[Federal Register Volume 67, Number 238 (Wednesday, December 11, 2002)]
[Rules and Regulations]
[Pages 76116-76119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31237]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[Region II Docket No.VI3-1, FRL-7420-4]
Approval and Promulgation of State Plans for Designated
Facilities; Virgin Islands
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a
negative declaration submitted by the Government of the United States
(US) Virgin Islands. The negative declaration satisfies EPA's
promulgated Emission Guidelines (EG) for existing small municipal waste
combustion (MWC) units. In accordance with the EG, states are not
required to submit a plan to implement and enforce the EG if there are
no existing small MWC units in the state and if it submits a negative
declaration letter in place of the State Plan.
DATES: This direct final rule is effective on February 10, 2003,
without further notice, unless EPA receives adverse comment by January
10, 2003.
If an adverse comment is received, EPA will publish a timely
withdrawal in the Federal Register informing the public that this rule
will not take effect.
ADDRESSES: All comments should be addressed to: Raymond Werner, Chief,
Air Programs Branch, Environmental Protection Agency, Region II Office,
290 Broadway, New York, New York 10007-1866.
A copy of the Virgin Islands submittal is available for inspection
at the Region 2 Office in New York City. Those interested in inspecting
the submittal must arrange an appointment in advance by calling (212)
637-4249. Alternatively, appointments may be arranged via e-mail by
sending a message to Demian P. Ellis at [email protected]. The
office address is 290 Broadway, Air Programs Branch, 25th Floor, New
York, New York 10007-1866.
A copy of the Virgin Islands submittal is also available for
inspection at the following locations:
Virgin Islands Department of Planning and Natural Resources,
Division of Environmental Protection, Cyril E. King Airport, Terminal
Building, 2nd Floor, St. Thomas, USVI, 00802.
FOR FURTHER INFORMATION CONTACT: Demian P. Ellis, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, Telephone, (212) 637-4249.
SUPPLEMENTARY INFORMATION: The following table of contents describes
the format for the SUPPLEMENTARY INFORMATION section:
Table of Contents
A. What action is EPA taking today?
B. Why is EPA approving the Virgin Islands' negative declaration?
C. What if an existing small MWC unit is discovered after today's
action becomes effective?
D. What is the background for today's action?
E. What are EPA requirements for small MWC units?
F. Who must comply with the requirements?
G. What are EPA's conclusions?
H. Administrative requirements
A. What Action Is EPA Taking Today?
The Environmental Protection Agency (EPA) is approving a negative
declaration submitted by the Government of the United States Virgin
Islands (Virgin Islands) dated July 17, 2002. This negative declaration
finds that there are no existing small municipal waste combustors
throughout the Territory of the Virgin Islands. The negative
declaration satisfies the federal Emission Guidelines (EG) requirements
of EPA's promulgated regulation entitled ``Emission Guidelines for
Existing Small Municipal Waste Combustion Units'' (65 FR 76378,
December 6, 2000). The negative declaration officially certifies to EPA
[[Page 76117]]
that, to the best of the Virgin Islands' knowledge, there are no small
MWC units in operation within the Territory.
B. Why Is EPA Approving the Virgin Islands' Negative Declaration?
EPA has evaluated the negative declaration submitted by the Virgin
Islands for consistency with the Clean Air Act (Act), EPA guidelines
and policy. EPA has determined that the Virgin Islands' negative
declaration meets all applicable requirements and, therefore, EPA is
approving the Virgin Islands' certification that there are no existing
small MWC units in operation throughout the Territory. The Virgin
Islands has certified in its negative declaration that there are no
small MWC units that meet the EG criteria based on file review,
inspections, and a territory-wide search.
EPA's approval of the Virgin Islands' negative declaration is based
on the following:
(1) The Virgin Islands has met the requirements of Sec. 60.23(b)
in Title 40, part 60, subpart B of the Code of Federal Regulations (40
CFR part 60) for submittal of a letter of negative declaration that
certifies there are no existing facilities within the Territory. Such
certification exempts the Virgin Islands from the requirements to
submit a plan.
(2) EPA's own source inventory files indicate there are no existing
small MWC units operating within the Territory of the Virgin Islands.
Specifically, during October 2001, EPA compiled an inventory of small
MWC units as a required element of the small MWC EG and found none in
the Virgin Islands.
C. What if an Existing Small MWC Unit Is Discovered in the Virgin
Islands After Today's Action Becomes Effective?
Section 60.1530 of 40 CFR part 60, subpart BBBB (page 76386 at 65
FR 76378, December 6, 2000) requires that if, after the effective date
of today's action, an existing small MWC unit is found within the
Virgin Islands, the Federal Plan implementing the EG would
automatically apply to that small MWC unit until a State Plan is
approved by EPA.
The Federal Plan was proposed on June 14, 2001 (66 FR 32484) and is
expected to be promulgated in the near future. The Federal Plan will
apply to small MWCs in states, commonwealths, and territories (1) where
the EPA inventory identifies small MWCs and a plan is required and has
not been submitted and approved by EPA and (2) where the EPA inventory
did not identify any small MWC and a negative declaration has been
received and approved by EPA (such as the Virgin Islands) and a small
MWC is subsequently identified in the State or territory. If and when a
State Plan, or in this case a Territorial Plan, for small MWCs is
submitted and approved, the Federal Plan would no longer apply.
D. What Is the Background for Emission Guidelines and State Plans?
Section 111(d) of the Act requires that pollutants controlled under
New Source Performance Standards (NSPS) must also be controlled at
existing sources in the same source category. Once an NSPS is issued,
EPA then publishes an EG applicable to the control of the same
pollutant from existing (designated) facilities. States with designated
facilities must then develop State Plans to adopt the EG into their
body of regulations.
Under section 129 of the Act, the EG is not federally enforceable.
Section 129(b)(2) of the Act requires states to submit State Plans to
EPA for approval. State Plans must be at least as protective as the EG,
and they become federally enforceable upon EPA approval. The procedures
for adopting and submitting State Plans, as well as state requirements
for a negative declaration, are in 40 CFR part 60, subpart B.
EPA originally issued the subpart B provisions on November 17,
1975. EPA amended subpart B on December 19, 1995, to allow the subparts
developed under section 129 to include specifications that supersede
the general provisions in subpart B regarding the schedule for
submittal of State Plans, the stringency of the emission limitations,
and the compliance schedules (60 FR 65414).
E. Where Can You Find the EG Requirements for Small MWC Units?
On December 6, 2000, under sections 111 and 129 of the Act, EPA
issued the NSPS applicable to new MWC units and the EG applicable to
existing small MWC units. The NSPS and EG are codified at 40 CFR part
60, subparts AAAA (65 FR 76350) and BBBB (65 FR 76378), respectively.
F. Who Must Comply With the EG Requirements?
A small MWC unit having the capacity to combust at least 35 tons
per day of municipal solid waste but no more than 250 tons per day of
municipal solid waste or refuse derived fuel that commenced
construction on or before August 30, 1999 (``existing small MWC unit'')
must comply with these requirements. See Sec. 60.1555 of 40 CFR part
60, subpart BBBB for a list of small MWC units exempt from the federal
requirements.
G. What Are EPA's Conclusions?
EPA has determined that the Virgin Islands' negative declaration
meets all the requirements and, therefore, EPA is approving the Virgin
Islands' certification that no applicable small MWC units are in
operation within the Territory of the U.S. Virgin Islands. If any
existing small MWC units are discovered in the future, the Federal Plan
implementing the EG would automatically apply to that small MWC unit
until the State Plan is approved by EPA.
The EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial submittal and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
adverse comments be filed. This rule will be effective February 10,
2003, without further notice unless the Agency receives adverse
comments by January 10, 2003.
If the EPA receives adverse comments, then EPA will publish a
timely withdrawal in the Federal Register informing the public that the
rule will not take effect. EPA will address all public comments in a
subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time.
H. Administrative Requirements
tive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
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
[[Page 76118]]
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
Executive Order 13132
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 necessary to pay the direct
compliance costs incurred by state and local governments, or EPA
consults with state and local officials early in the process of
developing the proposed regulation. Under section 6(c) of Executive
Order 13132, EPA may not issue a regulation that has 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 rule may have federalism implications.
The only reason why this rule may have federalism implications is if in
the future a small MWC unit is found within the Territory of the U.S.
Virgin Islands the unit will become subject to the Federal Plan until a
State Plan is approved by EPA. However, it will not impose substantial
direct compliance costs on state or local governments, nor will it
preempt state law. Thus, the requirements of sections 6(b) and 6(c) of
the Executive Order do not apply to this rule.
Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
Thus, Executive Order 13175 does not apply to this rule.
Regulatory Flexibility
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 rule will not have a significant impact on a substantial
number of small entities because as a negative declaration it is not
subject to the small MWC EG requirements. Therefore, because the
Federal approval does not create any new requirements, I certify that
this action will not have a significant economic impact on a
substantial number of small entities.
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, commonwealth, territorial, 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, commonwealth, territorial, local, or tribal governments, or
to the private sector, result from this action.
Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. section 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
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. 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.
section 804(2). This rule will be effective February 10, 2003, unless
EPA receives material adverse written comments by January 10, 2003.
National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 10, 2003. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality
[[Page 76119]]
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 62
Environmental protection, Air pollution control, Intergovernmental
relations, Lead, Reporting and recordkeeping requirements.
Dated: November 15, 2002.
William J. Muszynski,
Acting Regional Administrator, Region 2.
Part 62, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 62--[AMENDED]
1. The authority citation for part 62 continues to read as follows:
Authority: 62 U.S.C. 7401-7671q.
Subpart CCC--Virgin Islands
2. Part 62 is amended by adding new Sec. 62.13355 and an
undesignated heading to subpart CCC to read as follows:
Air Emissions From Existing Small Municipal Waste Combustion Units With
the Capacity To Combust at Least 35 Tons per Day but No More Than 250
Tons per Day of Municipal Solid Waste or Refuse Derived Fuel and
Constructed on or Before August 30, 1999
Sec. 62.13355 Identification of plan--negative declaration.
Letter from the Virgin Islands Department of Planning and Natural
Resources, submitted July 17, 2002, certifying that there are no
existing small municipal waste combustion units in the Territory of the
United States Virgin Islands subject to part 60, subpart BBBB of this
chapter.
[FR Doc. 02-31237 Filed 12-10-02; 8:45 am]
BILLING CODE 6560-50-P