[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]


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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.

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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\
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    \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.
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    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\
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    \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

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1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


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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

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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]
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