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Introduced Version House Bill 4438 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 4438


(By Delegates Morgan, Swartzmiller, Cann,
Browning, Craig, Pethtel,
Sobonya, C. Miller and Stalnaker)
[Introduced February 6, 2008; referred to the
Committee on Government Organization.]


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 complete permit applications for sources other than major sources; allowing all facilities with complete applications for permission to commence construction and which have received written permission from the secretary 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 secretary's duties in minor source air permitting; and requiring the promulgation of legislative 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 5. 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 processing of permit applications 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) No 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 secretary 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 secretary, 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 secretary.
(c) The director Unless otherwise specifically provided in this article, the secretary shall, within a reasonable time not to exceed twelve months three hundred sixty-five calendar days after the date the secretary determines the application is complete for major stationary sources, as defined by the director and six months for secretary, and for all other sources after the receipt of a complete application, including modifications which are not major modifications of existing major stationary sources, not to exceed ninety calendar days, unless the secretary allows an additional thirty calendar days for public participation requirements, after the date the secretary determines that an application is complete, 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 secretary shall issue an order denying a permit for the prevention of such 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 secretary.
(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 secretary 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 secretary shall issue an order denying the administrative update. Any administrative update shall be issued by the secretary within a reasonable time not to exceed sixty calendar days after receipt of a complete application. Administrative updates shall mean minor revisions of existing permits as further described and authorized by rule.
(2) The secretary shall, within a reasonable time not to exceed forty-five calendar days after the date the secretary determines that an application is complete, issue a registration 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 secretary shall issue an order denying registration 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 secretary shall, within a reasonable time not to exceed forty-five calendar days after receipt of a complete application, issue a temporary permit, and within a reasonable time not to exceed forty-five calendar days after receipt of a complete application, issue a relocation permit, 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 secretary shall issue an order denying a permit for construction, modification or relocation. Temporary permits mean permits authorizing the owner or operator to make limited changes for limited periods of time as further described and authorized by rule.
(e) The secretary shall determine whether an application filed under this section is complete within a reasonable time not to exceed thirty calendar days after receipt of that 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 deemed complete.
(f) The secretary, in accordance with chapter twenty-nine-a of this code, shall propose such legislative rule as may be necessary to implement the provisions of this section by the first day of August, two thousand eight.
§22-5-11a. Activities authorized in advance of permit issuance.
(a) With respect to the modifications of nonmajor stationary sources, or modifications which are not major modifications to existing major 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 permitting action by the secretary 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 an active West Virginia air quality permit issued under this article at an existing source, and who has applied to the secretary 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, modified or new emission unit without first obtaining an air quality permit as required by rules promulgated by the secretary.
(3) The following sources are ineligible for submission of an application for permission to commence construction in advance of permit issuance:
(A) Sources subject to the "Federal Clean Air Act" subsections 112(g) or 112(j).
(B) Sources seeking federally enforceable permit conditions in order to avoid otherwise applicable standards;
(C) Sources requiring a specific case-by-case emission limitation or standard under 45CSR21 or 45CSR27.
(4) (A) 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. (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 maximum hourly and annual emissions of regulated air pollutants increased as a result of 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 applicable state and federal air quality regulatory requirements for alteration, expansion, modification or new emission unit, and sufficient information as, in the judgement of the secretary, will demonstrate compliance with any such applicable state and federal air quality regulatory requirements;
(vii) The anticipated construction or building schedule for alteration, expansion, modification or new emission unit;
(viii) 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;
(ix) 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; (x) 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; and
(xi) 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 fifteen calendar days of the publication. Public notice shall be in a newspaper having general circulation in the county or counties where the facility is located. The notice shall contain such information as required by rules promulgated by the secretary.
(C) The secretary 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 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 deemed complete.
(D) Within a reasonable time not to exceed fifteen calendar days after the secretary has made a determination that an application for permission to commence construction in advance of permit issuance is complete, 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:
(i) 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 article;
(ii) 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;
(iii) 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 this article; and
(iv) The nature and extent of emissions from the alteration, expansion, modification or new emission unit will not be substantially different from the facility already permitted.
If the secretary finds that all of the conditions have been satisfied, the notice issued by the secretary shall state 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 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.
(E) 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 applicable rules, the secretary may order that construction cease until the secretary makes a decision on the application for a permit or permit modification. If the secretary orders that construction cease, then 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 if the secretary issues a permit or permit modification under the rules that authorize construction to resume.
(F) The secretary 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, modification or 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 secretary 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 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.
(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 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.
(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 secretary's decision to grant or deny construction authorization under this section, may appeal the decision to the air quality board pursuant to article one, chapter twenty-two-b of this code which may either grant or deny construction authorization under this section.
(b) The secretary, in accordance with chapter twenty-nine-a of this code, shall propose such legislative rule as may be necessary to implement the provisions of this section by the first day of August, two thousand eight.




NOTE:
The purpose of this bill is to allow for the expedited review of 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 secretary, 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 secretary's duties in minor source air permitting and would require the promulgation of legislative rules to implement this bill by the first day of August, two thousand eight.

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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