[Federal Register Volume 65, Number 241 (Thursday, December 14, 2000)]
[Rules and Regulations]
[Pages 78102-78104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31899]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[VI002; FRL-6916-9]
Clean Air Act Final Full Approval of Operating Permits Program:
The U.S. Virgin Islands
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final full approval.
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SUMMARY: The EPA is promulgating full approval of the operating permits
program submitted by the U.S. Virgin Islands for the purpose of
complying with Federal requirements which mandate that States develop,
and submit to EPA, programs for issuing operating permits to all major
stationary sources, and to certain other sources.
EFFECTIVE DATE: This program will be effective January 16, 2001.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final full approval as well as the
Technical Support Document are available for inspection during normal
business hours at the following locations:
EPA Region II, 290 Broadway, 25th Floor, New York, New York 10007-1866,
Attention: Steven C. Riva.
EPA Region II, Caribbean Field Office, Centro Europa Building, Suite
417, 1492 Ponce de Leon Avenue, Stop 22, San Juan, Puerto Rico 00907-
4127, Attention: John Aponte.
The U. S. Virgin Islands Department of Planning and Natural Resources
(VIDPNR), Division of Environmental Protection, Building 111, Apartment
14A, Water Gut Homes, Christainsted, St. Croix, U.S. Virgin Islands
00820. Attention: Hollis Griffin.
FOR FURTHER INFORMATION CONTACT: Umesh Dholakia, Permitting Section, at
the above EPA office in New York or at telephone number (212) 637-4023.
John Aponte of the Caribbean Environmental Protection Division can be
reached at (787) 729-6951, extension 279.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Title V of the Clean Air Act (``the Act''), 42 U.S.C. 7661-7661(f),
and its implementing regulations at 40 Code of Federal Regulations
(CFR) part 70 required that States develop and submit operating permit
programs to the EPA by November 15, 1993, and that the EPA act to
approve or disapprove each program within one year after receiving the
submittal. The EPA's program review occurs pursuant to section 502 of
the Act, 42 U.S.C. 7502 and 40 CFR part 70, which together outline
criteria for approval or disapproval. If a state did not have an
approved program by two years after the November 15, 1993 date, EPA was
required to establish and implement a Federal program.
On January 25, 1996, the EPA proposed full approval of the
Operating Permits Program submitted for the Virgin Islands (see 61 FR
2216) requiring that the VIDPNR correct the wording errors in its
legislation before full approval could be finalized. No comment was
received on the proposed full approval document. Because the wording
errors were not corrected, EPA subsequently issued a Final Interim
Approval on July 31, 1996, rather than a full approval. EPA also
reiterated the requirements for a full final approval (see 61 FR
39882). Since all the defects in the Virgin Island's program have been
corrected, the EPA is taking the direct final action in this notice to
promulgate full approval of the Operating Permits Program for the
Virgin Islands.
II. Final Action and Implications
A. Analysis of State Submission
On January 25, 1996, the EPA proposed full approval of VIDPNR's
Title V Operating Permits Program (see 61 FR 2216). The proposed full
approval required that the VIDPNR correct the wording errors in its
legislation prior to receiving final approval. On July 31, 1996 the
Virgin Islands was given interim approval because it had not corrected
the wording errors in its legislation (see 61 FR 39882). The Virgin
Islands has corrected those errors in legislative changes promulgated
on December 22, 1999. These changes were signed by the Governor at Act
No. 6338 on January 3, 2000. The program elements discussed in the
proposal document are unchanged from the analysis in the Final Full
Approval document and continue to fully meet the requirements of 40 CFR
part 70.
B. Options for Approval/Disapproval
The EPA is promulgating full approval of the Operating Permits
Program submitted to the EPA by the VIDPNR on November 18, 1993 with
supplemental packages through August 25, 2000. Among other things, the
VIDPNR has demonstrated that the program will be adequate to meet the
minimum elements of a State operating permits program as specified in
40 CFR part 70.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5), 42 U.S.C. 7412(l)(5), requirements for approval of a
program for delegation of section 112 standards as promulgated by the
EPA as they apply to part 70 sources. Section 112(l)(5) requires that
the State's program contain adequate authorities, adequate resources
for implementation, an expeditious compliance schedule, and adequate
enforcement ability, which are also requirements under part 70. In a
letter dated May 30, 1995, VIDPNR requested delegation through 112(l)
of all existing 112 standards and all future 112 standards for both
part 70 and non-part 70 sources and infrastructure programs. In the
letter, VIDPNR demonstrated that they have sufficient legal
authorities, adequate resources, the capability for automatic
delegation of future standards, and adequate enforcement ability for
implementation of section 112 of the Act for both part 70 sources and
non-part 70 sources. Therefore, the EPA is also promulgating full
approval under section 112(l)(5), 42 U.S.C. 7412(1)950, and 40 CFR
63.91 to the Virgin Islands for its program mechanism for receiving
delegation of all existing and future section 112(d) standards for both
part 70 and non-part 70 sources, and section 112 infrastructure
programs that are unchanged from Federal rules as promulgated.
III. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final full approval are contained in the docket maintained at
the EPA Regional Offices in New York and Puerto Rico and at VIDPNR. The
docket is an organized and complete file of all the information
submitted to, or otherwise considered by, EPA in the development of
this final full approval. The docket is available for public inspection
at the location listed under the ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866, entitled ``Regulatory Planning and
Review.''
C. Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Order 12612 (Federalism) and Executive Order 12875 (Enhancing
the Intergovernmental Partnership). Under section 6(c) of Executive
Order 13132, EPA may not issue a regulation that has
[[Page 78103]]
federalism implications and that preempts state law unless the Agency
consults with state and local officials early in the process of
developing the proposed regulation.
EPA has concluded that this final rule may have federal
implications. For example, under the authority of section 505 of the
Act, 42 U.S.C. 7661(d), EPA may object to a permit issued under the
VI's Title V Operating Permits Program. Should the VI fail to revise
the permit based upon EPA's objection, EPA has the authority under this
section of the Act to issue a federal permit for the facility under 40
CFR part 71. However, it will not impose direct compliance costs on
State or local governments, nor will it preempt State law. Thus, the
requirements of sections 6(b) and Executive Order 13132, entitled
Federalism (64 FR 43255, August 10, 1999) requires EPA to develop an
accountable process to ensure ``meaningful and timely input by state
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government.
Under section 6(b) of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal Government provides the funds. Therefore, section 6(c) of
the Executive Order does not apply to this rule.
Consistent with EPA policy, EPA nonetheless consulted closely with
the Governor of the VI and his staff early and throughout the process
of developing the VI's regulations to permit them to have meaningful
and timely input in the development of its Title V Operating Permits
Program. EPA worked closely with the Governor's legal staff in drafting
the legislation and regulations for this program and in enacting
legislation to correct the typographical errors in the original
legislation.
D. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant regulatory action as defined by Executive
Order 12866, and it does not establish a further health or risk-based
standard because it approves state rules which implement a previously
promulgated health or safety-based standard.
E. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.'' Today's rule
does not significantly or uniquely affect the communities of Indian
tribal governments. This action does not involve or impose any
requirements that affect Indian Tribes. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.
F. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because part 70 approvals under
section 502 of the Act do not create any new requirements but simply
approve requirements that the State is already imposing. Therefore,
because this approval does not create any new requirements, EPA
certifies that this action will not have a significant economic impact
on a substantial number of small entities. Moreover, due to the nature
of the Federal-State relationship under the Clean Air Act, preparation
of flexibility analysis would constitute a Federal inquiry into the
economic reasonableness of state action. The Clean Air Act forbids EPA
to base its actions concerning State Plans on such grounds. Union
Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
G. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to state, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either state, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
H. 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
[[Page 78104]]
agency promulgating the rule must submit a rule report, which includes
a copy of the rule, to each House of Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule 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. This rule is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
I. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be in the United States Court of
Appeals for the appropriate circuit by February 12, 2001. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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 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, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: December 4, 2000.
Jeanne M. Fox,
Regional Administrator, Region 2.
Title 40, chapter I, part 70 of the Code of Federal Regulations is
to be amended as follows:
PART 70--[AMENDED]
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 revising entry (a) for the
Virgin Islands to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Virgin Islands
(a) The Virgin Islands Department of Natural Resources submitted
an operating permits program on November 18, 1993 with supplements
through August 25, 2000; full approval effective on January 16,
2001.
[FR Doc. 00-31899 Filed 12-13-00; 8:45 am]
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