H. B. 2821
(By Delegates Delong, Ellem, Guthrie, Mahan,
Morgan, Pethtel, Swartzmiller and Craig)
[Introduced February 5, 2007; referred to the
Committee on Agriculture and Natural Resources then the
Judiciary.]
A BILL to amend and reenact §22-5-1 and §22-5-11 of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto a new section, designated §22-5-11a, all
relating to air pollution control; allowing for the expedited
review of administratively complete permit applications for
sources, other than major sources; allowing all facilities
with complete permit applications and which have received
written permission from the director, to construct an altered
or expanded source provided that operations of the altered or
expanded source do not commence until its permit or permit
modification is issued; setting timelines for permitting
actions; making other clarifications of the director's duties
in minor source air permitting; and requiring the promulgation
of legislative and emergency rules.
Be it enacted by the Legislature of West Virginia:
That §22-5-1 and §22-5-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended
by adding thereto a new section, designated §22-5-11a, all to read
as follows:
ARTICLE 22. AIR POLLUTION CONTROL.
§22-5-1. Declaration of policy and purpose.
It is hereby declared to be the public policy of this state
and the purpose of this article to achieve and maintain such levels
of air quality as will protect human health and safety, and to the
greatest degree practicable, prevent injury to plant and animal
life and property, foster the comfort and convenience of the
people, promote the economic and social development of this state
and facilitate the enjoyment of the natural attractions of this
state.
To these ends it is the purpose of this article to provide for
a coordinated statewide program of air pollution prevention,
abatement and control; to facilitate cooperation across
jurisdictional lines in dealing with problems of air pollution not
confined within single jurisdictions;
to assure the economic
competitiveness of the state by providing for the timely issuance
of permits and other authorizations under this article; and to
provide a framework within which all values may be balanced in the
public interest.
Further, it is the public policy of this state to fulfill its
primary responsibility for assuring air quality pursuant to the "Federal Clean Air Act," as amended.
§22-5-11. Construction, modification or relocation permits
required for stationary sources of air pollutants.
(a) Unless otherwise specifically provided in this article, no
person shall construct, modify or relocate any stationary source of
air pollutants without first obtaining a construction, modification
or relocation permit as provided in this
section article.
(b) The director shall by rule specify the class or categories
of stationary sources to which this section applies. Application
for permits shall be made upon such form, in such manner, and
within such time as the rule prescribes and shall include such
information, as in the judgment of the director, will enable him or
her to determine whether such source will be so designed as to
operate in conformance with the provisions of this article or any
rules of the director.
(c) Unless otherwise specifically provided in this article,
the director shall, within a reasonable time not to exceed
twelve
months three hundred sixty five calendar days for major
stationary
sources, as defined by the director, and
six months not to exceed
one hundred twenty calendar days for all other sources after the
receipt of a complete application, issue such permit unless he or
she determines that the proposed construction, modification or
relocation will not be in accordance with this article or rules
promulgated thereunder, in which case the director shall issue an order
denying a permit for
the prevention of such the construction,
modification or relocation. For the purposes of this section, a
modification is deemed to be any physical change in, or change in
the method of operation of, a stationary source which increases the
amount of any air pollutant discharged by such source above a de
minimis level set by the director.
(d) With respect to the construction of new nonmajor
stationary sources, or modifications of nonmajor stationary
sources, or modifications which are not major modifications to
existing major stationary sources, or relocations of nonmajor
stationary sources, the following requirements shall apply:
(1) The director shall issue an administrative update to a
permit issued under this section with respect to any of these
sources, unless he or she determines that the proposed
administrative update will not be in accordance with this article
or rules promulgated hereunder, in which case the director shall
issue an order denying the administrative update. Any
administrative update shall be issued by the director within a
reasonable time not to exceed sixty calendar days after receipt of
a complete application if it is related to a 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 in the emission of any existing
regulated air pollutant or any new regulated air pollutant but only in amounts below the level of an emission increase that would
qualify as a modification of a stationary source under rules
promulgated by the director and which do not change the status of
the source from minor to major. In all other cases the
administrative updates shall be issued by the director within a
reasonable time not to exceed thirty calendar days after receipt of
a complete application.
(2) The director shall, within a reasonable time not to exceed
forty-five calendar days after receipt of a complete application,
issue an order granting coverage under a general permit applicable
to any of these sources, unless he or she determines that the
proposed construction, modification or relocation will not be in
accordance with this article or rules promulgated hereunder, in
which case the director shall issue an order denying coverage under
a general permit for the construction, modification or relocation.
General permits shall mean permits authorizing the construction,
modification or relocation 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 for those types of sources.
(3) The director shall, within a reasonable time not to exceed
forty-five calendar days after receipt of a complete application,
issue any request for relocation permits or temporary permits with
respect to any of these sources, unless he or she determines that the proposed construction, modification or relocation will not be
in accordance with this article or rules promulgated hereunder, in
which case the director shall issue an order denying a temporary
permit for construction, modification or relocation. Temporary
permits mean permits authorizing 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 or relocation permit or permit
modification otherwise required under the provisions of this
section for the activity.
(e) The director shall determine whether an application for
new nonmajor stationary sources, or modifications of nonmajor
stationary sources, filed under this section is complete within a
reasonable time not to exceed fifteen calendar days after receipt
of that application at which time the director shall notify the
applicant in writing as to whether the application is complete or
specify any additional information required for the application to
be deemed complete.
(f) No later than the first day of August, two thousand seven,
the director, in accordance with chapter twenty-nine-a of this
code, shall promulgate both legislative and emergency rules to
provide for a more expedited permitting process consistent with
this article.
§22-5-11a. Activities authorized in advance of permit issuance.
(a) With respect to the construction of new nonmajor
stationary sources, or modifications of nonmajor stationary
sources, or modifications which are not major modifications to
existing major stationary sources, or relocations of nonmajor
stationary sources, the following activities are authorized in
advance of permit issuance, although any authorized activities
undertaken by or on behalf of the permit applicant prior to the
issuance of a final permit by the director are undertaken at the
permit applicant's own risk and with the knowledge that the
application for a permit or permit modification may be denied:
(1) Receiving or storing 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.
(2) A person who holds a permit issued under this article at
an existing source, and who has applied to the director 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;
however, the person may not operate any altered, expanded, or
modified source or new emission unit without obtaining a final
permit as required by rules promulgated by the director. Major
source construction and major modifications may not commence in
advance of permit issuance.
(3)(A) To qualify for the authorization to construct in
advance of permit issuance as provided in this section, the
permittee shall submit to the director an application for
permission to commence construction in advance of permit issuance.
(B) Such application for permission to commence construction
shall include all of the following:
(i) The name and location of the source and the name and
address of the permittee;
(ii) The permit number of each active permit issued under this
article for such source;
(iii) The nature of the sources and equipment associated with
such alteration, expansion, modification or new emission unit;
(iv) An estimate of the hourly and annual emissions of
regulated air pollutants increased as a result of the such
alteration, expansion, modification or new emission unit;
(v) The air pollution control devices or methods that are to
be employed in connection with the alteration, expansion,
modification or new emission unit;
(vi) A listing of the presumed applicable air quality
regulatory requirements for alteration, expansion, modification or
new emission unit, and a description of the planned means of
compliance with any such presumed applicable air quality regulatory
requirements;
(vii) The anticipated schedule for alteration, expansion, modification or new emission unit;
(viii) An acknowledgment by the permittee that the source,
equipment and devices that are subject to a request for
construction authorization may not be operated until the permittee
has obtained a permit under rules promulgated by the director;
(ix) An acknowledgment by the permittee that any construction
undertaken prior to the issuance of a final permit under rules of
the director 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
(x) A certification that all of the information contained in
the application is complete and accurate to the best of the
permittee's knowledge and ability, and executed by the permittee or
duly authorized officer or designated responsible official.
(C) The director shall determine whether an application for
permission to commence construction in advance of permit issuance
is complete within a reasonable time not to exceed fifteen calendar
days after receipt of that application, at which time the director
shall notify the applicant in writing as to whether the application
is complete or specify any additional information required for the
application to be deemed complete.
(D) Within a reasonable time not to exceed fifteen calendar
days after the director has made a determination that an application for permission to commence construction in advance of
permit issuance is complete, the director shall notify the
permittee in writing of his or her determination as to whether each
of the following conditions have or have not been satisfied:
(i) The permittee is and has been for a period of at least
three years in substantial compliance with other active permits
issued the permittee under this article;
(ii) The permittee has demonstrated that the alteration,
expansion or modification or the new emission unit will likely be
in compliance with all applicable air quality regulatory
requirements; and
(iii) The alteration, expansion or modification of the new
emission unit will likely not have a significant adverse effect on
air quality standards.
If the director finds that all of the conditions have been
satisfied, the notice issued by the director shall state that
construction of alteration, expansion or modification or the new
emission unit in advance of permit issuance may begin immediately.
If the director finds that one or more of the conditions has not
been met, the notice shall state that the requested construction of
the alteration, expansion or modification or new emission unit may
not begin prior to issuance of a new or modified permit.
(E) If at any time during the construction of such alteration,
expansion, or modification or new emission unit, the director determines that the permittee is not likely to qualify for a permit
or permit modification under applicable rules, the director may
order that construction cease until the director makes a decision
on the application for a permit or permit modification. If the
director orders that construction cease, then construction of the
alteration or expansion may resume only if the director either
makes a subsequent determination that the circumstances that
resulted in such order have been adequately addressed or if the
director issues a permit or permit modification under the rules
that authorize construction to resume.
(F) The director shall evaluate an application for a permit or
permit modification under the rules and make a decision on the same
basis as if the construction of the alteration, expansion or
modification or the new emission unit in advance of permit issuance
had not been authorized pursuant to this section. No evidence
regarding any contract entered into, financial investment made,
construction undertaken, or economic loss incurred by any person or
permittee who proceeds under this section without first obtaining
a permit under this article is admissible in any contested case or
judicial proceeding involving any permit required under the rules.
No evidence as to any determination or order by the director
pursuant to this section shall be admissible in any contested case
or judicial proceeding related to any permit required under this
article.
(G) Any permittee who proceeds under this section shall be
precluded from bringing any action, suit or proceeding against the
state, the officials, agents, and employees of the state or the
director 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.
(H) 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 is
required under the rules.
(I) 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
director. 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 director. 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
director.
(J) A permittee who submits an application to commence
construction in advance of permit issuance under this section shall
pay to the department a fee of two hundred dollars for each
application submitted to cover a portion of the administrative
costs of implementing this section.
(K) Any person whose interest may be affected by the
director's decision to grant or deny construction authorization
under this section or by the failure of the director to render a
decision within the time period set forth in this section, may
appeal the decision or failure to the air quality board pursuant to
article one, chapter twenty-two- b of this code.
(b) No later than the first day of August, two thousand seven,
the director, in accordance with chapter twenty-nine-a of this
code, shall promulgate such legislative and emergency rules as may
be necessary to implement this section.
NOTE: The purpose of this bill is to allow for the expedited
review of administratively complete permit applications for
sources, other than major sources. It would allow all facilities
with complete permit applications and who have received written
permission from the director, to construct an altered or expanded
source provided that operations of the altered or expanded source
could not commence until its permit or permit modification was
issued. It also sets timelines for permitting actions, makes other clarifications of the director's duties in minor source air
permitting and would require the promulgation of legislative and
emergency rules to implement this bill by August 1, 2007.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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