[Federal Register Volume 81, Number 83 (Friday, April 29, 2016)]
[Rules and Regulations]
[Pages 25611-25613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09862]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R02-OAR-2015-0755; FRL-9945-71-Region 2]


Approval and Promulgation of State Plans for Designated 
Facilities; Commonwealth of Puerto Rico; Control of Emissions From 
Existing Sewage Sludge Incineration Units

AGENCY: Environmental Protection Agency (EPA).

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 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 not taking 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: This rule is effective on May 31, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2015-0755), to http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment

[[Page 25612]]

contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system).
    For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella, Air Programs 
Branch, Environmental Protection Agency (EPA), Region 2, 290 Broadway, 
25th Floor, New York, New York 10007-1866, (212) 637-3892, or by email 
at [email protected].

SUPPLEMENTARY INFORMATION: 

I. What action is the EPA taking today?

    The EPA is approving Puerto Rico's State plan submitted to the EPA 
on July 30, 2014, for the control of air emissions from existing sewage 
sludge incineration (SSI) units throughout the Commonwealth. When the 
EPA developed the New Source Performance Standards (NSPS) (subpart 
LLLL) for SSI units on March 21, 2011, it concurrently promulgated 
Emission Guidelines (EG) (subpart MMMM) to control air emissions from 
existing SSI units. The Puerto Rico State SSI plan adopts and 
implements the EG applicable to existing SSI units, and establishes 
other requirements for SSI units constructed on or before October 14, 
2010.
    The Puerto Rico Environmental Quality Board (PREQB) developed a 
plan, as required by sections 111(d) and 129 of the Clean Air Act 
(CAA), to adopt the EG into its body of regulations, and EPA is acting 
today to approve Puerto Rico's plan.
    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 action on the affirmative defense 
provision portion of Puerto Rico's State SSI plan.

II. 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. Circuit, 2014) (vacating affirmative defense 
provisions in the 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 requested 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. Court 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\
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    \1\ On April 13, 2016, the EPA Administrator signed the final 
rule for the Federal SSI plan which would apply to SSI units that 
are not covered by an approved and effective state plan. The Federal 
plan does not include an affirmative defense to violations that 
result from malfunctions. The reader is referred to section IV.B. on 
page 82 of the prepublication version of the federal plan on EPA's 
Web site at: https://www3.epa.gov/ttn/atw/129/ssi/SSI%20final%20Federal%20Plan.pdf.
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    Consequently, the EPA is not taking any action on those particular 
provisions of Puerto Rico's State SSI plan as discussed herein.

III. What are the details of EPA's action?

    On March 21, 2011, in accordance with sections 111(d) and 129 of 
the CAA, EPA promulgated the SSI EG and compliance times for the 
control of emissions from existing SSI units. See 76 FR 15371. EPA 
codified these guidelines at 40 CFR part 60, subpart MMMM. They include 
a model rule at 40 CFR 60.5085 through 62.5250 that States may use to 
develop their own plans. Under that rule, EPA has defined an ``SSI 
unit,'' in part, as any incineration unit that combusts sewage sludge 
for the purpose of reducing the volume of the sewage sludge by removing 
combustible matter. 40 CFR 60.5250.
    On July 30, 2014,\2\ 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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    \2\ 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 \3\ became effective on July 13, 
2014.
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    \3\ Puerto Rico's SSI regulation can be found at the Puerto Rico 
Environmental Quality Board's Web page at: http://www2.pr.gov/agencias/jca/LeyesyReglamentos/Pages/Reglamentos.aspx. Then look for 
RCAP Amendment Reg. 8485 for SSI units.
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    For further details, the reader is referred to EPA's proposal 
located in the EPA's electronic docket at www.regulations.gov.

IV. What comments were received on the proposed approval and how has 
the EPA responded to them?

    There were no comments received on the EPA's proposed rulemaking 
(80 FR 76894, December 11, 2015) regarding Puerto Rico's State plan for 
existing SSI units. The 30-day public comment period on the EPA's 
proposed approval ended on January 11, 2016.

V. What is the EPA's conclusion?

    For the reasons described in this rulemaking and in EPA's proposal, 
the EPA is approving Puerto Rico's sections 111(d) and 129 plan for 
existing SSI units. However, as described above, the EPA is not taking 
any action on the affirmative defense provisions in Puerto Rico's Rule 
405(d), as follows: (d)(2)(E), (d)(2)(E)(i) and (d)(2)(E)(ii) in Puerto 
Rico's State plan.

VI. 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

[[Page 25613]]

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).
    In addition, this action does not have tribal implications as 
specified by Executive Order 13175, because the section 111(d)/129 plan 
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. Thus, Executive Order 13175 does not 
apply to this section.
    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. The EPA will submit a report containing this action 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by June 28, 2016. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, Aluminum, Fertilizers, Fluoride, Incorporation 
by reference, Intergovernmental relations, Paper and products industry, 
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, 
Sulfuric acid plants, Waste treatment and disposal.

    Dated: April 18, 2016.
Judith A. Enck,
Regional Administrator, Region 2.

    40 CFR part 62 is amended as follows:

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED 
FACILITIES AND POLLUTANTS

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

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

Subpart BBB--Puerto Rico

0
2. Add Sec.  62.13109 and an undesignated heading to subpart BBB to 
read as follows:

Air Emissions From Existing Sewage Sludge Incineration Units


Sec.  62.13109  Identification of plan.

    (a) On July 30, 2014, the Puerto Rico Environmental Quality Board 
(PREQB) submitted to the Environmental Protection Agency a section 
111(d)/129 plan for implementation and enforcement of 40 CFR part 60, 
subpart MMMM--Emission Guidelines and Compliance Times for Existing 
Sewage Sludge Incineration Units. In emails dated June 4, 2015, August 
10, 2015 and November 10, 2015, the PREQB submitted clarifying 
information concerning Puerto Rico's plan. 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. The revisions to Rules 102 and 405 
became effective on July 13, 2014. At the request of Puerto Rico, EPA 
has not taken any action on a provision of its State plan allowing for 
affirmative defenses of Clean Air Act violations in the case of 
malfunctions.
    (b) Identification of sources: The plan applies to existing sewage 
sludge incineration (SSI) units that:
    (1) Commenced construction on or before October 14, 2010; or
    (2) Commenced a modification on or before September 21, 2011 
primarily to comply with Puerto Rico's plan; and
    (3) Meets the definition of a SSI unit defined in Puerto Rico's 
plan.
    (c) The effective date of the plan for existing sewage sludge 
incineration units is May 31, 2016.

[FR Doc. 2016-09862 Filed 4-28-16; 8:45 am]
 BILLING CODE 6560-50-P