[Federal Register Volume 75, Number 7 (Tuesday, January 12, 2010)]
[Rules and Regulations]
[Pages 1543-1546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-258]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[Docket: EPA-R02-OAR-2009-0508; FRL-9091-4]


Approval and Promulgation of Implementation Plans; Puerto Rico; 
Guaynabo PM<INF>10</INF> Limited Maintenance Plan and Redesignation 
Request

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving the Limited Maintenance Plan for the 
Municipality of Guaynabo nonattainment area in Puerto Rico and the 
request by the Commonwealth of Puerto Rico to redesignate the area from 
nonattainment to attainment for the National Ambient Air Quality 
Standards for particulate matter with an aerodynamic diameter less than 
or equal to a nominal 10 micrometers (PM<INF>10</INF>). On March 31, 
2009,

[[Page 1544]]

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 PM<INF>10</INF>.

DATES: Effective Date: This rule is effective on February 11, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2009-0508. All documents in the docket are listed on 
the www.regulations.gov web site. 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, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, 
New York, New York 10007-1866. This Docket Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
Docket telephone number is 212-637-4249.

FOR FURTHER INFORMATION CONTACT: Kirk Wieber at telephone number: (212) 
637-3381, e-mail address: <a href="/cdn-cgi/l/email-protection#f3849a96919681dd989a8198b3968392dd949c85"><span class="__cf_email__" data-cfemail="2c5b45494e495e0247455e476c495c4d024b435a">[email protected]</span></a>, fax number: (212) 637-
3901, or the above EPA Region 2 address.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What Action Is EPA Taking?
II. What Is the Background for EPA's Action?
III. What Comments Were Received?
IV. What Are the Requirements for Redesignation?
    A. Clean Air Act Requirements for Redesignation of Nonattainment 
Areas
    B. The Limited Maintenance Plan (LMP) Option for PM<INF>10</INF> 
Nonattainment Areas
    C. Conformity Under the Limited Maintenance Plan Option
V. What Are EPA's Conclusions?
VI. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    The Environmental Protection Agency (EPA) is approving the Limited 
Maintenance Plan (LMP) for the Municipality of Guaynabo nonattainment 
area (Guaynabo NAA). EPA is concurrently redesignating 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 (PM<INF>10</INF>).
    For additional details on EPA's analysis and findings, the reader 
is referred to the proposal published in the September 2, 2009 Federal 
Register (74 FR 45387) and a more detailed discussion is contained in 
the Technical Support Document which is available on line at 
www.regulations.gov, Docket number EPA-R02-OAR-2009-0508.

II. What Is the Background for EPA's Action?

    As required by the Clean Air Act (Act), in 1987 the EPA revised the 
particulate matter NAAQS from total suspended particles to 
PM<INF>10</INF>. 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 PM<INF>10</INF> 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 PM<INF>10</INF> 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 PM<INF>10</INF> SIP for the Municipality of 
Guaynabo. The Guaynabo PM<INF>10</INF> SIP revision was reviewed and 
approved by EPA on May 31, 1995 (60 FR 28333) and became effective on 
June 30, 1995.
    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 (PM<INF>10</INF>) National 
Ambient Air Quality Standards and Redesignation Request for the 
Municipality of Guaynabo Moderate Nonattainment Area State 
Implementation Plan Revision.'' On September 2, 2009 (74 FR 45387), EPA 
proposed to approve the LMP for the Municipality of Guaynabo and the 
request by the Commonwealth of Puerto Rico to redesignate the area from 
nonattainment to attainment for PM<INF>10</INF>.

III. What Comments Were Received?

    No comments were received in response to the September 2, 2009 
proposal.

IV. What Are the 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 PM<INF>10</INF> nonattainment 
areas seeking redesignation to attainment (Memo from Lydia Wegman, 
Director, Air Quality Standards and Strategies Division, entitled 
``Limited Maintenance Plan Option for Moderate PM<INF>10</INF> 
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 PM<INF>10</INF> NAAQS; (2) the average annual 
PM<INF>10</INF> 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

[[Page 1545]]

than the site-specific critical design values. In addition, the area 
should expect only limited growth in on-road motor vehicle 
PM<INF>10</INF> 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 PM<INF>10</INF> 
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.

V. What Are EPA's Conclusions?

    EPA has determined that the PM<INF>10</INF> 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 approving the PM<INF>10</INF> 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 
approving the 2002 PM<INF>10</INF> 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 Regulation for the Control of 
Atmospheric Pollution.
    EPA is also approving 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 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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this 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 March 15, 2010. 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

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.


[[Page 1546]]


    Dated: November 20, 2009.
George Pavlou,
Acting Regional Administrator, Region 2.

0
Chapter I, title 40 of the Code of Federal Regulations is amended as 
follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart BBB--Puerto Rico

0
2. Section 52.2720 is amended by adding new paragraph (c)(37) to read 
as follows:


Sec.  52.2720  Identification of plan.

* * * * *
    (c) * * *
    (37) On March 31, 2009, the Puerto Rico Environmental Quality Board 
submitted a Particulate Matter (PM<INF>10</INF>) Limited Maintenance 
Plan and requested the redesignation of the Municipality of Guaynabo 
PM<INF>10</INF> Nonattainment area to attainment for PM<INF>10</INF>. 
EPA approves Puerto Rico's Limited Maintenance Plan including the 2002 
PM<INF>10</INF> 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 Regulation for the Control of Atmospheric Pollution. 
On July 15, 2009, the Puerto Rico Environmental Quality Board submitted 
the official copy of the adopted revisions to Rules 102 and 423.
    (i) Limited Maintenance Plan 24-Hour PM<INF>10</INF> National 
Ambient Air Quality Standards (NAAQS) for the Municipality of Guaynabo 
Moderate Nonattainment Area which includes amendments to Rules 102 and 
423 of the Regulation for the Control of Atmospheric Pollution, 
approved by the Puerto Rico Environmental Quality Board March 5, 2009; 
filed with the Secretary of State April 28, 2009; effective May 28, 
2009.
    (A) Rule 102 Definitions, Guaynabo PM<INF>10</INF> Maintenance 
Area; filed with the Secretary of State April 28, 2009; effective May 
28, 2009.
    (B) Rule 423 Limitations for the Guaynabo PM<INF>10</INF> 
Maintenance Area; filed with the Secretary of State April 28, 2009; 
effective May 28, 2009.


0
3. Section 52.2723, the table is amended by revising the entries for 
Rule 102 and Rule 423 to read as follows:


Sec.  52.2723  EPA-approved Puerto Rico regulations.

                               Regulation for the Control of Atmospheric Pollution
----------------------------------------------------------------------------------------------------------------
                                              Commonwealth
          Puerto Rico regulations            effective date           EPA approval date              Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Rule 102, Definitions......................         5/28/09  1/12/10, [Insert FR page citation].  ..............
 
                                                  * * * * * * *
Rule 423, Limitations for the Guaynabo PM10         5/28/09  1/12/10, [insert FR page citation].  ..............
 Maintenance Area.
 
                                                  * * * * * * *
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PART 81--[AMENDED]

0
4. The authority citation for part 81 continues to read as follows:

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


0
5. In Sec.  81.355, the table entitled ``Puerto Rico--PM-10'' is 
amended by removing the entry for ``Guaynabo County'' and adding in its 
place the entry ``Municipality of Guaynabo'' to read as follows:


Sec.  81.355  Puerto Rico.

* * * * *

                                                Puerto Rico--PM10
----------------------------------------------------------------------------------------------------------------
                                                       Designation                        Classification
            Designated area            -------------------------------------------------------------------------
                                             Date                 Type                 Date            Type
----------------------------------------------------------------------------------------------------------------
Municipality of Guaynabo..............         1/12/10  Attainment.               ..............  ..............
 
                                                  * * * * * * *
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[FR Doc. 2010-258 Filed 1-11-10; 8:45 am]
BILLING CODE 6560-50-P


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