Proposed Rule2023-04164
Air Plan Approval; Pennsylvania; Revisions To Plan Approval and Operating Permit Fees Rule and Title V Operating Permit Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 7, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve both a state implementation plan (SIP) revision and title V operating permits program revision submitted by the Pennsylvania Departmental of Environmental Protection (PADEP) on behalf of the Commonwealth of Pennsylvania. The SIP revision pertains to Pennsylvania's existing plan approval and operating permit program fee rules. The revision increases existing plan approval application and operating permit fees. The title V operating permit program revision amends the title V operating permit program fee schedules that fund the Pennsylvania title V operating permit program.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 44 (Tuesday, March 7, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 44 (Tuesday, March 7, 2023)]
[Proposed Rules]
[Pages 14104-14107]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-04164]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[EPA-R03-OAR-2022-0166; FRL-10673-01-R3]
Air Plan Approval; Pennsylvania; Revisions To Plan Approval and
Operating Permit Fees Rule and Title V Operating Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve both a state implementation plan (SIP) revision and title V
operating permits program revision submitted by the Pennsylvania
Departmental of Environmental Protection (PADEP) on behalf of the
Commonwealth of Pennsylvania. The SIP revision pertains to
Pennsylvania's existing plan approval and operating permit program fee
rules. The revision increases existing plan approval application and
operating permit fees. The title V operating permit program revision
amends the title V operating permit program fee schedules that fund the
Pennsylvania title V operating permit program.
DATES: Written comments must be received on or before April 6, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2022-0166 at <a href="http://www.regulations.gov">www.regulations.gov</a>. For comments submitted at
<a href="http://Regulations.gov">Regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. For either manner of submission, EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be confidential business information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit <a href="http://www.epa.gov/dockets/commenting-epa-dockets">www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Yongtian He, Permits Branch (3AD10),
Air & Radiation Division, U.S. Environmental Protection Agency, Region
III, Four Penn Center, 1600 JFK Boulevard, Philadelphia, Pennsylvania
19103. The telephone number is (215) 814-2339. Mr. He can also be
reached via electronic mail at <a href="/cdn-cgi/l/email-protection#bdf5d893e4d2d3dac9d4dcd3fdd8cddc93dad2cb"><span class="__cf_email__" data-cfemail="5a123f740335343d2e333b341a3f2a3b743d352c">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On July 20, 2021, PADEP submitted a revision to both Pennsylvania's
SIP and its title V operating permit program approval codified in 40
CFR part 70 appendix A (relating to approval status of state and local
operating permits programs). Additionally, on January 3, 2023, PADEP
submitted a letter clarifying which portions of the submittal were
intended to be SIP revisions, and which were intended to be revisions
to Pennsylvania's title V operating permit program. The submittal
consists of revisions amending 25 Pennsylvania (PA) Code Chapters 121
(relating to general provisions) and 127, Subchapters F and I (relating
to operating permit requirements; and plan approval and operating
permit fees). The revisions increase existing plan approval application
and operating permit fees. They also implement new fees for requests
for determination, which is a process PADEP conducts when a source
requests the PADEP to determine whether certain permitting requirements
are applicable to the specific source, or the source is exempt from
these requirements. Pennsylvania indicates that these revisions are
necessary to ensure that fees are sufficient to cover the costs of
administering the plan approval application and operating permit
process as required by section 502(b) of the Clean Air Act (42 U.S.C.A.
section 7661a(b)) and section 6.3 of the Air Pollution Control Act (35
Pennsylvania Statute section 4006.3). The documents associated with
PADEP submission can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, Docket ID
No. EPA-R03-OAR-2022-0166.
A. SIP Revision
Section 110(a)(2)(L) of the Clean Air Act (CAA) requires SIPs to
include requirements that the owner or operator of each major
stationary source pay to the permitting authority, as a condition of
any permit required by the CAA, fees sufficient to cover reasonable
costs of acting on the permit as well as
[[Page 14105]]
implementing and enforcing the terms and conditions of the permit. EPA
has previously approved Pennsylvania code Chapter 121 general
provisions definitions at 25 PA code 121.1, Chapter 127 public notice
requirement in section 127.424, and Pennsylvania's plan approval and
operating permit fee regulation at 25 PA Code 127.701, 127.702,
127.703, and 127.707, into the Pennsylvania SIP in accordance with
section 110 of the CAA. See 61 FR 39597 (July 30, 1996).
This SIP revision would approve into the Pennsylvania SIP of
PADEP's revised regulatory language in 25 PA Code Chapter 121 section
121.1, and Chapter 127 sections 127.424, 127.702, and 127.703, and adds
sections 127.465, 127.709 and 127.710. The specifics of the revision
are described in Section II.A of this rulemaking.
B. Title V Operating Permit Program Revision
EPA granted full approval of the Pennsylvania title V operating
permits program on July 30, 1996. See 61 FR 39597. Under 40 CFR 70.9(a)
and (b), an approved state title V operating permit program must
require that the owners or operators of part 70 sources pay annual
fees, or the equivalent over some other period, that are sufficient to
cover the permit program costs and ensure that any fee required under
40 CFR 70.9 is used solely for permit program costs. The fee schedule
must result in the collection and retention of revenues sufficient to
cover the permit program implementation and oversight costs. CAA
502(b)(3)(A). Pennsylvania's initial title V operating permit emission
fee was established in 1994 at 25 PA Code 127.705. See 80 FR 14037
(March 18, 2015). In a February 11, 2014 title V operating permit
program revision, Pennsylvania previously revised 25 PA Code 127.705 to
increase annual emission fees for title V sources, noting that annual
emissions fees were no longer sufficient to cover costs. See 80 FR
40922 (July 14, 2015).
In the PADEP submission, PADEP indicated that the currently
approved fee structure is insufficient to continue to support the title
V program, and as a result PADEP has revised Sections 127.704 and
127.705, and has submitted these revisions for EPA action pursuant to
CAA 502(d). EPA is considering approving these revisions into
Pennsylvania's title V operating permit program. The specifics of the
revision are described in Section II.B of this rulemaking.
II. Summary of SIP Revision, Title V Operating Permit Program Revision
and EPA Analysis
A. SIP Revision
This revision amends Pennsylvania's SIP by approving PADEP's
amendments to 25 PA Code Chapters 121 and 127. PADEP proposed new fees
in this revision for the applications of plantwide applicability
limits; ambient air impact modeling of certain plan approval
applications; risk assessments; and requests for determination (RFD) in
order to ensure the continued solvency of its Clean Air Fund.
Specifically, the revision proposes to approve Pennsylvania's SIP
submittal that PADEP amended 25 PA Code Chapters 121 and 127, sections
121.1, 127.424, 127.702, and 127.703, and adds sections 127.465,
127.709 and 127.710. PADEP added the definition of ``synthetic minor
facility'' in the definition section 121.1 and corrected a cross-
reference error in public notice section 127.424. PADEP amended section
127.702 that establishes plan approval fees, and section 127.703 that
establishes Operating permit fees under Subchapter F (State Operating
Permit Requirements) for the future years in details based on year and
permit categories. The newly added section 127.465 establishes the
procedures the owner or operator of a stationary air contamination
source or facility shall follow to make a significant modification to
an applicable operating permit. New section 127.709 establishes fees
for requests for determination, for whether a plan approval, an
operating permit, or both, are needed for the change to the
facility.\1\ Section 127.710 establishes application fees for the use
of general plan approvals and general operating permits for stationary
or portable sources.
---------------------------------------------------------------------------
\1\ Pennsylvania has a merged permit program. A merged permit
means there is only one permit for each source; the preconstruction
permit (called ``plan approval'') gets merged into the facility's
operating permit (title V) at the end of the shakedown period--
typically via an administrative amendment. Every major and minor
modification at a title V source requiring a plan approval undergoes
public participation since it will modify the source's title V
permit; such plan approvals must be ``title V ready'', i.e., plan
approval must meet requirements of both preconstruction permit and
title V operating permit.
---------------------------------------------------------------------------
The revisions to Pennsylvania's SIP satisfy CAA section
110(a)(2)(L), which mandates that SIPs require the owner or operator of
each major stationary source to pay to the permitting authority a fee
sufficient to cover (i) the reasonable costs of reviewing and acting
upon any application for such a permit, and (ii) if the owner or
operator receives a permit for such source, the reasonable costs of
implementing and enforcing the terms and conditions of any such permit.
The revision makes the Pennsylvania SIP more up to date with fee
schedules and meets the substantive SIP requirements of the CAA,
including section 110 and implementing regulations.
B. Title V Operating Permit Program Revision
The revision to Pennsylvania's title V program proposes to approve
PADEP's submission that amends Chapter 127 sections 127.704 and
127.705. Section 127.704 establishes title V operating permit fees, and
section 127.705 require the owner or operator of a title V facility to
pay annual title V emission fees.
A key provision of the title V operating permit program is the
requirement to establish a financially adequate permit fee schedule
that results in the collection and retention of revenues sufficient to
cover all reasonable costs required to develop and administer the title
V operating permit program as required by 40 CFR 70.9(a) and (b). Title
V permit fees are used to implement and enforce the permitting program,
including reviewing and processing plan approvals and operating
permits, review renewals of existing permits; monitoring facility
compliance; taking enforcement actions for noncompliance; performing
monitoring, modeling and analysis; tracking facility emissions;
conducting inspections, responding to complaints and pursuing
enforcement actions, emissions and ambient air monitoring, preparing
applicable regulations and guidance, and preparing emission
inventories. See 40 CFR 70.9(b).
According to its submission, PADEP has recently experienced a
declining in fee revenue due to emissions reductions at major
facilities. PADEP has submitted to EPA a detailed economic analysis
that justifies its need to increase its title V operating permit fees.
See 51 Pa.B. 283 (January 16, 2021), Docket ID No. EPA-R03-OAR-2022-
0166. PADEP's economic analysis concluded that Pennsylvania's title V
operating permit and annual emission fee revenues collected are no
longer sufficient to cover title V operating permit program costs. The
state's revision does not increase the title V emission fee under
section 127.705. The amendment to section 127.705 clarifies the use of
the Consumer Price Index for the prescribed annual increases. PADEP
concluded that the fee adjustments in section 127.704 were needed to
bring Pennsylvania's title V operating permit program fee revenue in
line with
[[Page 14106]]
expenditures so that the program is self-sustaining as required under
the CAA.
Regulations related to the fee schedules for plan approval and
operating permit activities were last revised in November 1994, with
staged increases occurring over the ensuing 10 years. The last of the
staged plan approval and operating permit fee increases occurred in
January 2005. PADEP revised the title V annual emission fee under
section 127.705 (relating to emission fees) in 2013 and submitted to
EPA in 2014, and EPA approved the revision in 2015. See 80 FR 40922
(July 14, 2015). At that time, the PADEP projected that the increased
annual emission fee would not be sufficient to maintain the solvency of
the title V account in its Clean Air Fund, and noted that a revised
annual emission fee or other revised permitting fees would be needed
within 3 years.
Pennsylvania indicates that these amendments to its title V
operating permit program ensure that fees will remain sufficient to
cover the costs of administering the plan approval application and
operating permit process as required by section 502(b) of the CAA and
section 6.3 of the Air Pollution Control Act. Without this fee increase
and new fees to be collected, Pennsylvania had anticipated funds will
not be sufficient to sustain the title V operating permit program. If
funds were to become insufficient to sustain the title V operating
permit program in Pennsylvania, EPA may determine that Pennsylvania has
not taken ``significant action to assure adequate administration and
enforcement of the Program'' and take subsequent required action under
40 CFR 70.10(b) and(c) as well as impose sanctions under the CAA.
Based on the 40 CFR part 70 presumptive minimum fee rate from the
September 16, 2021, EPA Office of Air Quality Planning and Standards
memorandum,\2\ the requirements of 40 CFR 70.9(b)(2) and the economic
analysis by PADEP, EPA finds that the July 20, 2021, PADEP submission
has met the requirements of CAA section 502(b)(1)-(10), and is
consistent with applicable EPA requirements in title V operating permit
program of the CAA and 40 CFR part 70. This rulemaking proposes
approval of the increased fees and new fees because the changes meet
requirements in 40 CFR 70.9 for sufficient title V fees to cover permit
program costs.
---------------------------------------------------------------------------
\2\ <a href="http://www.epa.gov/system/files/documents/2022-09/FEE70_2023.pdf">www.epa.gov/system/files/documents/2022-09/FEE70_2023.pdf</a>.
---------------------------------------------------------------------------
III. Proposed Action
EPA is proposing to approve the Pennsylvania July 20, 2021,
submittal pertaining to the permitting program fees based on PADEP's
clarification of January 3, 2023 as revisions, described above, to both
the Pennsylvania SIP and Pennsylvania's approved title V operating
permit program. The SIP submittal is in accordance with requirements in
section 110(a)(2)(L) of the CAA and implement regulations.
Additionally, because the title V submittal meets the requirements of
CAA sections 502(b)(1) through (10), pursuant to CAA 502(d), EPA is
proposing to approve the Pennsylvania title V operating permit program
revision submitted on July 20, 2021 and clarified on January 3, 2023.
The title V revision meets the requirements in 40 CFR 70.9. EPA is
soliciting public comments on both the SIP revision and title V
operating permit program revision discussed in this document. These
comments will be considered before taking final action.
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference the Pennsylvania Regulation described in the amendments to 25
PA Code 127, as discussed in section II.A of this rulemaking. EPA has
made, and will continue to make, these materials generally available
through <a href="http://www.regulations.gov">www.regulations.gov</a> and at the EPA Region 3 Office (please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section of this preamble for more information).
V. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Under the CAA,
the Administrator approves title V operating permit program revisions
pursuant to that comply with the Act and applicable Federal
Regulations. See 42 U.S.C. 7661a(d). Thus, in reviewing SIP and title V
operating permit program submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. This action
merely approves state law as meeting Federal requirements and does not
impose additional requirements beyond those imposed by state law. For
that reason, this action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
<bullet> Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rulemaking does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP revision to Pennsylvania's existing plan approval and
operating permit program fee rules is not approved to apply in Indian
country located in the state, and EPA notes that it will not impose
substantial direct costs on tribal governments or preempt tribal law.
[[Page 14107]]
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Lead, Nitrogen
dioxide, Operating permits, Ozone, Particulate Matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2023-04164 Filed 3-6-23; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on March 7, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.