WEST VIRGINIA AIR QUALITY BOARD

OHIO V ALEY JOBS ALLIANCE,
Appellant,

v.

Case No.15-01-AQB

WILLIAM F. DURHAM, Director,
Division of Air QuaUty, West Virginia
Department of Environmental Protection,
Appellee,
MOUNDSVILLE POWER, LLC,
Intervenor.

FINAL ORDER
Moundsville Power, LLC ("Moundsville Power"), has proposed constructing a natural
gas combined cycle power plant near Moundsville, West Virginia. Moundsville Power was
issued a Permit to Construct (No. RI4-0030) by the West Virginia Department of Environmental
Protection, Division "of Air Quality ("DEP") on November 21, 2014. Certified File, p. 39.
Construction has yet to begin on the plant.
Subsequent to issuance of the Permit, Moundsville Power re-evaluated the plant
equipment and design, and decided to propose certain changes, including larger duct burners,
higher turbine firing rate, increased power output, and cooling tower revisions. Transcript, Vol 1, pg.
171.

On April 22, 2015, Moundsville Power applied for a Class II Administrative Update of
the Permit to facilitate the changes. Certified File, p. 142. The Administrative Update was approved
and issued to Moundsville Power on August 14,2015. Certified File, p.1.

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 Three (3) months after the Administrative Update (November 18, 2015), a group called
the Ohio Valley Jobs Alliance ("OVJA") appealed the update.

OVJA consists of a few

individuals whose primary purpose is to save coal mining jobs. Transcript Vol. 1, pg. 137, 141, 148-51.
OVJA did not officially incorporate until May 2015, six months prior to filing the appeal. ld. at
142. OVJA has held one meeting since its incorporation. ld. at 156. It should be noted that the

Board was somewhat concerned by the OVJA's apparent lack of knowledge about the contents
of its appeal, lack of a cognizable purpose related to the environment, and overall express intent
to stop the construction of the plant solely to benefit another industry. Nevertheless, the Board
permitted the OVJA to proceed as a party.

In regards to the Administrative Update, the OVJA argues that the DEP should have
proceeded with a modification of the permit instead of an Administrative Update when it allowed
Moundsville Power to increase its emissions limits for C02, Formaldehyde, and Particulate
Matter (PM2.5). Proceeding with a modification of the permit would mean that the DEP and
Moundsville Power would have to repeat the public notice, comment period, etc. An
Administrative Update does not require these steps to be repeated.
The following represents the issues the Board believes were properly noticed in the
appeal and addressed in the hearing and the subsequent briefs:

1. Whether C02 was a regulated pollutant at the time of the Class II Administrative
Update, and if so, whether the allowed increase in C02 emission limits was permitted
by an Administrative Update;
2. Whether allowed increase of PM2.5 emission limits was permitted by an
Administrative Update;
3. Whether the allowed increase of Formaldehyde emission limits was permitted by an
Administrative Update; and

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 4. If a modification is required, whether the DEP and Moundsville Power adequately
reevaluated air quality monitoring and.Best Availa~le Control Technology (BACT).

OVJA argues that C02 was a regulated pollutant at the time the Administrative Update
was used to change the permit. Appellant's Findings of Fact / Conclusions of Law, Pg.

2.

On the other

hand, the DEP and Moundsville Power argue that C02 was not a regulated pollutant at the time.
Appellee's Findings of Fact / Conclusions of Law, Pg. 12. Determining whether C02 was a regulated

pollutant at the time of the Administrative Update is important. If C02 was a regulated pollutant
at the time, then the DEPs change in allowable C02 levels would have triggered a modification
rather than an Administrative Update.
The relevant law is located at 45 CSR §J3-2.20, which states as follows:
2.20. "Regulated Air Pollutant" for the purpose of this rule means the following:
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)O,
which requires new and modified sources to satisfy emissions standards, work
practice· standards and other requirements
The applicable facts are as follows: The law cited above defines a regulated pollutant as
a pollutant subject to a New Source Performance Standard (NSPS). C02 was not subject to
NSPS until the effective date of the new federal regulation 40 CFR 60, subpart TTTT. This law
was effective October 23,2015:
DATES: This fmal rule is effective on October 23, 2015. The
incorporation by reference of certain publications listed in the rule
is approved by the Director of the Federal Register as of October
23,2015.
80 Fed. Reg. 6410 (Oct. 23,2015).

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 An Administrative Update was used by the DEP in August 2015, about two months before the

NSPS (i.e. 40 CFR 60, subpart TTTT ) became effective. Consequently, at the time the DEP
used the Administrative Update, C02 was not a regulated pollutant.
Again, determining if C02 was a regulated pollutant at the time when the DEP used an
Administrative Update is important. If C02 was a regulated pollutant at the time, then the DEP
could not use an Administrative Update to modify the permit. The DEP would have to undertake
a modification of the permit, which would require public notice and a comment period, at the
least. Because the Board finds that C02 was not a regulated pollutant at the time, the change in
C02 limits did not trigger a modification.
For the above reasons, the Board finds that the action by the DEP to use an
Administrative Update to modify the C02 limits was lawfuL Thus, the revisions to the permit by
the DEP are AFFIRMED. See: W Va. Code 22B-1-7(g)(1)

PM2.5
OVJA argues that the DEP increased PM2.5 emissions limits beyond what is allowed in an
Administrative Update. On the other hand, the DEP concedes to lower emission limits and asks
that the Board simply order the PM2.5limits to be reduced.
The relevant law is located at 45 CSR 14-2 which states as follows:
2.40. "Major modification" means any physical change in or change in the
method of operation of a major stationary source which results in: a
significant emissions increase (as defined in subsection 2.75) of any
regulated NSR pollutant (as defined in subsection 2.66); and a significant
net emissions increase of that pollutant from the major stationary source ...
(irrelevant portions omitted)

2.75. "Significant emissions increase" means, for a regulated NSR
pollutant, an increase in emissions that is significant (as defined in
subsection 2.74) for that pollutant.
2.74. "Significant" means:

4.

 2.74.a. ill reference to a net emISSIOn Increase or the
potential of a source to emit any of the following
pollutants, a rate of emissions that would equal or exceed
any of the following rates:
PM2.5 ................................. 10 tons per year
The applicable facts are as follows: The DEP increased the PM2.5 emissions limits to
11.76 tons per year in the Administrative Update. That amount exceeds the 10 tons per year
limit and therefore triggers a major modification. ill other words, the increase in PM2.5 is not
appropriate for an Administrative Update. However, the DEP and Moundsville Power conceded
that it would accept lower limits. The Board will not waste the opportunity to require less
polluting when the parties do not object and the issue can be resolved.
Thus, the Board modifies the terms and conditions of the permit.

The DEP and

Moundsville Power are ORDERED to reduce the emissions limits by a value less than the 10
tons per year threshold or proceed with the requirements of a modification.

Formaldehyde

OVJA argues that a change in the formaldehyde emissions limits triggered a modification
of the permit. As a result, appellants argue that the administrative update was not allowed.
The relevant law is located at 45 CSR 13-2 which states as follows:
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.c. Results in an increase in emissions of an air pollutant listed
in Table 45-13A of 10 percent 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 45CSR27

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 Table 45-13A lists the potential emission rate of formaldehyde as 1,000 pounds for year. See: 45
CSR 13-16.
The applicable facts are as follows:

Formaldehyde is one of several Hazardous Air

Pollutants (HAPs) that is regulated in the permit. Emissions of HAPs are calculated using an
emission factor. ill the original permit and the subsequent Administrative Update, the DEP and
Moundsville Power used an emission factor of 3.0 x lO-4lbs/MMBTU. The number was taken
from a 2001 EPA guidance memo and incorporates emission control factors which serve to lower
the potential for emission. ill this case, the emission control is an oxidation catalyst installed at
the plant. However, in the Administrative Update, the DEP applied an additional 10% control
that was not based on any new emission control technology. Transcript, Vol. 2, pg. 73. ill other
words, the potential to emit HAPs in the original permit was discounted due to the use of the
control technology at the plant (i.e. the oxidation catalyst).

Then, in the subsequent

Administrative Update to the permit, the potential to emit HAPs was discounted another 10% but
without the addition of any new control technology. The additional 10% was just enough to
reduce the potential to emit HAPs down to a value that would not invoke a modification and
allow the permit change approving the Administrative Update.
Nevertheless, as pointed out by the DEP and Moundsville power, OVJA did not identify
a state or federal regulation that prohibits the DEP from using the emissions factor from the 2001
EPA memo. Similarly, OVJA did not identify a state or federal regulation that prohibits the DEP
from applying another 10% control to the potential to emit. Testimony from the DEP stated that
the applying the additional 10% control was reasonable and was not for the purpose of
circumventing a modification. Transcript, Vol.

2, pg. 73

 For the above reasons, the Board fmds that the action by the DEP to use an
Administrative Update to modify the formaldehyde limits was lawful. Thus, the revisions to the
permit by the DEP are AFFIRMED. See: W Va. Code 22B-1-7(g)(1).
Air Quality Monitoring and Best Available Control Technology

OVJA argues that the air quality monitoring performed by the DEP and Moundsville
Power was not properly performed. Appellants Findings ofFact / Conclusions ofLaw, Pg. 13.

The DEP

and Moundsville Power argue that additional air quality monitoring was not required for the
Administrative Update, despite doing it anyway. Appellee and Intervenor's Joint Findings of Fact /
Conclusions of Law, Pg. 18.

They also argue that the air quality monitoring was properly performed

regardless of whether it had to be done. Id.
The relevant law is located at 45 CSR 14-11 which states as follows:
11.2. Any person proposing to make a major modification to a stationary
source shall provide an analysis of the ambient air quality in the area that
the major modification would affect for each pollutant for which it would
result in a significant net emissions increase.
The applicable facts are as follows: The Board has ruled previously in this Order that a
modification / major modification was not required by the DEP and Moundsville Power. The
Board concluded that the Administrative Update was permissible.

Additional air quality

monitoring is not required under an Administrative Update, despite the DEP and Moundsville
Power revisiting air quality monitoring anyway.
In addition, the OVJA argues that an analysis of the Best Available Control Technology
(BACT) should have been revisited. Appellants Findings ofFact / Conclusions ofLaw, Pg. 3.
The relevant law is located at 45 CSR 14-8 which states as follows:
8.3. Any person proposing a major modification of a stationary source
shall apply best available control technology for each regulated NSR
pollutant for which such proposed major modification would cause a

7

 significant net emISSIOns increase from such source. This requirement
applies to each proposed emissions unit at which a net emissions increase
in the pollutant would occur as a result of a physical change or change in
the method of operation in the unit.

The applicable facts are as follows : Again, the Board has ruled previously in this Order
that a modification / major modification was not required by the DEP and Moundsville Power.
Therefore, the Administrative Update is permissible. Additional BACT review is not required
under an Administrative Update, despite the DEP and Moundsville Power revisiting the analysis
anyway.
Thus, it is ORDERED that the issues of air quality monitoring and BACT were not
applicable to the Administrative Update. See: W Va. Code 22B-1-7(g)(l)for Board Authority.

ENTERED:~LQ.g% \ &1 :JD I G,
( ate)

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