[Federal Register: December 31, 2003 (Volume 68, Number 250)]
[Rules and Regulations]
[Page 75781-75785]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de03-30]
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Part IV
Environmental Protection Agency
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40 CFR Part 69
Special Exemption From Requirements of the Clean Air Act for the
Territory of United States Virgin Islands; Final Rule and Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 69
[Region 2 Docket No. VI-5-265 B, FRL-7605-6]
Special Exemption From Requirements of the Clean Air Act for the
Territory of United States Virgin Islands
AGENCY: Environmental Protection Agency.
ACTION: Direct 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.
DATES: This direct final rule is effective on March 1, 2004, without
further notice, unless EPA receives adverse comment by January 30,
2004. If any adverse comments are received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Comments may be submitted either by mail or electronically.
Written comments should be mailed to Steven C. Riva, Chief, Permitting
Section, Air Programs Branch, Environmental Protection Agency, Region 2
Office, 290 Broadway, New York, New York 10007-1866. Electronic
comments could be sent either to Riva.Steven@epa.gov or to http://www.regulations.gov
which is an alternative method for submitting
electronic comments to EPA. Go directly to http://www.regulations.gov,
then select ``Environmental Protection Agency'' at the top of the page
and use the ``go'' button. Please follow the on-line instructions for
submitting comments.
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 Dholakia.Umesh@epa.gov.
SUPPLEMENTARY INFORMATION: The following table of contents describes
the format for the SUPPLEMENTARY INFORMATION section:
I. What Action Is EPA Taking Today?
II. What are the Regulatory Requirements for Authorizing an
Exemption under the CAA?
III. What are the Bases for the Petitioner's Request?
IV. What Is EPA's Analysis of the Petition?
V. What is EPA's Conclusion?
VI. 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 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 Are the Regulatory Requirements for Authorizing an Exemption
Under the CAA?
Section 325(a) of the CAA provides the Administrator of EPA the
authority to exempt sources in the U.S. VI from any requirement under
the Act other than section 112 or any requirement under section 110 or
part D necessary to attain or maintain National Ambient Air Quality
Standard (NAAQS) provided the Administrator determines that compliance
is not feasible due to unique geographical, meteorological or economic
factors or such other factors deemed significant.
III. What Are the Bases for the Petitioner's Request?
The Petitioner contends that granting this exemption will not
impact upon compliance with any requirement under sections 112, 110, or
part D of the Act necessary to attain or maintain National Ambient Air
Quality Standards. To support this contention, petitioner first
acknowledges that because the exemption will not authorize operation of
the unit until after receipt of the PSD permit, the exemption will not
result in any violations of sections 112, 110, or part D of the Act
necessary to attain or maintain a NAAQS. In addition petitioner
contends that modeling, submitted in support of the permit application
for the unit and supplemented since that application, demonstrates that
NAAQS and PSD increments will continue to be preserved if both the new
unit and all other existing units on St. Thomas are operating at
maximum permitted capacity burning.
Petitioner further asserts that the exemption should be granted
because of severe geographic constraints on the U.S. VI power system
and because of a power crisis on St. Thomas. A summary of these
assertions appears below:
a. Geographic Constraints
The petitioner contends that the exemption is necessary because of
severe geographic constraints on the U.S. VI power system. The petition
states that the VIWAPA St. Thomas facility is unable to interconnect
with a larger power supply grid. Furthermore, the petition states that
the distance between St. Thomas and St. Croix prohibit interconnection
between the two VIWAPA plants. Thus, the petitioner explains, St.
Thomas is serviced by a single power plant.
The petitioner also contends that when significant problems occur
units must be shipped off-island for inspection and repair because
vendors who provide such services are not located within the U.S. VI.
The reasons it provides for this are that vendors do not have
inspection and repair facilities in the U.S. VI. Thus, the petition
states, major outages extend longer and cost more to correct than they
would on the mainland. The petitioner explains that
[[Page 75783]]
to account for the need to send units off-island for repair, VIWAPA
developed a policy and practice of attempting to maintain sufficient
reserve capacity. The petitioner goes on to state that because of the
long-term loss of one unit (Unit 11) for major repairs and the imminent
major repair of another unit (Unit 22), the maximum capacity of all
remaining units on St. Thomas is about to drop significantly and
therefore the petitioner anticipates a number of scenarios in which
there will not be sufficient reserve capacity for powering St. Thomas.
The petitioner points out that this will exacerbate an already problem-
ridden power supply.
b. Power Crisis on St. Thomas
The petition claims that VIWAPA ``no longer has sufficient capacity
to ensure a continuous power supply sufficient to meet public needs.
Consequently the island has been experiencing frequent power outages
whenever a major unit is forced out or is taken out of service for
maintenance.''
The petitioner states that with Units 11 and 22 unavailable,
whenever there is an outage of Unit 13 alone, or an outage of a
combination of any two remaining units except 12 and 14, a serious
power outage will occur. The petitioner claims the age and
unreliability of a number of VIWAPA's units resulted in significant
blackouts over the past 12 months even though Units 11 and 22 were
available for service. These assertions are documented in three tables
attached to the petition.
IV. What Is EPA's Analysis of the Petition?
EPA has reviewed the modeling submitted by VIWAPA in support of its
application for a permit to construct and operate Unit 23 and in
support of this petition and has determined that authorizing this
exemption will not impact upon compliance with any requirement under
sections 112, 110, or part D of the Act necessary to attain or maintain
a NAAQS or PSD increment.
Upon consideration of VIWAPA's contentions, EPA has determined that
the petition presents unique geographic and economic circumstances
which meet the section 325 criteria for authorizing an exemption from
the CAA section 165(a) requirement to obtain a PSD permit to construct
prior to commencing construction of Unit 23 at the VIWAPA St. Thomas
facility.
V. What Is EPA's Conclusion?
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.
The EPA is publishing this direct final rule without prior proposal
because the Agency views this as a noncontroversial approval 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 this same petition
should adverse comments be filed. This final rule will be effective
March 1, 2004, without further notice unless the Agency receives
relevant adverse comments by January 30, 2004.
If the EPA receives any adverse comments, EPA will publish a notice
withdrawing the final rule and inform the public that the rule did not
take effect. All public comments received will then be addressed in a
subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on the proposed rule. Parties
interested in commenting on the proposed rule should do so at this
time. If no such comments are received, the public is advised that this
rule will be effective on March 1, 2004, and no further action will be
taken on the proposed rule.
VI. 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 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 rule will not have a significant impact on a substantial
number of small entities because the exemption applies to only one
source and does not create any new requirements but simply postpones
requirements that will be met. This Federal exemption does not create
any new requirements; therefore, I certify that this action will not
have a significant economic impact on a substantial number of small
entities.
D. Unfunded Mandates Reform Act
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 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.
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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. 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. 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 exempting Virgin Islands
Water and Power Authority's St. Thomas facility, Unit 23 from obtaining
a PSD permit to construct.
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 March 1, 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: December 23, 2003.
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]
0
1. The authority citation for part 69 continues to read as follows:
Authority: Section 325, Clean Air Act, as amended (42 U.S.C.
7625-1).
0
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
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(``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. 03-32207 Filed 12-30-03; 8:45 am]
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