[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Proposed Rules]
[Pages 45387-45394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21169]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[Docket: R02-OAR-2009-0508; FRL-8952-3]


Approval and Promulgation of Implementation Plans; Puerto Rico; 
Guaynabo PM10 Limited Maintenance Plan and Redesignation Request

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the Limited Maintenance Plan for 
the Municipality of Guaynabo nonattainment area in Puerto Rico and 
grant the request by the Commonwealth of Puerto Rico to redesignate the 
area from nonattainment to attainment for National Ambient Air Quality 
Standards for particulate matter with an aerodynamic diameter less than 
or equal to a nominal 10 micrometers (PM10). On March 31, 2009, the 
Commonwealth of Puerto Rico submitted a Limited Maintenance Plan for 
the Guaynabo nonattainment area for approval and concurrently requested 
that EPA redesignate the Guaynabo nonattainment area to attainment for 
PM10.

[[Page 45388]]


DATES: Comments must be received on or before October 2, 2009.

ADDRESSES: Submit your comments, identified by Docket Number EPA-R02-
OAR-2009-0508, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected]
     Fax: 212-637-3901
     Mail: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
     Hand Delivery: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866. Such deliveries are only accepted 
during the Regional Office's normal hours of operation. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30 excluding Federal holidays.
    Instructions: Direct your comments to Docket No. EPA-R02-OAR-2009-
0508. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters or any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region II Office, Air Programs Branch, 290 Broadway, 
25th Floor, New York, New York 10007-1866. EPA requests, if at all 
possible, that you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Kirk Wieber at telephone number: (212) 
637-3381, e-mail address: [email protected], fax number: (212) 637-
3901, or the above EPA Region 2 address.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Proposing?
II. Background
III. Requirements for Redesignation
    A. Clean Air Act Requirements for Redesignation of Nonattainment 
Areas
    B. The Limited Maintenance Plan (LMP) Option for PM10 
Nonattainment Areas
    C. Conformity Under the Limited Maintenance Plan Option
IV. Review of the Puerto Rico Submittal Addressing the Requirements 
for Redesignation and Limited Maintenance Plans
    A. Has the Guaynabo Nonattainnment Area (NAA) Attained the 
Applicable NAAQS?
    B. Does the Guaynabo Nonattainment Area (NAA) Have a Fully 
Approved SIP Under Section 110(k) of the Clean Air Act (Act)?
    C. Has Puerto Rico Met all Applicable Requirements Under Section 
110 and Part D of the Act?
    D. Has Puerto Rico Demonstrated That the Air Quality Improvement 
Is Due to Permanent and Enforceable Reductions?
    E. Does the Area Have a Fully Approved Maintenance Plan Pursuant 
to Section 175A of the Act?
    F. Has Puerto Rico Demonstrated That the Guaynabo NAA Qualifies 
for the LMP Option?
    G. Does Puerto Rico Have an Approved Attainment Emissions 
Inventory Which Can Be Used To Demonstrate Attainment of the NAAQS?
    H. Does the LMP Include an Assurance of Continued Operation of 
an Appropriate EPA-Approved Air Quality Monitoring Network, in 
Accordance With 40 CFR Part 58?
    I. Does the Plan Meet the Clean Air Act Requirements for 
Contingency Provisions?
    J. Has Puerto Rico Met the Conformity Requirements?
V. What Are EPA's Conclusions?
VI. Statutory and Executive Order Reviews

I. What Action Is EPA Proposing?

    The Environmental Protection Agency (EPA) is proposing to approve 
the Limited Maintenance Plan (LMP) for the Municipality of Guaynabo 
nonattainment area (Guaynabo NAA) and concurrently proposing to 
redesignate the Guaynabo NAA to attainment for the National Ambient Air 
Quality Standards (NAAQS) for particulate matter with an aerodynamic 
diameter less than or equal to a nominal 10 micrometers (PM10). The 
reader is referred to the Technical Support Document (TSD) that 
accompanies this proposal for more detailed information regarding EPA's 
evaluation of the LMP and redesignation request for the Guaynabo NAA.

II. Background

    As required by the Clean Air Act (Act) in 1987, the EPA revised the 
particulate matter NAAQS from total suspended particles to PM10. The 
standard was changed to better protect public health and the 
environment.
    The Act, as amended in 1990, required that all areas that have 
measured a violation of the NAAQS for PM10 before January 1, 1989 be 
designated nonattainment. On November 15, 1990 by operation of law, the 
Municipality of Guaynabo in Puerto Rico was designated nonattainment 
for PM10 and classified as moderate based on violations measured in 
1987.
    On November 14, 1993 the Puerto Rico Environmental Quality Board 
(PREQB) submitted to EPA a State Implementation Plan (SIP) revision 
which consisted of a PM10 SIP for the Municipality of Guaynabo. The 
Guaynabo PM10 SIP revision was reviewed and approved by EPA on May 31, 
1995 and became effective on June 30, 1995 (60 FR 28333).
    After completing the appropriate public notice and comment 
procedures, on March 31, 2009, the PREQB submitted to EPA a ``Limited 
Maintenance Plan 24 Hour Particulate Matter (PM10) National Ambient Air 
Quality Standards and Redesignation Request for the Municipality of 
Guaynabo Moderate Nonattainment

[[Page 45389]]

Area State Implementation Plan Revision.''

III. Requirements for Redesignation

A. Clean Air Act Requirements for Redesignation of Nonattainment Areas

    Nonattainment areas can be redesignated to attainment after the 
area has measured air quality data showing it has attained the NAAQS 
and when certain planning requirements are met. Section 107(d)(3)(E) of 
the Act, and the General Preamble for the implementation of Title I of 
the Act (General Preamble) provide the criteria for redesignation. See 
57 FR 13498 (April 16, 1992). These criteria are further clarified in a 
policy and guidance memorandum from John Calcagni, Director, Air 
Quality Management Division, EPA Office of Air Quality Planning and 
Standards dated September 4, 1992, ``Procedures for Processing Requests 
to Redesignate Areas to Attainment''. The criteria for redesignation 
are: (1) The Administrator has determined that the area has attained 
the applicable NAAQS; (2) the Administrator has fully approved the 
applicable SIP for the area under section 110(k) of the Act; (3) the 
state containing the area has met all requirements applicable to the 
area under section 110 and part D of the Act; (4) the Administrator has 
determined that the improvement in air quality is due to permanent and 
enforceable reductions in emissions; and (5) the Administrator has 
fully approved a maintenance plan for the area as meeting the 
requirements of section 175A of the Act.

B. The Limited Maintenance Plan (LMP) Option for PM10 Nonattainment 
Areas

    On August 9, 2001, EPA issued guidance on streamlined maintenance 
plan provisions for certain moderate PM10 nonattainment areas seeking 
redesignation to attainment (Memo from Lydia Wegman, Director, Air 
Quality Standards and Strategies Division, entitled ``Limited 
Maintenance Plan Option for Moderate PM10 Nonattainment Areas,'' 
referred to as the LMP option memo. The LMP option memo contains a 
statistical demonstration that areas meeting certain air quality 
criteria will, with a high degree of probability, maintain the standard 
10 years into the future. It follows that future year emission 
inventories for these areas, and some of the standard analyses to 
determine transportation conformity with the SIP, are no longer 
necessary. To qualify for the LMP option: (1) The area should have 
attained the PM10 NAAQS; (2) the average annual PM10 design value for 
the area, based upon the most recent 5 years of air quality data at all 
monitors in the area, should be at or below 40 micrograms per cubic 
meter ([mu]g/m\3\); and (3) the 24 hour design value should be at or 
below 98 [mu]g/m\3\. If an area cannot meet this test, it may still be 
able to qualify for the LMP option if the average design value for the 
site is less than the site-specific critical design values. In 
addition, the area should expect only limited growth in on-road motor 
vehicle PM10 emissions (including fugitive dust) and should have passed 
a motor vehicle regional emissions analysis test. The LMP option memo 
also identifies core provisions that must be included in the LMP. These 
provisions include an attainment year emissions inventory, assurance of 
continued operation of an EPA-approved air quality monitoring network, 
and contingency provisions.

C. Conformity Under the Limited Maintenance Plan Option

    The transportation conformity rule and the general conformity rule 
(40 CFR part 93; also see 40 CFR part 51) apply to nonattainment areas 
and maintenance areas covered by an approved maintenance plan. Under 
either conformity rule, an acceptable method of demonstrating that a 
federal action conforms to the applicable SIP is to demonstrate that 
expected emissions from the planned action are consistent with the 
emissions budget for the area. While EPA's LMP option does not exempt 
an area from the need to affirm conformity, it explains that the area 
may demonstrate conformity without submitting an emissions budget. 
Under the LMP option, emissions budgets are treated as essentially not 
constraining for the length of the maintenance period because it is 
unreasonable to expect that the qualifying areas would experience so 
much growth in that period that a violation of the PM10 NAAQS would 
result. For transportation conformity purposes, EPA would conclude that 
emissions in these areas need not be capped for the maintenance period 
and therefore a regional emissions analysis would not be required. 
Similarly, federal actions subject to the general conformity rule could 
be considered to satisfy the ``budget test'' specified in 40 CFR 
93.158(a)(5)(i)(A) as these budgets also are essentially considered to 
be unlimited.

IV. Review of the Puerto Rico Submittal Addressing the Requirements for 
Redesignation and Limited Maintenance Plan

A. Has the Guaynabo Nonattainment Area (NAA) Attained the Applicable 
NAAQS?

    There are two separate NAAQS for PM10, an annual standard of 50 
[mu]g/m\3\ and a 24-hour standard of 150 [mu]g/m\3\. States must 
demonstrate that an area has attained the PM10 NAAQS through analysis 
of ambient air quality data from an ambient air monitoring network 
representing peak PM10 concentrations. The data should be stored in the 
EPA Air Quality System (AQS) database. EPA determined that the Guaynabo 
NAA attained the PM10 NAAQS by its due date of December 31, 1994.
    During the time period of 1995-2000, the EPA published in the 
Federal Register various notices identifying those moderate PM10 
nonattainment areas (those designated in 1990 by operation of law) that 
did not attain by the December 31, 1994 attainment date. The 
Municipality of Guaynabo was not included in any of those notices. 
Therefore, by inference, EPA has determined that the Municipality of 
Guaynabo has attained the PM10 NAAQS based on air quality data.
    Based on the most recent six years of air quality data in AQS, from 
2002-2007, the area continues to be in compliance with both of the PM10 
NAAQS. EPA notes that during the period 2002-2007, the Guaynabo NAA had 
experienced several exceedances of the 24-hour standard as a result of 
sahara dust events influencing air quality data. In an April 28, 2008 
letter to the EPA, Puerto Rico requested that the EPA exclude air 
monitoring data from a number of days during 2002-2007. Almost all of 
these exceedances were flagged by Puerto Rico as exceptional events due 
to sahara dust events under EPA's Natural Events Policy. Based on the 
information provided by Puerto Rico about these events, in a September 
25, 2008 letter from EPA to Puerto Rico, EPA concluded that many of the 
exceedances that occurred were due to sahara dust natural events. EPA 
concurred on the flagged days in AQS that were supported by information 
from Puerto Rico. EPA determined that the Guaynabo NAA was eligible for 
the LMP option when considering the flagged data that was influenced by 
exceptional events. Though not relevant to this redesignation request, 
EPA also notes that the Guaynabo NAA, and all of Puerto Rico, has 
always attained the more protective PM2.5 NAAQS.

[[Page 45390]]

B. Does the Guaynabo Nonattainment Area (NAA) Have a Fully Approved SIP 
Under Section 110(k) of the Clean Air Act (Act)?

    Section 110(k) of the Act outlines EPA's actions on SIP submittals. 
In order to qualify for redesignation, the SIP for the area must be 
fully approved under section 110(k) of the Act, and must satisfy all 
requirements that apply to the area. As stated above, on May 31, 1995, 
EPA approved the Guaynabo moderate NAA plan which included a PM10 
emissions inventory, a control strategy including reasonably available 
control measures (RACM) and reasonably available control technology 
(RACT), the demonstration that the Municipality of Guaynabo PM10 
nonattainment area will attain the PM10 NAAQS by December 31, 1994 and 
maintain the PM10 NAAQS through 1999, New Source Review (NSR) permit 
provisions and contingency measures. See 60 FR 28333.

C. Has Puerto Rico Met All Applicable Requirements Under Section 110 
and Part D of the Act?

    Section 107(d)(3)(E) of the Act requires that a state containing a 
nonattainment area must meet all applicable requirements under section 
110 and Subchapter 1, Part D (Part D) of the Act for an area to be 
redesignated to attainment. EPA interprets this to mean that the state 
must meet all requirements that applied to the area prior to, and at 
the time of, the submission of a complete redesignation request. The 
following is a summary of how Puerto Rico meets these requirements.
(1) Clean Air Act Section 110 Requirements
    Section 110(a)(2) of the Act contains general requirements for 
nonattainment plans. These requirements include, but are not limited 
to, submittal of a SIP that has been adopted by the state after 
reasonable notice and public hearing; provisions for establishment and 
operation of appropriate apparatus, methods, systems and procedures 
necessary to monitor ambient air quality; implementation of a permit 
program; provisions for Part C--Prevention of Significant Deterioration 
(PSD) and Part D--NSR permit programs; criteria for stationary source 
emission control measures, monitoring and reporting, provisions for 
modeling; and provisions for public and local agency participation. See 
the General Preamble for further explanation of these requirements. 57 
FR 13498 (April 16, 1992).
    For purposes of redesignation, EPA's review of the SIP shows that 
Puerto Rico has addressed all requirements under section 110(a)(2) of 
the Act as it relates to PM10 requirements. Further, in 40 CFR 52.2722, 
EPA has approved Puerto Rico's plan for the attainment and maintenance 
of the national standards under Section 110.
(2) Part D Requirements
    Part D contains general requirements applicable to all areas 
designated nonattainment. The general requirements are followed by a 
series of subparts specific to each pollutant. All PM10 nonattainment 
areas must meet the general provisions of Subpart 1 and the specific 
PM10 provisions in Subpart 4, ``Additional Provisions for Particulate 
Matter Nonattainment Areas.'' The following paragraphs discuss these 
requirements as they apply to the Guaynabo NAA.
(3) Part D, Subpart 1, Section 172(c)
    Subpart 1, section 172(c) contains general requirements for 
nonattainment area plans. A thorough discussion of these requirements 
may be found in the General Preamble. See 57 FR 13538 (April 16, 1992). 
Section 172(c)(2) of the Act requires nonattainment plans to provide 
for reasonable further progress (RFP). Section 171(1) of the Act 
defines RFP as ``such annual incremental reductions in emissions of the 
relevant air pollutant as are required by this part (part D of title I) 
or may reasonably be required by the Administrator for the purpose of 
ensuring attainment of the applicable national ambient air quality 
standard by the applicable date.'' Since EPA determined that the 
Guaynabo NAA was in attainment of the PM10 NAAQS by 1997, no further 
showing of RFP or quantitative milestones is necessary.
(4) Part D, Subpart 1, Section 172(c)(3)--Emissions Inventory
    Section 172(c)(3) of the Act requires a comprehensive, accurate, 
current inventory of actual emissions from all sources of the relevant 
pollutant or pollutants in the Guaynabo PM10 nonattainment area. In 
addition, the LMP option memo states that for inventory purposes, the 
state is only required to submit an attainment inventory to EPA that is 
based on one of the years of monitoring data which shows attainment. 
There is no requirement to project emissions over the maintenance 
period. This means if 2002 is a calendar year which has monitoring data 
that demonstrates attainment, the 2002 base year inventory can be used 
as the attainment year inventory and no projection inventories are 
required over the years of the maintenance period. Only calendar year 
2002 PM10 annual emissions summary data are required. In addition, this 
inventory should be consistent with EPA's most recent guidance on 
emission inventories for nonattainment areas available at the time and 
should include emissions during the time period associated with the 
monitoring data showing attainment. The period of violation-free PM10 
monitoring data for the Municipality of Guaynabo is 2002-2007. 
Therefore, 2002 is an appropriate year to select for an attainment 
inventory. EPA has determined that the 2002 base year inventory 
emissions inventory is current, accurate and comprehensive and 
therefore meets the requirements of Section 172(c)(3) of the Act and 
attainment inventory requirements outlined in the August 9, 2001 
memorandum.
(5) Section 172(c)(5)--New Source Review
    The Clean Air Act Amendments of 1990 contained revisions to the NSR 
program requirements for the construction and operation of new and 
modified major stationary sources located in nonattainment areas. The 
Act established June 30, 1992 as the submittal date for the revised NSR 
programs (Section 189 of the Act). The Part D NSR rules for PM10 
nonattainment areas in Puerto Rico were approved by EPA on May 31, 1995 
(60 FR 28333).
    However, on December 31, 2002, EPA promulgated revisions to the NSR 
regulations. These revisions include among other things: (1) A new 
actual-to-projected-actual applicability test for existing sources; (2) 
a new Plant-wide Applicability Limitation option for existing major 
stationary sources with the ability to manage facility-wide emissions 
without triggering major NSR; and (3) new recordkeeping requirements 
for sources that avoid NSR review. Please note that there have been 
subsequent additional proposed/final revisions to the NSR regulations. 
However, some of these changes have either not yet been finalized, have 
been stayed by the Courts, or are subject to litigation and are not in 
effect yet. The December 31, 2002 revised regulations also required 
states to adopt these changes into their own state NSR rules and submit 
this revised rule to EPA no later than January 2, 2006.
    EPA has determined that Puerto Rico has not revised its regulations 
to be consistent with the NSR reform requirements applicable to a 
moderate PM10 nonattainment area, i.e., for the

[[Page 45391]]

Municipality of Guaynabo. However, should Puerto Rico's redesignation 
request for the Guaynabo NAA be approved by EPA, the NSR reform 
requirements will become unnecessary. The redesignation process will 
eliminate the requirement for Puerto Rico to submit a nonattainment NSR 
SIP for the Municipality of Guaynabo.
(6) Section 172(c)(7) Compliance With Section 110(a)(2) of the Act: Air 
Quality Monitoring Requirements
    Once an area is redesignated, the state must continue to operate an 
appropriate air monitoring network in accord with 40 CFR part 58 to 
verify attainment status of the area. The PREQB operates two PM10 State 
and Local Air Monitoring Stations (SLAMS) in the Guaynabo NAA. Both 
monitoring sites meet EPA SLAMS network design and siting requirements 
set forth at 40 CFR part 58, appendices D and E. In the LMP submitted 
by Puerto Rico, section 3.e.iv contains Puerto Rico's commitment to 
continue operation of the monitoring network.
(7) Section 172(c)(9)--Contingency Measures
    The Act requires that contingency measures take effect if the area 
fails to meet reasonable further progress requirements or fails to 
attain the NAAQS by the applicable attainment date. Since the Guaynabo 
NAA attained the NAAQS for PM10 by the applicable attainment date of 
December 31, 1994, contingency measures are no longer required under 
Section 172(c)(9) of the Act. However, contingency provisions are 
required for maintenance plans under Section 175A(d). We describe the 
contingency provisions which Puerto Rico provided in the Guaynabo LMP 
later in this proposed action.
(8) Part D Subpart 4
    Part D Subpart 4, Section 189(a), (c) and (e) requirements apply to 
any moderate nonattainment area before the area can be redesignated to 
attainment. The requirements which were applicable prior to the 
submission of the request to redesignate the area must be fully 
approved into the SIP before redesignating the area to attainment. 
These requirements include: (a) Provisions to assure that RACM was 
implemented by December 10, 1993; (b) either a demonstration that the 
plan provided for attainment as expeditiously as practicable but not 
later than December 31, 1994, or a demonstration that attainment by 
that date was impracticable; (c) quantitative milestones which were 
achieved every 3 years and which demonstrate reasonable further 
progress (RFP) toward attainment by December 31, 1994; and (d) 
provisions to assure that the control requirements applicable to major 
stationary sources of PM10 also apply to major stationary sources of 
PM10 precursors except where the Administrator determined that such 
sources do not contribute significantly to PM10 levels which exceed the 
NAAQS in the area. These provisions were fully approved into the SIP 
upon EPA approval of the PM10 moderate area plan for the Guaynabo NAA 
on May 31, 1995 (60 FR 28333).

D. Has Puerto Rico Demonstrated That the Air Quality Improvement Is Due 
to Permanent and Enforceable Reductions?

    The state must be able to reasonably attribute the improvement in 
air quality to permanent and enforceable emission reductions. In making 
this showing, the state must demonstrate that air quality improvements 
are the result of actual enforceable emission reductions. This showing 
should consider emission rates, production capacities, and other 
related information. The analysis should assume that sources are 
operating at permitted levels (or historic peak levels) unless evidence 
is presented that such an assumption is unrealistic. Permanent and 
enforceable control measures in the Guaynabo NAA SIP include RACM and 
RACT. The Puerto Rico RACM analysis for the Guaynabo NAA concentrated 
on measures to control emissions from fugitive dust sources such as re-
entrained dust from paved roads, unpaved roads and parking lots, 
construction sites and other areas from which windblown dust may 
emanate. The RACMs were implemented by the Commonwealth of Puerto Rico 
through a Memorandum of Understanding (MOU) between the Puerto Rico 
Environmental Quality Board and the following government entities:
     The Puerto Rico Department of Transportation and Public 
Works and the Executive Director of the Highway Authority to maintain 
and control the reconstruction of existing roads and the construction 
of new roads;
     The Municipality of Guaynabo to pave and maintain the 
streets, roads and parking areas located in the Municipality of 
Guaynabo; and
     The Puerto Rico Port Authority to pave and maintain the 
streets, roads, and parking areas that lead into the port area in 
Puerto Nuevo, Guaynabo and San Juan.
    The control measures established through the MOUs are consistent 
with RACM requirements and have been implemented for at least 10 years. 
Table 1 contains a list of RACM implemented in Guaynabo. These control 
measures were approved into the SIP, and they are both permanent and 
federally enforceable. See 60 FR 28333 (May 31, 1995).

      Table 1--Guaynabo NAA, Reasonably Available Control Measures
------------------------------------------------------------------------
         Control measure             State agency          Authority
------------------------------------------------------------------------
Reduce particle matter by curb    Department of       Rule 423(C) RCAP.
 paving or stabilizing shoulders   Transportation
 for the following highways PR-    and Public Works
 5, PR-22, PR-24, PR-165 located   and Puerto Rico
 in the Municipality of Guaynabo.  Highway Authority.
Reduce fugitive dust from paved
 roads by the operation of
 sweeping machines in the
 highways listed above at least
 once per week.
------------------------------------------------------------------------
Reduce particulate matter by      Municipality of     Rule 423(C) RCAP.
 paving or chemically stabilize    Guaynabo.
 any unpaved roads or parking
 areas and any access points
 where unpaved traffic surfaces
 adjoin paved roads in their
 jurisdiction.
Reduce fugitive dust from paved
 roads by the operation of
 sweeping machines in the roads,
 streets and parking areas above
 at least two times per week.
------------------------------------------------------------------------
Reduce particulate matter by
 paving or chemically stabilize
 any unpaved roads or parking
 areas and any access points
 where unpaved traffic surfaces
 adjoin paved roads in the
 following areas: port zone of
 Puerto Nuevo, Guaynabo, and San
 Juan.
Reduce fugitive dust from paved   Port Authority....  Rule 423(C) RCAP.
 roads by the operation of
 sweeping machines in the roads,
 streets and parking areas above
 at least two times per week.

[[Page 45392]]

 
Implementation of engineering
 good practice for the control
 of particulate matter emissions
 during the construction of
 future projects in port zone of
 Puerto Nuevo, Guaynabo and San
 Juan.
------------------------------------------------------------------------

    The emission inventory for the Guaynabo NAA identified the sources 
considered in the RACT analysis. Several minor sources were excluded 
from the analysis because additional control technology for these 
sources was determined to be unreasonable since they do not contribute 
significantly to the modeled exceedances of the PM10 NAAQS. However, 
some sources located outside the Guaynabo nonattainment area were 
considered in the RACT analysis because they contribute significantly 
to the modeled exceedances.
    The categories included in Puerto Rico's RACT control strategy are: 
electric utilities, grain handling and processing facilities, petroleum 
refineries, asphalt plants, and quarries and rock crushing operations.
    The adopted control strategies for stationary sources approved by 
EPA provided the necessary control measures to attain and maintain the 
PM10 NAAQS for the Guaynabo NAA. The RACT control strategies are 
incorporated into Rule 423 of the Puerto Rico Regulations of Control 
for Atmospheric Pollution (RCAP). Rule 423 is permanent and federally 
enforceable. The PREQB adopted revisions to Rules 102 and 423 of the 
Puerto Rico RCAP in support of its redesignation request and 
development of a maintenance plan for the Municipality of Guaynabo. The 
revisions to Rule 423 consist of administrative changes such as a 
revision to a definition and the title of Rule 423. Revisions to Rule 
423 also included the removal of certain provisions applicable to sand, 
soda ash, cement and dust clinkers. These provisions, adopted by Puerto 
Rico after Rule 423 of the RCAP was approved into the SIP, had the 
effect of limiting the applicability of the PM10 SIP to these sources. 
PREQB's recent adoption to remove these provisions applicable to these 
sources now makes the rule consistent with the previous federally 
approved version of Rule 423. See 62 FR 3211 or the TSD for a more 
detailed discussion related to this provision.
    Finally, EPA has determined that areas that qualify for the LMP 
will meet the NAAQS, even under worst case meteorological conditions. 
Under the LMP policy, the maintenance demonstration is presumed to be 
satisfied if an area meets the qualifying criteria. Thus, by qualifying 
for the LMP option, Puerto Rico has demonstrated that the air quality 
improvements in the Guaynabo area are the result of permanent emission 
reductions and not a result of either economic trends or meteorology. A 
description of the LMP qualifying criteria and how the Guaynabo area 
meets these criteria is provided in the following section.

E. Does the Area Have a Fully Approved Maintenance Plan Pursuant to 
Section 175A of the Act?

    In this action, we are proposing to approve the Puerto Rico LMP for 
the Guaynabo NAA in accordance with the principles outlined in the LMP 
option memo. Upon the effective date of the final action of this 
proposal, the area will have a fully approved maintenance plan.

F. Has Puerto Rico Demonstrated That the Guaynabo NAA Qualifies for the 
LMP Option?

    The LMP option memo outlines the requirements for an area to 
qualify for the LMP Option. First, the area should be attaining the 
NAAQS. As stated previously in Section IV.A., EPA has determined that 
the Guaynabo NAA has been in attainment of the PM10 NAAQS since 1997 
and continues to meet the PM10 NAAQS for the period 2002-2007. Second, 
the average design value (ADV) for the past 5 years of monitoring data 
must be at or below the critical design value (CDV). The CDV is a 
margin of safety value and is the value at which an area has been 
determined to have a 1 in 10 probability of exceeding the NAAQS. The 
LMP option memo provides two methods for reviewing monitoring data for 
the purpose of qualifying for the LMP option. The first method is a 
comparison of a site's ADV with the CDV of 98 [mu]g/m\3\ for the 24-
hour PM10 NAAQS and 40 [mu]g/m\3\ for the annual PM10 NAAQS. A second 
method that applies to the 24-hour PM10 NAAQS is the calculation of a 
site-specific CDV and a comparison of the site-specific CDV with the 
ADV for the past 5 years of monitoring data. The ADV for the 24-hour 
PM10 NAAQS for Guaynabo, based on data from all monitors located in the 
Municipality of Guaynabo for the years 2002-2006, is 85 [mu]g/m\3\. 
This value falls below the 24-hour CDV provided in the LMP option memo 
of 98 [mu]g/m\3\. Therefore, Guaynabo meets the design value criteria 
outlined in the LMP option memo.
    Third, the area must meet the motor vehicle regional emissions 
analysis test in attachment B of the LMP option memo. Using the 
methodology outlined in the memo, based on monitoring data for the 
period 2002-2006, EPA has determined that the Guaynabo NAA passes the 
motor vehicle regional emissions analysis test. The monitoring data for 
the period 2002-2006 shows that Guaynabo has attained the NAAQS for 
PM10, and the 24-hour ADV and the annual ADV in Guaynabo are less than 
the site specific 24-hour PM10 CDV and the national annual CDV 
respectively. Finally, the area has met the regional vehicle emissions 
analysis test. Thus, the Guaynabo NAA area qualifies for the Limited 
Maintenance Plan option described in the LMP option memo. The LMP 
option memo also indicates that once a state selects the LMP option and 
it is in effect, the state will be expected to determine, on an annual 
basis, that the LMP criteria are still being met. If the state 
determines that the LMP criteria are not being met, it should take 
action to reduce PM10 concentrations enough to requalify for the LMP. 
One possible approach the state could take is to implement contingency 
measures. In section E of the Limited Maintenance Plan, Puerto Rico 
commits to evaluate, on an annual basis, the LMP criteria for the 
Guaynabo NAA. For these reasons and reasons explained below, we are 
proposing to approve the LMP for the Guaynabo NAA and the State's 
request to redesignate the Municipality of Guaynabo, PR from 
nonattainment to attainment for PM10.

G. Does Puerto Rico Have an Approved Attainment Emissions Inventory 
Which Can Be Used To Demonstrate Attainment of the NAAQS?

    Pursuant to the LMP option memo, the state's approved attainment 
plan should include an emissions inventory (attainment inventory) which 
can be used to demonstrate attainment of the NAAQS. The attainment 
inventory should represent emissions during one

[[Page 45393]]

of the years during the same five year period associated with air 
quality data used to determine whether the area meets the applicability 
requirements of the LMP Option. The state should review its inventory 
every three years to ensure emissions growth is incorporated in the 
attainment inventory if necessary. In this instance, Puerto Rico 
completed an attainment year inventory for the calendar year 2002. EPA 
has reviewed the 2002 attainment year emissions inventory and 
determined that it is current, accurate and complete. In addition, the 
emissions inventory submitted with the Limited Maintenance Plan for the 
calendar year 2002 is representative of the level of emissions during 
the time period used to calculate the average design value since 2002 
is one of the years during the five year period used to calculate the 
design value.

                          2002 Guaynabo, Puerto Rico PM10 Attainment Emission Inventory
                                               [In tons per year]
----------------------------------------------------------------------------------------------------------------
                                                                              Off-highway    Highway
                               Point                                 Area       mobile        mobile     Total
----------------------------------------------------------------------------------------------------------------
2,365.............................................................    398*           130.5         49    2,942.5
----------------------------------------------------------------------------------------------------------------
* Area source emissions inventory includes emissions from paved and unpaved roads.

H. Does the LMP Include an Assurance of Continued Operation of an 
Appropriate EPA-Approved Air Quality Monitoring Network, in Accordance 
With 40 CFR Part 58?

    The PM10 monitoring network for the Municipality of Guaynabo 
consists of two monitors. These sites are identified as (1) Site Number 
7, located at the USGS and Water Resources Building and (2) Site 24, 
located at the Electrical Substation. These monitors are in close 
proximity to each other and are representative of the air quality for 
the area. Also, the Commonwealth of Puerto Rico has been affected by 
natural events such as the dust from the Sahara desert transported 
across the Atlantic Ocean and volcanic ash from the Soufriere Hills 
located on Montserrat Island. These natural events affect the air 
quality in the Municipality of Guaynabo. Once flagged and justified, 
these natural events can be excluded as part of the determination of 
attainment with the PM10 NAAQS in accordance with the provisions of 
``Treatment of Data Influenced by Exceptional Events; Final Rule,'' 
published March 22, 2007 and Appendix K to 40 CFR Part 50.
    The monitoring network was developed and has been maintained in 
accordance with federal siting and design criteria in 40 CFR Part 58, 
Appendices D and E and in consultation with Region 2. In the LMP 
submitted by Puerto Rico, section 3.e.iv contains Puerto Rico's 
commitment to continue to operate its monitoring network to meet EPA 
requirements.

I. Does the Plan Meet the Clean Air Act Requirements for Contingency 
Provisions?

    Section 175A(d) of the Act states that a maintenance plan must 
include contingency provisions, as necessary, to promptly correct any 
violation of the NAAQS which may occur after redesignation of the area 
to attainment. As explained in the LMP option memo, these contingency 
measures do not have to be fully adopted at the time of redesignation. 
In compliance with the requirements of section 172(c)(9) of the Act, 
Puerto Rico included contingency measures in the PM10 SIP for the 
Municipality of Guaynabo approved by EPA on May 31, 1995.
    The contingency measures established in Rule 423(D) of the RCAP 
will continue to be in place for the period established by the LMP 
policy. The following are the contingency measures that are in place 
and will continue to be in place for the Municipality of Guaynabo:
    (1) The Puerto Rico Department of Transportation shall collect data 
on silt content and dust loadings for highways in Guaynabo Municipality 
using EPA procedures for better estimating PM10 emissions following AP-
42 procedures.
    (2) Guaynabo Municipality shall require vegetation, chemical 
stabilization, or other abatement of wind erodible soils.
    (3) Diesel fuel oil with a sulfur in fuel level less than 0.05% 
shall be used by all vessels while they operate in San Juan Bay which 
is specifically defined as the navigable waters south of the imaginary 
line connecting Punta del Morro and Isla de Cabras.
    (4) No visible emissions from any vessel shall be permitted in the 
San Juan Bay except as provided in Rule 403 of this Regulation.
    (5) The Puerto Rico Port Authority shall implement a street 
cleaning program or other program to prevent dust from collecting on 
paved surfaces in their jurisdiction.
    (6) The San Juan Municipality must revise the dust and fire 
abatement programs at its sanitary landfill in order to establish 
additional pollution abatement control strategies.
    EPA believes that the contingency measures in Guaynabo's Limited 
Maintenance Plan meet the requirements for contingency measures as 
outlined in the Limited Maintenance Plan Option memo.

J. Has Puerto Rico Met the Conformity Requirements?

(1) Transportation Conformity
    Under the LMP option, emissions budgets are treated as essentially 
not constraining for the maintenance period because it is unreasonable 
to expect that qualifying areas would experience so much growth in that 
period that a NAAQS violation would result. While areas with 
maintenance plans approved under the LMP option memo are not subject to 
the budget test, the areas remain subject to other transportation 
conformity requirements of 40 CFR part 93, subpart A. Thus, the 
metropolitan planning organization (MPO) in the area or the 
Commonwealth must document and ensure that: (a) Conformity of 
transportation plans is determined no less frequently than every three 
years, and conformity of plan amendments and transportation projects is 
demonstrated in accordance with the timing requirements specified in 40 
CFR 93.104; (b) The MPO's interagency consultation procedures meet 
applicable requirements of 40 CFR 93.105; (c) Transportation plans and 
projects comply with the fiscal constraint element per 40 CFR 93.108; 
(d) The latest planning assumptions and emissions model are used as set 
forth in 40 CFR 93.110 and 40 CFR 93.111; (e) Transportation plans and 
projects provide for timely implementation of SIP transportation 
control measures in accordance with 40 CFR 93.113; (f) Projects do not 
cause or contribute to any new localized carbon monoxide or particulate 
matter violations, in accordance with procedures specified in 40 CFR 
93.123; and (g) Project sponsors and/or operators provide written

[[Page 45394]]

commitments as specified in 40 CFR 93.125.
    On May 12, 2009, EPA initiated an adequacy review of the Guaynabo 
LMP for transportation conformity purposes in accordance with 40 CFR 
93.118(f), in a posting on EPA's conformity Web site: http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm. As stated 
above, LMP budgets are unconstrained and consequently, the adequacy 
review period for these maintenance plans serves to allow the public to 
comment on whether limited maintenance is appropriate for these areas. 
The comment period for the adequacy posting for the Guaynabo LMP ended 
on June 11, 2009. EPA did not receive any comments on this posting.
(2) General Conformity
    For federal actions which are required to address the specific 
requirements of the general conformity rule, one set of requirements 
applies particularly to ensuring that emissions from the action will 
not cause or contribute to new violations of the NAAQS, exacerbate 
current violations, or delay timely attainment. One way that this 
requirement can be met is to demonstrate that ``the total of direct and 
indirect emissions from the action (or portion thereof) is determined 
and documented by the State or Commonwealth agency primarily 
responsible for the applicable SIP to result in a level of emissions 
which, together with all other emissions in the nonattainment area, 
would not exceed the emissions budgets specified in the applicable 
SIP.'' 40 CFR 93.158(a)(5)(i)(A). The decision about whether to include 
specific allocations of allowable emissions increases to sources is one 
made by the Commonwealth and local air quality agencies. These 
emissions budgets are different than those used in transportation 
conformity. Emissions budgets in transportation conformity are required 
to limit and restrain emissions. Emissions budgets in general 
conformity allow increases in emissions up to specified levels. Puerto 
Rico has chosen not to include specific emissions allocations for 
federal projects that would be subject to the provisions of general 
conformity.

V. What Are EPA's Conclusions?

    EPA has determined that the PM10 Limited Maintenance Plan submitted 
by the PREQB on March 31, 2009 for the Municipality of Guaynabo meets 
all Clean Air Act provisions and EPA policy and guidance, including the 
criteria outlined in EPA's LMP option memo. Therefore, EPA is proposing 
to approve the PM10 Limited Maintenance Plan for the Municipality of 
Guaynabo and all of its components as they were submitted by PREQB on 
March 31, 2009. Specifically, EPA is proposing to approve the 2002 PM10 
attainment emissions inventory, attainment plan, maintenance 
demonstration, contingency measures, monitoring network, transportation 
conformity analysis and revisions to Rules 102 and 423 of the Puerto 
Rico RCAP.
    EPA is also proposing to approve the redesignation request for the 
Municipality of Guaynabo submitted by the PREQB on March 31, 2009 based 
on EPA's determination that the supporting documentation for 
redesignation satisfies all Clean Air Act requirements and EPA's policy 
and guidance, including the criteria outlined in EPA's redesignation 
guidance memorandum.

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this proposed action merely approves state law as meeting 
federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Oxides of 
Nitrogen, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

    Dated: August 18, 2009.
Barbara A. Finazzo,
Acting Regional Administrator, Region 2.
[FR Doc. E9-21169 Filed 9-1-09; 8:45 am]
BILLING CODE 6560-50-P