringent provision, term, condition,
method or rule.
§45-13-14. Statutory Air Pollution.
14.1. Upon a determination by the Secretary that a source should be made subject to the permitting
requirement of this rule to prevent a statutory air pollution, the Secretary shall require the owner or
operator of the source to apply for and obtain a permit pursuant to the provisions of this rule. The
Secretary may require a permit for any source that would not otherwise be subject to this rule or with
respect to any source that is subject to this rule with respect to emissions or potential emissions other than
those emissions upon which the Secretary’s finding is based. In issuing any permit condition required by
this section, the Secretary may impose any reasonable condition necessary to prevent a statutory air
pollution.
§45-13-15. Hazardous Air Pollutants.
15.1. For purposes of establishing an inventory of hazardous air pollutants, any person who makes an
application for a permit as required by subsections 5.1, 5.12 5.11 or 11.2 shall include in the application
information on the nature and extent of any emissions of hazardous air pollutants. Hazardous air
pollutants (that are not air pollutants listed in Table 45-13A) shall be subject to limitations or controls
only to the extent necessary:

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15.1.a. To incorporate an applicable requirement based upon any rule of the Secretary promulgated
pursuant to W. Va. Code § 22-5-1, et seq.;
15.1.b. To implement subsection 5.5 related to voluntary permitting;
15.1.c. To establish case-by-case maximum achievable control technology (MACT) requirements
as required by 45CSR34; or
15.1.d. To set an emission limit based upon the source’s maximum potential to emit as provided in
the permit application.
15.2. In the event of a subsequently issued MACT requirement, the facility may request a review of
an existing permit received pursuant to this rule. When appropriate, said MACT requirements shall be
incorporated into the permit.
15.3. Any source or source category that has been the subject of an analysis pursuant to Section
112(n) of the federal Clean Air Act shall be exempt from any limitations or controls on hazardous air
pollutants until such time as it has been determined that MACT controls are applicable. In the event that
MACT controls are determined to be applicable to a 112(n) source or source category, this section shall
be applicable only to the hazardous air pollutants that are subject to such MACT.
§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,

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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 ability 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 a permission to construct has been applied for 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)

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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
this 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 § 225-1, 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

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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.

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TABLE 45-13A

Potential Emission Rate
pounds/year

Pollutant

Acrylonitrile ..................................................................................................................... 500
Allyl Chloride ............................................................................................................... 10,000
Arsenic Compounds (Inorganic) ...................................................................................... 200
Asbestos .............................................................................................................................. 14
Benzene ........................................................................................................................... 1,000
Beryllium ............................................................................................................................ 0.8
1,3 Butadiene ..................................................................................................................... 500
Carbon Tetrachloride ...................................................................................................... 1,000
Chloroform...................................................................................................................... 1,000
Ethylene Dichloride ........................................................................................................ 1,000
Ethylene Oxide................................................................................................................... 500
Formaldehyde ................................................................................................................. 1,000
Lead or lead compounds ................................................................................................. 1,200
Mercury .............................................................................................................................. 200
Methylene Chloride ........................................................................................................ 5,000
Propylene Oxide.............................................................................................................. 5,000
Trichloroethylene .......................................................................................................... 10,000
Vinyl Chloride ................................................................................................................ 1,000
Vinylidene Chloride ........................................................................................................ 2,000

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TABLE 45-13B

DE MINIMIS SOURCES

1.

Air compressors and pneumatically-operated equipment, including hand tools; instrument air
systems (excluding fuel-fired compressors); emissions from pneumatic starters on reciprocating
engines, turbines or other equipment; and periodic use of air for cleanup (excluding all sandblasting
activities).

2.

Air contaminant detectors or recorders, combustion controllers or shutoffs.

3.

Any consumer product used in the same manner as in normal consumers’ use, provided the use
results in a duration and frequency of exposure which are not greater than those experienced by
consumers and which may include, but not be limited to, personal use items; janitorial cleaning
supplies; office supplies; and supplies to maintain copying equipment.

4.

Bathroom/toilet vent emissions.

5.

Tobacco smoking rooms and areas.

6.

Batteries and battery charging stations, except at battery manufacturing plants.

7.

Bench-scale laboratory equipment used for physical or chemical analysis, excluding lab fume hoods
or vents.

8.

Routine calibration and maintenance of laboratory equipment or other analytical instruments.

9.

Boiler water treatment operations, excluding cooling towers.

10.

Portable brazing, soldering, gas cutting or welding equipment used as an auxiliary to the principal
equipment at the source.

11.

CO2 lasers, used only in metals and other materials which do not emit any hazardous air pollutants
in the process.

12.

Combustion emissions from propulsion of mobile sources.

13.

Wood heaters, cook stoves or fireplaces used for heating and/or cooking at residential or publiclyowned facilities.

14.

Comfort air conditioning or ventilation systems not used to remove air contaminants generated by
or released from specific units of equipment.

15.

Demineralized water tanks and demineralizer vents.

16.

Drop hammers or hydraulic presses for forging or metalworking.

17.

Equipment used exclusively for pressing, drawing or stamping of metals, excluding emissions due
to quenching activities or supporting equipment.

18.

Emissions from die-casting machinery, excluding emissions from melt furnaces or other associated

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 45CSR13

processes.
19.

Foundry sand molding forming equipment, provided no heat is applied and no VOCs or hazardous
air pollutants are emitted, but not including the metal pouring process.

20.

Electric or steam-heated drying ovens, autoclaves or steam sterilizers, excluding the emissions from
the articles or substances being processed in the ovens or autoclaves or the boilers delivering the
steam.

21.

Emergency electrical generators at residential locations.

22.

Emergency road flares.

23.

Environmental chambers not using hazardous air pollutant gases.

24.

Emissions from food preparation at restaurants and cafeterias.

25.

Equipment used exclusively to slaughter animals, excluding other equipment at slaughterhouses,
such as rending cookers, boilers, heating plants, incinerators, and electrical power generating
equipment.

26.

Equipment used for quality control/assurance or inspection purposes, including sampling equipment
used to withdraw materials for analysis.

27.

Fire suppression systems.

28.

Firefighting equipment and the equipment used to train firefighters and emergency response
individuals, which is subject to 45CSR6 and complies with 45CSR15 45CSR34.

29.

Single-use flares used solely to indicate danger to the public.

30.

Hand-held applicator equipment for hot melt adhesives with no VOCs or hazardous air pollutants in
the adhesive formulation.

31.

Hand-held equipment for buffing, polishing, cutting, drilling, sawing, grinding, turning or
machining wood, metal or plastic.

32.

Humidity chambers.

33.

Hydraulic and hydrostatic testing equipment.

34.

Mobile internal combustion engines used for landscaping purposes.

35.

Laser trimmers using dust collection to prevent fugitive emissions.

36.

Laundry activities, excluding dry-cleaning and steam boilers.

37.

Natural gas pressure regulator vents, excluding venting at oil and gas production facilities.

38.

Oxygen scavenging (de-aeration) of water.

39.

On-site plant maintenance and upkeep activities, including lawn care, weed control, pest control,
general repairs, cleaning, painting, surface coating, welding, plumbing, grinding, cutting,

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 45CSR13

woodworking, janitorial activities, re-tarring roofs, installing insulation, and paving parking lots,
provided that these activities are not conducted as part of a manufacturing process and are not
related to the source’s primary business activity; provided further, that for cleaning, surface coating
and painting activities, the source is not subject to VOC or HAP control requirements and the
source minimizes the generation of fugitive emissions of any regulated air pollutants; and provided
further, that the source complies with the asbestos requirements in 45CSR15 45CSR34.
40.

Commercial and residential maintenance and upkeep activities occurring at a building, residence or
other structure, including lawn care, weed control, pest control, general repairs, cleaning, painting,
surface coating, welding, plumbing, grinding, cutting, woodworking, janitorial activities, re-tarring
roofs, installing insulation, and paving parking lots, provided that these activities are not conducted
as part of a manufacturing process; provided further, that for cleaning, surface coating and painting
activities, the source is not subject to VOC or HAP control requirements and the source minimizes
the generation of fugitive emissions of any regulated air pollutants; and provided further, that the
source complies with the asbestos requirements in 45CSR15 45CSR34.

41.

Portable electrical generators that can be moved by hand from one location to another. “Moved by
hand” means that it can be moved without the assistance of any motorized or non-motorized
vehicle, conveyance or device.

42.

Process water filtration systems and demineralizers.

43.

Salt baths using nonvolatile salts that do not result in emissions of any regulated air pollutants.

44.

Shock chambers.

45.

Solar simulators.

46.

Steam cleaning operations, excluding hazardous air pollutant emissions.

47.

Steam leaks.

48.

Steam vents and safety relief valves, provided that such valves shall be included in any permit
application that may otherwise be required under this rule.

49.

Storage tanks, reservoirs and pumping and handling equipment of any size containing soaps,
vegetable oil, animal grease or fat and aqueous salt solutions, provided appropriate lids and covers
are utilized, excluding rendering plants.

50.

Storage tanks, vessels and containers holding or storing liquid substances that will not emit any
regulated air pollutant.

51.

Vents from continuous emissions monitors and other analyzers.

52.

Operation of groundwater remediation wells, including emissions from the pumps and collection
activities. This does not include emissions from air-stripping treatment or storage.

53.

Log wetting areas that are using only water.

54.

Log flumes.

55.

The storage, handling, and handling equipment for bark and wood dust not subject to 45CSR7.

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 45CSR13

56.

Solid waste dumpsters.

57.

Ozone generators used in water treatment facilities.

58.

Storage vessels having less than 10,567 gallons capacity containing petroleum or organic liquids
with a vapor pressure of 1.5 psia or less at storage temperature, provided that the emissions from all
such organic liquid storage tanks, in the aggregate, are less than 2 tons per year for hazardous air
pollutants or VOCs.

59. A source that is not major that emits only non-processed fugitive emissions (other than haul roads).

26