[Federal Register Volume 68, Number 211 (Friday, October 31, 2003)]
[Rules and Regulations]
[Pages 62019-62022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27484]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region 2 Docket No. PR11-267a; FRL-7581-1]


Approval and Promulgation of State Plans for Designated 
Facilities; Puerto Rico

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action on the ``State Plan'' submitted by the Commonwealth of 
Puerto Rico to fulfill the requirements of sections 111(d)/129 of the 
Clean Air Act for Commercial and Industrial Solid Waste Incineration 
(CISWI) units. Puerto Rico's State Plan provides for the implementation 
and enforcement of the Emissions Guidelines, as promulgated by EPA on 
December 1, 2000, applicable to existing CISWI units for which 
construction commenced on or before November 30, 1999. Specifically, 
the State Plan that EPA is approving today, establishes emission limits 
for organics, carbon monoxide, metals, acid gases and particulate 
matter and compliance schedules for the existing CISWI units located in 
the Commonwealth of Puerto Rico which will reduce the designated 
pollutants.

DATES: This rule is effective on December 30, 2003, without further 
notice, unless EPA receives adverse comment by December 1, 2003. If EPA 
receives such comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Comments may be submitted either by mail or electronically. 
Written comments should be mailed to Raymond Werner, Chief, Air 
Programs Branch, Environmental Protection Agency, Region 2 Office, 290 
Broadway, 25th Floor, New York, New York 10007-1866. Electronic 
comments could be sent either to [email protected] or to http://www.regulations.gov, which is an alternative method for submitting 
electronic comments to EPA. Go directly to http://www.regulations.gov, 
then select ``Environmental Protection Agency'' at the top of the page 
and use the ``go'' button. Please follow the on-line instructions for 
submitting comments.
    Copies of the state submittal are available at the following 
addresses for inspection during normal business hours:
    Environmental Protection Agency, Region 2 Office, Air Programs 
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    Environmental Protection Agency, Region 2, Caribbean Environmental 
Protection Division, Centro Europa Building, Suite 417, 1492 Ponce De 
Leon Avenue, Stop 22, San Juan, Puerto Rico 00907-4127.
    Puerto Rico Environmental Quality Board, National Plaza Building, 
431 Ponce De Leon Avenue, Hato Rey, Puerto Rico.
    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, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, (212) 637-3381 or 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Sections 111(d) and 129 of the Clean Air Act (CAA) require states 
to submit plans to control certain pollutants (designated pollutants) 
at existing solid waste combustor facilities (designated facilities) 
whenever standards of performance have been established under section 
111(b) for new sources of the same type, and EPA has established 
emission guidelines (EG) for such existing sources. A designated 
pollutant is any pollutant for which no air quality criteria have been 
issued, and which is not included on a list published under section 
108(a) or section 112(b)(1)(A) of the CAA, but emissions of which are 
subject to a standard of performance for new stationary sources. 
However, section 129 of the CAA, also requires EPA to promulgate EG for 
Commercial and Industrial Solid Waste Incineration (CISWI) units that 
emit a mixture of air pollutants. These pollutants include organics 
(dioxins/furans), carbon monoxide, metals (cadmium, lead, mercury), 
acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and 
particulate matter (including opacity). On December 1, 2000 (65 FR 
75338), EPA promulgated CISWI unit new source performance standards and 
the EG, 40 CFR part 60, subparts CCCC and DDDD, respectively. The 
designated facility to which the EG apply is each existing CISWI unit, 
as defined in subpart DDDD, that commenced construction on or before 
November 30, 1999.
    Section 111(d) of the CAA requires that ``designated'' pollutants, 
regulated

[[Page 62020]]

under standards of performance for new stationary sources by section 
111(b) of the CAA, must also be controlled at existing sources in the 
same source category to a level stipulated in an EG document. Section 
129 of the CAA specifically addresses solid waste combustion and 
emission controls based on what is commonly referred to as ``maximum 
achievable control technology'' (MACT). Section 129 requires EPA to 
promulgate a MACT based emission guidelines document for CISWI units, 
and then requires states to develop plans that implement the EG 
requirements. The CISWI EG under 40 CFR part 60, subpart DDDD, 
establishes emission and operating requirements under the authority of 
the CAA sections 111(d) and 129. These requirements must be 
incorporated into a state plan that is ``at least as protective'' as 
the EG, and is Federally enforceable upon approval by EPA. The 
procedures for adoption and submittal of state plans are codified in 40 
CFR part 60, subpart B.

II. Puerto Rico's Submittal

    On May 20, 2003, the Puerto Rico Environmental Quality Board 
(PREQB) submitted to EPA a section 111(d)/129 plan to implement 40 CFR 
part 60, subpart DDDD--Emission Guidelines, for existing CISWI units 
located in the Commonwealth of Puerto Rico. PREQB's submittal included: 
Enforceable mechanisms; the necessary legal authority; inventory of 
CISWI units; emissions inventory; enforceable compliance schedules; 
testing, monitoring, recordkeeping, and reporting requirements; record 
of public hearing; and a provision for annual state progress reports.

III. Review of Puerto Rico's Submittal

A. Identification of Enforceable Mechanism for Implementing the EG

    40 CFR 60.24(a) requires that a section 111(d) plan include 
emissions standards, defined in 40 CFR 60.21(f) as ``a legally 
enforceable regulation setting forth an allowable rate of emissions 
into the atmosphere, or prescribing equipment specifications for 
control of air pollution emissions.''
    On June 4, 2003, Puerto Rico adopted revisions to Rule 102 and Rule 
405 of the Puerto Rico Regulations for the Control of Atmospheric 
Pollution (PRRCAP), entitled ``Definitions'' and ``Incineration'', 
respectively. Revised rules 102 and 405 became effective on July 4, 
2003, and are intended to control air emissions from existing CISWI 
units located in Puerto Rico.

B. Demonstration of the State's Legal Authority to Carry Out the 
Section 111(d) State Plan as Submitted

    40 CFR 60.26 requires that a section 111(d) plan demonstrate that 
the state has the necessary legal authority to adopt and implement the 
plan. In order to make this demonstration, the plan must show that the 
state has the legal authority to adopt emission standards and 
compliance schedules for the designated facilities; enforce the 
applicable laws, regulations, emission standards and compliance 
schedules, including the ability to obtain injunctive relief; the 
authority to obtain information from the designated facilities in order 
to determine compliance, including the authority to require 
recordkeeping from the facilities, to make inspections and to conduct 
tests at the facilities; the authority to require designated facilities 
to install, maintain and use emission monitoring devices; the authority 
to require periodic reporting to the state on the nature and amounts of 
emissions from the facility; and the authority for the state to make 
such emissions data available to the public. Puerto Rico has 
demonstrated all these elements. As a result, Puerto Rico has 
demonstrated that it has sufficient authority to adopt rules governing 
existing CISWI units and that the PREQB has sufficient legal authority 
to enforce these rules and to develop and administer this CISWI plan.

C. Inventory, Including Emissions, of Existing CISWI Units in Puerto 
Rico Affected by the State Plan

    40 CFR 60.25(a) requires that a section 111(d) plan include a 
complete source inventory of all existing CISWI units (i.e., those 
CISWI units that commenced construction on or before November 30, 1999) 
in Puerto Rico that are subject to the plan. 40 CFR 60.25(a) also 
requires an estimate of the regulated pollutants. A list of the 
existing CISWI units in Puerto Rico and emission estimates for organics 
(dioxins/furans), carbon monoxide, metals (cadmium, lead, mercury), 
acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and 
particulate matter (including opacity) for each existing CISWI unit 
located in Puerto Rico, has been submitted as part of Puerto Rico's 
CISWI plan.

D. Emission Limitations for CISWI Units

    40 CFR 60.24(c) specifies that a state plan must include emission 
standards that are no less stringent than the EG (except as specified 
in 40 CFR 60.24(f) which allows for less stringent emission limitations 
on a case-by-case basis if certain conditions are met). 40 CFR 60.2875 
contains the emissions standards applicable to existing CISWI units. 
Subsection 405(c)(2) of the PRRCAP includes emission limitation 
requirements consistent with 40 CFR 60.2875.

E. Compliance Schedules

    A state's section 111(d) plan must include a compliance schedule 
that owners and operators of affected CISWI units must meet in 
complying with the requirements of the plan. 40 CFR 60.2535 indicates 
that final compliance should be achieved as expeditiously as 
practicable after EPA approval of the state plan but no later than 
December 1, 2005 or three years after the effective date of the state 
plan approval, whichever is sooner. If the owner or operator of a CISWI 
unit plans to achieve compliance more than one year following the 
effective date of the state plan approval, then two increments of 
progress must be met, which are; submit a final control plan; and 
achieve final compliance.
    Subsection 405(c)(8) of the PRRCAP includes the increments of 
progress and the dates by which those increments must be met, which 
are, submit final control plan six months after the effective date of 
EPA plan approval and achieve final compliance 18 months after the 
effective date of EPA plan approval, or by December 1, 2005, whichever 
date is earlier.

F. Testing, Monitoring, Recordkeeping and Reporting Requirements

    Subsection 405(c)(5) of the PRRCAP includes the performance testing 
requirements and testing methods. Subsection 405(6) includes the 
monitoring requirements including the monitoring equipment and 
parameters to be used. Subsection 405(c)(7) requires that all 
designated CISWI facilities subject to the rule keep appropriate 
records of the operation and maintenance of the CISWI units. Subsection 
405(c)(7) also includes the reporting requirements.

G. Record of the Public Hearing on the State Plan

    On January 15, 2003, Puerto Rico held a public hearing on its CISWI 
plan, including the revisions to Rules 102 and 405 of the PRRCAP. PREQB 
included in its May 20, 2003, submittal to EPA, copies of the public 
notices and public hearing record.

H. Submittal of Annual State Progress Reports to EPA

    40 CFR 60.25(e) and (f) requires states to submit to EPA annual 
reports on the

[[Page 62021]]

progress of plan enforcement. Puerto Rico has acknowledged this 
requirement and will submit to EPA annual reports on the progress in 
the implementation of its CISWI plan.

IV. Conclusion

    EPA has evaluated the CISWI plan submitted by Puerto Rico for 
consistency with the CAA, EPA emission guidelines and policy. EPA has 
determined that Puerto Rico's Plan meets all requirements and, 
therefore, EPA is approving Puerto Rico's Plan to implement and enforce 
subpart DDDD, as promulgated on December 1, 2000, applicable to 
existing CISWI units that have commenced construction on or before 
November 30, 1999. EPA is also approving revisions to Rule 102 and Rule 
405 of the Puerto Rico Regulations for the Control of Atmospheric 
Pollution, entitled, ``Definitions'' and ``Incineration'', 
respectively.
    The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the State Plan revision 
should adverse comments be filed. This rule will be effective December 
30, 2003, without further notice unless the Agency receives adverse 
comments by December 1, 2003.
    If the EPA receives adverse comments, then EPA will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

V. Statutory and Executive Order Reviews

    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). Puerto Rico's State plan applies to all 
affected sources regardless of whether it has been identified in its 
plan. Therefore, EPA has concluded that this rulemaking action does not 
have federalism implications nor does it 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 CAA. 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 state plan submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. 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 state plan 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 state plan submission that 
otherwise satisfies the provisions of the CAA. 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 30, 2003. 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 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements, Waste treatment and disposal.

    Dated: October 14, 2003.
Jane M. Kenny,
Regional Administrator, Region 2.

0
Part 62, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 62--[AMENDED]

0
1. The authority citation for part 62 continues to read as follows:

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

Subpart BBB--Puerto Rico

0
2. Subpart BBB is amended by adding a new undesignated center heading 
and Sec.  62.13108 to read as follows:

[[Page 62022]]

Control of Air Emissions of Designated Pollutants From Existing 
Commercial and Industrial Solid Waste Incineration Units


Sec.  62.13108  Identification of plan.

    (a) The Puerto Rico Environmental Quality Board submitted to the 
Environmental Protection Agency on May 20, 2003, a ``State Plan'' for 
implementation and enforcement of 40 CFR part 60, subpart DDDD, 
Emission Guidelines and Compliance Times for Commercial and Industrial 
Solid Waste Incineration Units.
    (b) Identification of sources: The plan applies to all applicable 
existing Commercial and Industrial Solid Waste Incineration Units for 
which construction commenced on or before November 30, 1999.

[FR Doc. 03-27484 Filed 10-30-03; 8:45 am]
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