[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Proposed Rules]
[Pages 31885-31888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15885]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[Region II Docket No. 150, PR4-1, FRL-5523-9]


Approval and Promulgation of Implementation Plans; Commonwealth 
of Puerto Rico

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing approval of revisions to the Puerto Rico 
Regulations for the Control of Atmospheric Pollution, submitted to EPA 
by the Puerto Rico Environmental Quality Board (EQB) on September 29, 
1995. This action proposes approval of revisions to Rules 102, 105, 
106, 107, 109, 110, 111, 112, 114, 117, 121, 201, 203, 204, 205, 206, 
209, 211, 301, 401, 402, 403, 404, 405, 406, 408, 409, 410, 412, 413, 
414, 417, and 501. EPA is not incorporating new Rule 422 into the 
federally approved Puerto Rico State Implementation Plan (SIP). EPA is 
also announcing the withdrawal of Rules 411, 418, 419, 420 and 421 from 
the Puerto Rico SIP at the request of the EQB. However, although 
requested by the EQB, EPA is not withdrawing Rule 404 from the SIP. A 
revision to Rule 423 was also submitted by the EQB on September 29, 
1995, however, EPA determined the revision to Rule 423 to be 
administratively incomplete and returned it to EQB and it, therefore, 
is not included in this rulemaking.

DATES: Comments must be received on or before July 22, 1996.

ADDRESSES: All comments should be addressed to: William S. Baker, 
Chief, Air Programs Branch, Environmental Protection Agency, Region II 
Office, 290 Broadway, New York, New York 10007-1866.
    Copies of the Commonwealth's submittal(s) are available at the 
following addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs Branch, 
290 Broadway, 20th Floor, New York, New York 10007-1866
Environmental Protection Agency, Region II Caribbean Field Office, 
Centro Europa Building, Suite 417, 1492 Ponce de Leon Avenue, Stop 22, 
Santurce, Puerto Rico 00909
Commonwealth of Puerto Rico, Environmental Quality Board, Banco 
National Plaza, 8th Floor, 431 Ponce De Leon Avenue, Hato Rey, Puerto 
Rico, 00917.

FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch, 
Environmental Protection Agency, 290

[[Page 31886]]

Broadway, 20th Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

Background

    On September 29, 1995, the Puerto Rico Environmental Quality Board 
(EQB) submitted to EPA a request for approval of revisions to the 
Puerto Rico Regulations for the Control of Atmospheric Pollution (the 
Regulations). On February 5, 1996, EPA sent a letter to Hector Russe 
Martinez, Chairman of the EQB, announcing EPA's determination that the 
revisions to the Regulations, excluding those to Rule 423, are 
administratively complete. Under the context of the Clean Air Act 
(Act), the Commonwealth of Puerto Rico is regarded as a state. For the 
purposes of discussing and analyzing Puerto Rico's State Implementation 
Plan (SIP) submittal, EPA has broken it into the following elements: I) 
revisions to the general Regulations, II) regulations needed to support 
the Title V of the Act Operating Permits Program, III) Revisions to the 
Puerto Rico PM<INF>10 SIP for the Municipality of Guaynabo, and, IV) a 
request that certain rules of the Regulations which are currently 
included as part of Puerto Rico's approved SIP be withdrawn from the 
SIP, however, these regulations will remain enforceable by Puerto Rico. 
Item V) addresses regulations concerning Hazardous Air Pollutants 
(HAPs) which were approved pursuant to section 112(l) of the Act.
    EPA is proposing approval of the revisions to the general 
Regulations and the request made by EQB that certain rules be withdrawn 
from the SIP. Generally the changes to the Regulations involve 
administrative and grammatical changes which improve the clarity of the 
rules. They do not change the emission limitations nor add significant 
new requirements.

I. Revisions to the General Puerto Rico Regulations

    Several of the revisions in this section consist of clarification 
type changes such as revised dates, public law cites, word changes 
(facility to source), renumbering of rules, etc. A summary of the 
various revisions are given below. EPA generally feels that the 
revisions improve the effectiveness of the Regulations and will have no 
negative effect on maintaining the national health related standards.

A. Part I--General Provisions

    1. Rule 102, ``Definitions'': There are approximately 30 new or 
revised definitions in the revised Rule 102. The definitions are mainly 
for SIP purposes, although, some clarify the Title V Operating Permit 
Program contained in Part VI of the Regulations and the requirements 
under section 112 of the Act.
    2. Rule 106, ``Test Methods'' was revised to reference the 
available EPA approved alternative test methods, new EPA test methods, 
or methods previously not listed in the regulation by oversight. The 
test methods specified are those found in 40 CFR Part 51 Appendix M; 40 
CFR Part 60 Appendix A, B, and F; and 40 CFR Part 61 Appendix B, C, D 
and E.
    3. Rule 112, ``Compliance Determination/Certification'' was revised 
to incorporate a range of compliance and certification options that are 
available to the ``Board'' to ensure compliance with the provisions of 
this regulation.
    4. Other revisions to Part I of the Regulations, which include 
revisions to Rules 105, 107, 109, 110, 111, 114, 117, and 121, are 
clarification type changes which bring these rules up to date. None of 
the revisions involve changing the stringency of these provisions.
    EPA has thoroughly reviewed all of the revisions contained in Part 
I of the Regulations and has determined them to meet EPA guidance and 
requirements; therefore, EPA is proposing approval of these revised 
rules.

B. Part II--Approval and Permit

    1. Rule 203, ``Permit to Construct a Source'' was revised by 
extending the period for which a permit shall automatically lapse or be 
revoked if no construction has commenced or construction has been 
suspended to three years (after the date of its issuance). This is 
approvable provided EQB does not have Prevention of Significant 
Deterioration of Air Quality (PSD) delegation. If EQB were to request 
PSD delegation from EPA, the time for which a permit shall 
automatically lapse or be revoked if no construction has commenced or 
construction has been suspended should be reduced to 18 months.
    2. Rule 206, ``Exemptions'' was revised to create a list of 
insignificant activities for Title V purposes, in addition, these 
activities are also exempt from Puerto Rico's permitting program. Rule 
206 states that a location approval, construction permit or operating 
permit is not required for sources listed in this rule as long as 
potential emissions are below two tons per year (tpy) of a criteria 
pollutant, five tpy of a combination of criteria pollutants, or two tpy 
or the emission levels defined in Appendix E of the Regulations for HAP 
emissions, whichever is lower.
    3. Rule 211, ``Synthetic Minor Source Emission Certification'' is a 
new rule added for Title V purposes which provides sources with a 
federally enforceable mechanism to limit the potential to emit of 
criteria pollutants, and to establish requirements for all sources that 
maintain emissions below the Title V major source thresholds. Minor 
sources (emitting 75% or less of major source threshold, excluding 
sources subject to New Source Performance Standards (NSPS), National 
Emission Standard for Hazardous Air Pollutants (NESHAPS), or Maximum 
Achievable Control Technology (MACT) standards) must summarize in a 
monthly log, maintained on site for five years, the following types of 
information: all raw materials and other substances used, description 
of equipment design and specifications, hours of operation, fuel type 
and use, control effectiveness of equipment, etc. The minor source must 
request coverage under this rule within twelve months of the effective 
date of Rule 211 or by the application deadline under Puerto Rico's 
Title V program, whichever is sooner. Such request must include a sworn 
statement stating that emissions do not exceed the minor source levels, 
and must identify the methods used to determine emissions (i.e., stack 
test, monitoring). EQB may also request a performance test to verify 
the emissions are below 75% of major source threshold. Upon receipt of 
a complete request, the Board will issue a notification for coverage 
for a fixed term of five years. The minor source must submit annual 
process statements, including all information contained in the monthly 
log. De minimis sources (sources which emit two tpy or less of a 
regulated air pollutant except HAPs or five tpy or less of any 
combination of regulated air pollutants excluding HAPs or an amount 
equal to or less than the emission thresholds for HAPs listed in 
Appendix E) only need to maintain records sufficient to determine 
actual emissions on site for three years.
    Intermediate sources (emissions are below major source threshold) 
are required to have a federally enforceable operating permit by 
January 1997. The limitations in the permit issued pursuant to Rule 204 
must specify at a minimum: (a) technically accurate limitations and the 
portions of the source subject to the limitations; (b) the time period 
applicable to the limitation; (c) the method to determine compliance, 
including appropriate monitoring, recordkeeping, and reporting; (d) 
permanent and quantifiable limitations,

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controls, and requirements; and (e) that the emission limitations, 
controls, and other requirements imposed in the permit are at least as 
stringent as any other applicable limitation contained in the SIP or 
enforceable under the SIP. Rule 211 states that permits issued under 
Rule 204 that do not meet the criteria for intermediate sources in Rule 
211 are enforceable by EQB.
    This rule also requires a 30 day public comment period prior to the 
issuance of permits to intermediate sources. Because this rule meets 
the five criteria outlined in the June 28, 1989 Federal Register (54 FR 
27281), EPA is proposing approval of this mechanism for EQB to issue 
federally enforceable operating permits. In addition, because EPA has 
determined that the recordkeeping, reporting and certification 
requirements for minor sources are enforceable and that the rule is 
consistent with the January 25, 1995 Guidance on Potential to Emit, EPA 
finds the mechanism for limiting the potential to emit for minor 
sources to be approvable. Furthermore, Rule 211 states that violations 
of Rule 211 may subject the source to major source requirements and to 
enforcement actions.
    4. Other revisions to Part II of the Regulations, which include 
revisions to Rules 201, 204, 205, and 209, are clarification type 
changes which bring these rules up to date.
    EPA has thoroughly reviewed all of the revisions contained in Part 
II of the Regulations and has determined them to meet EPA guidance and 
requirements, therefore, EPA is proposing approval of these revised 
rules.

C. Part III--Variance

    1. Rule 301, ``Variance Authorized'' was revised by combining two 
paragraphs into a more clearly written single paragraph. The paragraph 
relates to the conditions which may be imposed by EQB on preliminary 
approval of variances. Since this minor change does not deviate from 
EPA guidance EPA is, therefore, proposing approval of revised Rule 301.

D. Part IV--Prohibitions

    1. Rule 405, ``Incineration'' was revised to read more clearly and 
also to bring the regulation up to date. The revisions reflect minor 
changes to the applicability, maintenance, and compliance requirements.
    2. Old Rule 422, ``Air Pollution Control Equipment,'' the 
provisions of old Rule 422 were incorporated into Rule 108 ``Air 
Pollution Control Equipment'' of the Regulations. Therefore, old Rule 
422 was removed from the Regulations. The Commonwealth used this number 
for a new Rule 422, ``Asbestos Containing Material Management.'' These 
provisions of the new Rule 422 do not relate to the National Ambient 
Air Quality Standards (NAAQS) emission reduction strategies and they 
parallel other Federal laws which already regulate these matters. EPA 
has determined that it is not appropriate for Rule 422 to be 
incorporated into the federally approved SIP. Accordingly, the new Rule 
422 is and will remain enforceable by Puerto Rico only.
    3. Other revisions to Part IV of the Regulations, which include 
revisions to Rules 401, 402, 403, 404, 406, 408, 409, 410, 412, 413, 
414, and 417 are clarification type changes which bring these rules up 
to date.
    EPA has thoroughly reviewed all of the revisions contained in Part 
IV of the Regulations and has determined them to meet EPA guidance and 
requirements, therefore, EPA is proposing approval of these revised 
rules. However, EPA has determined that it is not appropriate for Rule 
422 to be incorporated into the federally approved SIP. In addition, 
EPA cannot take action on the revisions to Rule 423, ``Limitations for 
the Guaynabo PM<INF>10 Nonattainment Area'', in this rulemaking. Rule 
423 is discussed later in more detail under section III--Revisions to 
the Puerto Rico PM<INF>10 SIP for the Municipality of Guaynabo.

E. Part V--Fees

    1. Rule 501, ``Permit Fees'' was revised based on clarification 
type changes and merely to bring this rule up to date. The revisions 
reflect changes to the price, applicability, and validity of permits 
issued by EQB.
    EPA has thoroughly reviewed all of the revisions contained in Part 
V of the Regulations and has determined them to meet EPA guidance and 
requirements, therefore, EPA is proposing approval of revised Rule 501.

II. Regulations Needed to Support the Title V of the Clean Air Act 
Operating Permits Program

    Although revisions to Part VI, ``Operating Permits Rules for Title 
V Sources'' of the Puerto Rico Regulations were submitted to EPA as 
part of the September 29, 1995 submittal, on February 26, 1996, EPA 
fully approved the Operating Permits Program submitted by Puerto Rico 
(See 60 FR 7073). However, while EPA has approved Puerto Rico's program 
it is EPA's policy not to include it as part of the federally approved 
SIP.

III. Revisions to the Puerto Rico PM<INF>10 SIP for the 
Municipality of Guaynabo

    Also submitted as part of the September 29, 1995 SIP revision 
submittal were revisions to Rule 423 ``Limitations for the Guaynabo 
PM<INF>10 Nonattainment Area'' of the Puerto Rico Regulations. Although 
not identified by Puerto Rico in the September 29, 1995 SIP submittal, 
EPA considers these revisions as a SIP revision to the Puerto Rico 
PM<INF>10 SIP for the Municipality of Guaynabo. In a May 31, 1995 
Federal Register notice (60 FR 28333), EPA approved Rule 423 as part of 
the Puerto Rico PM<INF>10 SIP for the Municipality of Guaynabo.
    In a February 5, 1996 letter to Hector Russe Martinez, Chairman of 
the EQB, EPA determined that revised Rule 423 is administratively 
incomplete and returned it to the Commonwealth of Puerto Rico. 
Therefore, Rule 423 is not included in this rulemaking.
    In addition, included in Puerto Rico's September 29, 1995 SIP 
revision submittal EQB requested that EPA withdraw Rule 404 ``Fugitive 
Emissions'' from the Puerto Rico SIP. However, Rule 404 was submitted 
on November 15, 1993 to EPA as part of the Puerto Rico PM<INF>10 SIP 
for the Municipality of Guaynabo and approved by EPA on May 31, 1995 
(60 FR 28333). EQB demonstrated in the PM<INF>10 SIP that Rule 404 was 
needed to attain and maintain the PM<INF>10 NAAQS. EQB's September 29, 
1995 request to withdraw Rule 404 did not include technical support or 
a demonstration that Rule 404 is no longer needed to attain and 
maintain the PM<INF>10 NAAQS. Therefore, EPA is not withdrawing Rule 
404 from the SIP.

IV. Request that Certain Rules of the Regulations be Withdrawn From 
the Puerto Rico SIP

    EQB requested in their September 29, 1995 SIP submittal, that 
certain rules currently included in the federally approved Puerto Rico 
SIP be withdrawn from the SIP since these rules are not a part of 
Puerto Rico's strategy to achieve and maintain compliance with the 
NAAQS. The rules requested to be withdrawn include Rule 404 ``Fugitive 
Emissions'', Rule 411 ``Hydrogen Sulfide'', Rule 418 ``Waste Gas 
Disposal'', Rule 419 ``Volatile Organic Compounds'', Rule 420 
``Objectionable Odors'', and, Rule 421 ``Increments Of Progress.'' Rule 
424 ``Roof Surface Coating'' is an entirely new regulation which EQB 
provided for information but is not to be part of the SIP. Rule 424 
will be enforced by Puerto Rico. EPA agrees that all the above rules 
except

[[Page 31888]]

Rule 404 should be withdrawn from the SIP. None of these rules has a 
direct impact on NAAQS pollutants and, therefore, will not affect the 
attainment or maintenance plans which have been approved. It should 
also be noted that it is EPA policy that no odor regulations be 
included in SIPs because there is no NAAQS specifically for odor. EPA 
is proposing approval of Puerto Rico's request to withdraw Rules 411, 
418, 419, 420, and 421 from the SIP. These rules, however, will remain 
enforceable by Puerto Rico.

V. Regulations Concerning HAPs which were Approved Pursuant to 
Section 112(l) of the Clean Air Act

    Section 112(l) of the Act enables Puerto Rico to develop a program 
for the implementation and enforcement of HAP emissions standards. 
Approval by EPA of such program would provide for the delegation of the 
EPA Administrator's authorities and responsibilities to implement and 
enforce the HAP emissions standards to Puerto Rico. Puerto Rico has 
revised Rule 211 of the Puerto Rico Regulations pursuant to section 
112(l) of the Act in order to provide sources with a mechanism to limit 
potential HAP emissions.
    EPA can only approve a program under 112(l) if Puerto Rico meets 
the following criteria: (1) adequate authority to assure compliance 
with any section 112 standard or requirements; (2) adequate resources; 
(3) the program provides for an expeditious schedule for assuring 
compliance with section 112 requirements; and (4) the program is 
otherwise likely to satisfy the objectives of the Act. EQB has already 
demonstrated through Title V that it has adequate authority to 
implement and enforce all section 112 requirements for both Title V and 
non-Title V sources. EQB also demonstrated sufficient fees to implement 
all section 112 requirements in its Title V Fee Demonstration. While 
EPA is approving Rule 211 as part of the SIP, Rule 211 will also have 
the effect of limiting HAP emissions pursuant to its approval under 
section 112(l) of the Act.

Conclusion

    EPA is proposing approval the revisions to the Regulations, which 
include revisions to Rules 102, 105, 106, 107, 109, 110, 111, 112, 114, 
117, 121, 201, 203, 204, 205, 206, 209, 211, 301, 401, 402, 403, 404, 
405, 406, 408, 409, 410, 412, 413, 414, 417, and 501. EPA is not 
incorporating new Rule 422 into the federally approved SIP. In 
addition, EPA is proposing approval of the withdrawal of Rules 411, 
418, 419, 420 and 421 from the SIP, which contain the federally 
approved regulations, however, EPA is not approving the withdrawal of 
Rule 404 from the SIP.
    Nothing in this proposed rule should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the SIP shall be considered separately in light of specific technical, 
economic, and environmental factors and in relation to relevant 
statutory and regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements, but simply approve 
requirements that the State is already imposing. Therefore, because the 
federal SIP-approval does not impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the federal-state relationship 
under the Clean Air Act, preparation of a regulatory flexibility 
analysis would constitute federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v US 
EPA, 427 US 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a federal mandate that may result in 
estimated annual costs of $100 million or more to the private sector, 
or to state, local, or tribal governments in the aggregate.
    Through submission of this SIP or plan revision, the state and any 
affected local or tribal governments have elected to adopt the program 
provided for under section 112(l) and 110 of the Clean Air Act. These 
rules may bind state, local and tribal governments to perform certain 
actions and also require the private sector to perform certain duties. 
To the extent that the rules being approved by this action would impose 
any mandate upon the state, local or tribal governments either as the 
owner or operator of a source or as a regulator, or would impose any 
mandate upon the private sector, EPA's action will impose no new 
requirements; such sources are already subject to these regulations 
under state law. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action. 
EPA has also determined that this direct final action does not include 
a mandate that may result in estimated annual costs of $100 million or 
more to state, local, or tribal governments in the aggregate or to the 
private sector.
    The Office of Management and Budget has exempted this action from 
review under Executive Order 12866.

List of Subjects in 40 CFR Part 52

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

    Dated: May 31, 1996.
William J. Muszynski,
Acting Regional Administrator.
[FR Doc. 96-15885 Filed 6-20-96; 8:45 am]
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