Rule2024-16568
Clean Air Act Title V Operating Permit Program Revision; West Virginia
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
July 30, 2024
Effective
August 29, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving 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 it removes obsolete transitional language. The EPA is approving these revisions to the West Virginia title V program in accordance with the requirements under section 502 of the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 89 Issue 146 (Tuesday, July 30, 2024)</title>
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[Federal Register Volume 89, Number 146 (Tuesday, July 30, 2024)]
[Rules and Regulations]
[Pages 61022-61025]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-16568]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[EPA-R03-OAR-2024-0070; FRL-11788-02-R3]
Clean Air Act Title V Operating Permit Program Revision; West
Virginia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving 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 it removes obsolete transitional language.
The EPA is approving these revisions to the West Virginia title V
program in accordance with the requirements under section 502 of the
Clean Air Act (CAA).
DATES: This final rule is effective on August 29, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA-R03-OAR-2024-0070. All documents in the docket are
listed on the <a href="http://www.regulations.gov">www.regulations.gov</a> website. Although listed in the
index, some information is not publicly available, e.g., confidential
business information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available through <a href="http://www.regulations.gov">www.regulations.gov</a>, or please contact the person
identified in the For Further Information Contact section for
additional availability information.
FOR FURTHER INFORMATION CONTACT: Yongtian He, Permits Branch (3AD10),
[[Page 61023]]
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#7e161b50071110190a171f103e1b0e1f50191108"><span class="__cf_email__" data-cfemail="e68e83c89f898881928f8788a6839687c8818990">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On March 21, 2024 (89 FR 20157), the EPA published a notice of
proposed rulemaking (NPRM) for the State of West Virginia. In the NPRM,
the EPA proposed approval of West Virginia's revision to the
implementing regulation of the state's Title V Operating Permits
Program, ``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, October 3,
2001.
WVDEP's submission was received by the EPA on May 3, 2023 and,
pursuant to the EPA's request, WVDEP submitted a clarifying statement
on December 19, 2023. 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'' final Federal rule (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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A. Fee Structure Revision
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). The state
submission indicates that under the previous fee structure,
approximately 60 percent 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 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. This vulnerability
was noted by the EPA in its aforementioned 2021, 2019, and 2015
reports.
West Virginia's new fee structure, as delineated in 45CSR30.8,
expands the number of sources contributing 60 percent of the revenue
from the top 10 (2 percent of state-wide sources) to the top 96 sources
(20 percent of state-wide sources), thus providing a more diversified
and sustainable revenue stream. West Virginia's amendments to its fee
provisions at 45CSR30.8 achieve a more sustainable and equitable title
V fee structure that can adjust to the projected changes to title V
sources and emissions.
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.'' Id. 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 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.
II. Summary of Title V Permit Program Revision and the EPA Analysis
In the May 3, 2023 submittal, West Virginia sought the EPA's
approval of its revisions to 45CSR30 into its title V program. As noted
above, 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. The
December 19, 2023 supplemental letter provided clarifying information.
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 with consideration of the future and to be
more equitable and sustainable.
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 details of West Virginia's revised title V fee
structure are described in the NPRM.
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) and the implementing regulations
of 40 CFR part 70. After reviewing West Virginia's May 2023 submission
and the December 2023 supplemental letter, the EPA has determined that
the revision to the fee structure 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. As
[[Page 61024]]
a result, the EPA is approving West Virginia's restructuring of its
title V fee program.
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). 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 D.C. 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. WVDEP's removal of section 5.7 is consistent
with the Federal final rule and 40 CFR part 70 regulations.
WVDEP also revised sections 7.1, 7.3 and 7.4 of 45CSR30 on public
petitions and permit review requirements to comport with revisions to
the aforementioned Federal counterpart regulations. (85 FR 6431,
February 5, 2020). WVDEP's revision of sections 7.1, 7.3 and 7.4 of
45CSR30 reflects the Federal Rule's changes to the method of petition
submittal to the agency, the required content and format of petitions,
and the administrative record requirements for permits. The revisions
are 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. These
revisions are approvable as well.
Other specific requirements of this title V program revision and
the rationale for the EPA's proposed action are explained in the NPRM,
and will not be restated here.
III. The EPA's Response to Comments Received
The EPA received one comment during the public comment period.
However, the comment is vague and not specific to this action,
therefore, the EPA will not offer a response.
IV. Final Action
Pursuant to 40 CFR 70.4(i)(2), the EPA is approving a revision to
the West Virginia Title V Operating Permit Program submitted on May 3,
2023, to restructure the state's title V fee schedule in order to
achieve a diversified, equitable and sustainable fee revenue system.
The EPA is also approving 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 the implementing regulations.
V. Statutory and Executive Order Reviews
A. General Requirements
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, the 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); 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 rule 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 the 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.
The 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 40 CFR 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,
the EPA provided 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.
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small
[[Page 61025]]
Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 30, 2024. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action approving West Virginia title V permit Program
revisions may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
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.
For the reasons stated in the preamble, the EPA amends 40 CFR part
70 as follows:
PART 70--STATE OPERATING PERMIT PROGRAMS
0
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. Appendix A to Part 70 is amended by adding paragraph (h) under
``West Virginia'' to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permit Programs
* * * * *
West Virginia
* * * * *
(h) The West Virginia Department of Environmental Protection
submitted a program revision on May 3, 2023 to restructure the title
V operating permit fees collected by WVDEP, amend West Virginia's
title V regulations to comport with Federal permit review, public
petition, and affirmative defense requirements, and remove obsolete
transitional language; approval effective on July 30, 2024.
* * * * *
[FR Doc. 2024-16568 Filed 7-29-24; 8:45 am]
BILLING CODE 6560-50-P
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