[Federal Register Volume 69, Number 48 (Thursday, March 11, 2004)]
[Rules and Regulations]
[Pages 11537-11539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5367]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[Region 2 Docket No. PR11-267c; FRL-7634-2]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 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 April 12, 2004.

ADDRESSES: 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.

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 the 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 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.
    For a detailed description and full evaluation of the Puerto Rico 
CISWI plan that EPA is approving today, the reader is referred to the 
rulemaking actions (68 FR 62019 and 68 FR 62040) published in the 
Federal Register on October 31, 2003.

III. Comments in Response to EPA's Proposal

A. Background Information

    On October 31, 2003, EPA announced, in proposed and direct final 
rules published in the Federal Register (68 FR 62019 and 68 FR 62040, 
respectively), approval of Puerto Rico's CISWI plan. On November 6, 
2003, EPA received an adverse comment on the direct final rule. EPA had 
indicated in its October 31, 2003, direct final rule that if EPA 
received adverse comments, it would withdraw the direct final rule. 
Consequently, EPA informed the public, in a removal notice published in 
the Federal Register (69 FR 2304) on January 15, 2004, that EPA 
received an adverse comment and that the direct final rule was being 
removed. EPA did not receive any other comments. EPA is addressing the 
adverse comment in today's final rule based upon the proposed action 
published on October 31, 2003.

B. Comments Received and EPA's Response

    EPA received one adverse comment on its August 11, 2003 direct 
final rule to approve Puerto Rico's CISWI plan

[[Page 11538]]

from a concerned citizen. That comment and EPA's response follows.
    Comment: The PREQB is not effectively managing the air programs in 
the island. Permits are provided to facilities which do not comply with 
the regulations and new emission standards go unattended. Many 
facilities in Puerto Rico are currently discharging more than the 
amount of emissions permitted and on many occasions without a permit. 
Approving the CISWI plan will simply do nothing for the protection of 
human health or the environment of Puerto Rico.
    Response: It should be noted that the commentor did not provide any 
documentation or justification in support of its allegations. In 
addition, the comment does not directly address Puerto Rico's CISWI 
plan, but rather addresses its permitting program. 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 exist within its enabling legislation and regulations to the 
extent that EPA has determined the Puerto Rico CISWI plan to be 
approvable.
    In addition, upon the effective date of EPA's final approval of the 
Puerto Rico CISWI plan, the requirements of Puerto Rico's plan become 
federally enforceable. This enables EPA to take its own enforcement 
actions against facilities that may not comply with the approved CISWI 
requirements.

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.

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. 
section 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 May 10, 2004. 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).)

[[Page 11539]]

List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Acid gases, Carbon 
monoxide, Commercial and industrial solid waste, Intergovernmental 
relations, Organics, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: February 27, 2004.
Kathleen C. Callahan,
Acting 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:
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. The State Plan includes revisions to 
Rule 102 and Rule 405 of the Puerto Rico Regulations for the Control of 
Atmospheric Pollution, entitled, ``Definitions'' and ``Incineration'', 
respectively. Revised Rules 102 and 405 were adopted on June 4, 2003 
and effective on July 4, 2003.
    (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. 04-5367 Filed 3-10-04; 8:45 am]
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