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

ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 70</CFR> <DEPDOC>[EPA-R03-OAR-2024-0070; FRL-11788-01-R3]</DEPDOC> <SUBJECT>Clean Air Act Title V Operating Permit Program Revision; West Virginia</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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). </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Written comments must be received on or before April 22, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by Docket ID No. EPA-R03-OAR-2024-0070 at <E T="03">www.regulations.gov,</E> or via email to <E T="03">Opila.MaryCate@epa.gov.</E> For comments submitted at <E T="03">Regulations.gov,</E> follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from <E T="03">Regulations.gov</E> . 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 ( <E T="03">i.e.</E> on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit <E T="03">www.epa.gov/dockets/commenting-epa-dockets.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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 <E T="03">he.yongtian@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> 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. <E T="03">See</E> 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;  <SU>1</SU> <FTREF/> (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. <FTNT> <SU>1</SU>  The reports are available at <E T="03">www.epa.gov/caa-permitting/title-v-evaluation-report-west-virginia.</E> </FTNT> 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). <HD SOURCE="HD2">A. Fee Structure Revision</HD> 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. <E T="03">See</E> 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 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. <HD SOURCE="HD2">B. Federal Permit Review, Public Petition, and Affirmative Defense Requirement Revisions</HD> In February 2020, the EPA issued a Final Rule revising its regulations with respect to the submission and review of Title V petitions. <E T="03">See</E> 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. <E T="03">See</E> 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.” <E T="03">See</E> 88 FR 47029, 47031, July 21, 2023. <HD SOURCE="HD1">II. Summary of Title V Program Revision and EPA Analysis</HD> 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 revis ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 24k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━