wv-wv-18473: 45-10 — Control of Air Pollution from the Emission of Sulfur Oxides

6/4/2026 4:17:39 PM Office of West Virginia Secretary Of State NOTICE OF PUBLIC COMMENT PERIOD AGENCY: Air Quality TITLE-SERIES: 45-10 RULE TYPE: Legislative Amendment to Existing Rule: Yes Repeal of existing rule:No RULE NAME: Control of Air Pollution from the Emission of Sulfur Oxides CITE STATUTORY AUTHORITY: W. Va. Code § 22-5-4 COMMENTS LIMITED TO: Oral and Written DATE OF PUBLIC HEARING: 07/07/2026 6:00 PM LOCATION OF PUBLIC HEARING: Virtual DATE WRITTEN COMMENT PERIOD ENDS: 07/07/2026 11:59 PM COMMENTS MAY BE MAILED OR EMAILED TO: NAME: Laura Jennings ADDRESS: Department of Environmental Protection; Division of Air Quality; 601 57th Street SE Charleston, WV 25304 EMAIL: laura.m.jennings@wv.gov PLEASE INDICATE IF THIS FILING INCLUDES: RELEVANT FEDERAL STATUTES OR REGULATIONS: No (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) INCORPORATED BY REFERENCE: No (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) PROVIDE A BRIEF SUMMARY OF THE CONTENT OF THE RULE: This rule establishes emission standards for sulfur oxides from fuel burning units and sets forth the registration, permitting, reporting, testing, recordkeeping and exemption requirements. SUMMARIZE IN A CLEAR AND CONCISE MANNER CONTENTS OF CHANGES IN THE RULE AND A STATEMENT OF CIRCUMSTANCES REQUIRING THE RULE: Summary of changes in the rule: The rule is being revised primarily to address SIP approvability concerns with the severability language in section 13 by removing this language, and a typographical update was made. Statement of circumstances requiring the rule: Rule 10 remains subject to the U.S. EPA finding of failure to submit action [88 Fed. Reg. 23353, April 17, 2023] to address deficiencies identified in the U.S. EPA 2015 findings of substantial inadequacy and SIP Call for provisions related to excess emissions during periods of startup, shutdown, and malfunction (SSM) (SSM SIP Call). The rule was revised in 2024; however, it is not approvable as a SIP revision by EPA due to the severability language. The rule is exempt from the Regulatory Moratorium of Executive Order 21-21 under condition 2(f), implementing a federal mandate and no waiver is permitted. Determination of Stringency: A federal counterpart to the proposed rule does not exist; therefore, no determination of stringency is required. Consultation with the Environmental Protection Advisory Council: The Environmental Protection Advisory Council received a copy of the draft rule in advance of the scheduled June 3, 2026, meeting. SUMMARIZE IN A CLEAR AND CONCISE MANNER THE OVERALL ECONOMIC IMPACT OF THE PROPOSED RULE: A. ECONOMIC IMPACT ON REVENUES OF STATE GOVERNMENT: The proposed revisions to this rule should not impact revenues of state government. B. ECONOMIC IMPACT ON SPECIAL REVENUE ACCOUNTS: The proposed revisions to this rule should not impact special revenue accounts. C. ECONOMIC IMPACT OF THE RULE ON THE STATE OR ITS RESIDENTS: The proposed revisions to this rule should not impact costs of state government beyond that resulting from currently applicable federal requirements, nor should it have an economic impact on the state or its residents. D. FISCAL NOTE DETAIL: Effect of Proposal Fiscal Year 2026 2027 Fiscal Year (Upon Increase/Decrease Increase/Decrease Full (use "-") (use "-") Implementation) 1. Estimated Total Cost 0 0 0 Personal Services 0 0 0 Current Expenses 0 0 0 Repairs and Alterations 0 0 0 Assets 0 0 0 Other 0 0 0 2. Estimated Total 0 0 0 Revenues E EXPLANATION OF ABOVE ESTIMATES (INCLUDING LONG-RANGE EFFECT): The proposed revision to this rule should have minimal effect on the costs to the Division of Air Quality. Revisions to the rule may require review of alternative emission limits in subsequent permit applications; however, any potential permitting activity resulting from the proposed revision is not expected to be significant. In accordance with W. Va. Code §22-1A 3(c), the Secretary has determined that this rule will not result in a taking of private property within the meaning of the Constitutions of West Virginia and the United States of America. BY CHOOSING 'YES', I ATTEST THAT THE PREVIOUS STATEMENT IS TRUE AND CORRECT. Yes Isaac Lewis Tincher By my signature, I certify that I am the person authorized to file legislative rules, in accordance with West Virginia Code §29A-3-11 and §39A-3-2. 45CSR10 TITLE 45 LEGISLATIVE RULE DEPARTMENT OF ENVIRONMENTAL PROTECTION AIR QUALITY SERIES 10 CONTROL OF AIR POLLUTION FROM THE EMISSION OF SULFUR OXIDES §45-10-1. General. 1.1. Scope. 1.1.1. This rule establishes emission standards for sulfur oxides from fuel burning units and sets forth the registration, permitting, reporting, testing, recordkeeping and exemption requirements. 1.1.2. Fuel Quality Goals. -- It is the intent of the Secretary that all persons engaged in the burning of fuel make a maximum effort to utilize the best quality fuel available regardless of the requirements of this rule. 1.2. Authority. -- W. Va. Code §22-5-4. 1.3. Filing Date. -- May 2, 2024. 1.4. Effective Date. -- June 1, 2024. 1.5. Sunset provision. -- Does not apply. §45-10-2. Definitions. 2.1. “Air Pollutants” means solids, liquids or gases which, if discharged into the air, may result in a statutory air pollution. 2.2. “Air Pollution”, “statutory air pollution” shall have the meaning ascribed to it in W. Va. Code §22- 5-2. 2.3. “Alternative Emission Limitation” means an emission limitation that applies to a source during some but not all periods of normal operation (e.g., applies only during a specifically defined mode of operation such as startup orshutdown).An alternative emission limitation is a componentofa continuously applicable emission limitation, and it may take the form of a control measure such as a design, equipment, work practice or operational standard (whether or not numerical). 2.4. “Continuous Emission Monitoring System” means the total equipment required for the determination of a gas concentration or emission rate, in the units of the standard. 2.5. “Distillate Oil” means fuel oil that complies with the specifications for fuel oil numbers 1 and 2, as defined by the American Society for Testing and Materials in ASTM D396-98, “Standard Specification for Fuel Oils”. 1 45CSR10 2.6. “Equivalent Fuel Sulfur Content” means that quantity of sulfur dioxide in pounds per million British Thermal Units (BTU’s) which corresponds to a given percent sulfur in fuel being burned and is calculated on the basis of 100% conversion of the sulfur to sulfur dioxide and assuming that no sulfur or sulfur dioxide recovery or control measures are employed. 2.7. “Fuel” means any form of combustible matter (solid, liquid, vapor or gas) that is used as a source of heat. 2.8. “Fuel Burning Unit” means and include any furnace, boiler apparatus, device, mechanism, stack or structure used in the process of burning fuel or other combustible material for the primary purpose of producing heat or power by indirect heat transfer. For the purposes of this rule, all fuel burning units are classified in the following categories: 2.8.1. Type ‘a’ means any fuel burning unit which has as its primary purpose the generation of steam or other vapor to produce electric power for sale. 2.8.2. Type ‘b’ means any fuel burning unit not classified as a Type ‘a’ or Type ‘c’ unit such as industrial pulverized-fuel-fired furnaces, cyclone furnaces, gas-fired and liquid-fuel-fired units. 2.8.3. Type ‘c’ means any hand-fired or stoker-fired fuel burning unit not classified as a Type ‘a’ unit. 2.9. “Indirect Heat Exchanger” means a device that combusts any fuel and produces steam or heats water or any other heat transfer medium. This term includes any duct burner that combusts fuel and is part of a combined cycle system. This term does not include process heaters as defined in subsection 2.18. 2.10. “Malfunction” means a sudden and unavoidable breakdown of process or control equipment. 2.11. “Manufacturing Process” means any action, operation or treatment embracing chemical, industrial or manufacturing efforts, and employing, for example, heat-treating furnaces, by-product coke plants, core-baking ovens, mixing kettles, cupolas, blast furnaces, open hearth furnaces, heating and reheating furnaces, puddling furnaces, sintering plants, electric steel furnaces, ferrous and non-ferrous foundries, kilns, stills, pipe stills, reformers, furnaces associated with manufacturing processes, driers, crushers, grinders, roasters, and equipment used in connection therewith, and all other methods or forms of manufacturing or processing that may emit sulfur dioxide or other sulfur compounds. 2.12. “NaturalGas”means(1)anaturallyoccurringmixtureofhydrocarbonandnonhydrocarbongases found in geologic formations beneath the earth’s surface, of which the principal constituent is methane, or (2) liquefied petroleum (LP) gas, as defined by the American Society for Testing and Materials in ASTM D1835-97, “Standard Specification for Liquefied Petroleum Gases”. 2.13. “Person” means any and all persons, natural or artificial, including the state of West Virginia or any other state, the United States of America, any municipal, statutory, public or private corporation organized or existing under the laws of this or any other state or country, and any firm, partnership or association of whatever nature. 2.14. “Plant” means and includes all fuel burning units, source operations, equipment and grounds utilized in an integral complex. 2.15. “PollutionControlEquipment”meansanyequipmentusedforcollecting,confiningorconverting air pollutants for the purpose of preventing or reducing the emission of these pollutants into the open air. 2 45CSR10 2.16. “Potential To Emit” for the purpose of subdivision 4.1.5 means the maximum capacity of a source, on an annual basis, to emit any air pollutant under its physical and operational design, prior to any air pollution control equipment. 2.17. “Priority I Regions”, “Priority II Regions” and “Priority III Regions” are defined in Table 45- 10A found at the end of this rule. 2.18. “Process Heater” means a device that is primarily used to heat a material to initiate or promote a chemical reaction in which the material participates as a reactant or catalyst. 2.19. “Secretary” means the Secretary of the Department of Environmental Protection or such other person to whom the Secretary has delegated authority or duties pursuant to W. Va. Code §§22-1-6 or 22-1- 8. 2.20. “Shutdown” means the cessation of operation of a source subject to this rule for any reason, unless otherwise defined by a permit issued to create an alternative emission limitation. 2.21. “Source Operation” means the last operation in a manufacturing process preceding the emission of air pollutants which operation: 2.21.1. Results in the separation of the air pollutant from the process materials or in the conversion of the process materials into air pollutants; and 2.21.2. Is not an air pollution abatement operation. 2.22. “Stack”, for the purposes of this rule, means, but is not limited to, any duct, control equipment exhaust, or similar apparatus, which vents gases and/or particulate matter into the open air. 2.23. “Startup” means the setting in operation of a source subject to this rule for any reason, unless otherwise defined by a permit issued to create an alternative emission limitation. 2.24. “Sulfur Dioxide” is an air pollutant which is a nonflammable, nonexplosive, colorless, gaseous molecule composed of 1 atom of sulfur and 2 atoms of oxygen. In concentrations of 0.3 to 1.0 parts per million and above, most people can detect it by taste; in concentrations greater than 3.0 parts per million it has a pungent, irritating odor to most people. 2.25. “Waste Heat Boiler” means any boiler which derives all or part of its heat input from the waste heat of a manufacturing process operation. 2.26. Other words and phrases used in this rule, unless otherwise indicated, shall have the meaning ascribed to them in W. Va. §22-5-1 et seq. §45-10-3. Sulfur Dioxide Weight Emission Standards for Fuel Burning Units. 3.1. Total Allowable Emission Rates for Similar Units in Priority I and Priority II Regions. -- No person shall cause, suffer, allow or permit the discharge of sulfur dioxide into the open air from all stacks located at one1 plant, measured in terms of pounds per hour, in excess of the amount determined as follows: 3.1.1. Reserved. 3 45CSR10 3.1.2. For fuel burning units of the Mitchell Plant of Kentucky Power Company and Wheeling Power Company, located in Air Quality Control Region I, the product of 7.5 and the total actual operating heat inputs for such units discharging through those stacks in million BTU’s per hour. 3.1.3. Reserved. 3.1.4. For fuel burning units of the Mt. Storm Plant of Virginia Electric and Power Company, located in Air Quality Control Region VII, the product of 2.7 and the total design heat inputs for such units discharging through those stacks in million BTU’s per hour. 3.1.5. For Type ‘b’, and Type ‘c’ fuel burning units, the product of 3.1 and the total design heat inputs for such units discharging through those stacks in million BTU’s per hour. 3.2. MaximumAllowableEmissionRatesforSimilarUnitsinRegionIV(KanawhaValleyAirQuality Control Region: Kanawha County, Putnam County, and Falls and Kanawha Magisterial Districts of Fayette County). -- No person shall cause, suffer, allow or permit the discharge of sulfur dioxide into the open air fromall stacks located at one1plant, measured in terms of poundsper hour, in excess of the amount determined as follows: 3.2.1. For fuel burning units of the John Amos Plant of Appalachian Power Company, located in Air Quality Control Region IV, the product of 1.6 and the total design heat input for such units discharging from those stacks in million BTU’s per hour. 3.2.2. Reserved. 3.2.3. For Type ‘b’ and Type ‘c’ fuel burning units, the product of 1.6 and the total design heat inputs for such units discharging through those stacks in million BTU’s per hour, provided however, that no more than 5,500 pounds per hour of sulfur dioxide shall be discharged into the open air from all such stacks. 3.3. Maximum Allowable Emission Rates for Similar Units in All Priority III Regions Except Region IV. -- No person shall cause, suffer, allow or permit the discharge of sulfur dioxide into the open air from all stacks located at one1 plant, measured in terms of pounds per hour, in excess of the amount determined as follows: 3.3.1. For fuel burning units of the Harrison Power Station of Monongahela Power Company, located in Air Quality Control Region VI, the product of 5.12 and the total actual operating heat inputs for such units discharging from those stacks in million BTU’s per hour. 3.3.2. Reserved. 3.3.3. Reserved. 3.3.4. For fuel burning units of the Fort Martin Power Station of Monongahela Power Company, located in Air Quality Control Region VI, the product of 3.1 and the total actual operating heat inputs for such units discharging from those stacks in million BTU’s per hour. 3.3.5. Reserved. 3.3.6. For Type ‘b’ and Type ‘c’ fuel burning units, the product of 3.2 and the total design heat inputs for such units discharging through those stacks in million BTU’s per hour. 4 45CSR10 3.4. Allowable Emission Rates for Individual Stacks. 3.4.1. Unless otherwise approved by the Secretary, the maximum allowable emission rate for an individual stack shall not exceed by more than 25% the emission rate determined by prorating the total allowable emission rate specified in subsections 3.1, 3.2, or 3.3, on the basis of individual unit heat input at design capacity for all fuel burning units discharging through that stack. 3.4.1.a. Subject to the provisions of this section, allowable emission rates for individual stacks shall be determined by the owner and/or operator and registered with the Secretary at the request of and on forms provided by the Secretary. Such rates shall be subject to review and approval by the Secretary. 3.4.1.b. The approved set of individual stack allowable emission rates shall become an official part of the compliance schedule and any permits concerning such source or sources, and shall not be changed without the prior written approval of the Secretary. 3.4.2. The owner or operator of a source subject to subsections 3.1, 3.2 or 3.3 of this rule which has more than one1 stack, may petition the Secretary for individual stack allowable emission rates differing from those calculated under subdivision 3.4.1. The Secretary may approve such request provided that: 3.4.2.a. For each scenario the sum of the maximum allowable emission rates for each stack shall not exceed the total allowable emission rate specified in subsection 3.1, 3.2 or 3.3 for all stacks located at one1 plant; 3.4.2.b. The application shall include, but not be limited to, the maximum proposed emission rate for each individual stack for each proposed operating scenario; 3.4.2.c. The owner or operator shall install a certified continuous emissions monitoring system (CEMS) to monitor sulfur dioxide emissions for each stack. Such CEMS shall be installed, certified, operated and maintained as specified in 40 CFR Part 60, Appendix B, Performance Specification 2 (PS2) and 45CSR16. Sources meeting the requirements of 40 CFR Part 75 (Acid Rain) and 45CSR33 shall be deemed to have satisfied the requirements of PS2; 3.4.2.d. The owner or operator shall demonstrate to the Secretary’s satisfaction that for each operating scenario approved the source will not cause or contribute to a violation of the National Ambient Air Quality Standard for sulfur dioxide, and demonstrate compliance with any other applicable emissions banking and trading rules; 3.4.2.e. The Secretary shall not approve a relaxation of a technology-based emission limitation for a specific unit or stack that has been established pursuant to any other rule, permit or consent order nor shalltheSecretaryapprovearelaxationinemissionlimitspreviouslyestablishedforthepurposeofavoiding the permitting requirements of 45CSR14 or 45CSR19; and 3.4.2.f. Any approval of an individual stack allowable emission rate by the Secretary pursuant to subdivision 3.4.2 shall be embodied in a permit issued as an existing stationary source permit in accordance with 45CSR13. 3.5. The design heat input of a waste heat boiler shall not be included in computing the total plant design heat input for the purposes of subsections 3.1, 3.2, 3.3 or 3.4. 5 45CSR10 3.6. No person shall circumvent the provisions of this rule by constructing fuel burning unit(s) larger thanwouldbenecessarytoprovideheatand/orpowerforanexistingmanufacturingplant,withareasonable margin for plant expansion, in order to use that design heat input to raise the allowable sulfur content in fuel. 3.7. No person shall cause, suffer, allow or permit the discharge of sulfur dioxide to the open air from the combustion of fuel in a fuel burning unit of a waste heat boiler in excess of 2.2 pounds of sulfur dioxide per million BTU’s of heat input per hour. This limitation is based on the heat input provided to the boiler by the combustion of this auxiliary fuel. 3.7.1. The provision of this subdivision applies only to the fuel used for the waste heat boiler(s) and does not replace or supersede the provisions of subsection 4.1. 3.8. Compliance with the allowable sulfur dioxide emission limitations from fuel burning units shall be based on a continuous 24-hour averaging time. The owner and/or operator of a fuel burning unit shall not allow emissions to exceed the weight emissions standards for sulfur dioxide as set forth in this rule, except during 1 continuous 24-hour period in each calendar month and during this 1 continuous 24-hour period said owner and/or operator shall not allow emissions to exceed such weight emission standards by more than 10% without causing a violation of this rule. A continuous 24-hour period is defined as 1 calendar day. §45-10-4. Standards for Manufacturing Process Source Operations. 4.1. No person shall cause, suffer, allow or permit the emission into the open air from any source operation an in-stack sulfur dioxide concentration exceeding 2,000 parts per million by volume from existing source operations, except as provided in subdivisions 4.1.1 through 4.1.5. 4.1.1. No person shall cause, suffer, allow or permit sulfur dioxide tail gas emissions from sulfuric acid manufacturing plants to exceed the following: 4.1.1.a. For plants using elemental sulfur as a feed stock, 30 pounds per ton of acid produced. 4.1.1.b. For plants using other materials as a feed stock, 40 pounds per ton of acid produced. 4.1.2. No person shall cause, suffer, allow or permit the emission of sulfur oxides, calculated as sulfur dioxide, from a sulfur recovery plant to exceed 0.06 pounds per pound of sulfur processed. 4.1.3. No person shall cause, suffer, allow or permit the emission of sulfur oxides, calculated as sulfur dioxide, from primary non-ferrous smelters to exceed that determined by the following equations: Copper Smelters: Y = 0.2X 0.85 Zinc Smelters: Y = 0.564X 0.77 Lead Smelters: Y = 0.98X Where, X is the total sulfur fed to the smelter in pounds per hour and Y is the allowable sulfur dioxide emissions in pounds per hour. 4.1.4. No person shall cause, suffer, allow or permit the total sulfite pulp mill emissions of sulfur oxides, calculated as sulfur dioxide, from operations such as blow pits, washer vents, storage tanks, digester relief and recovery system, to exceed 9.0 pounds per air-dried ton of pulp produced. 6 45CSR10 4.1.5. Anyowneroroperatorofamanufacturingprocesssourceoperation(s)whichhasthepotential to emit less than 500 pounds per year of sulfur oxides. 4.2. Compliance with the allowable sulfur dioxide concentration limitations from manufacturing process source operation(s) set forth in this rule shall be based on a block 3-hour averaging time. §45-10-5. Combustion of Refinery or Process Gas Streams. 5.1. No person shall cause, suffer, allow or permit the combustion of any refinery process gas stream or any other process gas stream that contains hydrogen sulfide in a concentration greater than 50 grains per 100 cubic feet of gas except in the case of a person operating in compliance with an emission control and mitigation plan approved by the Secretary and U. S. EPA. In certain cases very small units may be considered exempt from this requirement if, in the opinion of the Secretary, compliance would be economically unreasonable and if the contribution of the unit to the surrounding air quality could be considered negligible. 5.2. Any owner or operator of a by-product coke production facility in existence on August 31, 2000 who can demonstrate to the Secretary that there is no practical alternative to scheduled maintenance (including shutdown) of desulfurization equipment may request the approval of an enforceable, temporary sulfurdioxideemissionscontrolandmitigationplanforsuchmaintenanceperiod. Inorderforaplanunder this subsection to be approved the plan must meet the following conditions: 5.2.1. Provide that all feasible control measures and process changes will be employed at the coke production facility to reduce emissions of sulfur dioxide (including reduction of coke oven gas generation) during the control system outage. 5.2.2. Provide for a definitive reduction in sulfur dioxide emissions by the establishment of unit- specific allowable emission rates for all emissions units of the stationary source sufficient to prevent any violation of federal and state ambient air quality standards or applicable air quality increments for sulfur dioxide. 5.2.3. Provide that system down-time and excess sulfur dioxide emissions be reduced to thegreatest extent possible by use of increased or contract maintenance personnel, maximized maintenance labor shifts and optimization of available spare parts inventories. 5.2.4. Provide for emissions and compliance monitoring as required by the Secretary in the approved plan during the maintenance periods and for the submission of reports of such monitoring and tests within time-frames specified by the Secretary in the approved plan. All approved plans shall require that a certified report of excess sulfur dioxide emissions from the by-product coke production facility and offsetting emission units be submitted to the Secretary within 30 days after the end of the maintenance period. 5.2.5. Provide that no maintenance period exceed 14 days in length nor occur more than twice in any calendar year. 5.2.6. Provide at least two2-weeks notice of all scheduled maintenance periods, the anticipated length of the maintenance period, work to be completed, measures to be taken to minimize the length of desulfurization system down-time and such other information as the Secretary may specify. 5.2.7. Provide for annual review, if necessary, modification or termination of the plan by the Secretary. 7 45CSR10 5.2.8. Provide that the Secretary may impose limitations on emission units that are more restrictive than those provided for in the plan as necessary to assure attainment of air quality standards for sulfur dioxide in light of data provided pursuant to subdivision 5.2.6, or any other information available to the Secretary. 5.3. The Secretary shall, in making a determination concerning plan modification or termination, review the plant’s compliance history and records to determine whether the plan has prevented or minimized, to the extent feasible, desulfurization system outages and excess emissions. The initial approval of the plan and any modification of the plan shall be accomplished as a revision to the State Implementation Plan. 5.4. Compliance with the allowable hydrogen sulfide concentration limitations for combustion sources set forth in this rule shall be based on a block 3-hour averaging time. §45-10-6. Reserved. §45-10-7. Permits. 7.1. No person shall construct, modify or relocate any source of sulfur dioxide without first obtaining a permit in accordance with the provisions of W. Va. Code §22-5-1 et seq., and Series 13, 14, 19 and 30 of Title 45. §45-10-8. Testing, Monitoring, Recordkeeping and Reporting. 8.1. Testing. 8.1.1. At such reasonable times as the Secretary may designate, the owner or operator of any fuel burning unit(s), manufacturing process source(s) or combustion source(s) may be required to conduct or haveconductedteststodeterminethecomplianceofsuchsource(s) withtheemissionlimitationsofsections 3, 4 or 5. Such tests shall be conducted in accordance with the appropriate test method set forth in 40 CFR Part60,AppendixA,Method6,Method15and45CSR16orotherequivalentEPAtestingmethodapproved by the Secretary. The Secretary may at his or her option witness or conduct such tests. Should the Secretary exercise his or her option to conduct such tests, the operator will provide all necessary sampling connections and sampling ports to be located in such manner as the Secretary may require, power for test equipment, and the required safety equipment such as scaffolding, railings, and ladders to comply with generally accepted good safety practices. 8.1.2. The Secretary may conduct such other tests as he or she may deem necessary to evaluate air pollution emissions other than those noted in section 3. 8.2. Monitoring. 8.2.1. At the request of the Secretary the owner and/or operator of a source shall install such stack gas monitoring devices as the Secretary deems necessary to determine compliance with the provisions of this rule. The data from such devices shall be readily available at the source location or such other reasonable location that the Secretary may specify. At the request of the Secretary such data shall be made available for inspection or copying. Failure to promptly provide such data shall constitute a violation of this rule. 8 45CSR10 8.2.2. Prior to the installation of calibrated stack gas monitoring devices, sulfur dioxide emission rates shall be calculated on an equivalent fuel sulfur content basis. 8.2.3. Theowneroroperatoroffuelburningunit(s),manufacturingprocesssource(s)orcombustion source(s) shall demonstrate compliance with sections 3, 4 and 5 of this rule by testing and /or monitoring in accordance with one1 or more of the following: 40 CFR Part 60, Appendix A, Method 6, Method 15 and 45CSR16, continuous emissions monitoring systems (CEMS) or fuel sampling and analysis as set forth in an approved monitoring plan for each emission unit. 8.2.3.a. The installation, operation and maintenance of a continuous monitoring system meeting the requirements of 40 CFR 60, Appendix B, Performance Specification 2 (PS2) or Performance Specification 7 (PS7) and 45CSR16 shall be deemed to fulfill the requirements of a monitoring plan for a fuel burning unit(s), manufacturing process source(s) or combustion source(s). CEMS meeting the requirements of 40 CFR Part 75 (Acid Rain) and 45CSR33 will be deemed to have satisfied the requirements of PS2. 8.2.3.a.1. The owner or operator of a continuous emissions monitoring system installed pursuant to this rule shall follow the quality assurance requirements as set forth in 40 CFR Part 60, Appendix F and 45CSR16. 8.2.3.b. Monitoring plans pursuant to subdivision 8.2.3 shall be included in an air quality permit pursuant to 45CSR13 and 45CSR30, if applicable. 8.2.3.c. A fuel sampling and analysis program, including a record of fuel consumption, may fulfill the requirements of a monitoring plan for a fuel burning unit(s). The minimum requirements for a fuel sampling and analysis program, including fuel consumption records, shall be established by the Secretary. 8.2.4. Excursions outside the range of operating parameters associated with control or process equipment which are established in an approved monitoring plan will not necessarily constitute a violation of this rule. 8.3. Recordkeeping and Reporting. 8.3.1. Theowneroroperatoroffuelburningunit(s),manufacturingprocesssource(s)orcombustion source(s) subject to sections 3, 4 or 5 shall maintain on-site a record of all required monitoring data as established in a monitoring plan pursuant to subdivision 8.2.3. Such records shall be made available to the Secretary upon request. Such records shall be retained on-site for a minimum of five5 years. 8.3.2. The owner or operator shall submit a periodic exception report to the Secretary, in a manner specified by the Secretary. Such an exception report shall provide details of all excursions outside the range of measured emissions or monitored parameters established in an approved monitoring plan and shall include, but not be limited to, the time of the excursion, the magnitude of the excursion, the duration of the excursion, the cause of the excursion and the corrective action taken. 8.3.3. The owner or operator of a fuel burning unit(s) or a combustion source(s) shall maintain records of the operating schedule and the quantity and quality of fuel consumed in each unit in a manner specified by the Secretary. Such records are to be maintained on-site and made available to the Secretary upon request. 9 45CSR10 8.3.3.a. The owner or operator of a fuel burning unit(s) utilizing CEMS to fulfill the requirements of subdivision 8.2.3 shall be exempt from the requirements of subdivision 8.3.3. 8.3.4. Where appropriate the owner or operator of a fuel burning unit(s), manufacturing process unit(s) or combustion source(s) may maintain such records in electronic form. 8.3.5. Requests for Information. 8.3.5.a. The Secretary shall respond within five working days to requests for information generated or required under this rule. Requests for information not in the Secretary’s custody shall be promptly forwarded to the appropriate federal or state agency known to have such information. 8.3.5.b. Data regarding the compliance reporting of electric utility SO e2issions are available from the U.S. Environmental Protection Agency (EPA). EPA emissions data is available from the Clean Air Markets Program Data website. Data relating to fuel quality and costs of fuels are available at the Federal Energy Regulatory Commission (FERC) and the West Virginia Public Service Commission. §45-10-9. Alternative Emission Limitations. 9.1. Reserved. 9.2. Any owner or operator that cannot comply with the emission limitations established in sections 3 through 5 during periods of startup or shutdown shall request an alternative emission limitation pursuant to 45CSR1. §45-10-10. Exemptions and Recommendations. 10.1. Any fuel burning units having a design heat input under 10 million BTU’s per hour will be exempt from section 3 and sections 67 through 8. However, failure to attain acceptable air quality in parts of some urban areas may require the mandatory control of these sources at a later date. 10.2. InanefforttoavoidthenecessityforsuchmandatorycontrolstheSecretarystronglyrecommends that specific fuel quality objectives be met. In Priority I and Priority II regions and in cities in Priority III regions with a population of more than 10,000 (based on the latest census) the Secretary recommends that no person use or provide for sale fuel having a sulfur content greater than that listed in the following table (at the end of this rule) Table 45-10B for use in residential and other fuel burning units not otherwise restricted by this rule. 10.3. The owner or operator of a fuel burning unit(s) which combusts natural gas, wood or distillate oil,aloneorincombination,shallbeexemptfromtherequirements ofsection8. Manufacturingoperations in which the process is to partially combust wood during the manufacture of charcoal shall be exempt from the requirements of section 8. §45-10-11. Circumvention. 11.1. No owner or operator subject to the provisions of this rule shall build, erect, install, modify or use any article, machine, equipment or process, the use of which purposely conceals an emission which would otherwise constitute a violation of an applicable standard. Such concealment includes, but is not limited to, the use of gaseous diluents to achieve compliance with a standard which is based on the concentration of a pollutant in the gases discharged to the atmosphere. 10 45CSR10 §45-10-12. Inconsistency Between Rules. 12.1. In the event of any inconsistency between this rule and any other rule of the Division of Air Quality, such inconsistency shall be resolved by the determination of the Secretary and such determination shall be based upon the application of the more stringent provision, term, condition, method or rule. §45-10-13. Disposition of Rule; Severability. Reserved. 13.1. In the event the U.S. EPA’s June 12, 2015 “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA’s SSM Policy Applicable to SIPs; Finding of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” at 80 Fed. Reg. 33840 (2015 SSM SIP Call) is withdrawn by the U.S. EPA, is invalidated by a court of competent jurisdiction, and/or is invalidated by an act of the West Virginia Legislature or United States Congress, the Secretary may terminate any permit or section of an existing permit issued pursuant to this rule. 13.2. In the event the U.S. EPA’s April 17, 2023 “Air Plan Disapproval; West Virginia; Revision to the West Virginia State Implementation Plan To Add the Startup, Shutdown, Maintenance Rule 45CSR1— Alternative Emission Limitations DuringStartup, Shutdown, and Maintenance Operations,” at 88 Fed. Reg. 23356 (45CSR1 2023 Disapproval) is withdrawn by the U.S. EPA, is invalidated by a court of competent jurisdiction, and/or is invalidated by an act of the West Virginia Legislature or United States Congress, the Secretary may terminate any permit or section of an existing permit issued pursuant to this rule. 13.3. In the event the U.S. EPA’s April 17, 2023 “West Virginia; Finding of Failure To Submit State Implementation Plan Revision in Response to the 2015 Findings of Substantial Inadequacy and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction,” at 88 Fed. Reg. 23353 (2023 FFS) is withdrawn by the U.S. EPA, is invalidated by a court of competent jurisdiction, and/or is invalidated by an act of the West Virginia Legislature or United States Congress, the Secretary may terminate any permit or section of an existing permit issued pursuant to this rule. 13.4. In the event the 2015 SSM SIP Call, 45CSR1 2023 Disapproval, and/or the 2023 FFS is withdrawn by the U.S. EPA, is invalidated by a court of competent jurisdiction, and/or is invalidated by an act of the West Virginia Legislature or United States Congress, the Secretary may sever requirements § 45- 10-9.2 and revert to the August 31, 2000 requirements found at § 45-10-9.1. 11 45CSR10 Table 45-10A Priority Federal Air Quality Control Region Included West Virginia Classification Counties Region I, Steubenville-Weirton-Wheeling Brooke Interstate Air Quality Control Region Hancock (Ohio – West Virginia) Marshall I Ohio Region VII, Cumberland-Keyser Interstate Air Grant (Union district only) Quality Control Region Mineral (Elk, New Creek, and (West Virginia – Maryland) Piedmont Districts) II Region II, Parkersburg-Marietta Interstate Air Jackson Quality Control Region Pleasants (West Virginia-Ohio) Tyler Wetzel Wood III All other regions All other counties or districts not listed above Table 45-10B Percent Sulfur Content of Fuels Effective Date Coal Oil June 30, 1978 1.0 0.5 12