Approval and Promulgation of Air Quality Implementation Plans; United States Virgin Islands; Regional Haze Federal Implementation Plan; Correction

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

On October 22, 2012, the EPA published a final rule in the Federal Register promulgating a Federal Implementation Plan (FIP) to address regional haze obligations for the Territory of the United States Virgin Islands. However, at that time, EPA erroneously failed to incorporate into the Code of Federal Regulations (CFR) certain emission limits that had been determined to be necessary to satisfy those obligations and that had been proposed and included in the docket for the action. EPA is correcting this error by incorporating the previously noticed limits into the CFR. EPA has not reopened any of the previous, underlying determinations in this action.

DATES:

This final rule is effective on March 14, 2022.

ADDRESSES:

The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2020-0438. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Omar Hammad, Air Planning Section, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3347, email address: Hammad.Omar@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

The SUPPLEMENTARY INFORMATION section is arranged as follows:

Table of Contents:

I. What is the background for the action?

II. What comments were received in response to the EPA's proposed correction?

III. What action is the EPA taking?

IV. Statutory and Executive Order Reviews

I. What is the background for this action?

On February 19, 2021 (86 FR 10227), the Environmental Protection Agency (EPA) published a Notice of Proposed Rulemaking (NPRM) in which the EPA proposed to make a technical correction adding into the CFR the inadvertently omitted Best Available Retrofit Technology (BART) table containing the potential to emit (PTE) limits necessary to satisfy the Virgin Islands' BART obligation.

On October 22, 2012, EPA published a final rule promulgating a Federal Implementation Plan (FIP) to address regional haze obligations for the Territory of the United States Virgin Islands. (77 FR 64414). EPA determined that certain emission limits for sources of visibility impairing pollutants in the Virgin Islands were necessary to satisfy the requirements of the Clean Air Act and EPA's rules concerning progress towards the national goal of preventing any future and remedying any existing man-made impairment of visibility in mandatory Class I areas (also referred to as the “regional haze program”). In that action, however, EPA erroneously failed to incorporate into the CFR certain emission limits that had been noticed in the proposed rule (77 FR 37842, June 25, 2012) and which were included in docket EPA-R02-OAR-2012-0457 accompanying that proposed rule. Specifically, EPA had determined that no additional controls were needed to satisfy the Best Available Retrofit Technology (BART) requirement of the Regional Haze Rule, and therefore that the subject-to-BART units' existing PTE limits would be incorporated into the Virgin Islands' FIP. See 77 FR 37856. EPA is now making a technical correction to incorporate the table containing the PTE limits necessary to satisfy the Virgin Islands' BART obligation into the CFR.

This rule does not reopen the previous determination that the PTE limits contained in the docket for the 2012 final rule represent BART for the units determined to be subject-to-BART; this action merely corrects an inadvertent omission in a previous rulemaking. This correction is not intended to address current or changed circumstances at the subject-to-BART units, but merely clarifies what was intended to be included in the CFR pursuant to the 2012 FIP.

II. What comments were received in response to the EPA's proposed correction?

In response to the EPA's February 19, 2021 proposed correction of the Virgin Islands' FIP, the EPA received comments from one commenter, Limetree Bay Refining, LLC and Limetree Bay Terminals, LLC (together “Limetree” or “the commenter”) and is providing responses to the comments that were received. The specific comments may be viewed under Docket ID Number EPA-R02-OAR-2019-0674 on the https://www.regulations.gov website.

Comment 1: The commenter argues that correcting the erroneously omitted BART Measures by adding the provisions to the CFR is not a technical correction and that it imposes new limits. The commenter asserts that, even if EPA had some intention of promulgating such limits in 2012 when it promulgated the Federal Implementation Plan (FIP) to address regional haze in the Virgin Islands, it did not do so. The commenter contends that the proposed rule would therefore, for the first time, impose BART emission limitations on the Limetree facility.

To be effective and enforceable, commenter states, the promulgation of the proposed limits must comply with public notice and comment requirements. The commenter maintains that the 2012 Proposed Rule described various proposed BART determinations for sources in the Virgin Islands that may be subject to BART, but did not propose measures to translate those determinations into enforceable limitations.

The commenter asserts that the enforceable language now proposed by the EPA is nowhere to be found in the 2012 rulemaking record, neither in the Proposed Rule or Final Rule, nor in any docketed supporting document.

Response: This rule does not reopen the previous determination that the PTE limits contained in the docket for the 2012 final rule represent BART for the units determined to be subject-to-BART. This action merely corrects an inadvertent omission in a previous rulemaking in which EPA intended to, but did not, include those PTE limits in the Virgin Islands' FIP. Included in the 2012 FIP docket, EPA-R02-OAR-2012, are two documents that include the PTE limits for HOVENSA, EPA-R02-OAR-2012-007 and EPA-R02-OAR-2012-008. These limits represented current operations at the time and were determined to constitute BART in the 2012 FIP.

The commenter is correct that inserting the inadvertently omitted BART Measures, specifically the emission limitations for SO₂, NO_X, and PM, into the CFR are the first codification of these requirements. However, the commenter is incorrect that those limits were absent from the 2012 rulemaking record and that EPA did not intend to put these limits in the FIP in 2012. See 77 FR 37842, 37856. To the contrary, the administrative record documents EPA's intention for emission limitations and specifically references the applicability to the commenter's facility. At page 37856 of the final rule, EPA asserts, “[a]s such, EPA's Federal plan includes the establishment of emission limits for SO_2, NO_X, and PM equivalent to the potential to emit (PTE) for each unit subject to BART, as derived from HOVENSA's permit limit conditions.” BART is defined in EPA's regulations as an emission limit, 40 CFR 51.301. It is not possible to satisfy the BART requirements without including an emission limit reflecting the BART determination(s) in the applicable implementation plan (in this case, in the Virgin Islands' FIP). See also 40 CFR 51.308(e)(2) (“The State must submit an implementation plan containing emission limitations representing BART. . . .”). The commenter's contention that EPA did not intend to promulgate emission limits in the FIP reflecting the BART determinations implies that EPA did not intend to satisfy the BART requirement for the source and is therefore clearly incorrect. Additionally, the BART emission limits merely reflect preexisting (as of 2012) PTE limits to which the units were already subject. Therefore, while this action will put the limits in the FIP for the first time, it does not represent the first time the source has had to comply with the relevant limits.

This technical correction remedies the inadvertent omission of the BART limits in the CFR. EPA provided opportunity for public comment on its determination that the subject-to-BART units' existing PTE limits represented BART in the 2012 FIP rule making. See 77 FR 37842, 37856 (June 25, 2012). The agency further provided an opportunity for public comment on whether the PTE limits contained in the notice of proposed rulemaking for this action were the limits EPA determined to be BART in 2012. 86 FR 10227, 10227 (Feb. 19, 2021). EPA has thus provided public notice of and an opportunity to comment on the limits it is incorporating into the Virgin Islands' FIP.

Comment 2: The commenter states that EPA Region 2 did not work with Limetree to coordinate these limits. The commenter asserts that EPA also does not explain how “maximum transparency” was served by its failure to provide Limetree, the sole affected party, any notice of this proposal prior to its publication in the Federal Register .

Response: EPA is not proposing to change or reopen the BART determinations made in the 2012 FIP that were based on emission limits that were already in place for HOVENSA at the time. EPA provided opportunity for public comment on the already established BART in the 2012 FIP rulemaking. See 77 FR 37842, 37856 (June 25, 2012). EPA is merely making a technical correction that takes those same PTE limits, which were determined to be then-current operations, and codifies those limits in the CFR. This rulemaking does not revisit or change the 2012 determinations, which were made pursuant to a notice and comment rulemaking process. See 77 FR 37842, 37856. HOVENSA, and others, commented during that rulemaking. See 77 FR 64414, 64415-20.

With respect to commenter's statement that it did not receive any notice of this proposal prior to its publication in the Federal Register , consistent with CAA Section 307(d) and general rulemaking processes, the proposal being finalized by this action, on which the commenter commented, was the advance notice. The proposal included the establishment of a rulemaking docket and provided for the acceptance of written comments, data, or other documents from “any person.”

Comment 3: The commenter argues that it is clear from the record that the omission of any enforceable limits was not inadvertent, but rather EPA's intent was to promulgate the restart notice requirement at 40 CFR 52.2781(d)(4) in lieu of any specific BART limitations. The commenter asserts that the restart notice procedure is the appropriate mechanism for EPA to determine whether the FIP should be revised, and any revision is required to be promulgated through full notice and comment procedures. The commenter states that the proposed “correction” fails to meet the process required by 40 CFR. 52.2718(d)(4).

Response: The restart notice requirement pertains to the reasonable progress requirements, not to BART. The commentor is erroneously conflating BART with reasonable progress. The commenter is incorrect that the restart notice requirement was intended to be in lieu of BART. See 77 FR 37842.

The commenter conflates two distinct sets of regional haze requirements: Reasonable progress and BART. States' regional haze implementation plans are required to include BART emission limits pursuant to 40 CFR 51.308(e). EPA made BART determinations and intended to promulgate BART limits, which were to be equivalent to existing PTE limits for the subject-to-BART sources, in the FIP. 77 FR 37856. The passages from EPA's rulemaking cited by commenter refer to EPA's determinations and requirements pursuant to a different set of regulatory requirements, i.e., the requirements for determining the measures in addition to BART that are necessary to make reasonable progress. Reasonable progress is governed by the requirements of 40 CFR 51.308(d). The restart notice requirement pertains to the reasonable progress. See 40 CFR 52.2781(d)(4) (upon receiving startup notification and information from the source, “EPA will revise the FIP as necessary, after public notice and comment, in accordance with the regional haze requirements including the `reasonable progress' provisions in 40 CFR 51.308(d)(1). ”) (emphasis added).

Unrelated to the technical correction in this action, in a letter dated June 10, 2019, EPA responded to Limetree's restart notice, dated June 2, 2019, explaining that, upon restart, the 2012 FIP requires the EPA to assess whether additional control measures are warranted to meet regional haze requirements, including the “reasonable progress” provisions in 40 CFR 51.308(d)(l). 40 CFR 52.2782(d)(3)-(4). Limetree will be consulted and included in the process of assessing whether new control measures are warranted upon restart.

As explained in the response to the first comment, above, in the 2012 FIP, EPA determined that current operations, PTE limits at the time, represented BART. EPA determined BART for each BART-eligible source using the methodology in the Guidelines for Best Available Control Retrofit Technology (BART) Determinations under the Regional Haze Rules, 40 CFR part 51, Appendix Y. This action proposes to correct the EPA's failure to codify in the CFR the PTE limits that constituted current operations at the time and were determined to represent BART in the 2012 FIP.

Comment 4: The commenter objects to the “arbitrary and extremely limited scope” of comments that EPA will allow, allowing comment on the narrow issue of whether the limits in the correction are the limits that EPA determined to be BART in the 2012 action. Limetree questions how this serves EPA's stated goal of “maximum transparency.” The commenter states that EPA must then provide reasonable opportunity to comment on the full scope of the proposed rule, including whether any proposed limits represent BART for units determined to be subject-to-BART.

Response: As explained in the response to the first comment, above, EPA is not reopening any determinations previously made in its 2012 FIP. The scope of this action is not to revisit the BART determination itself, but to merely make the technical correction of adding the emission limit reflecting the existing BART determination to the CFR. EPA determined in 2012 that current operations, PTE limits at the time, represented BART. EPA determined BART for each BART-eligible source using the methodology in the Guidelines for Best Available Control Retrofit Technology (BART) Determinations under the Regional Haze Rules, 40 CFR part 51, Appendix Y. EPA sought public comment on the BART determinations and thus satisfied the notice-and-comment requirement in the 2012 proposed rule. 77 FR 37857. Today's action is simply to put the emission limits reflecting the already-finalized BART determinations in the FIP. It is reasonable for EPA to limit the scope of comment consistent with the scope of the action being taken.

Comment 5: Limetree states that it objects to EPA not considering current conditions and changed circumstances. Limetree asserts that previous BART determinations are no longer reliable, and alternatives are conceivable.

Response: This action is merely to correct an error made in 2012, when EPA intended to put the source's preexisting emission limits in the FIP. The BART limits are intended to reflect the determination that was made based on the circumstances that existed in 2012. As expressed in EPA's 2012 rulemaking, current conditions and changed circumstances will be considered in the context of determining whether any additional measures, on top of the BART emission limits, are necessary pursuant to the reasonable progress requirements. See 40 CFR 52.2781(d)(3) and (4); 77 FR 37850. Limetree will be consulted in any future planning for regional haze that impacts the source, which is a matter beyond the scope of this technical correction.

If Limetree has made any significant modifications or changes to any units, that is not within the scope of this technical correction. This technical correction merely takes the HOVENSA BART determinations established in the 2012 FIP and codifies the same determinations in the CFR. Any restarts, changes, modifications, or reconfigurations in operation will be addressed through the restart notice steps and the separate reasonable progress requirements. The reconfiguration of the facility is not the subject of this action which merely corrects an omission in the 2012 FIP.

Comment 6: The commenter states that BART limits would affect operations of the refinery, which was recently reconfigured at considerable expense in reliance upon the existing regulatory requirements and the utility of its permits.

The commenter maintains that EPA must specifically allow comment on the reliance interests that arise with changed circumstances, as well as the policy considerations addressing this issue that EPA is required to identify in a proposed rule. The commenter asserts that the FIP has been in place since 2012, yet not only does the proposed rule fail to assess the relevant reliance interests, it also fails to consider any alternative courses of action. According to the commenter, alternatives are thus plainly conceivable and, under the Supreme Court's DACA decision, EPA is required to assess them.

Response: Although the commenter is correct that the Virgin Islands' FIP promulgated in 2012 did not contain emission limits reflecting BART, the refinery was nonetheless subject to those same emission limits by virtue of their existence in the source's preexisting permits. See 77 FR 37856 (Federal plan was to include emission limits “equivalent to the potential to emit (PTE) for each unit subject to BART, as derived from HOVENSA's permit limit conditions”). It therefore is not clear how simply codifying the same limits in an additional instrument would necessitate a change in the source's operations. That is, it is not clear how this action implicates Limetree's reliance interests. The commenter has offered no factual support for the assertion that it relied on the absence of BART limits in the Virgin Islands' FIP and that incorporating those limits now would significantly affect the utility of the sources' permits. Moreover, the commenter fails to explain how it has a reliance interest in a clerical error made by the agency, particularly where it was clear from the record for the 2012 rule that EPA intended to impose BART limits on this source.

The commenter alleges that U.S. Department of Homeland Security et al. v. Regents of the University of California et al., 140 S.Ct. 1891 (2020) has application to the instant rulemaking because the inadvertent omission of a regulatory provision has allegedly resulted in the commenter relying on a false perception that no BART emission limitations were in place for the HOVENSA facility. The potential existence of BART alternatives is not under consideration because any rational analysis of the 2012 rulemaking would indicate that the previously applied limitations were to be continued but were (as reiterated throughout) erroneously omitted.

As explained above, to the extent the source's operations have changed since 2012, it was and continues to be EPA's intent to address any changes in circumstances via the process laid out in 40 CFR 52.2781(d)(4) as appropriate. It is clear, however, that EPA intended to include BART emission limitations for the source in the FIP in 2012 and that such limits should have applied starting at that time.

III. What action is the EPA taking?

The EPA is finalizing a technical correction to incorporate the erroneously omitted table containing the PTE limits necessary to satisfy the Virgin Islands' BART obligation into the CFR.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action is not a significant regulatory action under the terms of Executive Order 12866 and was, therefore, not submitted to the Office of Management and Budget (OMB) for review. This final rule is a technical correction.

B. Paperwork Reduction Act (PRA)

This action does not impose an information collection burden under the provisions of the PRA. Under the PRA, a “collection of information” is defined as a requirement for “answers to * * * identical reporting or recordkeeping requirements imposed on ten or more persons * * *.” 44 U.S.C. 3502(3)(A). The action does not impose any new obligations or new enforcement duties on any state, local or tribal government or the private sector. This final rule is a technical correction.

C. Regulatory Flexibility Act

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities if the rule has no net burden on the small entities subject to the rule. This action merely adds the erroneously omitted table to the CFR, it does not change any determination included in the FIP. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandates, as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal government or the private sector.

E. Executive Order 13132: Federalism

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.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). Through this action, the EPA is adding the erroneously omitted table to the CFR; it does not change any determination included in the FIP. This action does not remove any of the prior rule's environmental or procedural protections.

K. Congress Review Act (CRA)

This rule is exempt from the CRA because it is a rule of particular applicability.

L. Judicial Review

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 April 11, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for 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).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Intergovernmental relations
• Nitrogen dioxide
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart CCC—Virgin Islands

2. In § 52.2781 paragraph (d)(5) is added to read as follows: