Agency: Office of Air Quality

Subject: To Prevent and Control Particulate Matter, Air Pollution from Materials Handling, Preparation, Storage and Other Sources of Fugitive Particulate Matter

CSR Cite: 45CSR17

Counsel: JAA

Filed for public comment: June 16, 1999

Public comment period ended: July 28, 1999

Filed following public comment period: August 5, 1999

Filed LRMRC: August 5, 1999

Filed as emergency: n/a

Fiscal Impact: None.

Brief Summary

This rule establishes general particulate emission requirements for industrial activities in the state. The rule has been amended to expand its current regional application to all regions of the state.

Section Summary

Section 1 is amended to delete specific references to portions of Kanawha, Fayette, Putnam, Wood and Marion Counties, making the provisions of this rule applicable to all areas of the state. Provisions stating the intent of this rule have also been deleted.

Section 2. The definitions of "fugitive particulate matter" is amended from just matter generated in the transportation of materials, to now include any activity which generates airborne particulate matter. A definition of "stationary air pollution" is inserted and includes any discharge which is injurious to human health or welfare, animal or plant life or property, or, which would interfere with the enjoyment of life or property.

Three sections of the rule have been deleted. These sections provided specific guidelines regarding the control of particulate emissions from handling storage and preparation, disposal areas, roads and haul ways, vehicles and construction activities.

New Section 3 establishes controls for fugitive particulate emissions. Subsection 3.1 provides that no person shall allow fugitive particulate matter to leave their property which causes of contributes to statutory air pollution. Subsection 3.2 provides that the agency may require persons who violate this rule to take the following corrective actions: use water or chemicals to control the particulate matter; application of asphalt, water or other suitable materials to unpaved roads; cover or treatment of cargo to prevent contents from leaking or becoming airborne; or installation of fans, filters vents or other containment methods during sandblasting or other similar operations.

Section 4 has been rewritten to remove provisions which allowed the agency to require counties to present plans on control particulate matter emissions.

Section 10 has been deleted. It allows the agency to require sources of particulate matter to register with the agency.

Section 5 allows variances from the requirements of this rule. The agency may grant variances for temporary activities that cause particulate emissions. New language is inserted which will allow the agency to require persons requesting a variance to present evidence regarding their need for the variance.

Section 6 exempts any facilities or operations that are otherwise regulated by one of the other rules of the agency regarding particulate mater from the provisions of this rule. Normal agricultural activities are also exempted from this rule.

New Section 7 allows the agency to take necessary enforcement actions to enforce this rule.

Section 8 replaces old Section 12 which allows the Director to resolve any conflicts between rules and allows the director to apply the more stringent rule provision term or condition.

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Statutory authority: W.Va. Code ß22-5-4 provides:

(a) The director is authorized:

(1) To develop ways and means for the regulation and control of pollution of the air of the state;

(2) To advise, consult and cooperate with other agencies of the state, political subdivisions of the state, other states, agencies of the federal government, industries, and with affected groups in furtherance of the declared purposes of this article;

(3) To encourage and conduct such studies and research relating to air pollution and its control and abatement as the director may deem advisable and necessary;

(4) To promulgate legislative rules in accordance with the provisions of chapter twenty-nine-a of this code not inconsistent with the provisions of this article, relating to the control of air pollution: Provided, That no rule of the director shall specify a particular manufacturer of equipment nor a single specific type of construction nor a particular method of compliance except as specifically required by the "Federal Clean Air Act," as amended, nor shall any such rule apply to any aspect of an employer-employee relationship: Provided, however, That no legislative rule or program of the director hereafter adopted shall be any more stringent than any federal rule or program except to the limited extent that the director first makes a specific written finding for any such departure that there exists scientifically supportable evidence for such rule or program reflecting factors unique to West Virginia or some area thereof....

I. HAS THE AGENCY EXCEEDED THE SCOPE OF ITS STATUTORY AUTHORITY IN APPROVING THE PROPOSED LEGISLATIVE RULE?

No.

II. IS THE PROPOSED LEGISLATIVE RULE IN CONFORMITY WITH THE INTENT OF THE STATUTE WHICH THE RULE IS INTENDED TO IMPLEMENT, EXTEND, APPLY, INTERPRET OR MAKE SPECIFIC?

Yes.

III. DOES THE PROPOSED LEGISLATIVE RULE CONFLICT WITH OTHER CODE PROVISIONS OR WITH ANY OTHER RULE ADOPTED BY THE SAME OR A DIFFERENT AGENCY?

No.

IV. IS THE PROPOSED LEGISLATIVE RULE NECESSARY TO FULLY ACCOMPLISH THE OBJECTIVES OF THE STATUTE UNDER WHICH THE PROPOSED RULE WAS PROMULGATED?

Yes.

V. IS THE PROPOSED LEGISLATIVE RULE REASONABLE, ESPECIALLY AS IT AFFECTS THE CONVENIENCE OF THE GENERAL PUBLIC OR OF PERSONS AFFECTED BY IT?

Yes.

VI. CAN THE PROPOSED LEGISLATIVE RULE BE MADE LESS COMPLEX OR MORE READILY UNDERSTANDABLE BY THE GENERAL PUBLIC?

No.

VII. WAS THE PROPOSED LEGISLATIVE RULE PROMULGATED IN COMPLIANCE WITH THE REQUIREMENTS OF CHAPTER 29A, ARTICLE 3 AND WITH ANY REQUIREMENTS IMPOSED BY ANY OTHER PROVISION OF THE CODE?

Yes.

VIII. OTHER.