Senate Bill No. 626
(By Senators McCabe, Jenkins, Wells, Caruth, Oliverio, Foster,
Facemyer, Minard, Kessler, Boley, Plymale and Love)
____________
[Introduced February 8, 2008; referred to the Committee on 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 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.
§22-5-11a is new; therefore, strike-throughs and underscoring have been omitted.