Proposed Rule2024-05894
Clean Air Act Title V Operating Permit Program Revision; West Virginia
Primary source
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Published
March 21, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve a revision to West Virginia's Title V Operating Permits Program, submitted on behalf of the state by the West Virginia Department of Environmental Protection (WVDEP). There are three components to the revision: it restructures the Title V operating permit fees collected by WVDEP in order to ensure that the Title V operating program is adequately funded; it amends West Virginia's Title V regulations to comport with Federal permit review, public petition, and affirmative defense requirements; and removes obsolete transitional language. This action is being taken under section 502 of the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 89 Issue 56 (Thursday, March 21, 2024)</title>
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[Federal Register Volume 89, Number 56 (Thursday, March 21, 2024)]
[Proposed Rules]
[Pages 20157-20160]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-05894]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[EPA-R03-OAR-2024-0070; FRL-11788-01-R3]
Clean Air Act Title V Operating Permit Program Revision; West
Virginia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a revision to West Virginia's Title V Operating Permits
Program, submitted on behalf of the state by the West Virginia
Department of Environmental Protection (WVDEP). There are three
components to the revision: it restructures the Title V operating
permit fees collected by WVDEP in order to ensure that the Title V
operating program is adequately funded; it amends West Virginia's Title
V regulations to comport with Federal permit review, public petition,
and affirmative defense requirements; and removes obsolete transitional
language. This action is being taken under section 502 of the Clean Air
Act (CAA).
DATES: Written comments must be received on or before April 22, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2024-0070 at <a href="http://www.regulations.gov">www.regulations.gov</a>, or via email to
<a href="/cdn-cgi/l/email-protection#b7f8c7dedbd699fad6c5cef4d6c3d2f7d2c7d699d0d8c1"><span class="__cf_email__" data-cfemail="521d223b3e337c1f33202b11332637123722337c353d24">[email protected]</span></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 John F Kennedy 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#3f575a11465051584b565e517f5a4f5e11585049"><span class="__cf_email__" data-cfemail="d8b0bdf6a1b7b6bfacb1b9b698bda8b9f6bfb7ae">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
The West Virginia Title V Operating Permit Program is implemented
through its ``Requirements for Operating Permits'' rule, codified at
Title 45, Series 30 of the West Virginia Code of State Regulations
(45CSR30). The EPA granted full approval of the West Virginia Title V
Operating Permit Program effective November 19, 2001. See 66 FR 50325.
On May 3, 2023, WVDEP submitted a revision to 45CSR30 (effective March
31, 2023) for approval into the state's EPA-approved Title V program.
WVDEP revised 45CSR30 to: (1) restructure the Title V program fee as
recommended by the EPA in a September 2021 Title V Program Evaluation
Report, an August 2019 Title V Permit Fee Evaluation Report, and a May
2015 Title V Program Evaluation Report; \1\ (2) comport with the EPA's
``Revisions to the Petition Provisions of the Title V Permitting
Program'' final Federal rule (85 FR 6431, February 5, 2020) and the
EPA's ``Removal of Title V Emergency Affirmative Defense Provisions
from State Operating Permit Programs and Federal Operating Permit
Program'' (88 FR 47029, July 21, 2023); and (3) remove obsolete
transitional language and provide additional clarifications.
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\1\ The reports are available at <a href="http://www.epa.gov/caa-permitting/title-v-evaluation-report-west-virginia">www.epa.gov/caa-permitting/title-v-evaluation-report-west-virginia</a>.
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Under 40 CFR 70.9(a) and (b), an approved state Title V operating
permits program must require that the owners or operators of 40 CFR
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. 40 CFR 70.9(b).
A. Fee Structure Revision
West Virginia's initial Title V permit emission fee was established
in 1994 at 45CSR30.8 and was based on emissions of individual sources
subject to the West Virginia Title V Operating Permit Program. The
initial fee was $15 per ton of regulated pollutant emitted by subject
sources. On July 1, 1995, this increased to $18 per ton. See 81 FR
7463, February 12, 2016, footnote 1. Subject sources were not required
to pay annual fees for emissions in excess of 4,000 tons per year,
referred to as an emissions fee cap. On June 10, 2015, West Virginia
again amended its fee provisions at 45CSR30.8 to increase the annual
emission fee from $18 to $28 per ton and maintained the emissions fee
cap for individual sources at 4,000 tons per year. The EPA approved
this revision on February 12, 2016. See 81 FR 7463.
The state submission indicates that under the previous fee
structure, approximately 60% of Title V fees generated in West Virginia
were paid by the top ten emitting sources of West Virginia's
approximately 500 Title V facilities. Nine of the top ten sources were
coal-fired electric generating units (EGUs), some of which, according
to the state, have indicated the possibility of retiring in the near
future. Accordingly, the previous fee structure was not
[[Page 20158]]
flexible in the event of changes to the mix of regulated sources, which
would result in projected revenue loss and potential vulnerability with
respect to WVDEP's ability to fully fund its Title V program.
In the 2015, 2019 and 2021 Title V Program Evaluation Reports, the
EPA recommended that WVDEP reevaluate the Title V fee structure due to
the heavy reliance on the top ten sources (approximately 2% of all
Title V sources in West Virginia). Due to the anticipated retirement of
some or many of these coal-fired EGUs, the EPA projected that WVDEP may
begin to experience a shortfall in revenue to cover the costs of
implementing its Title V permit program if fees were not adjusted.
According to the state submission, the revisions to this rule would
expand the number of sources contributing 60% of the revenue from the
top 10 (2% of state-wide sources) to the top 96 sources (20% of state-
wide sources), thus providing a more diversified and sustainable
revenue stream. Therefore, West Virginia amended its fee provisions at
45CSR30.8 to achieve a more sustainable and equitable Title V fee
structure that can adjust to the projected changes to sources and
emissions for the West Virginia Title V program.
B. Federal Permit Review, Public Petition, and Affirmative Defense
Requirement Revisions
In February 2020, the EPA issued a Final Rule revising its
regulations with respect to the submission and review of Title V
petitions. See 85 FR 6431, February 5, 2020. The action sought to ``to
streamline and clarify'' the processes by ``implement[ing] changes in
three key areas: Method of petition submittal to the agency, required
content and format of petitions, and administrative record requirements
for permits.'' Any air agencies that needed to revise its rules to
implement these changes were to initiate the process with the EPA in
accordance with 40 CFR 70.4(i).
The EPA issued a final rule in July 2023 that removed the
``emergency'' affirmative defense provisions from the agency's 40 CFR
parts 70 and 71 Title V operating permit program regulations. See 88 FR
47029, July 21, 2023. The EPA proposed the removal of these provisions
in June 2016 (81 FR 38645, June 14, 2016) and re-proposed in April 2022
(87 FR 19042, April 1, 2022). The final rule provided guidance,
referenced in the June 2016 proposal, for the implementation of this
rulemaking, noting that some air agencies would need to submit relevant
program revisions to their EPA-approved Title V programs. The preamble
explained that the EPA ``expects that program revisions to remove the
Title V emergency defense provisions from state operating permit
programs will include, at minimum: (1) a redline document identifying
the state's proposed revision to its 40 CFR part 70 program rules; (2)
a brief statement of the legal authority authorizing the revision; and
(3) a schedule and description of the state's plans to remove
affirmative defense provisions from individual operating permits. The
EPA encourages states to consult with their respective EPA regional
offices on the specific contents of their revision submittal
packages.'' See 88 FR 47029, 47031, July 21, 2023.
II. Summary of Title V Program Revision and EPA Analysis
In the May 3, 2023 submittal, West Virginia sought EPA approval of
its revisions to 45CSR30 into its Title V program. West Virginia's
revisions to 45CSR30 restructured fees for its Title V Operating Permit
Program, amended its regulations to comport with revisions to Federal
permit review and public petition regulations, removed affirmative
defense provisions pursuant to revisions to Federal regulations, and
removed obsolete language.
A. Fee Structure Revision
To cover all reasonable costs required to implement and administer
the West Virginia Title V Operating Permit Program as required by 40
CFR 70.9(a) and (b), the state's revised fee structure is designed to
diversify revenue stream and to be more equitable and sustainable.
Title V program costs include those for activities such as reviewing
and processing preconstruction and operating permits, conducting
inspections, responding to complaints and pursuing enforcement actions,
emissions and ambient air monitoring, preparing applicable regulations
and guidance, modeling, analyses, demonstrations, emission inventories,
and tracking emissions.
West Virginia's revisions to its Title V fee structure in 45CSR30.8
included five main changes: (1) replacing the annual emissions only fee
to an annual fee that includes an emissions fee, base fee, and
complexity fee components; (2) setting the emissions fee factor based
on a calculation of the 3-year average of Division of Air Quality (DAQ)
Title V Fund expenses, which is then multiplied by the actual emissions
released by the specific source to determine the emission fee
component; (3) removing the emissions fee cap; (4) eliminating the
Certified Emissions Statement (emission reporting requirements remain);
and (5) the Title V fee program does not reference the Rule 22 minor
source fee program.
The restructured Title V fee in West Virginia is calculated by
adding the Consumer Price Index (CPI) adjusted base fee component (BF),
the CPI adjusted complexity fee component (CF), and the emissions fee
component (EF).
Title V fee = BF + CF + EF
All sources required to obtain a Title V operating permit shall pay
an annual base fee (BF) of $5,000. All sources subject to CAA 111 and
112 shall pay a $1,000 complexity fee (CF), independent of the number
of standards the source is subject to. Base and complexity fees are
adjusted annually by the CPI. CPI for each calendar year is the average
CPI for all-urban consumers published by the U.S. Bureau of Labor
Statistics.
The Title V emission fee component (EF) is calculated by
multiplying the dollar per ton ($/ton) emission fee factor (EFF) by the
source's actual emissions (AE) of all regulated pollutants. The EFF is
calculated on June 1 each year by the Secretary in accordance with a
formula specified in 45CSR30 based on factors such as three fiscal year
average expenses, interest, number of sources, CPI, and total actual
emissions.
EF = EFF x AE
With this fee structure change, West Virginia indicates that it can
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). Without this fee structure
change, West Virginia indicates that its Title V program is vulnerable
and may not be able to adjust to projected source and emission changes
in order to sustain its Title V Operating Permit Program in a manner
that is consistent with state and Federal requirements. If funds were
to become insufficient to sustain an adequate Title V program in West
Virginia, the EPA may determine that the state has not taken
``significant action to assure adequate administration and enforcement
of the Program'' and take subsequent action as required under 40 CFR
70.10(b) and (c). This could lead to EPA withdrawing approval of the
West Virginia Title V Operating Permit Program. Were that to occur, the
EPA would have the authority and obligation to implement a Federal
Title V operating permit program in West Virginia pursuant to 40 CFR
part 71. The withdrawal of program approval could also lead to the
[[Page 20159]]
imposition of mandatory and discretionary sanctions under the CAA.
In a December 19, 2023 supplemental letter issued upon request by
the EPA, West Virginia provided additional analysis regarding its
revised fee structure. WVDEP indicated that it analyzed multiple
scenarios before deciding upon the current fee structure. Currently,
the state's Title V program has a surplus but there are measures in
place to address a fee shortfall if that were to occur. WVDEP further
explained how the fee structure revision will ensure the collection and
retention of fees sufficient to meet the requirements of 40 CFR 70.9.
This included a detailed explanation of how the emission fee is
calculated, an example of how the EEF is calculated for fiscal year
2024, and how the fees collected are sufficient to fund West Virginia's
Title V program.
This rulemaking proposes to approve West Virginia's restructuring
of its Title V fee program in order to achieve a more diversified,
equitable and sustainable fee collection system. In proposing such
approval, the EPA has determined that the revision meets the
requirements in section 502 of the CAA and 40 CFR 70.9 for the
collection of sufficient Title V fees to cover permit program
implementation and oversight costs.
B. Affirmative Defense, Permit Review and Public Petition Requirement
Revisions
In the revision to 45CSR30, WVDEP removed section 5.7: Emergency
provisions pursuant to the EPA's removal of the Federal affirmative
defense provisions 40 CFR 70.6(g) and 71.6(g) in its July 21, 2023
final rule (88 FR 47029). ``These provisions established an affirmative
defense that sources could have asserted in enforcement cases brought
for noncompliance with technology-based emission limitations in
operating permits, provided that the exceedances occurred due to
qualifying emergency circumstances.'' Id. The provisions, which have
never been required elements of state operating permit programs, were
removed because they were inconsistent with the EPA's interpretation of
the enforcement structure of the CAA in light of prior court decisions
from the U.S. Court of Appeals for the DC Circuit. The removal is also
consistent with other recent EPA actions involving affirmative defenses
and would harmonize the EPA's treatment of affirmative defenses across
different CAA programs. The final rule also provided guidance on the
need and process for some state, local, and tribal permitting
authorities to submit program revisions to the EPA to remove similar
Title V affirmative defense provisions from their EPA-approved Title V
programs, and to remove similar provisions from individual operating
permits.
WVDEP's removal of section 5.7 is consistent with the Federal final
rule and 40 CFR part 70 regulations. West Virginia submitted a redline
document identifying the state's proposed revision to its part 70
program rules. In the December 2023 supplemental letter, WVDEP provided
clarification on its legal authority authorizing the revision to 5.7
and provided a schedule to remove affirmative defense provisions from
individual permits in West Virginia.
WVDEP also revised section 7.1, 7.3 and 7.4 of 45CSR30 on public
petitions and permit review requirements to comport with revisions to
Federal counterpart regulations, ``Revisions to the Petition Provisions
of the Title V Permitting Program'' (85 FR 6431, February 5, 2020). The
EPA revised the regulations to streamline and clarify processes related
to submission and review of Title V petitions. The Federal rule
implements changes in three key areas: method of petition submittal to
the agency; required content and format of petitions; and
administrative record requirements for permits. In the first area, the
EPA established an electronic submittal system as the preferred method
of submittal, with specified email and physical addresses as alternate
routes to submit petitions. To help petitioners in preparing their
petitions, as well as the EPA in reviewing and responding to petitions,
the EPA incorporated certain content and format requirements into the
regulations. Finally, the EPA requires permitting authorities to
prepare a written response to comments (RTC) document if significant
comments are received during the public participation process on a
draft permit, and requiring that the RTC, when applicable, be sent to
the agency with the proposed permit and necessary documents including
the statement of basis for its 45-day review. WVDEP's revision of
sections 7.1, 7.3 and 7.4 of 45CSR30 is to reflect the changes in these
three areas and is consistent with the Federal final rule.
Additionally, WVDEP revised section 1 regarding the scope of the
rule, filing date, and effective date, some definitions in section 2 to
provide additional clarifications, and removed other obsolete
transitional language in sections 4, 6 and 9 of 45CSR30.
This rulemaking proposes to approve West Virginia's revisions
removing the affirmative defense provisions, comporting with Federal
changes to the permit review and public petition requirements, and
adding clarifying language. The revisions and state submission are
consistent with the EPA's implementation guidance in the relevant
Federal final rules.
III. Proposed Action
Pursuant to 40 CFR 70.4(i)(2), the EPA is proposing to approve a
revision to the West Virginia Title V Operating Permit Program
submitted on May 3, 2023, to restructure its fee schedule in order to
achieve a diversified, equitable and sustainable fee revenue system.
The EPA is also proposing to approve revisions to the EPA approved West
Virginia Title V program that remove emergency affirmative defense
provisions, ensure that petition review and public participation
provisions are consistent with Federal counterpart regulations, and add
clarifying language. The revisions meet the relevant requirements of
section 502 of the CAA and 40 CFR 70.4 and 70.9. The EPA is soliciting
public comments on the issues discussed in this document. These
comments will be considered before taking final action.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator approves Title V operating permit
program revisions that comply with the Act and applicable Federal
Regulations. See 42 U.S.C. 7661a(d). Thus, in reviewing 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);
[[Page 20160]]
<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); and
<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 Clean Air Act;
This proposed rulemaking does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the Title V action 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.
Executive Order 12898 directs Federal agencies, to the greatest
extent practicable and permitted by law, to make environmental justice
part of their mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations (people of color and/or Indigenous peoples) and low-income
populations.
EPA believes that this Title V action does not concern human health
or environmental conditions and therefore cannot be evaluated with
respect to potentially disproportionate and adverse effects on people
of color, low-income populations and/or Indigenous peoples. This Title
V action merely approves into West Virginia's part 70 operating permit
program the relevant West Virginia regulations for fees that are
required to administer the Title V program in West Virginia, revises
state regulations to comport with amended EPA regulations addressing
Federal permit review, public petition, and affirmative defense
requirements, and removes obsolete language. The Title V fees are
already being collected by the State, the EPA regulations which the
state is mirroring via these revisions are in effect, and the removal
of obsolete language ensures clarity in the regulatory process. This
Title V action therefore does not directly address emission limits or
otherwise directly affect any human health or environmental conditions
in the state of West Virginia. In addition, EPA is providing meaningful
involvement on this rulemaking through the notice and comment process,
and that is in addition to the State-level notice and comment process
held by West Virginia.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2024-05894 Filed 3-20-24; 8:45 am]
BILLING CODE 6560-50-P
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