Approval and Promulgation of Implementation Plans; Commonwealth of Puerto Rico

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. 150; PR4-2, FRL-5675-1]

Approval and Promulgation of Implementation Plans; Commonwealth

of Puerto Rico

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing the

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

approves revisions to Rules 102, 105, 106, 107, 109, 110, 111, 114,

117, 121, 201, 203, 204, 205, 206, 209, 301, 401, 402, 403, 404, 405,

406, 408, 409, 410, 412, 413, 414, 417, and 501. At the request of EQB,

EPA will be taking final action on Rules 112 and 211 at a later date.

EPA is not incorporating new Rule 422 into the federally approved

Puerto Rico State Implementation Plan (SIP). EPA is also withdrawing

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. In addition, EPA is adding a new

section to the Code of Federal Regulations which clearly identifies

those Puerto Rico regulations which are a part of the SIP.

EFFECTIVE DATE: This rule is effective February 21, 1997.

ADDRESSES: Copies of the state 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, 25th 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

Environmental Protection Agency, Air and Radiation Docket and

Information Center, Air Docket (6102), 401 M Street, SW., Washington,

DC 20460.

FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Environmental

Engineer, Air Programs Branch, Environmental Protection Agency, 290

Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION: On June 21, 1996 (61 FR 31886), EPA

published, in the Federal Register, a proposed rulemaking concerning

revisions to the Puerto Rico ``Regulations for the Control of

Atmospheric Pollution'' (the Regulations). 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.

Included in that request were revisions to the general Regulations,

regulations needed to support the Title V of the Clean Air Act (Act)

Operating Permits Program, revisions to the Puerto Rico PM10 SIP

for the Municipality of Guaynabo, and, 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. Also included, was a regulation

concerning Hazardous Air Pollutants (HAPs) to be approved by EPA under

section 112(l) of the Act. Under the context of the Act, the

Commonwealth of Puerto Rico is regarded as a state.

The revisions and rationale for EPA's approval and rulemaking

actions were explained in the June 21, 1996 proposal and will not be

restated here. The reader is referred to the proposal for a detailed

explanation of Puerto Rico's SIP revision.

In response to EPA's proposed approval of Puerto Rico's SIP

revision, comments were received from eight interested parties. The

commenters are as follows: American Petroleum Institute [A], Puerto

Rico Sun Oil Company [B], Schering-Plough Corporation [C], Puerto Rico

Manufacturers Association [D], Pharmaceutical Research and

Manufacturers of America [E], Ford Motor Company [F], National

Environmental Development Association [G], Texaco Inc. [H]. All of the

comments received were of a similar

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nature. The comments and EPA's responses are listed below.

Comment

Among the changes to the Puerto Rico SIP proposed to be adopted by

EPA is an amendment to Rule 112, ``Compliance Determination/

Certification,'' of the Puerto Rico Regulations which provides that

``any credible evidence may be used for the purpose of establishing

whether a person has violated or is in violation of the Puerto Rico SIP

and that certain information will constitute presumptively credible

evidence of whether a violation has occurred.''

The use of other ``credible evidence'' has been recognized under

the Act, but specifically limited to penalty calculations as evidence

of the duration of a violation proven through the use of approved

reference test methods. Consequently, the commenters assert that the

proposed revision in question affecting Rule 112 is not consistent

with, nor required or supported by the Act and its legislative history.

Absent a legal foundation to support the inclusion of the ``credible

evidence'' provision of Rule 112, the commenter objected to its

proposed incorporation into the SIP. EPA should withhold taking any

final action regarding Rule 112. [A,B,C,D,E,F,G,& H]

Response

Puerto Rico's Rule 112 was adopted in response to EPA's SIP

requirement notification that was issued in conjunction with the

release of EPA's Enhanced Monitoring (EM) rule which was proposed on

October 22, 1993 (58 FR 54648). However, adverse comments were received

with respect to EPA's EM proposed rule. EPA has developed a Compliance

Assurance Monitoring (CAM) rule to replace the EM rule. EPA announced

the availability of the draft in September 1995 and a revised version

on August 13, 1996 (61 FR 41991). EPA anticipates proposing the CAM

rule by December 1996 and promulgating it by July 1997. The August 13,

1996 Federal Register notice states that the rulemaking on the credible

evidence provisions as proposed originally in October 22, 1993 is

expected to be finalized ahead of the CAM rule, in December 1996. EQB

formally requested, in an October 4, 1996 letter, that EPA delay

approval of Rule 112 until EPA promulgates the credible evidence rule

and/or the CAM rule. This would allow EPA and EQB to further evaluate

Rule 112 to determine if it meets EPA's final requirements. Therefore,

EPA concurs with EQB's request that EPA withhold taking final action on

Puerto Rico's revision to Rule 112 until EQB submits a future request.

Comment

Upon the adoption and promulgation of Rule 211, ``Synthetic Minor

Source Emissions'' by EQB, EQB issued Resolution R-96-13-4 on March 26,

1996 clarifying the underlying intended purpose of the rule. EPA should

incorporate the clarifications made by EQB regarding this rule, as

drafted in EQB's Resolution R-96-13-4, in order that the synthetic

minor source provisions of the Puerto Rico SIP be interpreted

consistent with its underlying intended scope and extent. [D]

Response

EQB informed EPA in an October 4, 1996 letter of its intent to

change the definition of ``Minor Source (for the purpose of Rule 211)''

in Rule 102, ``Definitions'' of the Regulations, to delete the

exclusion which provides that sources subject to a New Source

Performance Standards or National Emission Standard for Hazardous Air

Pollutants cannot be considered minor sources for the purpose of

limiting potential emissions of criteria pollutants. Because EQB has

informed EPA of this plan to revise the Regulation pursuant to the

Resolution R-96-13-4, EQB and EPA have agreed to withhold taking final

action on Rule 211 until it is further revised by EQB and submitted to

EPA as a SIP revision. Similarly, EPA is withholding action on Rule 211

to the extent that it would be a method to provide sources with a

mechanism to limit potential HAP emissions under 112(l) of the Act. EPA

will address this when EQB submits the revised regulation defining

minor source for purposes of Rule 211 for EPA approval. Therefore, EPA

concurs with EQB's request that EPA withhold taking final action on

Puerto Rico's revision to Rule 211 until EQB submits a future request.

Conclusion

EPA is approving revisions to Rules 102, 105, 106, 107, 109, 110,

111, 114, 117, 121, 201, 203, 204, 205, 206, 209, 301, 401, 402, 403,

404, 405, 406, 408, 409, 410, 412, 413, 414, 417, and 501 of the Puerto

Rico Regulations. As requested by the EQB, final action on Rules 112

and 211 will be delayed until issues associated with these rules are

resolved by EQB and EPA. In addition, EPA is not incorporating new Rule

422 into the federally approved Puerto Rico SIP. EPA is also

withdrawing Rules 411, 418, 419, 420 and 421 from the Puerto Rico SIP

at the request of the EQB. Although requested by the EQB, EPA is not

withdrawing Rule 404 from the SIP.

Additionally, a new Sec. 52.2723 of the Code of Federal

Regulations, ``EPA--approved Puerto Rico regulations,'' is being

promulgated in the regulatory section at the end of this action. This

new section identifies all Puerto Rico regulations approved by EPA as

part of the Puerto Rico SIP, the dates when the regulations were made

effective by the Commonwealth, and the dates (and Federal Register

citation) when they were last approved by EPA for incorporation into

the Puerto Rico SIP.

New Sec. 52.2723 also includes regulations which were previously

approved by EPA. Puerto Rico's September 28, 1995 SIP submittal

consisted of the compiled air regulations which included regulations

that had not been changed, however, these rules have been given a new

Commonwealth effective date. Therefore, EPA is listing them in

Sec. 52.2723 under a new Commonwealth effective date and new EPA

approval date.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. 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.

Administrative Requirements

Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

Regulatory Flexibility Act

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 Act

do not

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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 Act, preparation of

a flexibility analysis would constitute federal inquiry into the

economic reasonableness of state action. The Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

private sector, of $100 million or more. Under Section 205, EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This federal action approves pre-

existing requirements under State or local law, and imposes no new

Federal requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, result from this

action.

Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by March 24, 1997. 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 in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements.

Dated: December 13, 1996.

William J. Muszynski,

Acting Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart BBB--Puerto Rico

2. Section 52.2720 is amended by adding paragraph (c)(36) to read

as follows:

Sec. 52.2720 Identification of plan.

* * * * *

(c) * * *

(36) Revisions to the Puerto Rico Regulations for the Control of

Atmospheric Pollution (the Regulations) submitted on September 29, 1995

by the Puerto Rico Environmental Quality Board (EQB).

(i) Incorporation by reference.

(A) Regulations:

(1) Amendments to Part I, ``General Provisions'', Rules 102, 105,

106, 107, 109, 110, 111, 114, 117, and 121, effective September 28,

1995.

(2) Amendments to Part II, ``Approval and Permit'', Rules 201, 203,

204, 205, 206, and 209, effective September 28, 1995.

(3) Amendments to Part III, ``Variance'', Rule 301, effective

September 28, 1995.

(4) Amendments to Part IV, ``Prohibitions'', Rules 401, 402, 403,

404, 405, 406, 408, 409, 410, 412, 413, 414, and 417, effective

September 28, 1995.

(5) Amendments to Part V, ``Fees'', Rule 501, effective September

28, 1995.

(ii) Additional information.

(A) Request by EQB to remove Rules 411, 418, 419, 420 and 421 of

Part IV, ``Prohibitions'' of the Regulations from the federally

approved SIP dated September 29, 1995.

(B) An October 4, 1996 letter from EQB to EPA requesting that EPA

delay approval of Rules 112 and 211.

3. A new Sec. 52.2723 is added to Subpart BBB to read as follows:

Sec. 52.2723 EPA--approved Puerto Rico regulations.

Regulation for the Control of Atmospheric Pollution

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Commonwealth

Puerto Rico regulation effective date EPA approval date Comments

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PART I, GENERAL PROVISIONS

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Rule 101--Title......................... 9/28/95 [Insert date of

publication and FR page

citation.]

Rule 102--Definitions................... 9/28/95 ......do..................

Rule 103--Source Monitoring, 9/28/95 ......do..................

Recordkeeping, Reporting, Sampling and

Testing Methods.

Rule 104--Emission Data Available to 9/28/95 ......do..................

Public Participation.

Rule 105--Malfunction................... 9/28/95 ......do..................

Rule 106--Test Methods.................. 9/28/95 ......do..................

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Rule 107--Air Pollution Emergencies..... 9/28/95 ......do..................

Rule 108--Air Pollution Control 9/28/95 ......do..................

Equipment.

Rule 109--Notice of Violation........... 9/28/95 ......do..................

Rule 110--Revision of Applicable Rules 9/28/95 ......do..................

and Regulations.

Rule 111--Applications, Hearings, Public 9/28/95 ......do..................

Notice.

Rule 113--Closure of a Source........... 9/28/95 ......do..................

Rule 114--Compulsory and Optional 9/28/95 ......do..................

Hearing.

Rule 115--Punishment.................... 9/28/95 ......do..................

Rule 116--Public Nuisance............... 9/28/95 ......do..................

Rule 117--Overlapping or Contradictory 9/28/95 ......do..................

Provisions.

Rule 118--Segregation and Combination of 9/28/95 ......do..................

Emissions.

Rule 119--Derogation.................... 9/28/95 ......do..................

Rule 120--Separability Clause........... 9/28/95 ......do..................

Rule 121--Effectiveness................. 9/28/95 ......do..................

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PART II, APPROVAL AND PERMIT

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Rule 201--Location Approval............. 9/28/95 ......do..................

Rule 202--Air Quality Impact Analysis... 9/28/95 ......do..................

Rule 203--Permit to Construct a Source.. 9/28/95 ......do..................

Rule 204--Permit to Operate a Source.... 9/28/95 ......do..................

Rule 205--Compliance Plan for Existing 9/28/95 ......do..................

Emission Sources.

Rule 206--Exemptions.................... 9/28/95 ......do..................

Rule 207--Continuing Responsibility for 9/28/95 ......do..................

Compliance.

Rule 208--Agricultural Burning 9/28/95 ......do..................

Authorized.

Rule 209--Modification of the Allowed 9/28/95 ......do..................

Sulfur-in-Fuel Percentage.

Rule 210--(Reserved) Part III,

``Variance''.

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PART III, VARIANCE

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Rule 301--Variances Authorized.......... 9/28/95 ......do..................

Rule 302--Emergency Variances........... 9/28/95 ......do..................

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PART IV, PROHIBITIONS

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Rule 401--Generic Prohibitions.......... 9/28/95 ......do..................

Rule 402--Open Burning.................. 9/28/95 ......do..................

Rule 403--Visible Emissions............. 9/28/95 ......do..................

Rule 404--Fugitive Emissions............ 9/28/95 ......do..................

Rule 405--Incineration.................. 9/28/95 ......do..................

Rule 406--Fuel Burning Equipment........ 9/28/95 ......do..................

Rule 407--Process Sources............... 9/28/95 ......do..................

Rule 408--Asphaltic Concrete Batching 9/28/95 ......do..................

Plants.

Rule 409--Non-Process Sources........... 9/28/95 ......do..................

Rule 410--Maximum Sulfur Content in 9/28/95 ......do..................

Fuels.

Rule 412--Sulfur Dioxide Emissions: 9/28/95 ......do..................

General.

Rule 413--Sulfuric Acid Plants.......... 9/28/95 ......do..................

Rule 414--Sulfur Recovery Plants........ 9/28/95 ......do..................

Rule 415--Non-Ferrous Smelters.......... 9/28/95 ......do..................

Rule 416--Sulfite Pulp Mills............ 9/28/95 ......do..................

Rule 417--Storage of Volatile Organic 9/28/95 ......do..................

Compounds.

Rule 423--Limitations for the Guaynabo 4/2/94 5/31/95; 60 FR 28333......

PM10 Nonattainment Area.

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PART V, FEES

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Rule 501--Permit Fees................... 9/28/95 ......do..................

Rule 502--Excess Emission Fees.......... 9/28/95 ......do..................

Rule 503--Test Fees..................... 9/28/95 ......do..................

Rule 504--Modification.................. 9/28/95 ......do..................

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[FR Doc. 97-1420 Filed 1-21-97; 8:45 am]

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