[Federal Register Volume 88, Number 44 (Tuesday, March 7, 2023)]
[Proposed Rules]
[Pages 14104-14107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04164]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-R03-OAR-2022-0166; FRL-10673-01-R3]


Air Plan Approval; Pennsylvania; Revisions To Plan Approval and 
Operating Permit Fees Rule and Title V Operating Permit Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve both a state implementation plan (SIP) revision and title V 
operating permits program revision submitted by the Pennsylvania 
Departmental of Environmental Protection (PADEP) on behalf of the 
Commonwealth of Pennsylvania. The SIP revision pertains to 
Pennsylvania's existing plan approval and operating permit program fee 
rules. The revision increases existing plan approval application and 
operating permit fees. The title V operating permit program revision 
amends the title V operating permit program fee schedules that fund the 
Pennsylvania title V operating permit program.

DATES: Written comments must be received on or before April 6, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2022-0166 at www.regulations.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-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 JFK 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

    On July 20, 2021, PADEP submitted a revision to both Pennsylvania's 
SIP and its title V operating permit program approval codified in 40 
CFR part 70 appendix A (relating to approval status of state and local 
operating permits programs). Additionally, on January 3, 2023, PADEP 
submitted a letter clarifying which portions of the submittal were 
intended to be SIP revisions, and which were intended to be revisions 
to Pennsylvania's title V operating permit program. The submittal 
consists of revisions amending 25 Pennsylvania (PA) Code Chapters 121 
(relating to general provisions) and 127, Subchapters F and I (relating 
to operating permit requirements; and plan approval and operating 
permit fees). The revisions increase existing plan approval application 
and operating permit fees. They also implement new fees for requests 
for determination, which is a process PADEP conducts when a source 
requests the PADEP to determine whether certain permitting requirements 
are applicable to the specific source, or the source is exempt from 
these requirements. Pennsylvania indicates that these revisions are 
necessary to ensure that fees are sufficient to cover the costs of 
administering the plan approval application and operating permit 
process as required by section 502(b) of the Clean Air Act (42 U.S.C.A. 
section 7661a(b)) and section 6.3 of the Air Pollution Control Act (35 
Pennsylvania Statute section 4006.3). The documents associated with 
PADEP submission can be found at https://www.regulations.gov, Docket ID 
No. EPA-R03-OAR-2022-0166.

A. SIP Revision

    Section 110(a)(2)(L) of the Clean Air Act (CAA) requires SIPs to 
include requirements that the owner or operator of each major 
stationary source pay to the permitting authority, as a condition of 
any permit required by the CAA, fees sufficient to cover reasonable 
costs of acting on the permit as well as

[[Page 14105]]

implementing and enforcing the terms and conditions of the permit. EPA 
has previously approved Pennsylvania code Chapter 121 general 
provisions definitions at 25 PA code 121.1, Chapter 127 public notice 
requirement in section 127.424, and Pennsylvania's plan approval and 
operating permit fee regulation at 25 PA Code 127.701, 127.702, 
127.703, and 127.707, into the Pennsylvania SIP in accordance with 
section 110 of the CAA. See 61 FR 39597 (July 30, 1996).
    This SIP revision would approve into the Pennsylvania SIP of 
PADEP's revised regulatory language in 25 PA Code Chapter 121 section 
121.1, and Chapter 127 sections 127.424, 127.702, and 127.703, and adds 
sections 127.465, 127.709 and 127.710. The specifics of the revision 
are described in Section II.A of this rulemaking.

B. Title V Operating Permit Program Revision

    EPA granted full approval of the Pennsylvania title V operating 
permits program on July 30, 1996. See 61 FR 39597. Under 40 CFR 70.9(a) 
and (b), an approved state title V operating permit program must 
require that the owners or operators of part 70 sources pay annual 
fees, or the equivalent over some other period, that are sufficient to 
cover the permit program costs and ensure that any fee required under 
40 CFR 70.9 is used solely for permit program costs. The fee schedule 
must result in the collection and retention of revenues sufficient to 
cover the permit program implementation and oversight costs. CAA 
502(b)(3)(A). Pennsylvania's initial title V operating permit emission 
fee was established in 1994 at 25 PA Code 127.705. See 80 FR 14037 
(March 18, 2015). In a February 11, 2014 title V operating permit 
program revision, Pennsylvania previously revised 25 PA Code 127.705 to 
increase annual emission fees for title V sources, noting that annual 
emissions fees were no longer sufficient to cover costs. See 80 FR 
40922 (July 14, 2015).
    In the PADEP submission, PADEP indicated that the currently 
approved fee structure is insufficient to continue to support the title 
V program, and as a result PADEP has revised Sections 127.704 and 
127.705, and has submitted these revisions for EPA action pursuant to 
CAA 502(d). EPA is considering approving these revisions into 
Pennsylvania's title V operating permit program. The specifics of the 
revision are described in Section II.B of this rulemaking.

II. Summary of SIP Revision, Title V Operating Permit Program Revision 
and EPA Analysis

A. SIP Revision

    This revision amends Pennsylvania's SIP by approving PADEP's 
amendments to 25 PA Code Chapters 121 and 127. PADEP proposed new fees 
in this revision for the applications of plantwide applicability 
limits; ambient air impact modeling of certain plan approval 
applications; risk assessments; and requests for determination (RFD) in 
order to ensure the continued solvency of its Clean Air Fund.
    Specifically, the revision proposes to approve Pennsylvania's SIP 
submittal that PADEP amended 25 PA Code Chapters 121 and 127, sections 
121.1, 127.424, 127.702, and 127.703, and adds sections 127.465, 
127.709 and 127.710. PADEP added the definition of ``synthetic minor 
facility'' in the definition section 121.1 and corrected a cross-
reference error in public notice section 127.424. PADEP amended section 
127.702 that establishes plan approval fees, and section 127.703 that 
establishes Operating permit fees under Subchapter F (State Operating 
Permit Requirements) for the future years in details based on year and 
permit categories. The newly added section 127.465 establishes the 
procedures the owner or operator of a stationary air contamination 
source or facility shall follow to make a significant modification to 
an applicable operating permit. New section 127.709 establishes fees 
for requests for determination, for whether a plan approval, an 
operating permit, or both, are needed for the change to the 
facility.\1\ Section 127.710 establishes application fees for the use 
of general plan approvals and general operating permits for stationary 
or portable sources.
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    \1\ Pennsylvania has a merged permit program. A merged permit 
means there is only one permit for each source; the preconstruction 
permit (called ``plan approval'') gets merged into the facility's 
operating permit (title V) at the end of the shakedown period--
typically via an administrative amendment. Every major and minor 
modification at a title V source requiring a plan approval undergoes 
public participation since it will modify the source's title V 
permit; such plan approvals must be ``title V ready'', i.e., plan 
approval must meet requirements of both preconstruction permit and 
title V operating permit.
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    The revisions to Pennsylvania's SIP satisfy CAA section 
110(a)(2)(L), which mandates that SIPs require the owner or operator of 
each major stationary source to pay to the permitting authority a fee 
sufficient to cover (i) the reasonable costs of reviewing and acting 
upon any application for such a permit, and (ii) if the owner or 
operator receives a permit for such source, the reasonable costs of 
implementing and enforcing the terms and conditions of any such permit. 
The revision makes the Pennsylvania SIP more up to date with fee 
schedules and meets the substantive SIP requirements of the CAA, 
including section 110 and implementing regulations.

B. Title V Operating Permit Program Revision

    The revision to Pennsylvania's title V program proposes to approve 
PADEP's submission that amends Chapter 127 sections 127.704 and 
127.705. Section 127.704 establishes title V operating permit fees, and 
section 127.705 require the owner or operator of a title V facility to 
pay annual title V emission fees.
    A key provision of the title V operating permit program is the 
requirement to establish a financially adequate permit fee schedule 
that results in the collection and retention of revenues sufficient to 
cover all reasonable costs required to develop and administer the title 
V operating permit program as required by 40 CFR 70.9(a) and (b). Title 
V permit fees are used to implement and enforce the permitting program, 
including reviewing and processing plan approvals and operating 
permits, review renewals of existing permits; monitoring facility 
compliance; taking enforcement actions for noncompliance; performing 
monitoring, modeling and analysis; tracking facility emissions; 
conducting inspections, responding to complaints and pursuing 
enforcement actions, emissions and ambient air monitoring, preparing 
applicable regulations and guidance, and preparing emission 
inventories. See 40 CFR 70.9(b).
    According to its submission, PADEP has recently experienced a 
declining in fee revenue due to emissions reductions at major 
facilities. PADEP has submitted to EPA a detailed economic analysis 
that justifies its need to increase its title V operating permit fees. 
See 51 Pa.B. 283 (January 16, 2021), Docket ID No. EPA-R03-OAR-2022-
0166. PADEP's economic analysis concluded that Pennsylvania's title V 
operating permit and annual emission fee revenues collected are no 
longer sufficient to cover title V operating permit program costs. The 
state's revision does not increase the title V emission fee under 
section 127.705. The amendment to section 127.705 clarifies the use of 
the Consumer Price Index for the prescribed annual increases. PADEP 
concluded that the fee adjustments in section 127.704 were needed to 
bring Pennsylvania's title V operating permit program fee revenue in 
line with

[[Page 14106]]

expenditures so that the program is self-sustaining as required under 
the CAA.
    Regulations related to the fee schedules for plan approval and 
operating permit activities were last revised in November 1994, with 
staged increases occurring over the ensuing 10 years. The last of the 
staged plan approval and operating permit fee increases occurred in 
January 2005. PADEP revised the title V annual emission fee under 
section 127.705 (relating to emission fees) in 2013 and submitted to 
EPA in 2014, and EPA approved the revision in 2015. See 80 FR 40922 
(July 14, 2015). At that time, the PADEP projected that the increased 
annual emission fee would not be sufficient to maintain the solvency of 
the title V account in its Clean Air Fund, and noted that a revised 
annual emission fee or other revised permitting fees would be needed 
within 3 years.
    Pennsylvania indicates that these amendments to its title V 
operating permit program ensure that fees will remain sufficient to 
cover the costs of administering the plan approval application and 
operating permit process as required by section 502(b) of the CAA and 
section 6.3 of the Air Pollution Control Act. Without this fee increase 
and new fees to be collected, Pennsylvania had anticipated funds will 
not be sufficient to sustain the title V operating permit program. If 
funds were to become insufficient to sustain the title V operating 
permit program in Pennsylvania, EPA may determine that Pennsylvania has 
not taken ``significant action to assure adequate administration and 
enforcement of the Program'' and take subsequent required action under 
40 CFR 70.10(b) and(c) as well as impose sanctions under the CAA.
    Based on the 40 CFR part 70 presumptive minimum fee rate from the 
September 16, 2021, EPA Office of Air Quality Planning and Standards 
memorandum,\2\ the requirements of 40 CFR 70.9(b)(2) and the economic 
analysis by PADEP, EPA finds that the July 20, 2021, PADEP submission 
has met the requirements of CAA section 502(b)(1)-(10), and is 
consistent with applicable EPA requirements in title V operating permit 
program of the CAA and 40 CFR part 70. This rulemaking proposes 
approval of the increased fees and new fees because the changes meet 
requirements in 40 CFR 70.9 for sufficient title V fees to cover permit 
program costs.
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    \2\ www.epa.gov/system/files/documents/2022-09/FEE70_2023.pdf.
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III. Proposed Action

    EPA is proposing to approve the Pennsylvania July 20, 2021, 
submittal pertaining to the permitting program fees based on PADEP's 
clarification of January 3, 2023 as revisions, described above, to both 
the Pennsylvania SIP and Pennsylvania's approved title V operating 
permit program. The SIP submittal is in accordance with requirements in 
section 110(a)(2)(L) of the CAA and implement regulations. 
Additionally, because the title V submittal meets the requirements of 
CAA sections 502(b)(1) through (10), pursuant to CAA 502(d), EPA is 
proposing to approve the Pennsylvania title V operating permit program 
revision submitted on July 20, 2021 and clarified on January 3, 2023. 
The title V revision meets the requirements in 40 CFR 70.9. EPA is 
soliciting public comments on both the SIP revision and title V 
operating permit program revision discussed in this document. These 
comments will be considered before taking final action.

IV. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the Pennsylvania Regulation described in the amendments to 25 
PA Code 127, as discussed in section II.A of this rulemaking. EPA has 
made, and will continue to make, these materials generally available 
through www.regulations.gov and at the EPA Region 3 Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information).

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Under the CAA, 
the Administrator approves title V operating permit program revisions 
pursuant to that comply with the Act and applicable Federal 
Regulations. See 42 U.S.C. 7661a(d). Thus, in reviewing SIP and title V 
operating permit program submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. This action 
merely approves state law as meeting Federal requirements and does not 
impose additional requirements beyond those imposed by state law. For 
that reason, this action:
     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);
     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);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rulemaking does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP revision to Pennsylvania's existing plan approval and 
operating permit program fee rules is not approved to apply in Indian 
country located in the state, and EPA notes that it will not impose 
substantial direct costs on tribal governments or preempt tribal law.

[[Page 14107]]

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Lead, Nitrogen 
dioxide, Operating permits, Ozone, Particulate Matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2023-04164 Filed 3-6-23; 8:45 am]
BILLING CODE 6560-50-P