81 FR 7463 - Clean Air Act Title V Operating Permit Program Revision; West Virginia
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 29 (February 12, 2016)
Federal Register Volume 81, Issue 29 (February 12, 2016)
| Page Range | 7463-7465 | |
| FR Document | 2016-02831 |
[Federal Register Volume 81, Number 29 (Friday, February 12, 2016)] [Rules and Regulations] [Pages 7463-7465] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-02831] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 70 [EPA-R03-OAR-2015-0594; FRL-9942-12-Region 3] Clean Air Act Title V Operating Permit Program Revision; West Virginia AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is approving a revision to the Title V Operating Permits Program (found in West Virginia's regulations at 45CSR30) submitted by the State of West Virginia. The revision increases West Virginia's annual emission fees for its Title V Operating Permit Program to $28 per ton of emissions of a regulated pollutant from an individual source subject to the West Virginia Title V Operating Permit Program. EPA is approving the revision to West Virginia's Title V Operating Permit Program in accordance with the requirements of the Clean Air Act (CAA). DATES: This final rule is effective on March 14, 2016. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2015-0594. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.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 www.regulations.gov or may be viewed during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the West Virginia Department of Environmental Protection, Division of Air Quality, 601 57th Street SE., Charleston, West Virginia 25304. [[Page 7464]] FOR FURTHER INFORMATION CONTACT: Paul Wentworth, (215) 814-2183, or by email at [email protected]. SUPPLEMENTARY INFORMATION: I. Background On October 5, 2015 (80 FR 60110), EPA published a notice of proposed rulemaking (NPR) for the State of West Virginia. In the NPR, EPA proposed approval of a revision to the West Virginia Title V Operating Permit Program. The formal program revision was submitted by the State of West Virginia on June 17, 2015. II. Summary of Title V Operating Permit Program Revision In the June 17, 2015 program revision submittal, West Virginia included revisions to 45CSR30.8 to increase West Virginia's annual emission fees for its Title V Operating Permit Program. West Virginia increased the annual fees to $28 per ton of emissions of a regulated pollutant from an individual source subject to the West Virginia Title V Operating Permit Program. The previous rate in 45CSR30.8 was $18 per ton of regulated pollutant. This revised fee per ton became effective on May 1, 2015 and replaced the prior fee, $18 per ton, which was effective July 1, 1995 through April 30, 2015.\1\ As discussed in the NPR, without this fee increase, West Virginia anticipated that funds would not be sufficient to sustain its Title V Operating Permit Program in a manner consistent with state and federal requirements. In the NPR, the EPA proposed to approve the revision increasing annual Title V fees that the owners or operators of Title V facilities in West Virginia must pay pursuant to 45CSR30.8. The EPA explained that the revision met 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. The emission fees apply to emissions up to 4,000 tons of any regulated pollutant. However, the EPA's NPR inadvertently misstated that the revision to 45CSR30.8 would increase fees to $25 per ton of regulated pollutant, rather than the correct figure of $28 per ton of regulated pollutant. This error in the NPR by the EPA was inadvertent and does not affect the rationale for the EPA's proposed approval of the Title V permit fee increase as the EPA's evaluation for the NPR was based on 45CSR30.8 which provided for the increase to $28 per ton of regulated pollutant emitted.\2\ --------------------------------------------------------------------------- \1\ On July 1, 1995, the $18 per ton fee replaced West Virginia's Title V operating permit ``transition fee'' of $15 per ton emitted from a source which had previously been in effect for the Title V Operating Permit Program. \2\ In fact, the additional three dollars per ton of regulated pollutant emitted by sources provides additional funds to support the implementation of West Virginia's permit program for Title V of the CAA in accordance with requirements in the CAA and in 40 CFR 70.9. --------------------------------------------------------------------------- Other specific requirements of the program revision and the rationale for the EPA's proposed action are explained in the NPR and will not be restated here. III. Comments and EPA's Responses Comment: The EPA received one comment during the public comment period on the proposed approval of the revision to West Virginia's Title V Operating Permit Program. The comment was submitted on behalf of the West Virginia Department of Environmental Protection (WVDEP). In the comment letter, the WVDEP noted that the new fee provisions contained in the revision to 45CSR30 as part of WVDEP's June 17, 2015 submission to EPA was $28 per ton of regulated pollutants as emitted by individual sources subject to the West Virginia Title V Operating Permit Program. The WVDEP noted that the EPA's NPR incorrectly stated the new fee per ton of regulated pollutant emitted was $25 instead of $28 per ton emitted.\3\ --------------------------------------------------------------------------- \3\ The WVDEP also corrected background information presented in the NPR about historical Title V Operating Permit Program fees in West Virginia. Specifically, WVDEP noted that the $18-per-ton fee was not the ``initial'' fee established in 1994. The program initially had a $15-per-ton transition fee, which was replaced effective July 1, 1995 by the $18-per-ton fee that has been effective until recently. The EPA thanks WVDEP for this clarification, which did not affect our analysis or proposed conclusion that the permit fee revision met CAA requirements for the Title V permit programs. --------------------------------------------------------------------------- Response: The EPA appreciates WVDEP's comment and acknowledges it inadvertently stated in the NPR that the annual fee per ton of regulated pollutant emitted for an individual source subject to the West Virginia Title V Operating Permit Program was increased to $25 per ton of regulated pollutant emitted. WVDEP correctly noted in its comments that 45CSR30.8 increased the fee for emissions to $28 per ton of regulated pollutant emitted from a Title V source. This increase from $18 per ton to $28 per ton of regulated pollutant emitted was effective on May 1, 2015. WVDEP's June 17, 2015 submittal of the revised 45CSR30.8 to the EPA correctly indicated the new fee per ton of regulated pollutant emitted was $28. EPA evaluated the Title V program revision after reviewing 45CSR30.8 and evaluating the permit fee increase at $28 per ton emitted. The EPA's error in the NPR in incorrectly referring to new fees of $25 per ton emitted was inadvertent and did not affect our analysis or proposed conclusion that the permit fee revision met requirements in the CAA for Title V permit programs. The WVDEP comment letter corrects the EPA's error and clarifies that the correct fee per ton of regulated pollutant emitted by a Title V permitted source is $28 per ton. As noted previously, the revision to 45CSR30.8 increasing the permit fee from $18 per ton to $28 per ton of regulated pollutant emitted meets 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. The EPA's determination that West Virginia's Title V Operating Permit Program continues to meet obligations to collect sufficient fees to implement its Title V program is not altered by our inadvertent reference to $25 per ton of regulated pollutant emitted instead of $28 per ton emitted as our analysis was based on the revised 45CSR30.8 which listed the correct fee as $28 per ton. The EPA also finds no further comment period is needed to address the inadvertent reference to the per ton fee increase. The EPA's finding that the revised fees in 45CSR30.8 meet requirements in section 502 of the CAA and 40 CFR 70.9 was explained in the NPR, and the specific finding that the $28 per ton meets requirements for Title V permit fees to fund a Title V program is a logical outgrowth of the proposed rule. No additional notice or opportunity to comment is necessary where, as here, the final rule is ``in character with the original scheme,'' and does not ``substantially depart [] from the terms or substance'' of the proposal. Chocolate Mfrs. Ass'n v. Block, 755 F.2d 1098 (4th Cir. 1985). ``[A] final rule will be deemed to be the logical outgrowth of a proposed rule if a new round of notice and comment would not provide commentators with their first occasion to offer new and different criticisms which the agency might find convincing.'' Fertilizer Inst. v. EPA, 935 F.2d 1303, 1311 (D.C. Cir. 1991) (citation and internal quotation marks omitted). Notwithstanding the NPR's erroneous description of the revised fee being $25 per ton of regulated pollutant, the EPA's determination about the sufficiency of this fee was in fact based on our evaluation of the slightly larger $28-per-ton fee. The NPR also cited the correct provision of West Virginia law, which also would have confirmed to potential commenters that the state's proposed fee increase was to $28 per ton. The docket similarly included information clarifying that the proposed revision [[Page 7465]] would increase certain fees to $28 per ton of regulated pollutants.\4\ --------------------------------------------------------------------------- \4\ To take just one example, the docket included a copy of the rule clearly showing that the revision was to $28 per ton. See EPA- R03-OAR-2015-0594-0006 at 53 (showing relevant changes to West Virginia's rule). --------------------------------------------------------------------------- Accordingly, a supplemental notice clarifying the per-ton fee would not provide any commentators with a first occasion to offer any new or different criticisms of WVDEP's Title V permit fees. Nor would any such criticism convince EPA to alter our conclusion. As stated in the NPR, WVDEP found its permit fee of $18 per ton was insufficient to allow adequate implementation of its Title V Operating Permit Program. After internal analysis, WVDEP concluded it needed the additional revenue from permit fees at $28 per ton emitted to fund sufficiently its Title V Operating Permit Program, and EPA concurs with that conclusion. Further opportunity for comment would not provide any opportunity for criticism of West Virginia's new permit fee which the EPA would find convincing. Thus, our approval of West Virginia's Title V Operating Permits Program including the revision to 45CSR30.8 is final as a ``logical outgrowth'' of the proposed approval announced in the NPR. IV. Final Action EPA is approving the June 17, 2015 Title V Operating Permit Program revision submitted by the State of West Virginia to increase Title V permit fees paid by owners or operators of Title V sources in West Virginia from $18 per ton of regulated pollutant emitted to $28 per ton of regulated pollutant emitted. The revision meets requirements in section 503 of the CAA and of 40 CFR 70.9. V. Statutory and Executive Order Reviews A. General Requirements This action merely approves state law as meeting Federal requirements and imposes no 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 Order 12866 (58 FR 51735, October 4, 1993); 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 does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule related to West Virginia's Title V fees does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the program 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. B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small 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 April 12, 2016. 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 which approves the June 17, 2015 program revision submittal by the State of West Virginia as a revision to the West Virginia Title V Operating Permits Program 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, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: January 28, 2016. Shawn M. Garvin, Regional Administrator, Region III. 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 (g) to the entry for West Virginia to read as follows: Appendix A to Part 70--Approval Status of State and Local Operating Permit Programs * * * * * West Virginia * * * * * (g) The West Virginia Department of Environmental Protection submitted a program revision on June 17, 2015; approval effective on May 1, 2015. * * * * * [FR Doc. 2016-02831 Filed 2-11-16; 8:45 am] BILLING CODE 6560-50-P
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OMB Control 1401947–24–0) is subject to reporting provisions of § 721.185 apply to this
40 CFR citation No. under this section for the significant section.
new uses described in paragraph (a)(2) [FR Doc. 2016–02952 Filed 2–11–16; 8:45 am]
* * * * * of this section. BILLING CODE 6560–50–P
721.10673 ............................. 2070–0012 (2) The significant new uses are:
721.10674 ............................. 2070–0012 (i) Industrial, commercial, and
721.10675 ............................. 2070–0012 consumer activities. Requirements as ENVIRONMENTAL PROTECTION
* * * * *
specified in § 721.80 (j)(manufacture of AGENCY
the PMN substance with less than 1
* * * * * weight percent of chlorinated paraffins 40 CFR Part 70
with an alkyl chain ≤ 20) and (p)
PART 721—[AMENDED] (1,200,000 kg, 14,100,000 kg, 59,100,000 [EPA–R03–OAR–2015–0594; FRL–9942–12–
kg, 78,400,000 kg, and 86,100,000 kg of Region 3]
■ 3. The authority citation for part 721 the aggregate of the PMN substances P–
continues to read as follows: 12–539, P–13–107, and P–13–109, from Clean Air Act Title V Operating Permit
Authority: 15 U.S.C. 2604, 2607, and the March 19, 2013 effective date of the Program Revision; West Virginia
2625(c). TSCA section 5(e) consent order for P–
■ 4. Add § 721.10673 to subpart E to 12–539, P–13–107, and P–13–109). AGENCY: Environmental Protection
read as follows: (ii) [Reserved] Agency (EPA).
(b) Specific requirements. The
§ 721.10673 Alkanes, C21–34–branched provisions of subpart A of this part ACTION: Final rule.
and linear, chloro. apply to this section except as modified
by this paragraph. SUMMARY: The Environmental Protection
(a) Chemical substance and
(1) Recordkeeping. Recordkeeping Agency (EPA) is approving a revision to
significant new uses subject to reporting.
requirements as specified in § 721.125 the Title V Operating Permits Program
(1) The chemical substance identified as
(a), (b), (c), and (i) are applicable to (found in West Virginia’s regulations at
alkanes, C21–34–branched and linear,
manufacturers and processors of this 45CSR30) submitted by the State of
chloro (PMN P–12–539; CAS No.
substance. West Virginia. The revision increases
1417900–96–9) is subject to reporting
(2) Limitations or revocation of West Virginia’s annual emission fees for
under this section for the significant
certain notification requirements. The its Title V Operating Permit Program to
new uses described in paragraph (a)(2)
provisions of § 721.185 apply to this $28 per ton of emissions of a regulated
of this section.
section. pollutant from an individual source
(2) The significant new uses are:
■ 6. Add § 721.10675 to subpart E to subject to the West Virginia Title V
(i) Industrial, commercial, and
read as follows: Operating Permit Program. EPA is
consumer activities. Requirements as
approving the revision to West
specified in § 721.80 (j)(manufacture of § 721.10675 Alkanes, C24–28, chloro. Virginia’s Title V Operating Permit
the PMN substance with less than 1 (a) Chemical substance and Program in accordance with the
weight percent of chlorinated paraffins significant new uses subject to reporting. requirements of the Clean Air Act
with an alkyl chain ≤ 20) and (p) (1) The chemical substance identified as (CAA).
(1,200,000 kg, 14,100,000 kg, 59,100,000 alkanes, C24–28, chloro (PMN P–13–
kg, 78,400,000 kg, and 86,100,000 kg of 109; CAS No. 1402738–52–6) is subject DATES:This final rule is effective on
the aggregate of the PMN substances P– to reporting under this section for the March 14, 2016.
12–539, P–13–107, and P–13–109, from significant new uses described in
the March 19, 2013 effective date of the ADDRESSES: EPA has established a
paragraph (a)(2) of this section. docket for this action under Docket ID
TSCA section 5(e) consent order for P– (2) The significant new uses are:
12–539, P–13–107, and P–13–109).). (i) Industrial, commercial, and Number EPA–R03–OAR–2015–0594. All
(ii) [Reserved] consumer activities. Requirements as documents in the docket are listed in
(b) Specific requirements. The specified in § 721.80 (j) (manufacture of the www.regulations.gov Web site.
provisions of subpart A of this part the PMN substance with less than 1 Although listed in the electronic docket,
apply to this section except as modified weight percent of chlorinated paraffins some information is not publicly
by this paragraph. with an alkyl chain ≤ 20) and (p) available, i.e., confidential business
(1) Recordkeeping. Recordkeeping (1,200,000 kg, 14,100,000 kg, 59,100,000 information (CBI) or other information
requirements as specified in § 721.125 kg, 78,400,000 kg, and 86,100,000 kg of whose disclosure is restricted by statute.
(a), (b), (c), and (i) are applicable to the aggregate of the PMN substances P– Certain other material, such as
manufacturers and processors of this 12–539, P–13–107, and P–13–109, from copyrighted material, is not placed on
substance. the March 19, 2013 effective date of the the Internet and will be publicly
(2) Limitations or revocation of TSCA section 5(e) consent order for P– available only in hard copy form.
certain notification requirements. The 12–539, P–13–107, and P–13–109). Publicly available docket materials are
provisions of § 721.185 apply to this (ii) [Reserved] available through www.regulations.gov
section. (b) Specific requirements. The or may be viewed during normal
■ 5. Add § 721.10674 to subpart E to provisions of subpart A of this part business hours at the Air Protection
read as follows: apply to this section except as modified Division, U.S. Environmental Protection
by this paragraph. Agency, Region III, 1650 Arch Street,
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§ 721.10674 Alkanes, C22–30–branched (1) Recordkeeping. Recordkeeping Philadelphia, Pennsylvania 19103.
and linear, chloro. requirements as specified in § 721.125 Copies of the State submittal are
(a) Chemical substance and (a), (b), (c), and (i) are applicable to available at the West Virginia
significant new uses subject to reporting. manufacturers and processors of this Department of Environmental
(1) The chemical substance identified as substance. Protection, Division of Air Quality, 601
alkanes, C22–30–branched and linear, (2) Limitations or revocation of 57th Street SE., Charleston, West
chloro (PMN P–13–107; CAS No. certain notification requirements. The Virginia 25304.
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FOR FURTHER INFORMATION CONTACT: Paul provided for the increase to $28 per ton of $25 per ton emitted was inadvertent
Wentworth, (215) 814–2183, or by email of regulated pollutant emitted.2 and did not affect our analysis or
at wentworth.paul@epa.gov. Other specific requirements of the proposed conclusion that the permit fee
SUPPLEMENTARY INFORMATION: program revision and the rationale for revision met requirements in the CAA
the EPA’s proposed action are explained for Title V permit programs.
I. Background in the NPR and will not be restated here. The WVDEP comment letter corrects
On October 5, 2015 (80 FR 60110), the EPA’s error and clarifies that the
III. Comments and EPA’s Responses correct fee per ton of regulated pollutant
EPA published a notice of proposed
rulemaking (NPR) for the State of West Comment: The EPA received one emitted by a Title V permitted source is
Virginia. In the NPR, EPA proposed comment during the public comment $28 per ton. As noted previously, the
approval of a revision to the West period on the proposed approval of the revision to 45CSR30.8 increasing the
Virginia Title V Operating Permit revision to West Virginia’s Title V permit fee from $18 per ton to $28 per
Program. The formal program revision Operating Permit Program. The ton of regulated pollutant emitted meets
was submitted by the State of West comment was submitted on behalf of the requirements in section 502 of the CAA
Virginia on June 17, 2015. West Virginia Department of and 40 CFR 70.9 for the collection of
Environmental Protection (WVDEP). In sufficient Title V fees to cover permit
II. Summary of Title V Operating the comment letter, the WVDEP noted program implementation and oversight
Permit Program Revision that the new fee provisions contained in costs. The EPA’s determination that
In the June 17, 2015 program revision the revision to 45CSR30 as part of West Virginia’s Title V Operating Permit
submittal, West Virginia included WVDEP’s June 17, 2015 submission to Program continues to meet obligations
revisions to 45CSR30.8 to increase West EPA was $28 per ton of regulated to collect sufficient fees to implement
Virginia’s annual emission fees for its pollutants as emitted by individual its Title V program is not altered by our
Title V Operating Permit Program. West sources subject to the West Virginia inadvertent reference to $25 per ton of
Virginia increased the annual fees to Title V Operating Permit Program. The regulated pollutant emitted instead of
$28 per ton of emissions of a regulated WVDEP noted that the EPA’s NPR $28 per ton emitted as our analysis was
pollutant from an individual source incorrectly stated the new fee per ton of based on the revised 45CSR30.8 which
subject to the West Virginia Title V regulated pollutant emitted was $25 listed the correct fee as $28 per ton.
Operating Permit Program. The previous instead of $28 per ton emitted.3 The EPA also finds no further
rate in 45CSR30.8 was $18 per ton of Response: The EPA appreciates comment period is needed to address
regulated pollutant. This revised fee per WVDEP’s comment and acknowledges it the inadvertent reference to the per ton
ton became effective on May 1, 2015 inadvertently stated in the NPR that the fee increase. The EPA’s finding that the
annual fee per ton of regulated pollutant revised fees in 45CSR30.8 meet
and replaced the prior fee, $18 per ton,
emitted for an individual source subject requirements in section 502 of the CAA
which was effective July 1, 1995
to the West Virginia Title V Operating and 40 CFR 70.9 was explained in the
through April 30, 2015.1 As discussed
Permit Program was increased to $25 NPR, and the specific finding that the
in the NPR, without this fee increase,
per ton of regulated pollutant emitted. $28 per ton meets requirements for Title
West Virginia anticipated that funds
WVDEP correctly noted in its comments V permit fees to fund a Title V program
would not be sufficient to sustain its
that 45CSR30.8 increased the fee for is a logical outgrowth of the proposed
Title V Operating Permit Program in a
emissions to $28 per ton of regulated rule. No additional notice or
manner consistent with state and federal
pollutant emitted from a Title V source. opportunity to comment is necessary
requirements. In the NPR, the EPA
This increase from $18 per ton to $28 where, as here, the final rule is ‘‘in
proposed to approve the revision character with the original scheme,’’
increasing annual Title V fees that the per ton of regulated pollutant emitted
was effective on May 1, 2015. WVDEP’s and does not ‘‘substantially depart []
owners or operators of Title V facilities from the terms or substance’’ of the
in West Virginia must pay pursuant to June 17, 2015 submittal of the revised
45CSR30.8 to the EPA correctly proposal. Chocolate Mfrs. Ass’n v.
45CSR30.8. The EPA explained that the Block, 755 F.2d 1098 (4th Cir. 1985).
revision met requirements in section indicated the new fee per ton of
regulated pollutant emitted was $28. ‘‘[A] final rule will be deemed to be the
502 of the CAA and 40 CFR 70.9 for the logical outgrowth of a proposed rule if
collection of sufficient Title V fees to EPA evaluated the Title V program
revision after reviewing 45CSR30.8 and a new round of notice and comment
cover permit program implementation would not provide commentators with
and oversight costs. The emission fees evaluating the permit fee increase at $28
per ton emitted. The EPA’s error in the their first occasion to offer new and
apply to emissions up to 4,000 tons of different criticisms which the agency
any regulated pollutant. However, the NPR in incorrectly referring to new fees
might find convincing.’’ Fertilizer Inst.
EPA’s NPR inadvertently misstated that v. EPA, 935 F.2d 1303, 1311 (D.C. Cir.
2 In fact, the additional three dollars per ton of
the revision to 45CSR30.8 would 1991) (citation and internal quotation
regulated pollutant emitted by sources provides
increase fees to $25 per ton of regulated additional funds to support the implementation of marks omitted).
pollutant, rather than the correct figure West Virginia’s permit program for Title V of the Notwithstanding the NPR’s erroneous
of $28 per ton of regulated pollutant. CAA in accordance with requirements in the CAA description of the revised fee being $25
This error in the NPR by the EPA was and in 40 CFR 70.9.
3 The WVDEP also corrected background per ton of regulated pollutant, the EPA’s
inadvertent and does not affect the information presented in the NPR about historical determination about the sufficiency of
rationale for the EPA’s proposed Title V Operating Permit Program fees in West this fee was in fact based on our
approval of the Title V permit fee Virginia. Specifically, WVDEP noted that the $18- evaluation of the slightly larger $28-per-
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increase as the EPA’s evaluation for the per-ton fee was not the ‘‘initial’’ fee established in
1994. The program initially had a $15-per-ton
ton fee. The NPR also cited the correct
NPR was based on 45CSR30.8 which transition fee, which was replaced effective July 1, provision of West Virginia law, which
1995 by the $18-per-ton fee that has been effective also would have confirmed to potential
1 On July 1, 1995, the $18 per ton fee replaced until recently. The EPA thanks WVDEP for this commenters that the state’s proposed fee
West Virginia’s Title V operating permit ‘‘transition clarification, which did not affect our analysis or
fee’’ of $15 per ton emitted from a source which had proposed conclusion that the permit fee revision
increase was to $28 per ton. The docket
previously been in effect for the Title V Operating met CAA requirements for the Title V permit similarly included information
Permit Program. programs. clarifying that the proposed revision
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would increase certain fees to $28 per under the Regulatory Flexibility Act (5 Court of Appeals for the appropriate
ton of regulated pollutants.4 U.S.C. 601 et seq.); circuit by April 12, 2016. Filing a
Accordingly, a supplemental notice • does not contain any unfunded petition for reconsideration by the
clarifying the per-ton fee would not mandate or significantly or uniquely Administrator of this final rule does not
provide any commentators with a first affect small governments, as described affect the finality of this action for the
occasion to offer any new or different in the Unfunded Mandates Reform Act purposes of judicial review nor does it
criticisms of WVDEP’s Title V permit of 1995 (Pub. L. 104–4); extend the time within which a petition
fees. Nor would any such criticism • does not have Federalism for judicial review may be filed, and
convince EPA to alter our conclusion. implications as specified in Executive
shall not postpone the effectiveness of
As stated in the NPR, WVDEP found its Order 13132 (64 FR 43255, August 10,
such rule or action. This action which
permit fee of $18 per ton was 1999);
• is not an economically significant approves the June 17, 2015 program
insufficient to allow adequate
regulatory action based on health or revision submittal by the State of West
implementation of its Title V Operating
safety risks subject to Executive Order Virginia as a revision to the West
Permit Program. After internal analysis,
WVDEP concluded it needed the 13045 (62 FR 19885, April 23, 1997); Virginia Title V Operating Permits
additional revenue from permit fees at • is not a significant regulatory action Program may not be challenged later in
$28 per ton emitted to fund sufficiently subject to Executive Order 13211 (66 FR proceedings to enforce its requirements.
its Title V Operating Permit Program, 28355, May 22, 2001); (See section 307(b)(2).)
and EPA concurs with that conclusion. • is not subject to requirements of
Section 12(d) of the National List of Subjects in 40 CFR Part 70
Further opportunity for comment would
not provide any opportunity for Technology Transfer and Advancement Environmental protection, Air
criticism of West Virginia’s new permit Act of 1995 (15 U.S.C. 272 note) because pollution control, Carbon monoxide,
fee which the EPA would find application of those requirements would Incorporation by reference,
convincing. Thus, our approval of West be inconsistent with the CAA; and Intergovernmental relations, Nitrogen
Virginia’s Title V Operating Permits • does not provide EPA with the
dioxide, Ozone, Particulate matter,
Program including the revision to discretionary authority to address, as
appropriate, disproportionate human Reporting and recordkeeping
45CSR30.8 is final as a ‘‘logical requirements, Sulfur oxides, Volatile
outgrowth’’ of the proposed approval health or environmental effects, using
practicable and legally permissible organic compounds.
announced in the NPR.
methods, under Executive Order 12898 Dated: January 28, 2016.
IV. Final Action (59 FR 7629, February 16, 1994). Shawn M. Garvin,
EPA is approving the June 17, 2015 In addition, this rule related to West Regional Administrator, Region III.
Title V Operating Permit Program Virginia’s Title V fees does not have
revision submitted by the State of West tribal implications as specified by PART 70—STATE OPERATING PERMIT
Virginia to increase Title V permit fees Executive Order 13175 (65 FR 67249, PROGRAMS
paid by owners or operators of Title V November 9, 2000), because the program
sources in West Virginia from $18 per is not approved to apply in Indian
■ 1. The authority citation for part 70
ton of regulated pollutant emitted to $28 country located in the state, and EPA
continues to read as follows:
per ton of regulated pollutant emitted. notes that it will not impose substantial
The revision meets requirements in direct costs on tribal governments or Authority: 42 U.S.C. 7401, et seq.
section 503 of the CAA and of 40 CFR preempt tribal law.
■ 2. Appendix A to part 70 is amended
70.9. B. Submission to Congress and the by adding paragraph (g) to the entry for
V. Statutory and Executive Order Comptroller General West Virginia to read as follows:
Reviews The Congressional Review Act, 5 Appendix A to Part 70—Approval
U.S.C. 801 et seq., as added by the Small
A. General Requirements Status of State and Local Operating
Business Regulatory Enforcement
This action merely approves state law Permit Programs
Fairness Act of 1996, generally provides
as meeting Federal requirements and that before a rule may take effect, the * * * * *
imposes no additional requirements agency promulgating the rule must
beyond those imposed by state law. For West Virginia
submit a rule report, which includes a
that reason, this action: copy of the rule, to each House of the * * * * *
• Is not a ‘‘significant regulatory Congress and to the Comptroller General (g) The West Virginia Department of
action’’ subject to review by the Office of the United States. EPA will submit a Environmental Protection submitted a
of Management and Budget under report containing this action and other program revision on June 17, 2015; approval
Executive Order 12866 (58 FR 51735, required information to the U.S. Senate, effective on May 1, 2015.
October 4, 1993); the U.S. House of Representatives, and * * * * *
• does not impose an information the Comptroller General of the United [FR Doc. 2016–02831 Filed 2–11–16; 8:45 am]
collection burden under the provisions States prior to publication of the rule in BILLING CODE 6560–50–P
of the Paperwork Reduction Act (44 the Federal Register. A major rule
U.S.C. 3501 et seq.); cannot take effect until 60 days after it
• is certified as not having a is published in the Federal Register.
srobinson on DSK5SPTVN1PROD with RULES
significant economic impact on a This action is not a ‘‘major rule’’ as
substantial number of small entities defined by 5 U.S.C. 804(2).
4 To take just one example, the docket included C. Petitions for Judicial Review
a copy of the rule clearly showing that the revision
was to $28 per ton. See EPA–R03–OAR–2015–
Under section 307(b)(1) of the CAA,
0594–0006 at 53 (showing relevant changes to West petitions for judicial review of this
Virginia’s rule). action must be filed in the United States
VerDate Sep<11>2014 16:06 Feb 11, 2016 Jkt 238001 PO 00000 Frm 00021 Fmt 4700 Sfmt 9990 E:\FR\FM\12FER1.SGM 12FER1](https://thefederalregister.org/doc/81_FR_7492/page/3.svg)
Document Created: 2016-02-12 01:24:26
Document Modified: 2016-02-12 01:24:26
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on March 14, 2016. | |
| Contact | Paul Wentworth, (215) 814-2183, or by email at [email protected] | |
| FR Citation | 81 FR 7463 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Carbon Monoxide; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds |
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