[Federal Register Volume 68, Number 250 (Wednesday, December 31, 2003)]
[Rules and Regulations]
[Pages 75782-75785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-32207]



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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

  Federal Register / Vol. 68, No. 250 / Wednesday, December 31, 2003 / 
Rules and Regulations  

[[Page 75782]]


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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 [email protected] 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 [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 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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