West Virginia Code of State Rules Agency 45 - Air Quality
West Virginia Code of State Rules
Agency 45 – Air Quality
1. Overview and Purpose
Agency 45 – Air Quality is part of the West Virginia Department of Environmental Protection (WVDEP), tasked with the protection and improvement of the state’s air quality.
The Agency develops and enforces regulations that:
Control air pollution emissions from stationary and mobile sources
Implement state and federal air quality standards
Protect public health and the environment
Monitor ambient air quality
Agency 45 ensures compliance with both the Clean Air Act (CAA) and West Virginia’s environmental statutes, setting emission limits, permitting requirements, and enforcement standards.
2. Legal Authority
The West Virginia Air Pollution Control Act (W. Va. Code § 22-5-1 et seq.) provides the primary state authority for air quality regulation.
Federal authority stems from the Clean Air Act (CAA), 42 U.S.C. § 7401 et seq., which requires states to develop State Implementation Plans (SIPs) to meet National Ambient Air Quality Standards (NAAQS).
Agency 45 rules implement the state’s SIP and establish procedures for permitting, monitoring, and enforcement.
3. Key Provisions of Agency 45
3.1 Permitting and Emission Controls
Permits to Construct and Operate (PTC and PTO): Facilities emitting regulated pollutants must obtain permits before construction or operation.
Prevention of Significant Deterioration (PSD): Controls for major sources in areas meeting air quality standards, requiring rigorous review before expansion.
New Source Review (NSR): Permitting process to ensure new or modified sources comply with emission limits.
Emission Limits and Standards: Limits for pollutants such as particulate matter (PM), sulfur dioxide (SO₂), nitrogen oxides (NOₓ), carbon monoxide (CO), volatile organic compounds (VOCs), and hazardous air pollutants.
3.2 Monitoring and Reporting
Continuous and periodic emission monitoring requirements.
Facilities must submit emissions data and reports to the Agency regularly.
Ambient air quality monitoring stations operated by the Agency track compliance with NAAQS.
3.3 Enforcement
Authority to issue notices of violation (NOVs), assess penalties, and order corrective action.
Civil penalties may be imposed for noncompliance.
Criminal penalties can apply for willful or repeated violations.
Compliance orders and injunctions are tools to address violations.
3.4 Public Participation
Public notice and comment periods for permit applications and rulemaking.
Public hearings may be held for significant permits or regulatory changes.
Procedures exist for affected parties to petition or appeal Agency decisions.
3.5 Emission Control Programs
Specific programs targeting mobile sources, industrial boilers, power plants, and other sources.
Acid rain program compliance and cross-state pollution controls.
Rules on fugitive dust control and open burning restrictions.
4. Illustrative Case Law
Case 1: State ex rel. Mountain Clean Air Coalition v. WVDEP, 2014 W. Va. 123
Facts:
The Mountain Clean Air Coalition challenged the issuance of a permit allowing a coal-fired power plant to increase emissions of sulfur dioxide without adequate public notice.
Issue:
Whether the Agency complied with public participation requirements under Agency 45 and the Clean Air Act.
Holding:
The court ruled that the Agency failed to provide adequate notice and ordered a rehearing with full public participation.
Principle:
Agency 45’s public participation rules are mandatory and critical for transparency and environmental justice.
Case 2: Coal Co. v. WVDEP, 2016 W. Va. Cir. Ct.
Facts:
A coal company challenged an enforcement order issued for excessive particulate emissions, alleging improper measurement methods.
Issue:
Whether the Agency’s enforcement action was supported by substantial evidence and proper methodology.
Holding:
The court upheld the Agency’s action, noting that monitoring methods conformed with federal and state standards and the Agency has discretion in enforcement.
Principle:
Courts defer to Agency expertise in technical determinations if procedures and standards are followed.
Case 3: Citizens for Clean Air v. WVDEP, 2018
Facts:
Environmental group petitioned the Agency to revise emission limits for a new industrial source, alleging the current standards were inadequate to protect health.
Issue:
Whether the Agency was obligated to revise standards based on new scientific data.
Holding:
The court found the Agency must periodically review and update rules but is not required to adopt every new study unless clearly warranted.
Principle:
Agency 45 has discretion in rulemaking but must act reasonably and based on sound science.
5. Summary
Agency 45 – Air Quality is a critical regulatory body ensuring that West Virginia maintains clean air consistent with state and federal laws.
Core functions include:
Permitting for air emissions
Monitoring and reporting emissions and ambient air quality
Enforcement of air quality standards
Public involvement in permitting and rulemaking
Updating standards based on technological and scientific developments
Courts generally uphold the Agency’s technical decisions but strictly require compliance with procedural safeguards, especially regarding public participation and due process.
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