[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Proposed Rules]
[Pages 66662-66665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18161]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[EPA-R03-OAR-2023-0026; FRL-11859-01-R3]


Air Plan Approval; West Virginia; Revision to the State Operating 
Permits Program Under Title V of the Clean Air Act To Revise 45 Code of 
State Rules 33; Acid Rain Provisions and Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a Title V operating permits program revision submitted by the 
West Virginia Department of Environmental Protection (WVDEP) on behalf 
of the State of West Virginia. The revision incorporated by reference 
final rules promulgated by

[[Page 66663]]

EPA, effective June 1, 2020, into West Virginia's Title V operating 
permits program. In addition, the revision includes other minor 
amendments.

DATES: Written comments must be received on or before September 16, 
2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2023-0026 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: Paul Entwistle, 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-
2343. Mr. Entwistle can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 10, 2021, WVDEP submitted to EPA amendments that West 
Virginia made to 45 Code of State Rules (CSR) 33, Acid Rain Provisions 
and Permits. WVDEP amended 45 CSR 33-1.3, 45 CSR 33-1.4, 45 CSR 33-1.5, 
45 CSR 33-1.6, 45 CSR 33-2.2, and 45 CSR 33-4.1. The amendment to 45 
CSR 33-4.1 incorporated by reference final regulations promulgated by 
EPA and codified in 40 Code of Federal Regulations (CFR) parts 72, 74, 
75, 76, and 77 under the Clean Air Act (CAA) Title IV Acid Rain 
program. West Virginia has requested that EPA approve the submitted 
amendments to revise the West Virginia Title V operating program 
approved at 40 CFR part 70, appendix A. West Virginia indicates that 
this revision to its approved 40 CFR part 70 program is necessary to 
ensure that 45 CSR 33 stays up-to-date with its Federal counterpart 
regulations, consistent with section 22-1-3(c) of the West Virginia 
Code. The CAA requires all State and local permitting authorities to 
develop operating permits programs that meet the requirements of Title 
V of the CAA, 42 U.S.C. 7661-7661(f), and its implementing regulations, 
40 CFR part 70. The West Virginia State Operating Permits Program under 
Title V of the CAA is codified in 45 CSR 30 of the West Virginia Code 
of State Rules. The documents associated with the West Virginia 
submittal can be found at www.regulations.gov, Docket ID No. EPA-R03-
OAR-2023-0026.

II. Summary of Title V Operating Permits Program Revision and EPA 
Analysis

    EPA is proposing to approve as a revision to EPA's approved Title V 
program for West Virginia the following amendments that the State made 
to 45 CSR 33-1.3, 45 CSR 33-1.4, 45 CSR 33-1.5, 45 CSR 33-1.6, 45 CSR 
33-2.2, and 45 CSR 33-4.1. The amendment to 45 CSR 33-4.1 adopted and 
incorporated by reference the following Federal regulations: 40 CFR 
part 72, ``Permits Regulation;'' 40 CFR part 74, ``Sulfur Dioxide Opt-
Ins;'' 40 CFR part 75, ``Continuous Emission Monitoring;'' 40 CFR part 
76, ``Acid Rain Nitrogen Oxides Emission Reduction Program;'' and 40 
CFR part 77, ``Excess Emissions.'' The amendment to 45 CSR 33-4.1 
incorporated by reference these Federal regulations as they existed on 
June 1, 2020.\1\ The State also removed the previous version of 45 CSR 
33-1.6 and replaced it with new language. Previously 45 CSR 33-1.6 
specified that the version of 45 CSR 33 filed in 2010 served to replace 
the version of 45 CSR 33 filed in 2006. The current 45 CSR 33-1.6 
specifies that the date of the version of the Federal counterpart to 
the WVDEP regulations that the WVDEP secretary recommended be 
incorporated by reference was June 1, 2020.
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    \1\ June 1, 2020, is the date chosen by West Virginia as the 
point in time at which the State incorporated by reference the 
previously listed Federal regulations. This, notably, is after the 
date that time-limited changes to these Federal regulations, 
relating to the Covid-19 national emergency, became effective on 
April 22, 2020. See 85 FR 22362 (April 22, 2020). The time limited 
changes were therefore included in the June 1, 2020, incorporation 
by reference.
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    In the Federal regulations which West Virginia incorporated by 
reference through the amendment to 45 CSR 33-4.1, EPA promulgated time-
limited changes to the emissions reporting regulations applicable to 
sources that monitor and report emissions under the Acid Rain Program, 
the Cross-State Air Pollution Rule (CSAPR), and/or the Nitrogen Oxides 
(NOX) State Implementation Plan (SIP) Call. These Federal 
regulations provided that if an affected unit failed to complete a 
required quality-assurance, certification or recertification, fuel 
analysis, or emission rate test by the applicable deadline under the 
regulations because of travel, plant access, or other safety 
restrictions implemented to address the then current COVID-19 national 
emergency and if the unit's actual monitored data would have been 
considered valid if not for the delayed test, then the unit may have 
temporarily continued to report actual monitored data instead of 
substitute data. Sources were required to maintain documentation, 
notify EPA when a test was delayed and later completed, and certify to 
EPA that they met the criteria for using the amended reporting 
procedures. Substitute data was required to be reported if those 
criteria were not met or if monitored data were missing or were invalid 
for any non-emergency-related reason. Units were required to complete 
any delayed tests as soon as practicable after relevant emergency-
related restrictions no longer applied, and the emergency period for 
which a unit could have reported valid data under the time-limited 
changes to the Federal regulations was limited to the duration of the 
COVID-19 national emergency plus a grace period of 60 days to complete 
delayed tests, but no later than the date of expiration of the time-
limited changes to the Federal regulations, which was October 19, 2020. 
These Federal regulations were necessary during the COVID-19 national 
emergency to protect on-site power plant operators and other essential 
personnel from unnecessary risk of exposure to the coronavirus. The 
Federal regulations did not suspend emissions monitoring or reporting 
requirements or alter emissions standards under any program, and so 
should not have caused any change in emissions levels or resulted in 
any harm to public health or the environment. The time-limited changes 
to the Federal regulations became effective April 22, 2020, and as 
noted, expired on October

[[Page 66664]]

19, 2020. See 85 FR 22362 (April 22, 2020).
    In addition to the amendments to 45 CSR 33-4.1 which incorporated 
by reference the previously mentioned Federal regulations, and 45 CSR 
33-1.6 which updated the date to match that of the counterpart Federal 
regulations, West Virginia also amended 45 CSR 33-1.3, 45 CSR 33-1.4, 
45 CSR 33-1.5, and 45 CSR 33-2.2. The amendments to 45 CSR 33-1.3 and 
45 CSR 33-1.4 updated the filing date and effective date for 45 CSR 33 
to April 28, 2021 and June 1, 2021, respectively.
    The amendment to 45 CSR 33-1.5 created a reference to West 
Virginia's Sunset Provision, as described in the West Virginia Code at 
section 29A-3-19. Importantly, the Sunset Provision does not apply to 
rules promulgated by WVDEP, such as 45 CSR 33. See W. Va. Code section 
29A-3-19(b). The amendment to 45 CSR 33-1.5 also made clear that the 
Sunset Provision does not apply to 45 CSR 33. As such, these 
regulations will not sunset.
    45 CSR 33-2.2 defines the meaning of the ``Clean Air Act'' and was 
amended to include language specifying that the provision refers to the 
Federal Clean Air Act, while also acknowledging that the Act has been 
amended.
    Apart from these minor changes, the effect of the amendments to 45 
CSR 33 is to update the incorporation by reference of the 
aforementioned Federal regulations, incorporating the time-limited 
changes created in response to the COVID-19 national emergency. These 
time-limited changes to the Federal regulations were only in effect 
through October 19, 2020, 180 days after their effective date of April 
22, 2020. West Virginia is now requesting in its submittal that EPA 
approve the State's amended regulations to its Acid Rain Provisions. 
West Virginia's submittal requests that EPA approve only these changes 
to its Title V program.\2\ EPA finds that the May 10, 2021 submittal 
has met the requirements of CAA section 502, and is consistent with 
applicable EPA requirements in the Title V operating permits program of 
the CAA and 40 CFR part 70. This rulemaking proposes to approve the 
amendments to 45 CSR 33-1.3, 45 CSR 33-1.4, 45 CSR 33-1.5, 45 CSR 33-
1.6, 45 CSR 33-2.2, and 45 CSR 33-4.1 contained in the West Virginia 
submittal as a revision to EPA's approved Title V program for West 
Virginia by adding a paragraph (h) into 40 CFR part 70, appendix A 
under West Virginia. This new paragraph will indicate EPA's approval of 
the revision.
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    \2\ Because West Virginia's typical legislative rulemaking 
process involves a 1-year cycle, the update to 45 CSR 33 was not 
finalized until after the original EPA time-limited changes had 
already expired. The purpose of the update to 45 CSR 33 then, and 
West Virginia's submittal to EPA, was not to independently create or 
remove requirements under West Virginia's Acid Rain or Title V 
program, but to incorporate already existing time-limited changes 
promulgated by EPA. The update ensured that West Virginia sources 
which utilized the provisions granted by EPA's Covid emergency 
related time-limited changes would not later become subject to 
retroactive State enforcement. The update also served to maintain 
consistency between West Virginia State and Federal regulations, as 
required by the CAA.
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III. Proposed Action

    Pursuant to CAA 502(d), EPA is proposing to approve the West 
Virginia Title V operating permits program revision submitted on May 
10, 2021. The revision meets the requirements in 40 CFR part 70. EPA is 
soliciting public comments on the Title V operating permits program 
revision discussed in this document. These comments will be considered 
before taking final action.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator approves Title V operating permits 
program revisions that comply with the CAA and applicable Federal 
regulations. See 42 U.S.C. 7661a(d). Thus, in reviewing Title V 
operating permits 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
    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 specific 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 action merely approves into West Virginia's 40 CFR part 70 
operating permit program revisions to State regulations that 
incorporated by reference relevant Federal regulations and provided 
ministerial updates, such as updating relevant effective dates, 
clarifying language to ensure regulatory consistency, and making clear 
that the sunset provision is inapplicable (as it is with all WVDEP 
regulations). 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 is in addition to the State-level notice 
and comment process held by West Virginia.
    In addition, this rulemaking does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP 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.

List of Subjects in 40 CFR Part 70

    Environmental protection, Acid rain, Administrative practice and 
procedure, Air pollution control, Intergovernmental relations, Lead, 
Nitrogen dioxide, Operating permits, Ozone, Particulate matter, 
Reporting and recordkeeping

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requirements, Sulfur oxides, Volatile organic compounds.

Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2024-18161 Filed 8-15-24; 8:45 am]
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