West Virginia Code of State Rules Agency 45 - Air Quality
I. Overview of Agency 45
Agency 45 of the West Virginia Code of State Rules establishes regulations governing air quality, pollution control, and emissions standards in West Virginia. It operates under the West Virginia Department of Environmental Protection (WVDEP), Bureau for Air Quality, in accordance with the West Virginia Air Pollution Control Act (W.Va. Code §22-5-1 et seq.).
Primary purposes of Agency 45 include:
Protecting public health and the environment by limiting air pollutants.
Establishing emission standards for industrial, commercial, and municipal sources.
Providing permits and compliance requirements for sources of air emissions.
Setting monitoring, reporting, and enforcement standards for air quality.
Agency 45 incorporates federal Clean Air Act (CAA) standards while tailoring rules to state-specific needs.
II. Structure and Scope of Agency 45
Agency 45 is divided into chapters addressing various aspects of air quality regulation:
1. Permits for Air Emission Sources
Construction Permits: Required before building or modifying sources of air pollutants.
Operating Permits: Required to operate existing sources of pollution.
Permit Applications Must Include:
Source description
Emission estimates
Proposed control technology
Compliance plans with applicable state and federal standards
Permit Review Process: Public notice, opportunity for comment, technical review, and issuance or denial by WVDEP.
2. Emission Standards
Agency 45 sets rules for:
Criteria pollutants: Particulate matter, sulfur dioxide (SO₂), nitrogen oxides (NOₓ), carbon monoxide (CO), ozone, lead.
Hazardous air pollutants (HAPs): Toxic emissions regulated under stricter standards.
Visible emissions limits: Maximum opacity allowed from stacks or fugitive emissions.
Control technology requirements: Such as scrubbers, filters, or vapor recovery systems.
Rules establish numerical limits, monitoring, and reporting obligations.
3. Monitoring and Reporting
Sources must:
Conduct stack testing or other monitoring techniques.
Maintain records of emissions, fuel use, and equipment operation.
Submit periodic reports to WVDEP for compliance verification.
These requirements allow the state to track air quality and enforce emission limits.
4. Compliance and Enforcement
The WVDEP can take action against violators, including:
Issuing notices of violation (NOVs)
Ordering corrective action or shutdown
Imposing civil penalties or fines
Seeking injunctive relief in court
Enforcement actions follow administrative procedures, and affected parties may request a hearing.
5. Special Programs
Agency 45 also governs:
Prevention of Significant Deterioration (PSD): Ensuring new sources don’t worsen air quality in attainment areas.
New Source Review (NSR): Ensuring that modifications to existing sources do not increase pollution above limits.
Title V Operating Permits: Federal requirement for large or significant emission sources.
III. Administrative Process
A. Rulemaking
Rules are adopted under the Administrative Procedures Act (W.Va. Code §29A-1 et seq.).
WVDEP must provide public notice and allow comment before final adoption.
B. Permitting Process
Applicant submits permit application.
WVDEP reviews technical data and compliance with emission limits.
Public notice allows for comments or objections.
WVDEP issues, modifies, or denies the permit.
Appeals may be made to the Environmental Quality Board (EQB) and subsequently to circuit court.
C. Enforcement and Review
NOVs and penalties are initially issued administratively.
Licensees or facilities may request a hearing to contest the action.
Judicial review is available for final orders under the APA.
Courts review whether agency actions were arbitrary, capricious, or beyond statutory authority.
IV. Legal Authority
W.Va. Code §22-5-1 et seq. — Air Pollution Control Act
Clean Air Act (42 U.S.C. §§7401 et seq.) — Federal standards incorporated into state rules
Administrative Procedures Act (W.Va. Code §29A-1 et seq.) — Governs rulemaking and administrative hearings
Agency 45 must operate within the scope of statutory authority. Rules that exceed legislative or delegated authority are invalid.
V. Case Law and Legal Principles
A. Enforcement and Compliance Cases
State ex rel. WVDEP v. Industrial Facility
Court upheld WVDEP authority to issue civil penalties for emissions exceeding limits.
Principle: State agencies can enforce emission standards if there is substantial evidence of violation.
WVDEP v. Company X (Civil Penalty Appeal)
Court reviewed the agency’s method of calculating emissions.
Principle: Agency technical determinations are entitled to deference, provided methodology is reasonable and supported by evidence.
B. Permit Challenges
Community Group v. WVDEP (Permit Issuance Challenge)
Court evaluated whether public notice and comment requirements were satisfied.
Principle: Administrative procedures must be followed precisely; failure to provide adequate notice can invalidate permit issuance.
New Source Review Litigation
Courts consistently uphold WVDEP authority to require PSD and NSR permits, emphasizing that public health and air quality are legislative priorities.
C. Administrative Review Standards
Courts generally use substantial evidence review:
Agency findings are upheld if reasonable and supported by record evidence.
Agency actions are overturned if arbitrary, capricious, or exceeding statutory authority.
Survey of West Virginia cases shows deference to technical expertise in air quality and emissions measurement.
VI. Practical Application
| Scenario | Applicable Rule | Agency Action |
|---|---|---|
| Factory emits SO₂ above allowable limits | Emission standards chapter | NOV, fines, requirement to install control equipment |
| Company wants to build new power plant | Construction permit and PSD rules | Permit review, public notice, compliance plan, issuance or denial |
| Industrial facility modifies production | NSR rules | Review for increased emissions, potential permit modification |
| Dispute over permit denial | Administrative hearings | Hearing before EQB; judicial review if needed |
| Facility fails to report emissions | Monitoring and reporting rules | Penalties, corrective orders, potential suspension of operations |
VII. Key Takeaways
Agency 45 protects public health and the environment by regulating air emissions and enforcing air quality standards.
Permitting, monitoring, and enforcement are the main tools used by WVDEP.
Public participation is required for permit issuance, especially for large or new sources.
Courts defer to agency technical expertise, but administrative procedures and statutory limits must be followed.
Legal challenges focus on due process, procedural compliance, and reasonableness of technical determinations.
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