wv-wv-18474: 45-16 — Standards of Performance for New Stationary Sources

6/4/2026 4:20:08 PM Office of West Virginia Secretary Of State NOTICE OF PUBLIC COMMENT PERIOD AGENCY: Air Quality TITLE-SERIES: 45-16 RULE TYPE: Legislative Amendment to Existing Rule: Yes Repeal of existing rule:No RULE NAME: Standards of Performance for New Stationary Sources 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: Yes (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) PROVIDE A BRIEF SUMMARY OF THE CONTENT OF THE RULE: The rule incorporates by reference the federal standards of performance for new stationary sources promulgated by the United States Environmental Protection Agency (EPA) pursuant to §111(b) of the federal Clean Air Act, as amended (CAA). This rule codifies general procedures and criteria to implement standards of performance for new stationary sources set forth in 40 CFR part 60. The rule also adopts associated appendices, reference methods, performance specifications and other test methods which are appended to such standards. 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: Revisions to the rule include updating the annual incorporation by reference (IBR) of the New Source Performance Standards (NSPS) promulgated by the EPA under 40 CFR part 60 as of June 1, 2026, by updating the IBR dates in subsections 1.6 and 4.1. Additionally, 40 C.F.R. part 60 subpart VVVV (Standards of Performance for Large Municipal Waste Combustors) was added to the exclusion list in section 4.1.2 because solid waste combustion NSPSs are adopted under 45CSR18. The 2026 IBR updates include: (1) New Source Performance Standards Review for Stationary Combustion Turbines and Stationary Gas Turbines (subparts GG, KKKK and KKKKa); (2) Extension of Deadlines in Standards of Performance for New, Reconstructed, and Modified Sources: Oil and Natural Gas Sector Climate Review Final Rule (subparts OOOO, OOOOa, and OOOOb); and (3) Reconsideration of Standards of Performance for New, Reconstructed, and Modified Sources: Oil and Natural Gas Sector Climate Review (OOOOb). Statement of circumstances requiring the rule: Promulgation of this rule will enable West Virginia to continue to be the primary enforcement authority for the NSPS promulgated by the EPA. Revisions to this rule are necessary to maintain consistency with current federal regulations, and to fulfill West Virginias responsibilities under the CAA. This rule is exempt from the Regulatory Moratorium of Executive Order 21-21 under condition 2(g), updating state rules to comply with federal law requirements. Determination of Stringency: Federal counterparts to the proposed rule are incorporated by reference; 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): Costs anticipated to be incurred for the implementation of federal rules promulgated under 40 CFR part 60 are included in prior cost estimates prepared for state implementation of Title V of the Clean Air Act, as amended, under 45CSR30. 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. 45CSR16 TITLE 45 LEGISLATIVE RULE DEPARTMENT OF ENVIRONMENTAL PROTECTION AIR QUALITY SERIES 16 STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES §45-16-1. General. 1.1. Scope. -- This rule establishes and adopts standards of performance for new stationary sources promulgated by the United States Environmental Protection Agency pursuant to section 111(b) of the federal Clean Air Act, as amended. This rule codifies general procedures and criteria to implement the standards of performance for new stationary sources set forth in 40 C.F.R. part 60. The Secretary hereby adopts these standards by reference. The Secretary also adopts associated reference methods, performance specifications and other test methods which are appended to these standards. 1.2. Authority. -- W.Va. Code § 22-5-4. 1.3. Filing date. -- March 31, 2026. 1.4. Effective date. -- June 1, 2026. 1.5. Sunset provision. -- Does not apply. 1.6. Incorporation by reference. -- federal counterpart regulation. The Secretary has determined that a federal counterpart rule exists, and in accordance with the Secretary’s recommendation, with limited exception, this rule incorporates by reference 40 C.F.R. parts 60 and 65, to the extent referenced in 40 C.F.R. part 60, effective June 1, 20256. §45-16-2. Definitions. 2.1. “Administrator” means the Administrator of the United States Environmental Protection Agency or his or her authorized representative. 2.2. “Clean Air Act” (“CAA”) means the federal Clean Air Act, as amended, 42 U.S.C. § 7401, et seq. 2.3. “Secretary” means the Secretary of the Department of Environmental Protection or other person to whom the Secretary has delegated authority or duties pursuant to W.Va. Code §§ 22-1-6 or 22-1-8. 2.4. Other words and phrases used in this rule, unless otherwise indicated, shall have the meaning ascribed to them in 40 C.F.R. part 60. Words and phrases not defined therein shall have the meaning given to them in the federal Clean Air Act. §45-16-3. Requirements. 3.1. No person may construct, reconstruct, modify,oroperateor cause to be constructed, reconstructed, modified, or operated any source subject to the provisions of 40 C.F.R. part 60 which results or will result in a violation of this rule. 1 45CSR16 §45-16-4. Adoption of standards. 4.1. Standards. -- The Secretary hereby adopts and incorporates by reference the provisions of 40 C.F.R. parts 60 and 65, to the extent referenced in 40 C.F.R. part 60, including any reference methods, performance specifications and other test methods which are appended to these standards and contained in 40 C.F.R. parts 60 and 65, effective June 1, 20256, for the purposes of implementing a program for standards of performance for new stationary sources, except as follows: 4.1.1. 40 C.F.R. § 60.9 is amended to provide that information shall be available to the public in accordance with W.Va. Code §§ 22-5-1 et seq., 29B-1-1 et seq., and 45CSR31; and 4.1.2. SubpartsB,Ba,C,Ca,Cb,Cc,Cd,Ce,Cf,Ea,Eb,Ec,WWW,XXX,AAAA,BBBB,CCCC, DDDD, EEEE, FFFF, LLLL, and MMMM and VVVV of 40 C.F.R. part 60 shall be excluded. 4.1.3. The following subparts of 40 C.F.R. part 60 relating to wood-burning heaters and appliances are expressly excluded and are not adopted or incorporated by reference in this rule: 4.1.3.a. Subpart AAA; and 4.1.3.b. Subpart QQQQ. §45-16-5. Secretary. 5.1. Any and all references in 40 C.F.R. parts 60 and 65 to the “Administrator” are amended to be the “Secretary” except as follows: 5.1.1. Where the federal regulations specifically provide that the Administrator shall retain authority and not transfer authority to the Secretary; 5.1.2. Where provisions occur which refer to: 5.1.2.a. Alternate means of emission limitations; 5.1.2.b. Alternate control technologies; 5.1.2.c. Innovative technology waivers; 5.1.2.d. Alternate test methods; 5.1.2.e. Alternate monitoring methods; 5.1.2.f. Waivers/adjustments to recordkeeping and reporting; 5.1.2.g. Emissions averaging; 5.1.2.h. Applicability determinations; or 5.1.2.i. The authority to require testing under Section 114 of the Clean Air Act, as amended; or 5.1.3. Where the context of the regulation clearly requires otherwise. 2 45CSR16 §45-16-6. Permits. 6.1. Nothing contained in this adoption by reference shall be construed or inferred to mean that permit requirements in accordance with applicable rules shall be in any way be limited or inapplicable. §45-16-7. Inconsistency between rules. 7.1. In the event of any inconsistency between this rule and any other rule of the Division of Air Quality, the inconsistency shall be resolved by the determination of the Secretary and the determination shall be based upon the application of the more stringent provision, term, condition, method or rule. 3