[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Proposed Rules]
[Pages 31885-31888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15885]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region II Docket No. 150, PR4-1, FRL-5523-9]
Approval and Promulgation of Implementation Plans; Commonwealth
of Puerto Rico
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing approval of revisions to the Puerto Rico
Regulations for the Control of Atmospheric Pollution, submitted to EPA
by the Puerto Rico Environmental Quality Board (EQB) on September 29,
1995. This action proposes approval of revisions to Rules 102, 105,
106, 107, 109, 110, 111, 112, 114, 117, 121, 201, 203, 204, 205, 206,
209, 211, 301, 401, 402, 403, 404, 405, 406, 408, 409, 410, 412, 413,
414, 417, and 501. EPA is not incorporating new Rule 422 into the
federally approved Puerto Rico State Implementation Plan (SIP). EPA is
also announcing the withdrawal of Rules 411, 418, 419, 420 and 421 from
the Puerto Rico SIP at the request of the EQB. However, although
requested by the EQB, EPA is not withdrawing Rule 404 from the SIP. A
revision to Rule 423 was also submitted by the EQB on September 29,
1995, however, EPA determined the revision to Rule 423 to be
administratively incomplete and returned it to EQB and it, therefore,
is not included in this rulemaking.
DATES: Comments must be received on or before July 22, 1996.
ADDRESSES: All comments should be addressed to: William S. Baker,
Chief, Air Programs Branch, Environmental Protection Agency, Region II
Office, 290 Broadway, New York, New York 10007-1866.
Copies of the Commonwealth's submittal(s) are available at the
following addresses for inspection during normal business hours:
Environmental Protection Agency, Region II Office, Air Programs Branch,
290 Broadway, 20th Floor, New York, New York 10007-1866
Environmental Protection Agency, Region II Caribbean Field Office,
Centro Europa Building, Suite 417, 1492 Ponce de Leon Avenue, Stop 22,
Santurce, Puerto Rico 00909
Commonwealth of Puerto Rico, Environmental Quality Board, Banco
National Plaza, 8th Floor, 431 Ponce De Leon Avenue, Hato Rey, Puerto
Rico, 00917.
FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch,
Environmental Protection Agency, 290
[[Page 31886]]
Broadway, 20th Floor, New York, New York 10007-1866, (212) 637-4249.
SUPPLEMENTARY INFORMATION:
Background
On September 29, 1995, the Puerto Rico Environmental Quality Board
(EQB) submitted to EPA a request for approval of revisions to the
Puerto Rico Regulations for the Control of Atmospheric Pollution (the
Regulations). On February 5, 1996, EPA sent a letter to Hector Russe
Martinez, Chairman of the EQB, announcing EPA's determination that the
revisions to the Regulations, excluding those to Rule 423, are
administratively complete. Under the context of the Clean Air Act
(Act), the Commonwealth of Puerto Rico is regarded as a state. For the
purposes of discussing and analyzing Puerto Rico's State Implementation
Plan (SIP) submittal, EPA has broken it into the following elements: I)
revisions to the general Regulations, II) regulations needed to support
the Title V of the Act Operating Permits Program, III) Revisions to the
Puerto Rico PM10 SIP for the Municipality of Guaynabo, and, IV) a
request that certain rules of the Regulations which are currently
included as part of Puerto Rico's approved SIP be withdrawn from the
SIP, however, these regulations will remain enforceable by Puerto Rico.
Item V) addresses regulations concerning Hazardous Air Pollutants
(HAPs) which were approved pursuant to section 112(l) of the Act.
EPA is proposing approval of the revisions to the general
Regulations and the request made by EQB that certain rules be withdrawn
from the SIP. Generally the changes to the Regulations involve
administrative and grammatical changes which improve the clarity of the
rules. They do not change the emission limitations nor add significant
new requirements.
I. Revisions to the General Puerto Rico Regulations
Several of the revisions in this section consist of clarification
type changes such as revised dates, public law cites, word changes
(facility to source), renumbering of rules, etc. A summary of the
various revisions are given below. EPA generally feels that the
revisions improve the effectiveness of the Regulations and will have no
negative effect on maintaining the national health related standards.
A. Part I--General Provisions
1. Rule 102, ``Definitions'': There are approximately 30 new or
revised definitions in the revised Rule 102. The definitions are mainly
for SIP purposes, although, some clarify the Title V Operating Permit
Program contained in Part VI of the Regulations and the requirements
under section 112 of the Act.
2. Rule 106, ``Test Methods'' was revised to reference the
available EPA approved alternative test methods, new EPA test methods,
or methods previously not listed in the regulation by oversight. The
test methods specified are those found in 40 CFR Part 51 Appendix M; 40
CFR Part 60 Appendix A, B, and F; and 40 CFR Part 61 Appendix B, C, D
and E.
3. Rule 112, ``Compliance Determination/Certification'' was revised
to incorporate a range of compliance and certification options that are
available to the ``Board'' to ensure compliance with the provisions of
this regulation.
4. Other revisions to Part I of the Regulations, which include
revisions to Rules 105, 107, 109, 110, 111, 114, 117, and 121, are
clarification type changes which bring these rules up to date. None of
the revisions involve changing the stringency of these provisions.
EPA has thoroughly reviewed all of the revisions contained in Part
I of the Regulations and has determined them to meet EPA guidance and
requirements; therefore, EPA is proposing approval of these revised
rules.
B. Part II--Approval and Permit
1. Rule 203, ``Permit to Construct a Source'' was revised by
extending the period for which a permit shall automatically lapse or be
revoked if no construction has commenced or construction has been
suspended to three years (after the date of its issuance). This is
approvable provided EQB does not have Prevention of Significant
Deterioration of Air Quality (PSD) delegation. If EQB were to request
PSD delegation from EPA, the time for which a permit shall
automatically lapse or be revoked if no construction has commenced or
construction has been suspended should be reduced to 18 months.
2. Rule 206, ``Exemptions'' was revised to create a list of
insignificant activities for Title V purposes, in addition, these
activities are also exempt from Puerto Rico's permitting program. Rule
206 states that a location approval, construction permit or operating
permit is not required for sources listed in this rule as long as
potential emissions are below two tons per year (tpy) of a criteria
pollutant, five tpy of a combination of criteria pollutants, or two tpy
or the emission levels defined in Appendix E of the Regulations for HAP
emissions, whichever is lower.
3. Rule 211, ``Synthetic Minor Source Emission Certification'' is a
new rule added for Title V purposes which provides sources with a
federally enforceable mechanism to limit the potential to emit of
criteria pollutants, and to establish requirements for all sources that
maintain emissions below the Title V major source thresholds. Minor
sources (emitting 75% or less of major source threshold, excluding
sources subject to New Source Performance Standards (NSPS), National
Emission Standard for Hazardous Air Pollutants (NESHAPS), or Maximum
Achievable Control Technology (MACT) standards) must summarize in a
monthly log, maintained on site for five years, the following types of
information: all raw materials and other substances used, description
of equipment design and specifications, hours of operation, fuel type
and use, control effectiveness of equipment, etc. The minor source must
request coverage under this rule within twelve months of the effective
date of Rule 211 or by the application deadline under Puerto Rico's
Title V program, whichever is sooner. Such request must include a sworn
statement stating that emissions do not exceed the minor source levels,
and must identify the methods used to determine emissions (i.e., stack
test, monitoring). EQB may also request a performance test to verify
the emissions are below 75% of major source threshold. Upon receipt of
a complete request, the Board will issue a notification for coverage
for a fixed term of five years. The minor source must submit annual
process statements, including all information contained in the monthly
log. De minimis sources (sources which emit two tpy or less of a
regulated air pollutant except HAPs or five tpy or less of any
combination of regulated air pollutants excluding HAPs or an amount
equal to or less than the emission thresholds for HAPs listed in
Appendix E) only need to maintain records sufficient to determine
actual emissions on site for three years.
Intermediate sources (emissions are below major source threshold)
are required to have a federally enforceable operating permit by
January 1997. The limitations in the permit issued pursuant to Rule 204
must specify at a minimum: (a) technically accurate limitations and the
portions of the source subject to the limitations; (b) the time period
applicable to the limitation; (c) the method to determine compliance,
including appropriate monitoring, recordkeeping, and reporting; (d)
permanent and quantifiable limitations,
[[Page 31887]]
controls, and requirements; and (e) that the emission limitations,
controls, and other requirements imposed in the permit are at least as
stringent as any other applicable limitation contained in the SIP or
enforceable under the SIP. Rule 211 states that permits issued under
Rule 204 that do not meet the criteria for intermediate sources in Rule
211 are enforceable by EQB.
This rule also requires a 30 day public comment period prior to the
issuance of permits to intermediate sources. Because this rule meets
the five criteria outlined in the June 28, 1989 Federal Register (54 FR
27281), EPA is proposing approval of this mechanism for EQB to issue
federally enforceable operating permits. In addition, because EPA has
determined that the recordkeeping, reporting and certification
requirements for minor sources are enforceable and that the rule is
consistent with the January 25, 1995 Guidance on Potential to Emit, EPA
finds the mechanism for limiting the potential to emit for minor
sources to be approvable. Furthermore, Rule 211 states that violations
of Rule 211 may subject the source to major source requirements and to
enforcement actions.
4. Other revisions to Part II of the Regulations, which include
revisions to Rules 201, 204, 205, and 209, are clarification type
changes which bring these rules up to date.
EPA has thoroughly reviewed all of the revisions contained in Part
II of the Regulations and has determined them to meet EPA guidance and
requirements, therefore, EPA is proposing approval of these revised
rules.
C. Part III--Variance
1. Rule 301, ``Variance Authorized'' was revised by combining two
paragraphs into a more clearly written single paragraph. The paragraph
relates to the conditions which may be imposed by EQB on preliminary
approval of variances. Since this minor change does not deviate from
EPA guidance EPA is, therefore, proposing approval of revised Rule 301.
D. Part IV--Prohibitions
1. Rule 405, ``Incineration'' was revised to read more clearly and
also to bring the regulation up to date. The revisions reflect minor
changes to the applicability, maintenance, and compliance requirements.
2. Old Rule 422, ``Air Pollution Control Equipment,'' the
provisions of old Rule 422 were incorporated into Rule 108 ``Air
Pollution Control Equipment'' of the Regulations. Therefore, old Rule
422 was removed from the Regulations. The Commonwealth used this number
for a new Rule 422, ``Asbestos Containing Material Management.'' These
provisions of the new Rule 422 do not relate to the National Ambient
Air Quality Standards (NAAQS) emission reduction strategies and they
parallel other Federal laws which already regulate these matters. EPA
has determined that it is not appropriate for Rule 422 to be
incorporated into the federally approved SIP. Accordingly, the new Rule
422 is and will remain enforceable by Puerto Rico only.
3. Other revisions to Part IV of the Regulations, which include
revisions to Rules 401, 402, 403, 404, 406, 408, 409, 410, 412, 413,
414, and 417 are clarification type changes which bring these rules up
to date.
EPA has thoroughly reviewed all of the revisions contained in Part
IV of the Regulations and has determined them to meet EPA guidance and
requirements, therefore, EPA is proposing approval of these revised
rules. However, EPA has determined that it is not appropriate for Rule
422 to be incorporated into the federally approved SIP. In addition,
EPA cannot take action on the revisions to Rule 423, ``Limitations for
the Guaynabo PM10 Nonattainment Area'', in this rulemaking. Rule
423 is discussed later in more detail under section III--Revisions to
the Puerto Rico PM10 SIP for the Municipality of Guaynabo.
E. Part V--Fees
1. Rule 501, ``Permit Fees'' was revised based on clarification
type changes and merely to bring this rule up to date. The revisions
reflect changes to the price, applicability, and validity of permits
issued by EQB.
EPA has thoroughly reviewed all of the revisions contained in Part
V of the Regulations and has determined them to meet EPA guidance and
requirements, therefore, EPA is proposing approval of revised Rule 501.
II. Regulations Needed to Support the Title V of the Clean Air Act
Operating Permits Program
Although revisions to Part VI, ``Operating Permits Rules for Title
V Sources'' of the Puerto Rico Regulations were submitted to EPA as
part of the September 29, 1995 submittal, on February 26, 1996, EPA
fully approved the Operating Permits Program submitted by Puerto Rico
(See 60 FR 7073). However, while EPA has approved Puerto Rico's program
it is EPA's policy not to include it as part of the federally approved
SIP.
III. Revisions to the Puerto Rico PM10 SIP for the
Municipality of Guaynabo
Also submitted as part of the September 29, 1995 SIP revision
submittal were revisions to Rule 423 ``Limitations for the Guaynabo
PM10 Nonattainment Area'' of the Puerto Rico Regulations. Although
not identified by Puerto Rico in the September 29, 1995 SIP submittal,
EPA considers these revisions as a SIP revision to the Puerto Rico
PM10 SIP for the Municipality of Guaynabo. In a May 31, 1995
Federal Register notice (60 FR 28333), EPA approved Rule 423 as part of
the Puerto Rico PM10 SIP for the Municipality of Guaynabo.
In a February 5, 1996 letter to Hector Russe Martinez, Chairman of
the EQB, EPA determined that revised Rule 423 is administratively
incomplete and returned it to the Commonwealth of Puerto Rico.
Therefore, Rule 423 is not included in this rulemaking.
In addition, included in Puerto Rico's September 29, 1995 SIP
revision submittal EQB requested that EPA withdraw Rule 404 ``Fugitive
Emissions'' from the Puerto Rico SIP. However, Rule 404 was submitted
on November 15, 1993 to EPA as part of the Puerto Rico PM10 SIP
for the Municipality of Guaynabo and approved by EPA on May 31, 1995
(60 FR 28333). EQB demonstrated in the PM10 SIP that Rule 404 was
needed to attain and maintain the PM10 NAAQS. EQB's September 29,
1995 request to withdraw Rule 404 did not include technical support or
a demonstration that Rule 404 is no longer needed to attain and
maintain the PM10 NAAQS. Therefore, EPA is not withdrawing Rule
404 from the SIP.
IV. Request that Certain Rules of the Regulations be Withdrawn From
the Puerto Rico SIP
EQB requested in their September 29, 1995 SIP submittal, that
certain rules currently included in the federally approved Puerto Rico
SIP be withdrawn from the SIP since these rules are not a part of
Puerto Rico's strategy to achieve and maintain compliance with the
NAAQS. The rules requested to be withdrawn include Rule 404 ``Fugitive
Emissions'', Rule 411 ``Hydrogen Sulfide'', Rule 418 ``Waste Gas
Disposal'', Rule 419 ``Volatile Organic Compounds'', Rule 420
``Objectionable Odors'', and, Rule 421 ``Increments Of Progress.'' Rule
424 ``Roof Surface Coating'' is an entirely new regulation which EQB
provided for information but is not to be part of the SIP. Rule 424
will be enforced by Puerto Rico. EPA agrees that all the above rules
except
[[Page 31888]]
Rule 404 should be withdrawn from the SIP. None of these rules has a
direct impact on NAAQS pollutants and, therefore, will not affect the
attainment or maintenance plans which have been approved. It should
also be noted that it is EPA policy that no odor regulations be
included in SIPs because there is no NAAQS specifically for odor. EPA
is proposing approval of Puerto Rico's request to withdraw Rules 411,
418, 419, 420, and 421 from the SIP. These rules, however, will remain
enforceable by Puerto Rico.
V. Regulations Concerning HAPs which were Approved Pursuant to
Section 112(l) of the Clean Air Act
Section 112(l) of the Act enables Puerto Rico to develop a program
for the implementation and enforcement of HAP emissions standards.
Approval by EPA of such program would provide for the delegation of the
EPA Administrator's authorities and responsibilities to implement and
enforce the HAP emissions standards to Puerto Rico. Puerto Rico has
revised Rule 211 of the Puerto Rico Regulations pursuant to section
112(l) of the Act in order to provide sources with a mechanism to limit
potential HAP emissions.
EPA can only approve a program under 112(l) if Puerto Rico meets
the following criteria: (1) adequate authority to assure compliance
with any section 112 standard or requirements; (2) adequate resources;
(3) the program provides for an expeditious schedule for assuring
compliance with section 112 requirements; and (4) the program is
otherwise likely to satisfy the objectives of the Act. EQB has already
demonstrated through Title V that it has adequate authority to
implement and enforce all section 112 requirements for both Title V and
non-Title V sources. EQB also demonstrated sufficient fees to implement
all section 112 requirements in its Title V Fee Demonstration. While
EPA is approving Rule 211 as part of the SIP, Rule 211 will also have
the effect of limiting HAP emissions pursuant to its approval under
section 112(l) of the Act.
Conclusion
EPA is proposing approval the revisions to the Regulations, which
include revisions to Rules 102, 105, 106, 107, 109, 110, 111, 112, 114,
117, 121, 201, 203, 204, 205, 206, 209, 211, 301, 401, 402, 403, 404,
405, 406, 408, 409, 410, 412, 413, 414, 417, and 501. EPA is not
incorporating new Rule 422 into the federally approved SIP. In
addition, EPA is proposing approval of the withdrawal of Rules 411,
418, 419, 420 and 421 from the SIP, which contain the federally
approved regulations, however, EPA is not approving the withdrawal of
Rule 404 from the SIP.
Nothing in this proposed rule should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the SIP shall be considered separately in light of specific technical,
economic, and environmental factors and in relation to relevant
statutory and regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the federal-state relationship
under the Clean Air Act, preparation of a regulatory flexibility
analysis would constitute federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v US
EPA, 427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a federal mandate that may result in
estimated annual costs of $100 million or more to the private sector,
or to state, local, or tribal governments in the aggregate.
Through submission of this SIP or plan revision, the state and any
affected local or tribal governments have elected to adopt the program
provided for under section 112(l) and 110 of the Clean Air Act. These
rules may bind state, local and tribal governments to perform certain
actions and also require the private sector to perform certain duties.
To the extent that the rules being approved by this action would impose
any mandate upon the state, local or tribal governments either as the
owner or operator of a source or as a regulator, or would impose any
mandate upon the private sector, EPA's action will impose no new
requirements; such sources are already subject to these regulations
under state law. Accordingly, no additional costs to state, local, or
tribal governments, or to the private sector, result from this action.
EPA has also determined that this direct final action does not include
a mandate that may result in estimated annual costs of $100 million or
more to state, local, or tribal governments in the aggregate or to the
private sector.
The Office of Management and Budget has exempted this action from
review under Executive Order 12866.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements, Volatile organic compounds.
Dated: May 31, 1996.
William J. Muszynski,
Acting Regional Administrator.
[FR Doc. 96-15885 Filed 6-20-96; 8:45 am]
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