Clean Air Act Title V Operating Permit Program Revision; West Virginia, 20157-20160 [2024-05894]
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Federal Register / Vol. 89, No. 56 / Thursday, March 21, 2024 / Proposed Rules
representative via VHF–FM channel 16
or by phone at 617–603–1560 (First
Coast Guard District Command Center).
(e) Effective and enforcement periods.
This section will be effective from June
1, 2024, through 11:59 p.m. on May 31,
2027. But it will only be enforced
during active construction or other
instances which may cause a hazard to
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First Coast Guard District Commander.
The First Coast Guard District
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locations above in paragraph (a) of this
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Mariners via marine channel 16 (VHF–
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Dated: March 15, 2024.
J.W. Mauger,
Rear Admiral, U.S. Coast Guard, Commander,
First Coast Guard District.
[FR Doc. 2024–05992 Filed 3–20–24; 8:45 am]
BILLING CODE 9110–04–P
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
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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.
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SUMMARY:
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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
www.regulations.gov, or via email to
Opila.MaryCate@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. 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
www.epa.gov/dockets/commenting-epadockets.
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
he.yongtian@epa.gov.
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
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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.
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
1 The reports are available at www.epa.gov/caapermitting/title-v-evaluation-report-west-virginia.
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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.
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.
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
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
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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.
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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 × 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
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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
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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
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20159
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:
• 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);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• 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.);
• 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);
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• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001); and
• 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
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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, lowincome 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
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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]
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Agencies
[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 [www.gpo.gov]
[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.
-----------------------------------------------------------------------
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 www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. 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 www.epa.gov/dockets/commenting-epa-dockets.
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 [email protected].
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 www.epa.gov/caa-permitting/title-v-evaluation-report-west-virginia.
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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
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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
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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:
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);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
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.);
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);
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Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
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