[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.

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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 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

[[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:
     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);

[[Page 20160]]

     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