[Federal Register Volume 68, Number 39 (Thursday, February 27, 2003)]
[Rules and Regulations]
[Pages 9019-9022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4518]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region II Docket No. VI4-249a, FRL-7455-3]


Approval and Promulgation of State Plans for Designated 
Facilities; Virgin Islands

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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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 commercial and 
industrial solid waste incineration (CISWI) 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 CISWI 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 April 28, 2003 without 
further notice, unless EPA receives adverse comment by March 30, 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 CISWI unit is discovered in the Virgin 
Islands after today's action becomes effective?
D. What is the background for Emission Guidelines and State Plans?
E. Where can you find the EG requirements for CISWI units?
F. Who must comply with the EG requirements?
G. What are EPA's conclusions?
H. Statutory and Executive Order Reviews

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 October 25, 2002. This negative 
declaration finds that there are no existing commercial and industrial 
solid waste incineration (CISWI) units 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 Commercial and Industrial Solid 
Waste Incineration Units'' (65 FR 75338, December 1, 2000). The 
negative declaration officially certifies to EPA that, to the best of 
the Virgin Islands' knowledge, there are no CISWI units in operation 
within the Territory.

[[Page 9020]]

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 
CISWI units in operation throughout the Territory. The Virgin Islands 
has certified in its negative declaration that there are no CISWI 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 
CISWI units operating within the Territory of the Virgin Islands.

C. What if an Existing CISWI Unit Is Discovered in the Virgin Islands 
After Today's Action Becomes Effective?

    Section 60.2530 of 40 CFR part 60, subpart DDDD (65 FR 75364, 
December 1, 2000) requires that if, after the effective date of today's 
action, an existing CISWI unit is found within the Virgin Islands, the 
Federal Plan implementing the EG would automatically apply to that 
CISWI unit until a State Plan is approved by EPA.
    The Federal Plan was proposed on November 25, 2002 (67 FR 70640) 
and is expected to be promulgated in the near future. The Federal Plan 
will apply to CISWI units in states, commonwealths, and territories (1) 
where the EPA inventory identifies CISWI units and a plan is required 
and has not been submitted and approved by EPA and (2) where the EPA 
inventory did not identify any CISWI unit and a negative declaration 
has been received and approved by EPA (such as the Virgin Islands) and 
a CISWI unit is subsequently identified in the State or territory. If 
and when a State Plan, or in this case a Territorial Plan, for CISWI 
units 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 CISWI Units?

    On December 1, 2000, under sections 111 and 129 of the Act, EPA 
issued the NSPS applicable to new CISWI units and the EG applicable to 
existing CISWI units. The NSPS and EG are codified at 40 CFR part 60, 
subparts CCCC (65 FR 75350 December 1, 2000) and DDDD (65 FR 75362 
December 1, 2000), respectively.

F. Who Must Comply With the EG Requirements?

    If you own or operate a combustion device that combusts commercial 
and industrial waste and you (1) began the construction of your CISWI 
unit on or before November 30, 1999 or (2) began reconstruction or 
modification of your CISWI unit prior to June 1, 2001, you must comply 
with these requirements. See Sec.  60.2555 of 40 CFR part 60, subpart 
DDDD for a list of CISWI units exempt from the Federal requirements.

G. What Are EPA's Conclusions?

    EPA has determined that the Virgin Islands' negative declaration 
meets all federal requirements and, therefore, EPA is approving the 
Virgin Islands' certification that no applicable CISWI units are in 
operation within the Territory of the U.S. Virgin Islands. If any 
existing CISWI units are discovered in the future, the Federal Plan 
implementing the EG would automatically apply to that CISWI 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 Territory's submittal 
should adverse comments be filed. This rule will be effective April 28, 
2003 without further notice unless the Agency receives adverse comments 
by March 31, 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. Statutory and Executive Order Reviews

Executive 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

    Executive Order 13045 entitled, ``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.

[[Page 9021]]

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 CISWI 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 CISWI 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 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 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 April 28, 2003 unless EPA 
receives material adverse written comments by March 31, 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 April 28, 2003. 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

[[Page 9022]]

enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Commercial and 
industrial solid waste incineration units, Intergovernmental relations, 
Lead, Reporting and recordkeeping requirements.

    Dated: February 11, 2003.
Jane M. Kenny,
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: 42 U.S.C. 7401-7671q.

Subpart CCC--Virgin Islands

    2. Part 62 is amended by adding new Sec.  62.13356 and an 
undesignated heading to subpart CCC to read as follows:
    Air Emissions From Existing Commercial and Industrial Solid Waste 
Incineration Units Constructed on or Before November 30, 1999 or 
Reconstructed or Modified prior to June 1, 2001.


Sec.  62.13356  Identification of plan--negative declaration.

    Letter from the Virgin Islands Department of Planning and Natural 
Resources, submitted October 25, 2002, certifying that there are no 
existing commercial and industrial solid waste incineration units in 
the Territory of the United States Virgin Islands subject to part 60, 
subpart DDDD of this chapter.

[FR Doc. 03-4518 Filed 2-26-03; 8:45 am]
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