[Federal Register Volume 61, Number 17 (Thursday, January 25, 1996)]
[Proposed Rules]
[Pages 2216-2219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1207]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[VIOO1; FRL-5403-2]


Clean Air Act Proposed Full Approval of Operating Permits 
Program: The United States Virgin Islands

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Proposed full approval.

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SUMMARY: The EPA proposes full approval of the operating permits 
program submitted by the United States Virgin Islands for the purpose 
of complying with Federal requirements for an approvable state program 
to issue operating permits to all major stationary sources and to 
certain other sources.

DATES: Comments on this proposed action must be received in writing by 
February 26, 1996. Written comments should be addressed to Steven C. 
Riva, Chief, Permitting and Toxics Support Section, at the New York 
Region II Office listed below.

ADDRESSES: Copies of the State's submittal and other supporting 
information used in developing the proposed full approval are available 
for inspection during normal business hours at the following locations:
    EPA Region II, 290 Broadway, 21st 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: Jose Ivan Guzman.
    The U.S. Virgin Islands Department of Planning and Natural 
Resources, Division of Environmental Protection, Building 111, 
Apartment 14A, Water Gut Homes, Christainsted, St. Croix, U.S. Virgin 
Islands 00820. Attention: Leonard Reed.

FOR FURTHER INFORMATION CONTACT: Umesh Dholakia, Permitting and Toxics 
Support Section, at the above EPA office in New York or at telephone 
number (212) 637-4023.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    As required under title V of the Clean Air Act (``the Act'') as 
amended in 1990, EPA has promulgated rules which define the minimum 
elements of an approvable State operating permits program and the 
corresponding standards and procedures by which the EPA will approve, 
oversee, and withdraw approval of State operating permits programs (see 
57 FR 32250 (July 21, 1992)). These rules are codified at 40 Code of 
Federal Regulations (CFR) Part 70. Title V requires States to develop, 

[[Page 2217]]
and submit to EPA, programs for issuing these operating permits to all 
major stationary sources and to certain other sources.
    The Act requires that States develop and submit these programs to 
EPA by November 15, 1993, and that EPA act to approve or disapprove 
each program within 1 year after receiving the submittal. The EPA's 
program review occurs pursuant to Section 502 of the Act and the Part 
70 regulations, which together outline criteria for approval or 
disapproval. Where a program substantially, but not fully, meets the 
requirements of Part 70, EPA may grant the program interim approval for 
a period of up to 2 years. If EPA has not fully approved a program by 2 
years after the November 15, 1993 date, or by the end of an interim 
program, it must establish and implement a Federal program.

II. Proposed Action and Implications

A. Analysis of State Submission

1. Support Materials
    The Governor of the United States Virgin Islands submitted a Part 
70 permitting program for the U.S. Virgin Islands with a letter 
requesting EPA's approval on November 18, 1993 and supplemental 
packages through June 9, 1995. The program contains a description of 
how the Virgin Islands intends to implement the program consistent with 
the requirements of the Clean Air Act Amendments of 1990 (42 U.S.C. 
Secs. 7401-7671q) and 40 CFR Part 70. The program includes supporting 
documentation such as evidence of the procedurally correct adoption of 
the permitting rule, permit application forms, and a sample permit 
form. On May 15, 1995, the Attorney General of the U.S. Virgin Islands 
submitted a legal opinion stating that the Virgin Islands Department of 
Planning and Natural Resources (VIDPNR) has adequate legal authority to 
carry out the program. It should be noted that the Virgin Islands' 
program contains some wording errors and as such the Virgin Islands has 
agreed to correct those errors prior to final approval. These wording 
errors in the Virgin Islands' legislation (Act No. 6011 signed into law 
September 2, 1994) are:
    (1) Section 212(a) states that ``No rule or regulation and no 
amendment * * * shall take effect AFTER public comment and/or hearing 
on due notice as provided herein''. The word ``after'' should be 
replaced by the word ``without''.
    (2) Section 205 (a), (b) (1) and (2)--replace ``chapter'' with 
``with respect to Part 70 permit program''.
    (3) Section 215(a)--delete ``compliance order'' and replace with 
``notice of violation'' after ``Commissioner is authorized to issue * * 
*''
    (4) Section 215(b)(3)--There should be an additional sentence 
following ``$250,000''. ``The assessment of any administrative fine in 
excess of $250,000 may be enforced by the commencement of a civil 
action by the Attorney General pursuant to the Virgin Islands Law.
2. Regulations and Program Implementation
    The Virgin Islands' Part 70 permitting regulation is contained in 
Subchapter 204 and Subchapter 206 (Divisions 1 and 2) of the Virgin 
Islands Rules and Regulations, Title 12, Chapter 9 (RAR). The Virgin 
Islands' regulation meets the main requirements of Part 70 as described 
below:
    a. applicability (40 CFR 70.2 and 70.3): Sources required to obtain 
a permit under the Virgin Islands' regulation are defined as ``Part 70 
sources'' and include all major Part 70 sources. The rule defers non-
major sources until the Administrator completes a rulemaking to 
determine how the title V program should be structured for non-major 
sources and the appropriateness of any permanent exemptions. The 
regulation permanently exempts any source that would be required to 
obtain a permit solely because it is subject to Standards of 
Performance for New Residential Wood Heaters or the National Emission 
Standard for Hazardous Air Pollutants for Asbestos, Standards for 
Demolition and Renovation. The regulation provides for the R&D 
Facilities to be treated separately with the concurrence of the 
Commissioner. In as much as the Commissioner will be in a position to 
determine whether or not the facility meets the support facility test 
this does not constitute an approvability issue.
    b. permit content (40 CFR 70.6): Subchapter 206-71 requires that 
each permit contain emission limitations and standards to ensure 
compliance with all applicable requirements. Permits may also contain 
certain operational flexibility requirements such as terms and 
conditions for reasonably anticipated operating scenarios and for the 
trading of emissions increases and decreases (to the extent the 
applicable requirements provided for such trading) in the permitted 
facility. Such operational flexibility provisions are explained more 
fully in Subchapter 206-65 of the RAR.
    c. public participation (40 CFR 70.7): The public will be provided 
with notice of, and an opportunity to comment on, draft permits 
relating to initial permit issuance, permit renewals, and significant 
modifications (Subchapter 206-73 of the RAR).
    d. permit modifications (40 CFR 70.7): Sources may apply for 
expedited permit changes for minor permit modifications. Significant 
modifications must undergo all Part 70 permit issuance procedures 
(Subchapter 206-82 of the RAR).
    e. EPA oversight (40 CFR 70.8): Each permit, renewal, and minor or 
significant modification is subject to EPA oversight and veto 
(Subchapter 206-73 of the RAR).
    f. enforcement authority (40 CFR 70.11): Chapter 9 of Title 12 of 
the Virgin Islands Code, pertaining to the air pollution control and 
related purposes (VI's Act # 6011) as amended on September 2, 1994 
directly provides for enforcement and penalties for civil and criminal 
violations of permits and rules. Penalties will be assessed up to 
$50,000 per day per violation for civil violations, and up to $10,000 
per day per violation for criminal violations.
    g. insignificant activities (40 CFR 70.5): A list of insignificant 
activities can be found at Attachment 1 of the RAR. Insignificant 
activities which need not be described in the permit application only 
include activities on the list as long as no applicable requirements 
apply to the activity and the activity emits 0.05 pounds per year or 
less of a criteria pollutant or 400 pounds per year or less of the 
hazardous air pollutants. However, for insignificant activities 
exempted because of size or production rate, the RAR requires that a 
list of such insignificant activities must be included in the permit 
application.
    h. complete application forms (40 CFR 70.5): DPNR submitted a 
permit application completeness criteria checklist which will be used 
to help DPNR determine if an application is complete. Subchapter 206-63 
defines what elements must be in an application in order for it to be 
complete.
    i. variance provisions: Section 211 of Title 12, Chapter 9 of the 
Virgin Islands Code (statute) contains provisions for DPNR to approve 
variances from otherwise applicable emissions limitations, provided 
such variances are permitted under conditions and in a manner which is 
not less stringent than the conditions under and the manner in which 
variances may be granted under the federal Clean Air Act. Any such 
variance shall not excuse compliance with any Title V permit term or 
condition. A variance from a federal condition must be processed as a 
Title V permit condition. The Commissioner 

[[Page 2218]]
of the DPNR may not authorize a variance which concerns a Federal Clean 
Air Act requirement and SIP requirements. Under Subchapter 206-71 of 
the RAR, DPNR may provide for an emergency variance from compliance 
with technology-based emission limitations provided that: (1) The cause 
of the emergency can be identified, (2) the permitted facility was 
being operated at the time of the emergency, (3) the owner/operator 
took all reasonable steps to minimize levels of emissions that exceeded 
emission standards or requirements of the permit, and (4) submitted 
notice of the emergency to the Department within two (2) working days 
of the time when emission limitations were exceeded due to the 
emergency. The EPA does not recognize the ability of a permitting 
authority to grant relief from the duty to comply with a federally 
enforceable Part 70 permit, except where such relief is granted through 
the procedures allowed by Part 70. A Part 70 permit may be issued or 
revised (consistent with Part 70 permitting procedures) to incorporate 
those terms of a variance that are consistent with applicable 
requirements. A Part 70 permit may also incorporate, via Part 70 permit 
issuance or modification procedures, the schedule of compliance set 
forth in a variance. However, EPA reserves the right to pursue 
enforcement of applicable requirements notwithstanding the existence of 
a compliance schedule in a permit to operate. This is consistent with 
40 CFR 70.5(c)(8)(iii)(C), which states that a schedule of compliance 
``shall be supplemental to, and shall not sanction noncompliance with, 
the applicable requirements on which it is based.''
3. Permit Fee Demonstration
    The Virgin Islands' workload analysis and fee demonstration shows 
that the state will collect sufficient revenue to implement the Title V 
program. The Virgin Islands will collect permit fees beginning at $18 
per ton of actual emissions of regulated pollutants. The Virgin 
Islands' fee demonstration and regulation state that the Virgin Islands 
may raise fees if necessary in the future. Furthermore, the Virgin 
Islands' law requires that sufficient fees be collected to cover direct 
and indirect expenses necessary to develop, administer and enforce the 
Virgin Islands' Title V program, including the Small Business Technical 
and Environmental Compliance Assistance Program as required by Section 
507 of the Act. The Virgin Islands' law establishes a special account 
which is independent and separate from any other account in the Virgin 
Islands and must be used only for the Air Quality Program.
4. Provisions Implementing Section 112 of the Act
    a. authority for Section 112 Implementation: Virgin Islands has 
demonstrated in its Title V program submittal adequate legal authority 
to implement and enforce all Section 112 requirements through the title 
V permit. This legal authority is contained in Virgin Islands' enabling 
legislation (V.I. Code Title 12, Section 201) and in regulatory 
provisions defining ``applicable requirements'' and stating that the 
permit must incorporate all applicable requirements. EPA has determined 
that this is sufficient to allow Virgin Islands to issue permits that 
assure compliance with all Section 112 requirements. The Attorney 
General's legal opinion also certifies that VIDPNR has authority to 
implement the air toxics program and to accept automatic delegation of 
future national emission standards for hazardous air pollutants. 
Section 206-71 of the RAR provides that NESHAPs when promulgated by the 
EPA Administrator will become effective as part of Virgin Islands' 
rules and regulations. Section 206 of the RAR provides for the 
following Section 112 requirements:
    i. case-by-case MACT determinations: In the event that no 
applicable emissions limitations for the hazardous air pollutants have 
been established by the Administrator, VIDPNR will make case-by-case 
Maximum Achievable Control Technology (MACT) determinations as required 
under Sections 112(j) and (g) of the Act. The EPA issued an 
interpretive notice on February 14, 1995 (60 FR 8333), which outlines 
EPA's revised interpretation of 112(g) applicability. The notice 
postpones the effective date of 112(g) until after EPA has promulgated 
a rule addressing that provision. The notice sets forth in detail the 
rationale for the revised interpretation.
    The Section 112(g) interpretive notice explains that EPA is still 
considering whether the effective date of Section 112(g) should be 
delayed beyond the date of promulgation of the Federal rule so as to 
allow states time to adopt rules implementing the Federal rule, and 
that EPA will provide for any such additional delay in the final 
Section 112(g) rulemaking.
    VIDPNR has provided broad language in its regulation that will 
allow the implementation of 112(g) immediately after EPA promulgates 
its rule.
    ii. early reductions: The rule authorizes VIDPNR to issue permits 
with an alternate emission limit under the Act's Section 112(i)(5) 
early reductions program.
    iii. The rule requires sources subject to Section 112(r) of the Act 
to prepare and submit risk management plans. A source must submit 
annual certification ensuring the proper implementation of the risk 
management plan.
    b. Section 112(l): Requirements for approval specified in 40 CFR 
70.4(b), encompass Section 112(l)(5) approval requirements for 
delegation of Section 112 standards 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 it has 
sufficient legal authorities, adequate resources, 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 proposing to 
grant approval under Section 112(l)(5) and 40 CFR Part 63.91 to Virgin 
Islands for its program mechanism for receiving delegation of all 
existing and future 112(d) standards for both Part 70 and non-Part 70 
sources.
    Virgin Islands commits to appropriately implementing the existing 
and future requirements of Sections 111, 112 and 129 of the Act, and 
all maximum achievable control technology (MACT) standards promulgated 
in the future, in a timely manner.

B. Options for Approval/Disapproval and Implications

    The EPA is proposing full approval of the operating permits program 
submitted to EPA by the United States Virgin Islands on November 18, 
1993 and supplemented through June 9, 1995. Among other things, the 
Virgin Islands 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) requirements for approval of a program for delegation 
of section 112 and standards as promulgated by EPA as they apply to 
part 70 sources. Section 112(l)(5) requires that the State's program 
contain adequate authorities, 

[[Page 2219]]
adequate resources for implementation, and an expeditious compliance 
schedule, which are also requirements under part 70. The Virgin Islands 
has informed EPA that it intends to accept automatic delegation of 
Section 112 standards and programs. Therefore, the EPA is also 
proposing to grant approval under section 112(l)(5) and 40 CFR 63.91 to 
Virgin Island 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 infrastructure programs under section 112 that are 
unchanged from Federal rules as promulgated.

III. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this proposed full 
approval. Copies of the State's submittal and other information relied 
upon for the proposed full approval are contained in a docket 
maintained at the EPA Regional Offices located in New York and San Juan 
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 proposed rulemaking. The principal purposes of the 
docket are:
    (1) to allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process; and
    (2) to serve as the record in case of judicial review. The EPA will 
consider any comments received by February 26, 1996.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    The EPA's actions under Section 502 of the Act do not create any 
new requirements, but simply address operating permits programs 
submitted to satisfy the requirements of 40 CFR Part 70. Because this 
action does not impose any new requirements, it does not have a 
significant impact on a substantial number of small entities.

D. Unfunded Mandates 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 proposed approval action promulgated 
today 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 federal requirements. Accordingly, no additional costs 
to State, local, or tribal governments, or to the private sector, 
result from this action.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Environmental Protection, Intergovernmental 
relations, Operating permits, and Reporting and recordkeeping 
requirements.

    Authority: 42 U.S.C. Sections 7401-7671q.

    Dated: December 5, 1995.
Jeanne M. Fox,
Regional Administrator.
[FR Doc. 96-1207 Filed 1-24-96; 8:45 am]
BILLING CODE 6560-50-P