[Federal Register Volume 69, Number 44 (Friday, March 5, 2004)]
[Rules and Regulations]
[Pages 10332-10335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4987]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 69
[Region 2 Docket No. VI-5-265 D, FRL-7632-5]
An Exemption From Requirements of the Clean Air Act for the
Territory of United States Virgin Islands
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is announcing
approval of a Petition, from the Governor of the Virgin Islands (US
VI), which seeks an exemption of the Clean Air Act (CAA) section 165(a)
requirement to obtain a Prevention of Significant Deterioration (PSD)
Permit to Construct prior to construction of a new gas turbine at the
Virgin Islands Water and Power Authority (VIWAPA) St. Thomas facility.
This exemption allows for construction, but not operation, of Unit 23
prior to issuance of a final PSD permit.
EFFECTIVE DATE: This rule will be effective March 5, 2004.
ADDRESSES: Copies of the Governor's Petition and submittals relied upon
in the approval process are available at the following addresses for
inspection during normal business hours:
Environmental Protection Agency, Region 2 Office, Air Programs Branch,
290 Broadway, New York, New York 10007-1866, Attn: Umesh Dholakia.
Environmental Protection Agency, Region 2 Office, Caribbean Field
Office, Centro Europa Building, Suite 417, 1492 Ponce de Leon Avenue,
Stop 22, San Juan, Puerto Rico 00907-4127, Attn: John Aponte.
The U. S. Virgin Islands Department of Planning and Natural Resources
(VIDPNR), Division of Environmental Protection, Cyril E. King Airport,
Terminal Building, Second Floor, St. Thomas, U.S. Virgin Islands 00802,
Attn: Leslie Leonard.
FOR FURTHER INFORMATION CONTACT: Umesh Dholakia, Environmental
Engineer, Air Programs Branch, Division of Environmental Protection and
Planning, Environmental Protection Agency, Region 2 Office, 290
Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4023 or
at [email protected].
SUPPLEMENTARY INFORMATION: The following table of contents describes
the format for the Supplementary Information section:
I. What Action Is EPA Taking Today?
II. What Comments Did EPA Receive in Response to Its Proposal?
III. What Is EPA's Conclusion?
IV. Statutory and Executive Order Review
I. What Action Is EPA Taking Today?
EPA is approving a Petition from the U.S. VI Governor seeking an
exemption of the CAA requirement to obtain a PSD Permit to construct
prior to commencing construction of a new gas turbine at the VIWAPA St.
Thomas facility.
Pursuant to section 325(a) of the CAA, on July 21, 2003, the
Governor of the U.S. VI filed a Petition with the Administrator seeking
an exemption from the CAA section 165(a) PSD requirement to obtain a
PSD permit to construct prior to commencing construction. The Governor
requested
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the exemption on behalf of VIWAPA so that it can proceed, as quickly as
possible, to construct Unit 23, a 36 megawatt (MW) gas turbine at its
St. Thomas facility.
This exemption will allow for construction, not operation, prior to
issuance of a final PSD permit, of Unit 23 at the VIWAPA St. Thomas
facility.
II. What Comments Did EPA Receive in Response to Its Proposal?
A. Background Information
On December 31, 2003, EPA announced, in proposed and direct final
rules published in the Federal Register (68 FR 75786 and 68 FR 75782,
respectively), approval of a Petition from the U.S. VI Governor seeking
an exemption of the CAA requirement to obtain a PSD Permit to construct
prior to commencing construction of a new gas turbine at the VIWAPA St.
Thomas facility. EPA had indicated in its December 31, 2003 direct
final rule that if EPA received adverse comments, it would withdraw the
direct final rule. Consequently, EPA informed the public, in a
withdrawal notice published in the Federal Register (69 FR 9216) on
February 27, 2004, that EPA received an adverse comment and that the
direct final rule did not take effect. EPA did not receive any other
comments. EPA is addressing the adverse comment in today's final rule
based upon the proposed action published on December 31, 2003. For
detailed information on this action, the reader is referred to the
direct final rule referenced above.
B. A Comment Received and EPA's Response
EPA received one adverse comment on its December 31, 2003 direct
final rule to approve a Petition from the U.S. VI Governor seeking an
exemption of the CAA requirement to obtain a PSD Permit to construct
prior to commencing construction of a new gas turbine at the VIWAPA St.
Thomas facility from a concerned citizen. That comment and EPA's
response follows.
Comments: A concerned citizen commented that he objected to any
exemption from providing clean air, and that EPA should mandate the
highest standards for the clean air where people live and travel.
Response: In order to address this concern, EPA hereby clarifies
the nature of this exemption under section 325(a) of the CAA. The CAA
section 165(a) of the CAA requires that an owner/operator obtain a PSD
permit to construct prior to commencing construction. The petitioner in
this case is seeking an exemption commencing construction of a new gas
turbine. The petitioner is not seeking any exemption from obtaining a
PSD permit and meeting all emission control and air quality related
obligations under the CAA prior to beginning operation of this new
turbine. The CAA, under section 325(a), specifically allows for
exemptions from requirements of the CAA for sources in the Virgin
Islands where it can be demonstrated that either financial or
geographic conditions warrant such an exemption and no air quality
violations would result from such an exemption.
EPA reviewed the petitioner's request and determined that granting
this exemption will not result in any adverse impact on the air quality
of the islands. The Virgin Islands will continue to meet the National
Ambient Air Quality Standards. This action does not allow the
petitioner to begin operation of the new turbine until a final PSD
permit that meets all the CAA requirements is issued.
Thus, this exemption will not affect any emission or any air
quality requirements. This new turbine will be held to the same
emission limitations as a similar source built in another area which is
attaining the NAAQS.
III. What Is EPA's Conclusion
The VIWAPA St. Thomas facility is unable to interconnect with a
larger power supply grid. Furthermore, the distance between St. Thomas
and St. Croix prohibits the interconnection between the two VIWAPA
plants. Thus, St. Thomas is serviced by a single power plant that is
experiencing frequent power outages. Based on these factors, EPA has
determined that the petition presents unique geographic circumstances
that justify the waiver.
The EPA is approving the Petition for an exemption of the CAA
section 165(a) requirement to obtain a PSD permit to construct prior to
commencing construction of a new gas turbine, Unit 23, at the VIWAPA
St. Thomas facility. This exemption will allow for the construction,
but not the operation, of Unit 23 prior to issuance of a final PSD
permit.
EPA is relying on the Governor's assertion that the construction
and ultimate operation of Unit 23 should provide a reliable baseload
which will give VIWAPA flexibility to meet electrical demand and that
the additional capacity provided by this unit would be sufficient to
allow for both planned and unplanned outages of generating units at the
VIWAPA St. Thomas facility. EPA believes that by accelerating the time
period by which this unit can be constructed, this rulemaking may
increase VIWAPA's potential to provide more reliable power in St.
Thomas.
EPA has determined that today's rule falls under the ``good cause''
exemption at section 553(d)(3) of the Administrative Procedures Act
(APA) which allows an agency to make a rule effective immediately, upon
finding ``good cause,'' thereby avoiding the 30-day delayed effective
date otherwise provided for in the APA. EPA has concluded that to delay
the effectiveness of this rule for 30 days might adversely affect
resolving a pending power crisis impacted by severe geographic
constraints and that the entities that will be directly affected by
this exemption have had ample notice of EPA's action. Therefore, EPA is
making this rule effective immediately. This rule will be effective
March 5, 2004.
IV. Statutory and Executive Order Review
A. Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must
approve all ``collections of information'' by EPA. The Act defines
``collection of information'' as a requirement for ``answers to * * *
identical reporting or recordkeeping requirements imposed on ten or
more persons * * *'' 44 U.S.C. 3502(3)(A). Because the exemption only
applies to one company, the Paperwork Reduction Act does not apply.
C. Regulatory Flexibility Analysis
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. For purposes
of assessing the impacts of today's rule on small entities, small
entity is defined as: (1) A small business that is primarily engaged in
the generation and distribution of electricity as defined by NAIC code
221112 with production less than four million megawatt hours (based on
Small Business Administration size standards); (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not
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dominant in its field. After considering the economic impacts of
today's final rule on small entities, EPA has concluded that this
action will not have a significant economic impact on a substantial
number of small entities. This final rule will not impose any
requirements on small entities. The exemption applies to only one
source and does not create any new requirements.
D. Unfunded Mandates Reform Act
Under sections 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 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 proposes to approve an
exemption under Federal 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.
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 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 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. EPA also 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.
This rule will not 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, as specified in Executive Order 13132, because it
merely approves an exemption from a federal standard, and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175.
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. Thus, Executive
Order 13175 does not apply to this rule.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
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 does
not involve decisions intended to mitigate environmental health or
safety risks.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
I. 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.
J. Congressional Review Act
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. Section 804 exempts from section 801 the
following types of rules: (1) Rules of particular applicability; (2)
Rules relating to agency management or personnel; and (3) rules of
agency organization, procedure, or practice that do not substantially
affect the rights or obligations of non-agency parties. 5 U.S.C.
section 804(3). EPA is not required to submit a rule report regarding
this action under section 801 because this is a rule of particular
applicability in that it exempts only one source from obtaining a PSD
permit to construct.
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K. Other
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 May 4, 2004. 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 69
Environmental protection, Air pollution control.
Dated: February 27, 2004.
Michael O. Leavitt,
Administrator.
0
Part 69 of chapter I, title 40 of the Code of Federal Regulations is
amended to read as follows:
PART 69--[AMENDED]
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1. The authority citation for part 69 continues to read as follows:
Authority: 42 U.S.C. 7545(c), (g), and (i), and 7625-1.
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2. Section 69.41 is amended by adding paragraph (h) to read as follows:
Sec. 69.41 New exemptions.
* * * * *
(h) Pursuant to section 325(a) of the Clean Air Act (CAA) and a
petition submitted by the Governor of United States Virgin Islands on
July 21, 2003, (``2003 Petition''), the Administrator of EPA
conditionally exempts Virgin Islands Water and Power Authority
(``VIWAPA'') from certain CAA requirements.
(1) A waiver of the requirement to obtain a PSD permit prior to
construction is granted for the electric generating unit identified in
the 2003 Petition as Unit 23, St. Krum Bay plant in St. Thomas with the
following condition:
(i) Unit 23 shall not operate until a final PSD permit is received
by VIWAPA for this unit;
(ii) Unit 23 shall not operate until it complies with all
requirements of its PSD permit, including, if necessary, retrofitting
with BACT;
(iii) If Unit 23 operates either prior to the issuance of a final
PSD permit or without BACT equipment, Unit 23 shall be deemed in
violation of this waiver and the CAA beginning on the date of
commencement of construction of the unit.
(2) [Reserved]
[FR Doc. 04-4987 Filed 3-4-04; 8:45 am]
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