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

<RULE> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 70</CFR> <DEPDOC>[EPA-R03-OAR-2024-0070; FRL-11788-02-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> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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). </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> This final rule is effective on August 29, 2024. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> 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 <E T="03">www.regulations.gov</E> website. Although listed in the index, some information is not publicly available, <E T="03">e.g.,</E> 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 <E T="03">www.regulations.gov,</E> or please contact the person identified in the <E T="02">For Further Information Contact</E> section for additional availability information. <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> 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. <E T="03">See</E> 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;  <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” final Federal rule (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> <HD SOURCE="HD2">A. Fee Structure Revision</HD> 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. <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.” <E T="03">Id.</E> 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 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. <HD SOURCE="HD1">II. Summary of Title V Permit Program Revision and the EPA Analysis</HD> 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. <HD SOURCE="HD2">A. Fee Structure Revision</HD> 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 a result, the EPA is approving West Virginia's restructuring of its title V fee program. <HD SOURCE="HD2">B. Affirmative Defense, Permit R ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 20k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━