Clean Air Act Title V Operating Permit Program Revision; West Virginia, 7463-7465 [2016-02831]
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Federal Register / Vol. 81, No. 29 / Friday, February 12, 2016 / Rules and Regulations
OMB Control
No.
40 CFR citation
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721.10673 .............................
721.10674 .............................
721.10675 .............................
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2070–0012
2070–0012
2070–0012
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PART 721—[AMENDED]
3. The authority citation for part 721
continues to read as follows:
■
Authority: 15 U.S.C. 2604, 2607, and
2625(c).
4. Add § 721.10673 to subpart E to
read as follows:
■
§ 721.10673 Alkanes, C21–34–branched
and linear, chloro.
srobinson on DSK5SPTVN1PROD with RULES
(a) Chemical substance and
significant new uses subject to reporting.
(1) The chemical substance identified as
alkanes, C21–34–branched and linear,
chloro (PMN P–12–539; CAS No.
1417900–96–9) is subject to reporting
under this section for the significant
new uses described in paragraph (a)(2)
of this section.
(2) The significant new uses are:
(i) Industrial, commercial, and
consumer activities. Requirements as
specified in § 721.80 (j)(manufacture of
the PMN substance with less than 1
weight percent of chlorinated paraffins
with an alkyl chain ≤ 20) and (p)
(1,200,000 kg, 14,100,000 kg, 59,100,000
kg, 78,400,000 kg, and 86,100,000 kg of
the aggregate of the PMN substances P–
12–539, P–13–107, and P–13–109, from
the March 19, 2013 effective date of the
TSCA section 5(e) consent order for P–
12–539, P–13–107, and P–13–109).).
(ii) [Reserved]
(b) Specific requirements. The
provisions of subpart A of this part
apply to this section except as modified
by this paragraph.
(1) Recordkeeping. Recordkeeping
requirements as specified in § 721.125
(a), (b), (c), and (i) are applicable to
manufacturers and processors of this
substance.
(2) Limitations or revocation of
certain notification requirements. The
provisions of § 721.185 apply to this
section.
■ 5. Add § 721.10674 to subpart E to
read as follows:
§ 721.10674 Alkanes, C22–30–branched
and linear, chloro.
(a) Chemical substance and
significant new uses subject to reporting.
(1) The chemical substance identified as
alkanes, C22–30–branched and linear,
chloro (PMN P–13–107; CAS No.
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16:06 Feb 11, 2016
Jkt 238001
1401947–24–0) is subject to reporting
under this section for the significant
new uses described in paragraph (a)(2)
of this section.
(2) The significant new uses are:
(i) Industrial, commercial, and
consumer activities. Requirements as
specified in § 721.80 (j)(manufacture of
the PMN substance with less than 1
weight percent of chlorinated paraffins
with an alkyl chain ≤ 20) and (p)
(1,200,000 kg, 14,100,000 kg, 59,100,000
kg, 78,400,000 kg, and 86,100,000 kg of
the aggregate of the PMN substances P–
12–539, P–13–107, and P–13–109, from
the March 19, 2013 effective date of the
TSCA section 5(e) consent order for P–
12–539, P–13–107, and P–13–109).
(ii) [Reserved]
(b) Specific requirements. The
provisions of subpart A of this part
apply to this section except as modified
by this paragraph.
(1) Recordkeeping. Recordkeeping
requirements as specified in § 721.125
(a), (b), (c), and (i) are applicable to
manufacturers and processors of this
substance.
(2) Limitations or revocation of
certain notification requirements. The
provisions of § 721.185 apply to this
section.
■ 6. Add § 721.10675 to subpart E to
read as follows:
§ 721.10675
Alkanes, C24–28, chloro.
(a) Chemical substance and
significant new uses subject to reporting.
(1) The chemical substance identified as
alkanes, C24–28, chloro (PMN P–13–
109; CAS No. 1402738–52–6) is subject
to reporting under this section for the
significant new uses described in
paragraph (a)(2) of this section.
(2) The significant new uses are:
(i) Industrial, commercial, and
consumer activities. Requirements as
specified in § 721.80 (j) (manufacture of
the PMN substance with less than 1
weight percent of chlorinated paraffins
with an alkyl chain ≤ 20) and (p)
(1,200,000 kg, 14,100,000 kg, 59,100,000
kg, 78,400,000 kg, and 86,100,000 kg of
the aggregate of the PMN substances P–
12–539, P–13–107, and P–13–109, from
the March 19, 2013 effective date of the
TSCA section 5(e) consent order for P–
12–539, P–13–107, and P–13–109).
(ii) [Reserved]
(b) Specific requirements. The
provisions of subpart A of this part
apply to this section except as modified
by this paragraph.
(1) Recordkeeping. Recordkeeping
requirements as specified in § 721.125
(a), (b), (c), and (i) are applicable to
manufacturers and processors of this
substance.
(2) Limitations or revocation of
certain notification requirements. The
PO 00000
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7463
provisions of § 721.185 apply to this
section.
[FR Doc. 2016–02952 Filed 2–11–16; 8:45 am]
BILLING CODE 6560–50–P
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
Environmental Protection
Agency (EPA).
AGENCY:
ACTION:
Final rule.
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).
SUMMARY:
This final rule is effective on
March 14, 2016.
DATES:
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.
ADDRESSES:
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Paul
Wentworth, (215) 814–2183, or by email
at wentworth.paul@epa.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
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.
srobinson on DSK5SPTVN1PROD with RULES
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
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.
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provided for the increase to $28 per ton
of regulated pollutant emitted.2
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
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
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.
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 $18per-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.
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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-perton 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
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Federal Register / Vol. 81, No. 29 / Friday, February 12, 2016 / Rules and Regulations
would increase certain fees to $28 per
ton of regulated pollutants.4
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
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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
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).
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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).
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
1. The authority citation for part 70
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
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
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West Virginia
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(g) The West Virginia Department of
Environmental Protection submitted a
program revision on June 17, 2015; approval
effective on May 1, 2015.
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[FR Doc. 2016–02831 Filed 2–11–16; 8:45 am]
BILLING CODE 6560–50–P
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
PO 00000
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]]>Agencies
[Federal Register Volume 81, Number 29 (Friday, February 12, 2016)]
[Rules and Regulations]
[Pages 7463-7465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 wentworth.paul@epa.gov.
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.
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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\
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\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).
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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
