Daily Rules, Proposed Rules, and Notices of the Federal Government
Throughout this document, wherever “Agency,” “we,” “us,” or “our” is used, we mean the EPA. In most cases in this document, where we use the term “state” when discussing requirements or recommendations under the Clean Air Act or Agency guidance, this includes the Territory of the Virgin Islands.
EPA is promulgating a Federal Implementation Plan (FIP) to address regional haze in the U.S. Virgin Islands under the Clean Air Act (CAA or the Act) sections 301(a) and 110(c)(1). The FIP ensures that the Virgin Islands will make reasonable progress toward the national goal of no man-made contribution to visibility impairment. The FIP also includes Best Available Retrofit Technology (BART) determinations for sources in the Virgin Islands that may be subject to BART.
For additional details on EPA's analysis and the basis for the Virgin Islands regional haze FIP, the reader is referred to the June 25, 2012 proposal (77 FR 37842). EPA's regional haze FIP for the Virgin Islands, all accompanying documents, and the full text of the public comments are included in the Docket (EPA-R02-OAR-2012-0457) and available at
The Act requires each state to develop plans to meet various air quality requirements, including protection of visibility. (CAA sections 110(a), 169A, and 169B). The plans developed by a state or territory are referred to as State Implementation Plans or SIPs. A state must submit its SIPs and SIP revisions to EPA for approval. Once approved, a SIP is federally enforceable, that is it is enforceable by EPA and citizens under the Act. If a state fails to make a required SIP submittal or if we find that a state's required submittal is incomplete or unapprovable, then EPA must promulgate a FIP to fill this regulatory gap. (CAA section 110(c)(1)).
EPA made a finding of failure to submit on January 15, 2009 (74 FR 2392), determining that the U.S. Virgin Islands failed to submit a SIP that addressed any of the regional haze SIP requirements of 40 CFR 51.308. Under section 110(c) of the Act, whenever EPA finds that a state has failed to make a required submission, the Agency is required to promulgate a FIP. Specifically, section 110(c) provides:
• The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator—
○ Finds that a state has failed to make a required submission or finds that the plan or plan revision submitted by the state does not satisfy the minimum criteria established under [section 110(k)(1)(A)], or
○ disapproves a state implementation plan submission in whole or in part, unless the state corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan.
Section 302(y) defines the term “Federal implementation plan” in pertinent part, as:
[A] plan (or portion thereof) promulgated by the Administrator to fill all or a portion of a gap or otherwise correct all or a portion of an inadequacy in a State implementation plan, and which includes enforceable emission limitations or other control measures, means or techniques (including economic incentives, such as marketable permits or auctions or emissions allowances) * * *
Thus, because EPA determined that the Virgin Islands failed to submit a regional haze SIP, the Agency is promulgating a regional haze FIP at 40 CFR 52.2781(d). The Virgin Islands Department of Planning and Natural Resources has indicated that the Government of the Virgin Islands agrees
If the Virgin Islands at any time decide to submit a SIP revision to incorporate provisions that would be approvable as a SIP revision for a regional haze plan, EPA would welcome that submittal. If EPA were to approve such a SIP revision, after public notice and comment, the SIP provisions would replace EPA's FIP.
EPA received comments from the National Park Service (NPS), which serves as the Federal Land Manager (FLM) for the Virgin Islands National Park, and from HOVENSA, L.L.C. (HOVENSA). EPA also received one comment from a private citizen in support of EPA's proposal. A summary of the comments and EPA's responses are provided below.
The NPS also supported EPA's determination that expected emissions reductions from marine vessels under the North American Emissions Control Area and the HOVENSA Consent Decree are appropriate to include in the long term strategy for regional haze.
EPA conducted an effort to find sources of particle emissions on St. John (as well as other pollutants that contribute to reduced visibility), knowing that coarse particle emissions on St. John could be contributing to the obstruction of visibility in the Virgin Islands National Park, and because coarse particles from ground-level sources on other islands are not likely to be transported to St. John. EPA also developed an emission inventory for St. John which identified emissions from construction activities, re-entrained dirt from traffic, and a concrete mixing facility on St. John, all of which were included in the modeling to determine which human sources contribute the most to reducing visibility in the Virgin Islands National Park. EPA discussed the results of the modeling in the June 25, 2012 proposal (77 FR 37842). Air modeling ranks construction and road dust as the two anthropogenic source categories with the highest impact on visibility at the IMPROVE monitor on St. John.
Based on trajectory analyses, emissions from sources in North America may be transported to the Virgin Islands on rare occasions. However, there are many Class I areas in the United States that are closer to these sources than the Virgin Islands. Mainland sources were not considered in the modeling for the Virgin Islands FIP because state regional haze SIPs (or FIPs) will inevitable mandate stronger controls based on the sources' larger impacts on mainland Class I areas.
As for organic carbon, the IMPROVE data show a few periods of time when carbon is a major component responsible for reducing visibility. Most of these events occur after major windstorms or hurricanes when fallen trees and other vegetation are burned due to the lack of space on the island to landfill the debris.
In summary, EPA did in fact include the various source categories suggested by the NPS comment in our analysis and in the modeling conducted in support of the FIP.
However, there was no consistent source region or regions in the U.S. Virgin Islands for these high impact days for products of combustion, like sulfates and nitrates. While some days' trajectories passed over St. Thomas and St. Croix, showing that sources there can be responsible for emissions that interfere with visibility, most of the trajectories on days with high sulfate and nitrate concentrations did not pass over St. Thomas or St. Croix. Many trajectories passed over other islands where EPA does not have jurisdiction to require emission controls. EPA's modeling showed a similar pattern of combustion sources impacting St. John on a limited (but still significant) number of days. The impacts were frequent enough to warrant EPA to evaluate sources such as HOVENSA and other point sources in St. Thomas and St. Croix to determine if reasonable controls were available to improve visibility.
In response to the concerns of the Virgin Islands Government that sources upwind might affect St. John, EPA considered combustion emissions from Puerto Rico and fuel oil combustion and agricultural burning on Tortola in its modeling.
Also, a few trajectories show that some days with worse visibility may result from sulfates, nitrates, and carbon that originate in North America. It should be noted that significant reductions have occurred in sulfate, nitrate and carbon emissions from sources in the United States due to acid rain control programs, ozone and particulate matter state implementation plans and regional haze plans. Future emission reductions that will result from these programs are likely to further reduce visibility impacts from North America.
As stated in the June 25, 2012 proposal, rather than use a full statewide inventory to judge reasonable progress, we focused on the inventory for the island of St. John, where the Class I area is located, and other major point sources located in the Virgin Islands. Our analysis indicates that most emissions outside of St. John, other than major point sources, do not significantly impair visibility at the Virgin Islands National Park due to the prevailing winds. Prevailing winds at St. John are from the east, as shown in the wind roses contained in the FIP. St. Thomas and St. Croix are located west and south, respectively, of St. John. Therefore, these trade winds tend to transport pollution from St. Thomas and St. Croix away from the Class I area. In addition, modeling performed to estimate the visibility impact of currently operating individual sources of pollution indicates that, with the exception of HOVENSA, even very large sources in the Virgin Islands have relatively small visibility impacts on Virgin Islands National Park.
In our proposal, we evaluated the impacts of the sources based on the average of the 98th percentile visibility impacts. Our guidance recommends using the highest 98th percentile value, not the average of the 98th percentile values. Both of these values are listed in the following table. Nonetheless, using the highest of the 98th percentile impacts did not change any of our analyses for potential controls on these sources or source categories.
EPA has revised Table 8 of the June 25, 2012 proposal to include the highest of the 98th percentile impacts for EPA's BART analysis:
The changes to the impacts for VI WAPA St. Thomas and VI WAPA St. Croix are not high enough to cause or contribute to a significant impact on visibility in the Virgin Islands National Park. Thus, neither source is eligible for further analysis for BART controls.
Furthermore, EPA's BART Guidelines call for the use of the 98th percentile (essentially the 8th highest day) rather
EPA disagrees that an analysis of the increasing trends in sulfate's contribution to visibility impairment is required to be part of the FIP. Concentrations vary from year to year and some of the variability may be due to imprecision in the sampling and analysis of the particles that obstruct visibility. EPA will evaluate changes in sulfate, and all other contributing factors to visibility impairment, as part of the five-year review.
Therefore, sources in the Virgin Islands that impact the Virgin Islands National Park are not exempted from the Clean Air Act's regional haze requirements to protect visibility in Class I areas.
Because the facility is in an idled state and HOVENSA has not provided any possible future refinery operating scenarios, EPA determined that it was not practical to require HOVENSA to perform an analysis of reasonable control measures at this time. In addition, EPA believed that should refinery operation resume, HOVENSA may decide to operate certain emission units and pollution control equipment but not others, compared to emission units that operated before the refinery operations were idled. Nevertheless, in response to HOVENSA's comments, EPA agrees that resuming operations at HOVENSA does not need to wait for HOVENSA to first provide an analysis of reasonable control measures. So, we are modifying the notification requirement to clarify that upon notification to EPA that HOVENSA will restart refinery operations, HOVENSA will provide emission unit information to EPA in order for EPA to assess if additional control measures are warranted to meet the regional haze requirements.
As for evaluating any changes to the refinery's compliance obligations during the five year review, EPA believes that determining what controls are reasonable when those controls would be needed, that is, when emission units are operating, would better serve the purpose of meeting the regional haze plan for the Virgin Islands.
EPA is promulgating a Federal Implementation Plan for Regional Haze for the Territory of the United States Virgin Islands. This FIP addresses progress toward reducing regional haze for the first implementation period ending in 2018. The FIP includes emission reductions to begin the reasonable progress needed to achieve the overall objective of no man-made interference with visibility by 2064. The FIP relies on emission reductions from existing emissions controls and programs currently in effect and requires HOVENSA to notify EPA in the event it resumes operation of the refinery process units and to provide emission unit information to EPA. EPA is taking this action pursuant to CAA sections 110(c)(1), 301(a), 169A and 169B. EPA solicited public comments on the issues discussed in this document and considered these comments before taking final action. EPA is promulgating 40 CFR 52.2781(d) “Regional Haze Plan for the Virgin Islands National Park.”
This action will promulgate requirements for one facility and is therefore not a rule of general applicability. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
This action does not impose an information collection burden under the provisions of the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA's) regulations at 13 CFR 121.201; (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 dominant in its field.
After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The net result of this FIP action is that EPA is promulgating emission controls on selected units at only one facility. The facility in question is a large petroleum refinery that is not owned by a small entity, and therefore is not a small entity.
This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. It is a rule of particular applicability that affects only one facility in the United States Virgin Islands. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule only applies to one facility in the United States Virgin Islands.
This action does not have federalism implications. It 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. This action addresses the United States Virgin Islands not meeting its obligation to adopt a SIP that meets the regional haze requirements under the CAA. Thus, Executive Order 13132 does not apply to this action. Although section 6 of Executive Order 13132 does not apply to this action, EPA did consult with the Virgin Islands government in developing this action.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the action EPA is taking neither imposes substantial direct compliance costs on tribal governments,
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it implements specific standards established by Congress in statutes. However, to the extent this rule will limit emissions, the rule will have a beneficial effect on children's health by reducing air pollution.
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Today's action does not require the public to perform activities conducive to the use of voluntary consensus standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
We have determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This rule has the potential to limit emissions of NO
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 today's action under section 801 because this is a rule of particular applicability.
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 2012. Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d) as it promulgates a FIP under CAA section 110(c). Filing a petition for reconsideration by the Administrator of this final rule doesnot affect the finality of this action 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 CAA section 307(b)(2).
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(d) Regional Haze Plan for Virgin Islands National Park. The regional haze plan for the Virgin Islands consists of a Federal Implementation Plan entitled: “FEDERAL IMPLEMENTATION PLAN FOR REGIONAL HAZE FOR THE UNITED STATES VIRGIN ISLANDS.” The applicable requirements consist of: