Approval and Promulgation of Implementation Plans; Commonwealth of Puerto Rico

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

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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,

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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

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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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