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

ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 70</CFR> <DEPDOC>[EPA-R03-OAR-2023-0026; FRL-11859-01-R3]</DEPDOC> <SUBJECT>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</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 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 EPA, effective June 1, 2020, into West Virginia's Title V operating permits program. In addition, the revision includes other minor amendments. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> Written comments must be received on or before September 16, 2024. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by Docket ID No. EPA-R03-OAR-2023-0026 at <E T="03">www.regulations.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> 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 <E T="03">Entwistle.Paul@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> 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 <E T="03">www.regulations.gov,</E> Docket ID No. EPA-R03-OAR-2023-0026. <HD SOURCE="HD1">II. Summary of Title V Operating Permits Program Revision and EPA Analysis</HD> 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. <SU>1</SU> <FTREF/> 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. <FTNT> <SU>1</SU>  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. </FTNT> 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 (NO <E T="52">X</E> ) 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 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 Fede ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 16k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━