

[Federal Register: February 27, 2006 (Volume 71, Number 38)]
[Rules and Regulations]               
[Page 9716-9720]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27fe06-8]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 69

[EPA-R09-OAR-2005-0506; FRL-8030-3]

 
State Implementation Plan Revision and Alternate Permit Program; 
Territory of Guam

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action to grant full approval 
for the Guam operating permit program and an associated State 
Implementation Plan (SIP) revision submitted by the Territory of Guam 
(Guam). These submittals correct deficiencies identified in EPA's 
direct final interim approval rulemaking of January 9, 2003 (68 FR 
1162). Final approval of Guam's alternate permit program and associated 
SIP revision will allow sources to be permitted under an approved 
alternate permit program. This alternate program fulfills all of the 
requirements that Guam adopt and submit an alternate local permitting 
program as part of a conditional exemption under section 325 of the 
Clean Air Act (Act) from Title V of the Act.

DATES: This rule is effective on April 28, 2006 without further notice, 
unless EPA receives adverse comments by March 29, 2006. If we receive 
such comments, we will publish a timely withdrawal in the Federal 
Register to notify the public that this direct final rule will not take 
effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2005-0506, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 

the on-line instructions.
    2. Agency Web site: http://docket.epa.gov/rmepub/. EPA prefers 

receiving comments through this electronic public docket and comment

[[Page 9717]]

system. Follow the on-line instructions to submit comments.
    3. E-mail: pike.ed@epa.gov.
    4. Mail or deliver: Gerardo Rios (Air-3), U.S. Environmental 
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Instructions: All comments will be included in the public docket 
without change and may be made available online at http://www.regulations.gov
, including any personal information provided, 

unless the comment includes Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through the 
agency Web site, eRulemaking portal or e-mail. The agency Web site and 
eRulemaking portal are ``anonymous access'' systems, and EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send e-mail directly to EPA, your e-mail 
address will be automatically captured and included as part of the 
public comment. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment.
    Docket: The index to the docket for this action is available 
electronically at http://www.regulations.gov and in hard copy at EPA 

Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available in either location 
(e.g., CBI). To inspect the hard copy materials, please schedule an 
appointment during normal business hours with the contact listed in the 
FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Ben Machol, EPA Region IX, at (415) 
972-3770, (Machol.Ben@epa.gov), Pacific Islands Office, or Ed Pike, at 
(415) 972-3970, (Pike.Ed@epa.gov) Permits Office, Air Division, at the 
EPA-Region IX address listed above.

SUPPLEMENTARY INFORMATION:

I. Background
II. Final Action and Implications
    A. Effect of Final Approval of Guam's Alternate Permit Program
    B. How Guam's Alternate Permitting Program Meets the 
Requirements for Full Approval
III. Administrative Requirements

I. Background

    Section 325(a) of the Act authorizes the Administrator of EPA, upon 
petition by the Governor, to exempt any person or source or class of 
persons in Guam, from any requirement of the Act except for 
requirements of section 110 and part D of subchapter I of the Act 
(where necessary to attain and maintain the National Ambient Air 
Quality Standards), and section 112. An exemption may be granted if the 
Administrator finds that compliance with such requirement is not 
feasible or is unreasonable due to unique geographical, meteorological, 
or economic factors of such territory, or such other local factors as 
the Administrator deems significant.
    The Governor of Guam previously submitted a petition pursuant to 
section 325(a) of the Act for an exemption from Title V of the Act. 
Title V requires states, including Guam, to adopt and submit to EPA a 
Title V operating permit program for major sources and certain other 
stationary sources. If any state does not adopt an operating permit 
program, Title V requires EPA to apply certain sanctions within that 
area and to promulgate, administer, and enforce a Federal operating 
permit program for such area. Title V requires that sources located in 
states that do not adopt a Title V permitting program obtain a Federal 
operating permit from the EPA. Guam requested an exemption from the 
Title V program, but committed to achieving key goals of Title V by 
developing an alternate operating permit program.
    On November 13, 1996, EPA issued a direct final rule (61 FR 58289), 
codified at 40 CFR 69.13 (the conditional exemption) that granted the 
government of Guam an exemption from the requirement to adopt a Title V 
program on the condition that Guam adopt and implement a local 
alternate operating permit program. EPA also granted owners or 
operators of certain sources on Guam a conditional exemption from the 
requirement to apply for a Federal Title V operating permit under part 
71. That rulemaking does not waive or exempt the government of Guam, or 
owners or operators of sources located in Guam, from complying with all 
other applicable Clean Air Act provisions.
    On January 13, 1999, Guam submitted an alternate permit program, 
consisting of Guam's Air Pollution Control Standards and Regulations 
(Guam's Regulations), along with supporting documents and authorizing 
legislation. EPA granted interim approval to that program on January 9, 
2003 and listed necessary corrections to qualify for full approval. 
Guam submitted program corrections on June 30, 2005 that EPA believes 
meet the requirements for full approval, as explained below in section 
II.B.

II. Final Action and Implications

A. Effect of Final Approval of Guam's Alternate Permit Program

    EPA is granting full approval of the alternate permit program 
submitted by Guam. EPA is publishing this rule without prior proposal 
because we view this as a noncontroversial amendment and anticipate no 
adverse comment. However, in the ``Proposed Rules'' section of today's 
Federal Register publication, we are publishing a separate document 
that will serve as the proposal to grant full approval to Guam's part 
69 alternate permitting program if adverse comments are filed. This 
rule will be effective on April 28, 2006 without further notice unless 
we receive adverse comment by March 29, 2006. If EPA receives adverse 
comment, we will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. We will 
address all public comments in a subsequent final rule based on the 
proposed rule. We will not institute a second comment period on this 
action and any parties interested in commenting must do so at this 
time. This includes any comments regarding additional changes (see the 
Guam EPA Technical Support Document) that are not related to the 
requirements for full approval. The effect of this full approval is to 
provide Guam with approval to issue operating permits to all sources 
subject to their approved permit program, based on our determination 
that Guam has met the part 69 requirements for submitting an approvable 
part 69 alternate permitting program.
    EPA is also now removing 40 CFR 69.13(f)(2) for several reasons. 
EPA's 2003 interim approval established a deadline of October 9, 2004 
in Sec.  69.13(f)(2) to submit a fully approvable program. While Guam 
did not submit a fully approvable program by that date, Guam has now 
met the substantive operating permit program requirements of part 69. 
In addition, Guam has implemented the program by processing permit 
applications and drafting operating permits. Thus, it would be 
administratively burdensome and duplicative to implement a Federal 
permitting program now that the alternative permitting program has met 
the substantive requirements of the part 69 conditional waiver. In 
addition, EPA has not yet begun the process of drafting Federal 
operating permits on Guam. Because Guam EPA expects to issue operating 
permits soon, it would be counterproductive to delay the air quality 
benefits of permitting sources on Guam by implementing a Federal part

[[Page 9718]]

71 permitting program at this time. We will instead remove Sec.  
69.13(f)(2) to allow Guam to finalize the part 69 permits that it has 
drafted. This action fully approving Guam's alternative operating 
permit program does not change any of the other conditions in 40 CFR 
69.13.
    EPA is granting full approval only to those portions of Guam's 
Regulations that are necessary to implement Guam's alternate permit 
program, as required by the part 69 conditional exemption as part of 
the exemptions from the Title V program. This approval does not 
constitute approval under any other provisions of the Act. Except as 
provided herein, all other terms and conditions of the conditional 
exemption continue unchanged. The scope of the exemptions set forth in 
the conditional exemption continues unchanged. EPA continues to reserve 
its authority to revoke or modify the exemptions in whole or in part.

B. How Guam's Revisions To Alternate Permitting Program Meet the 
Requirements for Full Approval

1. State Implementation Plan Revision Provides Program Enforceability
    40 CFR 69.13(c) states that Guam shall submit a revision to its SIP 
that provides that a person shall not violate a permit condition or 
term in an operating permit that has been issued under an EPA approved 
alternate operating permit program adopted by Guam pursuant to the 
exemption authorized in 40 CFR 69.13. 40 CFR 69.13(f)(3) states that 
Guam must adopt this revision through the appropriate procedures, which 
we believe is inherently also required by 40 CFR 69.13(c). Guam has 
adopted this requirement in section 1104.26 of their Guam Air Pollution 
Control Standards and Regulations and submitted evidence of 
procedurally correct adoption. EPA is approving this section into the 
SIP through this rulemaking (Please note that Guam has only requested 
SIP approval of section 1104.26, and has not requested SIP-approval of 
other rules, as part of this action).
2. Guam Has Clarified EPA's Permit Reopening Authority
    EPA believes that the rule revisions address EPA's permit reopening 
authority. The rule states that Guam EPA will address EPA reopening 
determinations within 180 days, and that if issues are not resolved 
within 180 days, then USEPA shall issue the permit under part 71. This 
is consistent with the requirements for full approval of the Guam 
program.
3. Guam Has Authority for Injunctive Relief
    40 CFR 69.13(b)(6) requires that the alternate operating permit 
program provide Guam EPA with the authority to enjoin activities that 
are in violation of the permit, the program, or the Act without first 
revoking a permit. Guam has revised section 1104.25 of the permitting 
program to reference section 49115 of chapter 49, part 2, division 2, 
part 1 of title 10 of the Guam Code Annotated, which provide Guam EPA 
with the proper authority.
4. Guam Has Clarified the Scope of Program Submittal
    Guam EPA has clarified in the program submittal letter dated June 
30, 2005, that the program includes the following sections of the Guam 
Air Pollution Control Standards and Regulations in addition to the 
other relevant sections of these regulations:

Section 1102.3 Certification
Section 1102.7 Public Access to Information
Section 1102.9 Prompt Reporting of Deviations
Section 1106 Standards of Performance for Air Pollution Emission 
Sources
5. Guam Has Clarified Program Definitions and Section 1104.2(b)
    Guam has adopted verbatim the language changes 1 through 4 and 6 
required by EPA (see Section 5 of the ``Conditions for Full Approval'' 
September 24, 2002 Technical Support Document). The September 2004 
Technical Support Document for Revisions to the Guam Air Pollution 
Control Standards and Regulations explains that these changes were 
adopted.
    Guam has made additional changes in response to clarifications that 
we requested regarding insignificant activities. Guam has clarified 
that only specific activities, rather than ``sources,'' can qualify for 
treatment as insignificant. EPA believes that the rules now adequately 
explain that the basis for determining what is ``insignificant'' will 
be determined activity-by-activity. Section 1104.6(e) has been re-
titled to ``Insignificant Activities at a federal oversight source'' 
because it explains how insignificant activities will be addressed in 
permit applications, and references to minor sources were removed.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
state to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission

[[Page 9719]]

that otherwise satisfies the provisions of the Clean Air Act. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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. 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. 
804(2).
    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, 2006. 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

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Ozone, Reporting and 
recordkeeping requirements.

40 CFR Part 69

    Environmental protection, Air pollution control, Guam.

    Dated: January 20, 2006.
Laura Yoshii,
Regional Administrator, Region 9.

0
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart AAA--Guam

0
2. In Sec.  52.2670, the table in paragraph (c) is amended by adding an 
entry for Section 1104.26 under ``Chapter 03.10, 3.11 and 03.13'' to 
read as follows:


Sec.  52.2670  Identification of plan.

* * * * *
    (c) * * *

                                   EPA Approved Territory of Guam Regulations
----------------------------------------------------------------------------------------------------------------
                                                         Effective
         State citation              Title/subject         date       EPA approval  date        Explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Section 1104.26.................  Permit Compliance..     06/03/05   02/27/06...........  ......................
                                                                     [Insert page number
                                                                      where document
                                                                      begins].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
Part 69, Chapter I, Title 40 of the Code of Federal Regulations is 
amended as follows:

PART 69--[AMENDED]

0
1. The authority citation for part 69 continues to read as follows:

    Authority: 42 U.S.C. 7545(c), (g) and (i), and 7625-1.

Subpart A--Guam

0
2. Subpart A is amended by revising Sec.  69.13(f) to read as follows:


Sec.  69.13  Title V conditional exemption.

* * * * *
    (f) Final approval of alternate permit program.
    (1) The following sections of Guam's Air Pollution Control 
Standards and Regulations are granted final approval as Guam's 
alternate permit program:

    1101.1(a) Administrator
    1101.1(d) Air pollutant
    1101.1(e) Air pollution
    1101.1(i) Air pollution emission source
    1101.1(r) CFR
    1101.1(s) Clean Air Act
    1101.1(t) Commenced
    1101.1(v) Compliance Plan
    1101.1(aa) Emission
    1101.1(cc) Emissions unit
    1101.1(ii) Fugitive Emissions
    1101.1(jj) GEPA
    1101.1(kk) Hazardous air pollutant
    1101.1(xx) Owner or operator
    1101.1(zz) Permit
    1101.1(bbb) Person
    1101.1(eee) Potential to emit
    1101.1(iii) Regulated air pollutant
    1101.1(jjj) Responsible official
    1101.1(ooo) Source
    1101.1(uuu) USEPA
    1101.1(vvv) USEPA Administrator
    1102.3 Certification
    1102.7 Public Access to Information
    1102.9 Prompt Reporting of Deviations
    1104.1 Definitions
    (a) Administrative Permit Amendment
    (b) AP-42
    (c) Applicable requirement
    (d) Federal oversight source
    (e) Insignificant source
    (f) Insignificant sources--Type I
    (g) Insignificant sources--Type II
    (h) Major source
    (i) Minor source
    (j) Modification
    (k) Pollution prevention
    (l) Significant modification
    (m) Transition period
    1104.2 Applicability
    1104.3 General conditions for considering applications
    1104.4 Holding and transfer of permit
    1104.5(a) Cancellation of Air Pollution Control Permit
    1104.6 Air Pollution Control Permit Application
    1104.7 Duty to Supplement or Correct Permit Applications
    1104.8 Compliance Plan
    1104.9 Compliance Certification of Air Pollution Emission Sources
    1104.10 Transition Period and Deadlines to Submit First 
Applications
    1104.11 Permit Term

[[Page 9720]]

    1104.12 Permit Content
    1104.13 Inspections
    1104.14 Federally-Enforceable Permit Terms and Conditions
    1104.15 Transmission of Information to USEPA
    1104.16 USEPA Oversight
    1104.17 Emergency Provision
    1104.18 Permit Termination, Suspension, Reopening, and Amendment
    1104.19 Public Participation
    1104.20 Administrative Permit Amendment
    1104.21 General Fee Provisions
    1104.22 Air Pollution Control Special Fund
    1104.23 Application Fees for Air Pollution Emission Sources
    1104.24 Annual Fees for Air Pollution Emission Sources
    1104.25 Penalties and Remedies
    1106 Standards of Performance for Air Pollution Emission Sources
    (2) SIP Revision. Guam shall adopt, pursuant to required 
procedures, and submit to EPA a revision to Guam's SIP that provides 
that a person shall not violate a permit condition or term in an 
operating permit that has been issued under an EPA approved alternate 
operating permit program adopted by Guam pursuant the exemption 
authorized in this Sec.  69.13.

[FR Doc. 06-1740 Filed 2-24-06; 8:45 am]

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