[Federal Register Volume 69, Number 48 (Thursday, March 11, 2004)]
[Rules and Regulations]
[Pages 11537-11539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5367]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[Region 2 Docket No. PR11-267c; FRL-7634-2]
Approval and Promulgation of State Plans for Designated
Facilities; Puerto Rico
AGENCY: Environmental Protection Agency.
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 fulfill
the requirements of sections 111(d)/129 of the Clean Air Act for
Commercial and Industrial Solid Waste Incineration (CISWI) units.
Puerto Rico's State Plan provides for the implementation and
enforcement of the Emissions Guidelines, as promulgated by EPA on
December 1, 2000, applicable to existing CISWI units for which
construction commenced on or before November 30, 1999. Specifically,
the State Plan that EPA is approving today, establishes emission limits
for organics, carbon monoxide, metals, acid gases and particulate
matter and compliance schedules for the existing CISWI units located in
the Commonwealth of Puerto Rico which will reduce the designated
pollutants.
DATES: This rule is effective on April 12, 2004.
ADDRESSES: Copies of the state submittal are available at the following
addresses for inspection during normal business hours:
Environmental Protection Agency, Region 2 Office, Air Programs Branch,
290 Broadway, 25th Floor, New York, New York 10007-1866.
Environmental Protection Agency, Region 2, Caribbean Environmental
Protection Division, Centro Europa Building, Suite 417, 1492 Ponce De
Leon Avenue, Stop 22, San Juan, Puerto Rico 00907-4127.
Puerto Rico Environmental Quality Board, National Plaza Building, 431
Ponce De Leon Avenue, Hato Rey, Puerto Rico.
FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch,
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th
Floor, New York, New York 10007-1866, (212) 637-3381 or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Sections 111(d) and 129 of the Clean Air Act (CAA) require states
to submit plans to control certain pollutants (designated pollutants)
at existing solid waste combustor facilities (designated facilities)
whenever standards of performance have been established under section
111(b) for new sources of the same type, and EPA has established
emission guidelines (EG) for such existing sources. A designated
pollutant is any pollutant for which no air quality criteria have been
issued, and which is not included on a list published under section
108(a) or section 112(b)(1)(A) of the CAA, but emissions of which are
subject to a standard of performance for new stationary sources.
However, section 129 of the CAA, also requires EPA to promulgate the EG
for Commercial and Industrial Solid Waste Incineration (CISWI) units
that emit a mixture of air pollutants. These pollutants include
organics (dioxins/furans), carbon monoxide, metals (cadmium, lead,
mercury), acid gases (hydrogen chloride, sulfur dioxide, and nitrogen
oxides) and particulate matter (including opacity). On December 1, 2000
(65 FR 75338), EPA promulgated CISWI unit new source performance
standards and the EG, 40 CFR part 60, subparts CCCC and DDDD,
respectively. The designated facility to which the EG apply is each
existing CISWI unit, as defined in subpart DDDD, that commenced
construction on or before November 30, 1999.
Section 111(d) of the CAA requires that ``designated'' pollutants,
regulated under standards of performance for new stationary sources by
section 111(b) of the CAA, must also be controlled at existing sources
in the same source category to a level stipulated in an EG document.
Section 129 of the CAA specifically addresses solid waste combustion
and emission controls based on what is commonly referred to as
``maximum achievable control technology'' (MACT). Section 129 requires
EPA to promulgate a MACT based emission guidelines document for CISWI
units, and then requires states to develop plans that implement the EG
requirements. The CISWI EG under 40 CFR part 60, subpart DDDD,
establishes emission and operating requirements under the authority of
the CAA, sections 111(d) and 129. These requirements must be
incorporated into a state plan that is ``at least as protective'' as
the EG, and is Federally enforceable upon approval by EPA. The
procedures for adoption and submittal of state plans are codified in 40
CFR part 60, subpart B.
II. Puerto Rico's Submittal
On May 20, 2003, the Puerto Rico Environmental Quality Board
(PREQB) submitted to EPA a section 111(d)/129 plan to implement 40 CFR
part 60 subpart DDDD--Emission Guidelines, for existing CISWI units
located in the Commonwealth of Puerto Rico. PREQB's submittal included:
enforceable mechanisms; the necessary legal authority; inventory of
CISWI units; emissions inventory; enforceable compliance schedules;
testing, monitoring, recordkeeping, and reporting requirements; record
of public hearing; and a provision for annual state progress reports.
For a detailed description and full evaluation of the Puerto Rico
CISWI plan that EPA is approving today, the reader is referred to the
rulemaking actions (68 FR 62019 and 68 FR 62040) published in the
Federal Register on October 31, 2003.
III. Comments in Response to EPA's Proposal
A. Background Information
On October 31, 2003, EPA announced, in proposed and direct final
rules published in the Federal Register (68 FR 62019 and 68 FR 62040,
respectively), approval of Puerto Rico's CISWI plan. On November 6,
2003, EPA received an adverse comment on the direct final rule. EPA had
indicated in its October 31, 2003, direct final rule that if EPA
received adverse comments, it would withdraw the direct final rule.
Consequently, EPA informed the public, in a removal notice published in
the Federal Register (69 FR 2304) on January 15, 2004, that EPA
received an adverse comment and that the direct final rule was being
removed. EPA did not receive any other comments. EPA is addressing the
adverse comment in today's final rule based upon the proposed action
published on October 31, 2003.
B. Comments Received and EPA's Response
EPA received one adverse comment on its August 11, 2003 direct
final rule to approve Puerto Rico's CISWI plan
[[Page 11538]]
from a concerned citizen. That comment and EPA's response follows.
Comment: The PREQB is not effectively managing the air programs in
the island. Permits are provided to facilities which do not comply with
the regulations and new emission standards go unattended. Many
facilities in Puerto Rico are currently discharging more than the
amount of emissions permitted and on many occasions without a permit.
Approving the CISWI plan will simply do nothing for the protection of
human health or the environment of Puerto Rico.
Response: It should be noted that the commentor did not provide any
documentation or justification in support of its allegations. In
addition, the comment does not directly address Puerto Rico's CISWI
plan, but rather addresses its permitting program. 40 CFR 60.26
requires that a section 111(d) plan demonstrate that the state has the
necessary legal authority to adopt and implement the plan. In order to
make this demonstration, the plan must show that the state has the
legal authority to adopt emission standards and compliance schedules
for the designated facilities; enforce the applicable laws,
regulations, emission standards and compliance schedules, including the
ability to obtain injunctive relief; the authority to obtain
information from the designated facilities in order to determine
compliance, including the authority to require recordkeeping from the
facilities, to make inspections and to conduct tests at the facilities;
the authority to require designated facilities to install, maintain and
use emission monitoring devices; the authority to require periodic
reporting to the state on the nature and amounts of emissions from the
facility; and the authority for the state to make such emissions data
available to the public. Puerto Rico has demonstrated all these
elements exist within its enabling legislation and regulations to the
extent that EPA has determined the Puerto Rico CISWI plan to be
approvable.
In addition, upon the effective date of EPA's final approval of the
Puerto Rico CISWI plan, the requirements of Puerto Rico's plan become
federally enforceable. This enables EPA to take its own enforcement
actions against facilities that may not comply with the approved CISWI
requirements.
IV. Conclusion
EPA has evaluated the CISWI plan submitted by Puerto Rico for
consistency with the CAA, EPA emission guidelines and policy. EPA has
determined that Puerto Rico's Plan meets all requirements and,
therefore, EPA is approving Puerto Rico's Plan to implement and enforce
subpart DDDD, as promulgated on December 1, 2000, applicable to
existing CISWI units that have commenced construction on or before
November 30, 1999. EPA is also approving revisions to Rule 102 and Rule
405 of the Puerto Rico Regulations for the Control of Atmospheric
Pollution, entitled, ``Definitions'' and ``Incineration'',
respectively.
V. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). Puerto Rico's State plan applies to all
affected sources regardless of whether it has been identified in its
plan. Therefore, EPA has concluded that this rulemaking action does not
have federalism implications nor does it have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action
merely approves a state rule implementing a Federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the CAA. This rule also is not subject
to Executive Order 13045 ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because
it is not economically significant.
In reviewing state plan submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the state
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a state plan submission for failure to use VCS. It would
thus be inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a state plan submission that
otherwise satisfies the provisions of the CAA. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 rule 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.
section 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 10, 2004. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule 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).)
[[Page 11539]]
List of Subjects in 40 CFR Part 62
Environmental protection, Air pollution control, Acid gases, Carbon
monoxide, Commercial and industrial solid waste, Intergovernmental
relations, Organics, Particulate matter, Reporting and recordkeeping
requirements.
Dated: February 27, 2004.
Kathleen C. Callahan,
Acting Regional Administrator, Region 2.
0
Part 62, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 62--[AMENDED]
0
1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart BBB--Puerto Rico
0
2. Subpart BBB is amended by adding a new undesignated center heading
and Sec. 62.13108 to read as follows:
Control of Air Emissions of Designated Pollutants From Existing
Commercial and Industrial Solid Waste Incineration Units
Sec. 62.13108 Identification of plan.
(a) The Puerto Rico Environmental Quality Board submitted to the
Environmental Protection Agency on May 20, 2003, a ``State Plan'' for
implementation and enforcement of 40 CFR part 60, subpart DDDD,
Emission Guidelines and Compliance Times for Commercial and Industrial
Solid Waste Incineration Units. 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. Revised Rules 102 and 405 were adopted on June 4, 2003
and effective on July 4, 2003.
(b) Identification of sources: The plan applies to all applicable
existing Commercial and Industrial Solid Waste Incineration Units for
which construction commenced on or before November 30, 1999.
[FR Doc. 04-5367 Filed 3-10-04; 8:45 am]
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