[Federal Register Volume 89, Number 146 (Tuesday, July 30, 2024)]
[Rules and Regulations]
[Pages 61022-61025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16568]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[EPA-R03-OAR-2024-0070; FRL-11788-02-R3]


Clean Air Act Title V Operating Permit Program Revision; West 
Virginia

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
revision to West Virginia's Title V Operating Permits Program, 
submitted on behalf of the state by the West Virginia Department of 
Environmental Protection (WVDEP). There are three components to the 
revision: it restructures the title V operating permit fees collected 
by WVDEP in order to ensure that the title V operating program is 
adequately funded; it amends West Virginia's title V regulations to 
comport with Federal permit review, public petition, and affirmative 
defense requirements; and it removes obsolete transitional language. 
The EPA is approving these revisions to the West Virginia title V 
program in accordance with the requirements under section 502 of the 
Clean Air Act (CAA).

DATES: This final rule is effective on August 29, 2024.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID Number EPA-R03-OAR-2024-0070. All documents in the docket are 
listed on the www.regulations.gov website. Although listed in the 
index, some information is not publicly available, e.g., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available through www.regulations.gov, or please contact the person 
identified in the For Further Information Contact section for 
additional availability information.

FOR FURTHER INFORMATION CONTACT: Yongtian He, Permits Branch (3AD10),

[[Page 61023]]

Air & Radiation Division, U.S. Environmental Protection Agency, Region 
III, Four Penn Center, 1600 John F Kennedy Boulevard, Philadelphia, 
Pennsylvania 19103. The telephone number is (215) 814-2339. Mr. He can 
also be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On March 21, 2024 (89 FR 20157), the EPA published a notice of 
proposed rulemaking (NPRM) for the State of West Virginia. In the NPRM, 
the EPA proposed approval of West Virginia's revision to the 
implementing regulation of the state's Title V Operating Permits 
Program, ``Requirements for Operating Permits'' rule, codified at Title 
45, Series 30 of the West Virginia Code of State Regulations (45CSR30). 
The EPA granted full approval of the West Virginia Title V Operating 
Permit Program effective November 19, 2001. See 66 FR 50325, October 3, 
2001.
    WVDEP's submission was received by the EPA on May 3, 2023 and, 
pursuant to the EPA's request, WVDEP submitted a clarifying statement 
on December 19, 2023. WVDEP revised 45CSR30 to: (1) restructure the 
title V program fee as recommended by the EPA in a September 2021 Title 
V Program Evaluation Report, an August 2019 Title V Permit Fee 
Evaluation Report, and a May 2015 Title V Program Evaluation Report; 
\1\ (2) comport with the EPA's ``Revisions to the Petition Provisions 
of the Title V Permitting Program'' final Federal rule (85 FR 6431, 
February 5, 2020) and the EPA's ``Removal of Title V Emergency 
Affirmative Defense Provisions from State Operating Permit Programs and 
Federal Operating Permit Program'' final Federal rule (88 FR 47029, 
July 21, 2023); and (3) remove obsolete transitional language and 
provide additional clarifications.
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    \1\ The reports are available at www.epa.gov/caa-permitting/title-v-evaluation-report-west-virginia.
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A. Fee Structure Revision

    Under 40 CFR 70.9(a) and (b), an approved state title V operating 
permits program must require that the owners or operators of 40 CFR 
part 70 sources pay annual fees, or the equivalent over some other 
period, that are sufficient to cover the permit program costs and 
ensure that any fee required under 40 CFR 70.9 is used solely for 
permit program costs. The fee schedule must result in the collection 
and retention of revenues sufficient to cover the permit program 
implementation and oversight costs. 40 CFR 70.9(b). The state 
submission indicates that under the previous fee structure, 
approximately 60 percent of title V fees generated in West Virginia 
were paid by the top ten emitting sources of West Virginia's 
approximately 500 title V facilities. Nine of the top ten sources were 
coal-fired electric generating units (EGUs), some of which, according 
to the state, have indicated the possibility of retiring in the near 
future. Accordingly, the previous fee structure was not flexible in the 
event of changes to the mix of regulated sources, which would result in 
projected revenue loss and potential vulnerability with respect to 
WVDEP's ability to fully fund its title V program. This vulnerability 
was noted by the EPA in its aforementioned 2021, 2019, and 2015 
reports.
    West Virginia's new fee structure, as delineated in 45CSR30.8, 
expands the number of sources contributing 60 percent of the revenue 
from the top 10 (2 percent of state-wide sources) to the top 96 sources 
(20 percent of state-wide sources), thus providing a more diversified 
and sustainable revenue stream. West Virginia's amendments to its fee 
provisions at 45CSR30.8 achieve a more sustainable and equitable title 
V fee structure that can adjust to the projected changes to title V 
sources and emissions.

B. Federal Permit Review, Public Petition, and Affirmative Defense 
Requirement Revisions

    In February 2020, the EPA issued a Final Rule revising its 
regulations with respect to the submission and review of title V 
petitions. See 85 FR 6431, February 5, 2020. The action sought to ``to 
streamline and clarify'' the processes by ``implement[ing] changes in 
three key areas: method of petition submittal to the agency, required 
content and format of petitions, and administrative record requirements 
for permits.'' Id. Any air agencies that needed to revise its rules to 
implement these changes were to initiate the process with the EPA in 
accordance with 40 CFR 70.4(i).
    The EPA issued a final rule in July 2023 that removed the 
``emergency'' affirmative defense provisions from the agency's 40 CFR 
parts 70 and 71 title V operating permit program regulations. See 88 FR 
47029 (July 21, 2023). The preamble explained that the EPA ``expects 
that program revisions to remove the title V emergency defense 
provisions from state operating permit programs will include, at 
minimum: (1) a redline document identifying the state's proposed 
revision to its 40 CFR part 70 program rules; (2) a brief statement of 
the legal authority authorizing the revision; and (3) a schedule and 
description of the state's plans to remove affirmative defense 
provisions from individual operating permits.

II. Summary of Title V Permit Program Revision and the EPA Analysis

    In the May 3, 2023 submittal, West Virginia sought the EPA's 
approval of its revisions to 45CSR30 into its title V program. As noted 
above, West Virginia's revisions to 45CSR30 restructured fees for its 
Title V Operating Permit Program, amended its regulations to comport 
with revisions to Federal permit review and public petition 
regulations, removed affirmative defense provisions pursuant to 
revisions to Federal regulations, and removed obsolete language. The 
December 19, 2023 supplemental letter provided clarifying information.

A. Fee Structure Revision

    To cover all reasonable costs required to implement and administer 
the West Virginia Title V Operating Permit Program as required by 40 
CFR 70.9(a) and (b), the state's revised fee structure is designed to 
diversify revenue stream with consideration of the future and to be 
more equitable and sustainable.
    West Virginia's revisions to its title V fee structure in 45CSR30.8 
included five main changes: (1) replacing the annual emissions only fee 
to an annual fee that includes an emissions fee, base fee, and 
complexity fee components; (2) setting the emissions fee factor based 
on a calculation of the 3-year average of Division of Air Quality (DAQ) 
Title V Fund expenses, which is then multiplied by the actual emissions 
released by the specific source to determine the emission fee 
component; (3) removing the emissions fee cap; (4) eliminating the 
Certified Emissions Statement (emission reporting requirements remain); 
and (5) the title V fee program does not reference the Rule 22 minor 
source fee program. The details of West Virginia's revised title V fee 
structure are described in the NPRM.
    With this fee structure change, West Virginia indicates that it can 
ensure that fees will remain sufficient to cover the costs of 
administering the plan approval application and operating permit 
process as required by section 502(b) and the implementing regulations 
of 40 CFR part 70. After reviewing West Virginia's May 2023 submission 
and the December 2023 supplemental letter, the EPA has determined that 
the revision to the fee structure meets the requirements in section 502 
of the CAA and 40 CFR 70.9 for the collection of sufficient title V 
fees to cover permit program implementation and oversight costs. As

[[Page 61024]]

a result, the EPA is approving West Virginia's restructuring of its 
title V fee program.

B. Affirmative Defense, Permit Review and Public Petition Requirement 
Revisions

    In the revision to 45CSR30, WVDEP removed section 5.7: Emergency 
provisions pursuant to the EPA's removal of the Federal affirmative 
defense provisions 40 CFR 70.6 (g) and 71.6 (g) in its July 21, 2023 
final rule (88 FR 47029). The provisions, which have never been 
required elements of state operating permit programs, were removed 
because they were inconsistent with the EPA's interpretation of the 
enforcement structure of the CAA in light of prior court decisions from 
the U.S. Court of Appeals for the D.C. Circuit. The removal is also 
consistent with other recent EPA actions involving affirmative defenses 
and would harmonize the EPA's treatment of affirmative defenses across 
different CAA programs. WVDEP's removal of section 5.7 is consistent 
with the Federal final rule and 40 CFR part 70 regulations.
    WVDEP also revised sections 7.1, 7.3 and 7.4 of 45CSR30 on public 
petitions and permit review requirements to comport with revisions to 
the aforementioned Federal counterpart regulations. (85 FR 6431, 
February 5, 2020). WVDEP's revision of sections 7.1, 7.3 and 7.4 of 
45CSR30 reflects the Federal Rule's changes to the method of petition 
submittal to the agency, the required content and format of petitions, 
and the administrative record requirements for permits. The revisions 
are consistent with the Federal final rule.
    Additionally, WVDEP revised section 1 regarding the scope of the 
rule, filing date, and effective date, some definitions in section 2 to 
provide additional clarifications, and removed other obsolete 
transitional language in sections 4, 6 and 9 of 45CSR30. These 
revisions are approvable as well.
    Other specific requirements of this title V program revision and 
the rationale for the EPA's proposed action are explained in the NPRM, 
and will not be restated here.

III. The EPA's Response to Comments Received

    The EPA received one comment during the public comment period. 
However, the comment is vague and not specific to this action, 
therefore, the EPA will not offer a response.

IV. Final Action

    Pursuant to 40 CFR 70.4(i)(2), the EPA is approving a revision to 
the West Virginia Title V Operating Permit Program submitted on May 3, 
2023, to restructure the state's title V fee schedule in order to 
achieve a diversified, equitable and sustainable fee revenue system. 
The EPA is also approving revisions to the EPA approved West Virginia 
Title V program that remove emergency affirmative defense provisions, 
ensure that petition review and public participation provisions are 
consistent with Federal counterpart regulations, and add clarifying 
language. The revisions meet the relevant requirements of section 502 
of the CAA and the implementing regulations.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator approves title V operating permit 
program revisions that comply with the Act and applicable Federal 
Regulations. See 42 U.S.C. 7661a(d). Thus, in reviewing title V 
operating permit program submissions, the EPA's role is to approve 
state choices, provided that they meet the criteria of the CAA. This 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     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); 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 rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
title V action is not approved to apply in Indian country located in 
the State, and the EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    Executive Order 12898 directs Federal agencies, to the greatest 
extent practicable and permitted by law, to make environmental justice 
part of their mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations (people of color and/or Indigenous peoples) and low-income 
populations.
    The EPA believes that this title V action does not concern human 
health or environmental conditions and therefore cannot be evaluated 
with respect to potentially disproportionate and adverse effects on 
people of color, low-income populations and/or Indigenous peoples. This 
title V action merely approves into West Virginia's 40 CFR part 70 
operating permit program the relevant West Virginia regulations for 
fees that are required to administer the title V program in West 
Virginia, revises state regulations to comport with amended EPA 
regulations addressing Federal permit review, public petition, and 
affirmative defense requirements, and removes obsolete language. The 
title V fees are already being collected by the State, the EPA 
regulations which the state is mirroring via these revisions are in 
effect, and the removal of obsolete language ensures clarity in the 
regulatory process. This title V action therefore does not directly 
address emission limits or otherwise directly affect any human health 
or environmental conditions in the state of West Virginia. In addition, 
the EPA provided meaningful involvement on this rulemaking through the 
notice and comment process, and that is in addition to the State-level 
notice and comment process held by West Virginia.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small

[[Page 61025]]

Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 30, 2024. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action approving West Virginia title V permit Program 
revisions may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 70

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

Adam Ortiz,
Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
70 as follows:

PART 70--STATE OPERATING PERMIT PROGRAMS

0
1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


0
2. Appendix A to Part 70 is amended by adding paragraph (h) under 
``West Virginia'' to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permit Programs

* * * * *

West Virginia

* * * * *
    (h) The West Virginia Department of Environmental Protection 
submitted a program revision on May 3, 2023 to restructure the title 
V operating permit fees collected by WVDEP, amend West Virginia's 
title V regulations to comport with Federal permit review, public 
petition, and affirmative defense requirements, and remove obsolete 
transitional language; approval effective on July 30, 2024.
* * * * *
[FR Doc. 2024-16568 Filed 7-29-24; 8:45 am]
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