Approval and Promulgation of State Plans for Designated Facilities; Commonwealth of Puerto Rico, 76894-76897 [2015-31182]
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Federal Register / Vol. 80, No. 238 / Friday, December 11, 2015 / Proposed Rules
accepted during the Regional Office
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comments.
ENVIRONMENTAL PROTECTION
AGENCY
FOR FURTHER INFORMATION CONTACT:
SUMMARY:
Michael Leslie, Environmental
Engineer, Control Strategies Section, Air
Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353–6680,
leslie.michael@epa.gov.
In the
Rules section of this Federal Register,
EPA is approving Minnesota’s state
implementation plan submittal as a
direct final rule without prior proposal
because the Agency views this as a
noncontroversial submittal and
anticipates no adverse comments. A
detailed rationale for the approval is set
forth in the direct final rule. If no
adverse comments are received in
response to this rule, no further activity
is contemplated. If EPA receives adverse
comments, the direct final rule will be
withdrawn and all public comments
received will be addressed in a
subsequent final rule based on this
proposed rule. EPA will not institute a
second comment period. Any parties
interested in commenting on this action
should do so at this time. Please note
that if EPA receives adverse comment
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of this rule and if that provision may be
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EPA may adopt as final those provisions
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adverse comment. For additional
information, see the direct final rule
which is located in the Rules section of
this Federal Register.
SUPPLEMENTARY INFORMATION:
jstallworth on DSK7TPTVN1PROD with PROPOSALS
Dated: November 23, 2015.
Susan Hedman,
Regional Administrator, Region 5.
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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
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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: Ruvo.Richard@epa.gov.
• 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
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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 https://
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
(Gardella.anthony@epa.gov),
Environmental Protection Agency,
Region 2 Office, Air Programs Branch,
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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?
jstallworth on DSK7TPTVN1PROD with PROPOSALS
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
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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
§ 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 § 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
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
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Consequently, the EPA is proposing to
not take any action on that particular
provisions of Puerto Rico’s State SSI
plan as discussed herein.
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
to violations that result from malfunctions. 80 FR
23402, 23407 (Apr. 27, 2015).
2 Section 302(d) of the CAA includes the
Commonwealth of Puerto Rico in the definition of
the term ‘‘State.’’
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demonstrate their ability to enforce the
State plans.
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).
jstallworth on DSK7TPTVN1PROD with PROPOSALS
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
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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
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
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its section 111(d) State plan for
implementing EPA’s EG for existing SSI
units located in the Commonwealth of
Puerto Rico.
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;
(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);
also is available in EPA’s docket at
www.regulations.gov.
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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(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.
jstallworth on DSK7TPTVN1PROD with PROPOSALS
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
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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.
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 141
[EPA–HQ–OW–2015–0218; FRL–9935–74–
OW]
RIN 2040–AF10
Revisions to the Unregulated
Contaminant Monitoring Rule (UCMR
4) for Public Water Systems and
Announcement of a Public Meeting
Environmental Protection
Agency (EPA).
ACTION: Proposed rule and notice of
public meeting.
AGENCY:
The U.S. Environmental
Protection Agency (EPA) is proposing a
Safe Drinking Water Act (SDWA) rule
that requires public water systems to
collect occurrence data for contaminants
that may be present in tap water but are
not yet subject to EPA’s drinking water
standards set under SDWA. This rule,
revised every five years as required by
SDWA, benefits public health by
providing EPA and other interested
parties with scientifically valid data on
the national occurrence of selected
contaminants in drinking water, such as
cyanotoxins associated with harmful
algal blooms. This data set is one of the
primary sources of information on
occurrence, levels of exposure and
population exposure the Agency uses to
develop regulatory decisions for
emerging contaminants in the public
drinking water supply. This proposal
identifies eleven analytical methods to
support water system monitoring for a
total of 30 chemical contaminants/
groups, consisting of ten cyanotoxins/
groups; two metals; eight pesticides plus
one pesticide manufacturing byproduct
(hereinafter collectively referred to as
‘‘pesticides’’); three brominated
haloacetic acid groups of disinfection
byproducts; three alcohols; and three
semivolatile organic chemicals. EPA is
also announcing a public webinar to
discuss this proposal of the fourth
Unregulated Contaminant Monitoring
Rule.
SUMMARY:
Comments must be received on
or before February 9, 2016. Under the
Paperwork Reduction Act (PRA),
comments on the information collection
provisions are best assured of
consideration if the Office of
Management and Budget (OMB)
receives a copy of your comments on or
before January 11, 2016. The public
webinar will be held on January 13,
2016, from 1:00 p.m.. to 4:30 p.m.,
eastern time. Persons wishing to
participate in the webinar must register
DATES:
E:\FR\FM\11DEP1.SGM
11DEP1
]]>Agencies
[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: Ruvo.Richard@epa.gov.
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 https://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
(Gardella.anthony@epa.gov), 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
[[Page 76896]]
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.
---------------------------------------------------------------------------
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;
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
(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);
[[Page 76897]]
(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
