[Federal Register Volume 80, Number 238 (Friday, December 11, 2015)]
[Proposed Rules]
[Pages 76894-76897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31182]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R02-OAR-2015-0755, FRL-9940-00-Region 2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the State plan submitted by the Commonwealth of Puerto Rico to 
implement and enforce the Emission Guidelines (EG) for existing sewage 
sludge incineration (SSI) units. Puerto Rico's plan is consistent with 
the EG promulgated by the EPA on March 21, 2011. Puerto Rico's plan 
establishes emission limits and other requirements for the purpose of 
reducing toxic air emissions and other air pollutants from existing SSI 
units throughout the Commonwealth. At the request of Puerto Rico, the 
EPA is proposing not to take action on a provision of its SSI plan 
allowing for affirmative defenses of Clean Air Act violations in the 
case of malfunctions. Puerto Rico submitted its plan to fulfill the 
requirements of sections 111(d) and 129 of the Clean Air Act.

DATES: Written comments must be received on or before January 11, 2016.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2015-0755 by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Mail: EPA-R02-OAR-2015-0755, Richard Ruvo, Chief, Air 
Programs Branch, Environmental Protection Agency, Region 2 Office, 290 
Broadway, 25th Floor, New York, New York 10007-1866.
     Hand Delivery: Richard Ruvo, 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 
a.m. to 4:00 p.m. excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2015-0755. The EPA's policy is that all comments received will be 
included in the public docket without change, and may be made available 
online at 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 www.regulations.gov 
or email. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means the EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to EPA without going through 
www.regulations.gov your email 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, the 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 the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters, any form of encryption, and be free of any 
defects or viruses. For additional information about the EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 
form. Publicly available docket materials are available at 
www.regulations.gov or at the Environmental Protection Agency, Region 2 
Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New 
York 10007-1866. The 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. The Regional Office's official hours 
of business are Monday through Friday, 8:30 a.m. to 4:00 p.m., 
excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella 
([email protected]), Environmental Protection Agency, Region 2 
Office, Air Programs Branch,

[[Page 76895]]

290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-
3892.

SUPPLEMENTARY INFORMATION: The following table of contents describes 
the format for the SUPPLEMENTARY INFORMATION section:

I. EPA Action
    A. What action is the EPA proposing today?
    B. Which provision of the Puerto Rico State sewage sludge 
incineration (SSI) plan is the EPA not taking action on?
     C. What is the background for Puerto Rico's request that EPA 
not take action on the affirmative defense provision?
     D. Why is the EPA taking this action?
     E. Who is affected by Puerto Rico's State SSI plan?
 II. Background
     A. What is a State plan?
     B. What is a State SSI plan?
     C. Why is the EPA requiring Puerto Rico to submit a State SSI 
plan?
     D. What are the requirements for a State SSI plan?
 III. Puerto Rico's State SSI Plan
     A. What is contained in the Puerto Rico State SSI plan?
     B. What approval criteria did the EPA use to evaluate Puerto 
Rico's State SSI plan?
 IV. What is the EPA's conclusion?
 V. Statutory and Executive Order Reviews

I. EPA Action

A. What action is the EPA proposing today?

    The EPA is proposing to approve Puerto Rico's State plan, submitted 
on July 30, 2014, for the control of air emissions from existing SSI 
units throughout the Commonwealth. Puerto Rico submitted its SSI plan 
to fulfill the requirements of sections 111(d) and 129 of the Clean Air 
Act (CAA). The Puerto Rico State SSI plan adopts and implements the 
Emission Guidelines (EG) applicable to existing SSI units, and 
establishes emission limits and other requirements for SSI units 
constructed on or before October 14, 2010.
    As explained below, Puerto Rico requested in its July 30, 2014 
submittal, that the EPA not take any action on a provision of the 
Puerto Rico State SSI plan allowing for affirmative defenses of CAA 
violations in the case of malfunctions. Therefore, the EPA is not 
taking any proposed action on the affirmative defense provision portion 
of Puerto Rico's State SSI plan.

B. Which provision of the Puerto Rico State sewage sludge incineration 
(SSI) plan is the EPA not taking action on?

    Puerto Rico is requesting that the EPA not take any action on a 
provision in Puerto Rico's State SSI plan that allows for an 
affirmative defense by an owner/operator of an SSI unit for violations 
of air emissions or other requirements of Puerto Rico's plan in the 
event of malfunction(s) of a covered SSI unit. With the exception of 
the affirmative defense provision in Puerto Rico's State SSI plan, the 
EPA's proposed approval, once finalized and effective, will make Puerto 
Rico's rules included in Puerto Rico's State SSI plan federally 
enforceable.

C. What is the background for Puerto Rico's request that EPA not take 
action on the affirmative defense provision?

    In an April 18, 2014 opinion, the U.S. Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit Court) vacated an 
affirmative defense in one of the EPA's Section 112 regulations. 
Natural Resources Defense Council v. Environmental Protection Agency, 
749 F.3d 1055 (D.C. Cir., 2014) (vacating affirmative defense 
provisions in Section 112 rule establishing emission standards for 
Portland cement kilns). The court found that the EPA lacked authority 
to establish an affirmative defense for private civil suits and held 
that under the CAA, the authority to determine civil penalty amounts in 
such cases lies exclusively with the courts, not the EPA. The Office of 
General Counsel determined that EPA policy should reflect the court's 
decision. The vacated affirmative defense provision in the EPA's 
Portland cement MACT rule is identical to the affirmative defense 
provision in the EPA's SSI EG, promulgated on March 21, 2011, under 
sections 111(d) and 129 of the CAA, at Sec.  60.5181 (``How do I 
establish an affirmative defense for exceedance of an emission limit or 
standard during a malfunction?''). Puerto Rico's State SSI plan adopted 
all the applicable requirements of the EPA's SSI EG, including the 
affirmative defense provisions at Sec.  60.5181, into its State plan at 
Rule 405(d) of the Regulation for the Control of Atmospheric Pollution 
(RCAP). Specifically, Puerto Rico requests that the EPA not include the 
following affirmative defense provisions in Puerto Rico's Rule 405(d): 
(d)(2)(E), (d)(2)(E)(i) and (d)(2)(E)(ii) in Puerto Rico's State plan.
    Because of the April 2014 D.C. Circuit Court's vacatur referred to 
above, Puerto Rico, in its July 30, 2014 submittal letter to the EPA, 
requested that the EPA not take action on the affirmative defense 
provision included in Puerto Rico's State SSI plan submitted to the EPA 
for approval on July 30, 2014.\1\ Consequently, the EPA is proposing to 
not take any action on that particular provisions of Puerto Rico's 
State SSI plan as discussed herein.
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    \1\ EPA has proposed a Federal SSI plan which would apply to SSI 
units that are not covered by an approved and effective state plan. 
The proposed federal plan does not include an affirmative defense to 
violations that result from malfunctions. 80 FR 23402, 23407 (Apr. 
27, 2015).
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D. Why is the EPA taking this action?

    EPA has evaluated Puerto Rico's State SSI plan for consistency with 
the CAA, EPA guidelines and policy. The EPA has determined that Puerto 
Rico's State SSI plan meets all applicable requirements and therefore, 
the EPA is proposing to approve Puerto Rico's State plan to implement 
and enforce the EG applicable to existing SSI units, except that, as 
requested by Puerto Rico, the EPA is proposing not to take action on 
the affirmative defense provisions of Puerto Rico's SSI State plan for 
the reasons discussed above.

E. Who is affected by Puerto Rico's State SSI plan?

    Puerto Rico's State plan regulates all the units designated by the 
EG for existing SSI units which commenced construction on or before 
October 14, 2010 and which are located at a wastewater treatment 
facility designed to treat domestic sewage sludge. If the owner or 
operator of an SSI unit made changes after September 21, 2011, that 
meet the definition of modification (see Title 40, Code of Federal 
Regulations, section 60.5250 (40 CFR 60.5250)), the SSI unit becomes 
subject to subpart LLLL (New Source Performance Standards for New 
Sewage Sludge Incineration Units) of 40 CFR part 60, and the State plan 
no longer applies to that unit.

II. Background

A. What is a State plan?

    Section 111 of the CAA, ``Standards of Performance for New 
Stationary Sources,'' authorizes EPA to set air emissions standards for 
certain categories of sources. These standards are called New Source 
Performance Standards (NSPS). When a NSPS is promulgated for new 
sources, section 111(d) also requires that EPA publish an EG applicable 
to control the same pollutants from existing (or designated) 
facilities. States \2\ with designated facilities must then develop a 
State plan to adopt the EG into the State's body of regulations. States 
must also include in their State plan other requirements, such as 
inventories, legal authority, reporting and recordkeeping, and public 
participation documentation, to

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demonstrate their ability to enforce the State plans.
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    \2\ Section 302(d) of the CAA includes the Commonwealth of 
Puerto Rico in the definition of the term ``State.''
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    Section 129 of the CAA requires EPA to establish performance 
standards and emission guidelines for various types of new and existing 
solid waste incineration units. Section 129(b)(2) requires States to 
submit to EPA for approval section 111(d)/129 plans that implement and 
enforce the promulgated EG. Section 129(b)(3) requires EPA to 
promulgate a Federal plan (FP) within two years from the date on which 
the EG, or when revision to the EG, is promulgated. The FP is 
applicable to affected facilities when the state has failed to receive 
EPA approval of the section 111(d)/129 plan. The FP remains in effect 
until the state submits and receives EPA approval of its section 
111(d)/129 plan.
    State plan submittals under CAA sections 111(d) and 129 must be 
consistent with the relevant EG, in this instance 40 CFR part 60, 
subpart MMMM, and the requirements of 40 CFR part 60, subpart B and 
part 62, subpart A. Section 129 of the CAA regulates air pollutants 
that include organics (dioxins/furans), carbon monoxide, metals 
(cadmium, lead, and mercury), acid gases (hydrogen chloride, sulfur 
dioxide, and nitrogen oxides), particulate matter, and opacity (as 
appropriate).

B. What is a State SSI plan?

    A State SSI plan is a State plan, as described above, that controls 
air pollutant emissions from existing sewage sludge incinerators 
located at a wastewater treatment facility designed to treat domestic 
sewage sludge and that commenced construction on or before October 14, 
2010. The applicable types of SSI units include fluidized bed and 
multiple hearth incinerators.

C. Why is the EPA requiring Puerto Rico to submit a State SSI plan?

    When the EPA developed the NSPS for SSI units, we simultaneously 
developed the EG to control air emissions from existing SSI units (see 
76 FR 15371, March 21, 2011). Under section 129 of the CAA, the EG is 
not federally enforceable; therefore, section 129 of the CAA also 
requires states to submit to EPA for approval State plans that 
implement and enforce the EG. Under section 129 of the CAA, these State 
plans must be at least as protective as the EG, and they become 
federally enforceable upon approval by EPA.
    The procedures for adopting and submitting State plans are located 
in 40 CFR part 60, subpart B. If a state fails to have an approvable 
plan in place by March 21, 2013, the EPA is required to promulgate a 
federal plan to establish requirements for those sources not under an 
EPA-approved State plan. The procedures for EPA's approval and 
disapproval of State plans are located in 40 CFR part 62, subpart A. 
The EPA is proposing to approve Puerto Rico's State SSI plan, except, 
as discussed above, for the affirmative defense provisions, since its 
SSI plan is deemed at least as protective as the standards set in the 
EG. Puerto Rico has developed and submitted a State plan, as required 
by sections 111(d)/129 of the CAA, to gain federal approval to 
implement and enforce the EG for existing SSI units.

D. What are the requirements for a State SSI plan?

    A section 111(d) State plan submittal must meet the requirements of 
40 CFR part 60, subpart B, sections 60.23 through 60.26, and the EG 
found at 40 CFR part 60, subpart MMMM (see 76 FR 15371, March 21, 
2011). Subpart B contains the procedures for the adoption and submittal 
of State plans. This subpart addresses public participation, legal 
authority, emission standards and other emission limitations, 
compliance schedules, emission inventories, source surveillance, and 
compliance assurance and enforcement requirements.
    EPA promulgated the EG at 40 CFR part 60, subpart MMMM on March 21, 
2011. Subpart MMMM contains guidelines to the states for submittal of 
plans that address existing SSI units. In addition, subpart MMMM 
contains the technical requirements for existing SSI units located at a 
wastewater treatment plant designed to treat domestic sewage sludge and 
applies to SSI units that commenced construction on or before October 
14, 2010. A state can address the SSI technical requirements by 
adopting its own regulation that includes all the applicable 
requirements of subpart MMMM or by adopting by reference subpart MMMM. 
The section 111(d) State plan is required to be submitted within one 
year of the EG promulgation date, i.e., by March 21, 2012. Prior to 
submittal to EPA, the State must make available to the public the State 
plan and provide opportunity for public comment, including a public 
hearing.

III. Puerto Rico's State SSI Plan

A. What is contained in the Puerto Rico State SSI plan?

    On July 30, 2014 \3\, the Puerto Rico Environmental Quality Board 
submitted its section 111(d) State plan for implementing EPA's EG for 
existing SSI units located in the Commonwealth of Puerto Rico.
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    \3\ In emails dated 6/04/2015, 8/10/2015 and 11/10/2015, Puerto 
Rico responded to EPA's requests to provide clarifying information 
concerning Puerto Rico's State SSI plan. This clarifying information 
also is available in EPA's docket at www.regulations.gov.
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    Puerto Rico amended Rule 102, entitled ``Definitions of the 
Regulation for the Control of Atmospheric Pollution (RCAP),'' and 
incorporated Rule 405(d), entitled ``Emission Guidelines and Compliance 
Times for Existing Sewage Sludge Incineration Units (SSI),'' to include 
the requirements for implementing the SSI EG covered under Sections 
111(d) and 129 of the CAA, and codified in 40 CFR part 60, subpart 
MMMM. Revisions to Puerto Rico's Rules became effective on July 13, 
2014.
    Section 60.5015 of the EG describes all of the required elements 
that must be included in a state's plan for SSI units. Puerto Rico's 
State SSI plan includes all of the required elements described in 
section 60.5015 of the EG, as summarized herein:
    (1) A demonstration by the Attorney General of the Puerto Rico 
Department of Justice of the Commonwealth's legal authority to 
implement the sections 111(d) and 129 State SSI plan;
    (2) State Rules 102 and 405(d) adopted into RCAP as the mechanism 
for implementing and enforcing the State SSI plan;
    (3) An inventory of one known SSI facility, including one SSI unit, 
along with an inventory of estimated air pollutant emissions (see 
sections VI of Puerto Rico's State plan as well as the clarifying 
information submitted by Puerto Rico \4\). The affected SSI unit is a 
fluidized bed combustor, identified in the inventory as `Sludge 
Incinerator,' and is located at the Puerto Rico Aqueduct and Sewer 
Authority (PRASA) facility in Puerto Nuevo;
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    \4\ In an email dated 11/10/2015, Puerto Rico provided 
additional emissions inventory data for the one known SSI unit in 
the Commonwealth. This information is available in the EPA's docket 
at www.regulations.gov.
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    (4) Emission limits, emission standards, operator training and 
qualification requirements, and operating limits that are as protective 
as the EG;
    (5) Enforceable compliance schedules incorporated into Rule 405(d), 
as follows: if an owner of an affected SSI unit plans to achieve 
compliance more than one year following the effective date of state 
plan approval the owner must (1) submit a final control plan to Puerto 
Rico by September 21, 2014, and (2) achieve final compliance by March 
21, 2016 (see section (d)(7) of Puerto Rico's State plan);

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    (6) Testing, monitoring, reporting and recordkeeping requirements 
for the designated facilities;
    (7) Records of the public hearing on the State SSI plan; and,
    (8) Provisions for annual state progress reports to EPA on 
implementation of the State plan.
    The EPA proposes to determine that Puerto Rico's State SSI plan for 
existing SSI units includes all the required State plan elements 
described in section 60.5015 of the EG.

B. What approval criteria did the EPA use to evaluate Puerto Rico's 
State SSI plan?

    The EPA reviewed Puerto Rico's State SSI plan for approval against 
the following criteria: 40 CFR 60.23 through 60.26, ``Subpart B--
Adoption and Submittal of State Plans for Designated Facilities;'' and 
40 CFR 60.5000 through 60.5250, ``Subpart MMMM--Emission Guidelines and 
Compliance Times for Existing Sewage Sludge Incineration Units;'' and 
40 CFR 62, subpart A, ``General Provisions'' for ``Approval and 
Promulgation of State Plans for Designated Facilities and Pollutants.''

IV. What is the EPA's Conclusion?

    The EPA has determined that Puerto Rico's State SSI plan meets all 
the applicable approval criteria as discussed above and, therefore, the 
EPA is proposing to approve Puerto Rico's sections 111(d) and 129 State 
plan for existing sewage sludge incineration units. As explained above, 
at the request of Puerto Rico, the EPA is proposing to not take any 
action on the affirmative defense provisions in Puerto Rico's State SSI 
plan.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a 111(d)/
129 plan submission that complies with the provisions of the Act and 
applicable Federal regulations. 40 CFR 62.04. Thus, in reviewing 
111(d)/129 plan submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
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 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).
    The 111(d)/129 plan is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
Nation Land, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, 
Intergovernmental relations, Paper and paper products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfur acid plants, waste treatment and disposal.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: November 30, 2015.
 Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2015-31182 Filed 12-10-15; 8:45 am]
 BILLING CODE 6560-50-P