Approval of Air Quality Implementation Plans; Puerto Rico; Infrastructure Requirements for the 1997 and 2008 Ozone, 1997 and 2006 Fine Particulate Matter and 2008 Lead NAAQS, 8455-8460 [2016-03395]
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(l) Effective/applicability dates. (1)
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and (i)(8) of § 1.509(a)–4T contained in
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paragraphs (i)(5)(ii)(A) and (B) and
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regarding non-functionally integrated
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John Dalrymple,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. 2016–02858 Filed 2–18–16; 8:45 am]
BILLING CODE 4830–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R02–OAR–2016–0060, FRL–9942–52–
Region 2]
Approval of Air Quality Implementation
Plans; Puerto Rico; Infrastructure
Requirements for the 1997 and 2008
Ozone, 1997 and 2006 Fine Particulate
Matter and 2008 Lead NAAQS
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
most elements of the five State
Implementation Plan (SIP) revision
submittals from the Commonwealth of
Puerto Rico to demonstrate that the
State meets the requirements of section
110(a)(1) and (2) of the Clean Air Act
(CAA) for the 1997 and 2008 ozone,
1997 and 2006 fine particulate matter
(PM2.5) and 2008 lead National Ambient
Air Quality Standards (NAAQS). The
plan is required to address basic
program elements, including, but not
limited to, regulatory structure,
monitoring, modeling, legal authority,
and adequate resources necessary to
assure attainment and maintenance of
the standards. These elements are
referred to as infrastructure
requirements. In this rulemaking action,
EPA is proposing to approve, in
accordance with the requirements of the
CAA, the infrastructure SIP submissions
with the exception of some portions of
the submittals addressing Prevention of
Significant Deterioration (PSD).
DATES: Written comments must be
received on or before March 21, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R02–OAR–2016–0060 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
SUMMARY:
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submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Raymond K. Forde, Air Programs
Branch, Environmental Protection
Agency, 290 Broadway, 25th Floor, New
York, New York 10007–1866, (212) 637–
3716, or by email at forde.raymond@
epa.gov.
SUPPLEMENTARY INFORMATION:
The SUPPLEMENTARY INFORMATION
section is arranged as follows:
Table of Contents
I. Background
II. Summary of State Submittals
III. EPA’s Approach To Review Infrastructure
SIPs
IV. Summary of EPA’s Rationale for
Proposing Approval and Disapproval
V. Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews
I. Background
On July 18, 1997, the Environmental
Protection Agency (EPA) promulgated a
revised national ambient air quality
standard (NAAQS or standards) for
ozone (62 FR 38856) and a new NAAQS
for fine particle matter (PM2.5) (62 FR
38652). The revised ozone NAAQS was
based on 8-hour average concentrations.
The 8-hour averaging period replaced
the previous 1-hour averaging period,
and the level of the NAAQS was
changed from 0.12 parts per million
(ppm) to 0.08 ppm. The new PM2.5
NAAQS established a health-based
annual standard of 15.0 micrograms per
cubic meter (mg/m3) based on a 3-year
average of annual mean PM2.5
concentrations, and a 24-hour standard
of 65 mg/m3 based on a 3-year average
of the 98th percentile of 24-hour
concentrations.
On October 17, 2006 (71 FR 61144),
effective December 18, 2006, EPA
revised the 24-hour average PM2.5
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primary and secondary NAAQS from 65
mg/m3 to 35 mg/m3. As required by
section 110(a)(1) of the CAA, the
110(a)(2) submittals were due within
three years after promulgation of the
revised standard.
On March 27, 2008 (73 FR 16436)
EPA strengthened its NAAQS for
ground-level ozone, revising the 8-hour
primary ozone standard to 0.075 ppm.
EPA also strengthened the secondary 8hour ozone standard to the level of
0.075 ppm making it identical to the
revised primary standard.
On November 12, 2008 (73 FR 66964),
EPA promulgated a revised NAAQS for
lead. The Agency revised the level of
the primary lead standard from 1.5 mg/
m3 to 0.15 mg/m3 . The EPA also revised
the secondary NAAQS to 0.15 mg/m3
and made it identical to the revised
primary standard.
Pursuant to section 110(a)(1) of the
CAA, states are required to submit SIPs
meeting the applicable requirements of
section 110(a)(2) within three years after
promulgation of a new or revised
NAAQS or within such shorter period
as EPA may prescribe. Section 110(a)(2)
requires states to address basic SIP
elements such as requirements for
monitoring, basic program
requirements, and legal authority that
are designed to assure attainment and
maintenance of the NAAQS. Section
110(a) imposes the obligation upon
states to make a SIP submission to EPA
for a new or revised NAAQS, but the
contents of that submission may vary
depending upon the facts and
circumstances. In particular, the data
and analytical tools available at the time
the state develops and submits the SIP
for a new or revised NAAQS affects the
content of the submission. The content
of such SIP submission may also vary
depending upon what provisions the
state’s existing SIP already contains.
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for SIPs. Section 110(a)(2)
lists specific elements that states must
meet for ‘‘infrastructure’’ SIP
requirements related to a newly
established or revised NAAQS. As
mentioned earlier, these requirements
include basic SIP elements such as
requirements for monitoring, basic
program requirements, and legal
authority that are designed to assure
attainment and maintenance of the
NAAQS.
II. Summary of State Submittals
The Commonwealth of Puerto Rico
through the Commonwealth of Puerto
Rico Environmental Quality Board
(PREQB) submitted five revisions to its
SIP to satisfy the requirements of
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section 110(a)(2) of the CAA for the five
different NAAQS. On November 29,
2006, PREQB submitted SIP revisions
addressing the infrastructure
requirements for the 1997 ozone and
PM2.5 NAAQS. On January 22, 2013 and
April 16, 2015, PREQB submitted SIP
revisions addressing the infrastructure
requirements for the 2006 PM2.5 and
2008 ozone NAAQS, and supplemented
the November 2006 submittal for the
1997 ozone and PM2.5 NAAQS. On
January 31, 2013, PREQB submitted SIP
revisions addressing the infrastructure
requirements for the 2008 lead NAAQS.
On February 1, 2016, PREQB submitted
additional provisions for inclusion into
the SIP which address infrastructure SIP
requirements for 1997 and 2008 ozone,
1997 and 2006 PM2.5 and 2008 lead
NAAQS. Each of the infrastructure SIP
revisions addressed the following
infrastructure elements for the
applicable NAAQS which EPA is
proposing to approve pursuant to
section 110(a)(2) of the CAA.
Specifically sections 110(a)(2)(A), (B),
portions of (C), portions of (D), (E), (F),
(G), (H), portions of (J), (K), (L), and (M)
for the 1997 and 2008 ozone, 1997 and
2006 PM2.5 and 2008 lead NAAQS.
III. EPA’s Approach To Review
Infrastructure SIPs
EPA is acting upon Puerto Rico’s SIP
submissions that address the
infrastructure requirements of section
110(a)(1) and (2) of the CAA for the
1997 and 2008 ozone, 1997 and 2006
PM2.5 and 2008 lead NAAQS. The
requirement for states to make a SIP
submission of this type arises out of
section 110(a)(1). Pursuant to section
110(a)(1), states must make SIP
submissions ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof),’’ and
these SIP submissions are to provide for
the ‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 302(d) of the CAA includes the
Commonwealth of Puerto Rico in the
definition of the term ‘‘State.’’ Section
110(a)(2) includes a list of specific
elements that ‘‘each such plan’’
submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of section
110(a)(1) and (2) as ‘‘infrastructure SIP’’
submissions. Although the term
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‘‘infrastructure SIP’’ does not appear in
the CAA, EPA uses the term to
distinguish this particular type of SIP
submission from submissions that are
intended to satisfy other SIP
requirements under the CAA, such as
‘‘nonattainment SIP’’ or ‘‘attainment
plan SIP’’ submissions to address the
nonattainment planning requirements of
part D of Title I of the CAA, ‘‘regional
haze SIP’’ submissions required by EPA
rule to address the visibility protection
requirements of section 169A of the
CAA, and nonattainment new source
review permit program submissions to
address the permit requirements of
CAA, Title I, part D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.1 EPA
therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
Title I of the CAA, which specifically
address nonattainment SIP
1 For example: Section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; Section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of
Title I of the CAA; and section 110(a)(2)(G) provides
that states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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requirements.2 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years or in some cases three years,
for such designations to be
promulgated.3 This ambiguity illustrates
that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
section 110(a)(1) and (2) with respect to
infrastructure SIPs pertains to whether
states must meet all of the infrastructure
SIP requirements in a single SIP
submission, and whether EPA must act
upon such SIP submission in a single
action. Although section 110(a)(1)
directs states to submit ‘‘a plan’’ to meet
these requirements, EPA interprets the
CAA to allow states to make multiple
SIP submissions separately addressing
infrastructure SIP elements for the same
NAAQS. If states elect to make such
multiple SIP submissions to meet the
infrastructure SIP requirements, EPA
can elect to act on such submissions
either individually or in a larger
combined action.4 Similarly, EPA
interprets the CAA to allow it to take
2 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65 (May 12, 2005) (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
3 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
necessarily later than three years after promulgation
of the new or revised NAAQS.
4 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ 78 FR
4337 (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
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action on the individual parts of one
larger, comprehensive infrastructure SIP
submission for a given NAAQS without
concurrent action on the entire
submission. For example, EPA has
sometimes elected to act at different
times on various elements and subelements of the same infrastructure SIP
submission.5
Ambiguities within section 110(a)(1)
and (2) may also arise with respect to
infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants, because the content
and scope of a state’s infrastructure SIP
submission to meet this element might
be very different for an entirely new
NAAQS than for a minor revision to an
existing NAAQS.6
EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
attainment plan SIP submissions
required by part D to meet the
‘‘applicable requirements’’ of section
110(a)(2); thus, attainment plan SIP
submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the PSD
5 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007
submittal.
6 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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program required in part C of Title I of
the CAA, because PSD does not apply
to a pollutant for which an area is
designated nonattainment and thus
subject to part D planning requirements.
As this example illustrates, each type of
SIP submission may implicate some
elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.7 EPA most recently
issued guidance for infrastructure SIPs
on September 13, 2013 (2013
Guidance).8 EPA developed this
document to provide states with up-todate guidance for infrastructure SIPs for
any new or revised NAAQS. Within this
guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
relevant in the context of infrastructure
7 EPA notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
8 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
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SIP submissions.9 The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2). EPA
interprets section 110(a)(1) and (2) such
that infrastructure SIP submissions need
to address certain issues and need not
address others. Accordingly, EPA
reviews each infrastructure SIP
submission for compliance with the
applicable statutory provisions of
section 110(a)(2), as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
SIP appropriately addresses the
requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Guidance
explains EPA’s interpretation that there
may be a variety of ways by which states
can appropriately address these
substantive statutory requirements,
depending on the structure of an
individual state’s permitting or
enforcement program (e.g., whether
permits and enforcement orders are
approved by a multi-member board or
by a head of an executive agency).
However they are addressed by the
state, the substantive requirements of
Section 128 are necessarily included in
EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and NSR
pollutants, including Green House
9 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
infrastructure SIP submissions to address Section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d
7 (D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
the uncertainty created by ongoing litigation, EPA
elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that
time. As the guidance is neither binding nor
required by statute, whether EPA elects to provide
guidance on a particular section has no impact on
a state’s CAA obligations.
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Gases (GHGs). By contrast, structural
PSD program requirements do not
include provisions that are not required
under EPA’s regulations at 40 CFR
51.166 but are merely available as an
option for the state, such as the option
to provide grandfathering of complete
permit applications with respect to the
PM2.5 NAAQS. Accordingly, the latter
optional provisions are types of
provisions EPA considers irrelevant in
the context of an infrastructure SIP
action.
For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s SIP meets
basic structural requirements. For
example, section 110(a)(2)(C) includes,
inter alia, the requirement that states
have a program to regulate minor new
sources. Thus, EPA evaluates whether
the state has an EPA-approved minor
new source review program and
whether the program addresses the
pollutants relevant to that NAAQS. In
the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
from sources during periods of startup,
shutdown, or malfunction (SSM) that
may be contrary to the CAA and EPA’s
policies addressing such excess
emissions; (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that may be
contrary to the CAA because they
purport to allow revisions to SIPapproved emissions limits while
limiting public process or not requiring
further approval by EPA; and (iii)
existing provisions for PSD programs
that may be inconsistent with current
requirements of EPA’s ‘‘Final NSR
Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (NSR Reform).
Thus, EPA believes it may approve an
infrastructure SIP submission without
scrutinizing the totality of the existing
SIP for such potentially deficient
provisions and may approve the
submission even if it is aware of such
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existing provisions.10 It is important to
note that EPA’s approval of a state’s
infrastructure SIP submission should
not be construed as explicit or implicit
re-approval of any existing potentially
deficient provisions that relate to the
three specific issues just described.
EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
section 110(a)(2) as requiring review of
each and every provision of a state’s
existing SIP against all requirements in
the CAA and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
NAAQS pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II).
Finally, EPA believes that its
approach with respect to infrastructure
SIP requirements is based on a
reasonable reading of section 110(a)(1)
and (2) because the CAA provides other
10 By contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption for excess emissions during
SSM events, then EPA would need to evaluate that
provision for compliance against the rubric of
applicable CAA requirements in the context of the
action on the infrastructure SIP.
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avenues and mechanisms to address
specific substantive deficiencies in
existing SIPs. These other statutory tools
allow EPA to take appropriately tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a state’s SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or to otherwise
comply with the CAA.11
Section 110(k)(6) authorizes EPA to
correct errors in past actions, such as
past approvals of SIP submissions.12
Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
such deficiency in a subsequent
action.13
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
IV. Summary of EPA’s Rationale for
Proposing Approval and Disapproval
In this rulemaking action, EPA is
proposing approval of Puerto Rico’s
infrastructure SIP submittals for the
1997 and 2008 ozone, 1997 and 2006
PM2.5 and 2008 lead NAAQS as
11 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Findings of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
12 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536 (December 30, 2010). EPA has previously
used its authority under section 110(k)(6) of the
CAA to remove numerous other SIP provisions that
the Agency determined it had approved in error.
See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American
Samoa, Arizona, California, Hawaii, and Nevada
SIPs); 69 FR 67062, November 16, 2004 (corrections
to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
13 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (January 26,
2011) (final disapproval of such provisions).
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addressing requirements in section
110(a)(2)(A), (B), (C) (with the exception
of program requirements for PSD), (D)(i)
(with the exception of program
requirements related to PSD), (D)(ii)
(with the exception of program
requirements related to PSD), (E), (F),
(G), (H), (J) (with the exception of
program requirements related to PSD),
(K), (L), and (M) of the CAA.
On February 1, 2016, PREQB
submitted rules from the
Commonwealth of Puerto Rico Statutes,
‘‘Environmental Public Policy Act,’’ Act
No. 416 (2004, as amended), Section
7.A, and Section 7.D and ‘‘Puerto Rico
Government Ethics Law,’’ Act. No 1
(approved January 3, 2012), Section 5,
for incorporation into the SIP to address
the requirements of Sections
110(a)(2)(E)(ii) and 128 of the CAA.
Among other things, these collective
provisions prohibit members of the
Commonwealth’s Environmental
Quality Board from having any
‘‘conflicts of interests that might
interfere with the discharge their
offices,’’ and require disclosure of
potential conflicts of interest. EPA is
proposing to approve these submissions,
which are intended to apply to any
person subject to CAA 128, for inclusion
into the SIP as meeting CAA obligations
under section 110(a)(2)(E)(ii) for the
1997 ozone, 1997 PM2.5, 2006 PM2.5,
2008 lead, and 2008 ozone NAAQS.
EPA Region 2 is the permitting
authority for Puerto Rico’s PSD Major
Source Program. The sources affected by
PSD Program are subject to the Federal
Implementation Plan PSD control
requirements in 40 CFR Sections 52.21.
Puerto Rico does not have its own state
adopted PSD program, its infrastructure
submission is not approvable with
respect to this element. Therefore, EPA
is disapproving the following
infrastructure SIP elements as they
relate to the PSD program for lack of a
State adopted PSD rule to satisfy section
110(a)(2) for the 1997 and 2008 ozone,
1997 and 2006 PM2.5, and 2008 lead
NAAQS: sections 110(a)(2)(C), (D)(i)
prong 3, (D)(ii) and (J). It should be
noted that a FIP clock will not be started
because a PSD FIP is currently in place,
and sanctions will not be triggered.
Section 110(a)(2)(J) requires SIPs to
meet applicable requirements of part C
of the CAA related to visibility. Puerto
Rico’s submittal does not address the
visibility portion of J, including
submission of any visibility measures
under this sub-element. As indicated in
EPA’s September 2013 Infrastructure
Guidance, although states are subject to
visibility and regional haze program
requirements under part C, the visibility
and regional haze program requirements
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Fmt 4702
Sfmt 4702
8459
under part C do not change due to
promulgation of, or revision to, a
NAAQS. The SIP is not required to be
revised with respect to visibility
protection since there are no new
visibility obligations. Accordingly, air
agencies do not need to address the
visibility sub-element of section
110(a)(2)(J) in infrastructure SIP
submissions. Since Puerto Rico did not
make a submission addressing the
visibility portion of (J), action on this
sub-element is not applicable.
EPA is not acting on section
110(a)(2)(I), plan revisions for
nonattainment areas. Specific SIP
submissions for nonattainment areas, as
required under CAA title I part D, are
subject to a different submission
schedule 14 than those for section 110
infrastructure elements and are
reviewed and acted upon under a
separate process.
A detailed analysis of EPA’s review
and rationale for proposing to approve
and disapprove elements of the
infrastructure SIP submittals as
addressing these CAA requirements may
be found in the Technical Support
Document (TSD) for this proposed
rulemaking action which is available on
line at www.regulations.gov, Docket ID
Number EPA–R02–OAR–2016–0060.
EPA is soliciting public comments on
the issues discussed in this document.
These comments will be considered
before taking final action.
V. Proposed Action
EPA is proposing to approve Puerto
Rico’s infrastructure submittals dated
November 29, 2006, January 22 and 31,
2013, April 16, 2005 and February 1,
2016, for the 1997 and 2008 ozone, 1997
and 2006 PM2.5 and 2008 lead NAAQS,
respectively, as meeting the
requirements of section 110(a)(2) of the
CAA, including specifically section
110(a)(2)(A), (B), (C) (with the exception
of program requirements for PSD), (D)(i)
(with the exception of program
requirements related to PSD), (D)(ii)
(with the exception of program
requirements related to PSD), (E), (F),
(G), (H), (J) (with the exception of
program requirements related to PSD),
(K), (L), and (M).
EPA is proposing to incorporate the
Commonwealth of Puerto Rico’s
‘‘Environmental Public Policy Act’’, Act
No. 416 (2004, as amended), Section
7.A, and Section 7.D and the ‘‘Puerto
Rico Government Ethics Law,’’ Act. No.
1 (approved January 3, 2012), Section 5,
14 These elements are typically referred to as
nonattainment SIP or attainment plan elements and
are due by the dates prescribed under subparts 2
through 5 of part D.
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for inclusion into Puerto Rico’s SIP to
address the requirements of Sections
110(a)(2)(E)(ii) and 128 of the CAA. EPA
is further proposing to approve these
submissions, which are intended to
apply to any person subject to CAA 128,
for inclusion into the SIP as meeting
CAA obligations section 110(a)(2)(E)(ii)
for the 1997 ozone, 1997 PM2.5, 2006
PM2.5, 2008 lead, and 2008 ozone
NAAQS.
EPA is disapproving the following
infrastructure SIP requirements as they
relate to the PSD program for lack of a
State adopted PSD rule to satisfy section
110(a)(2) for the 1997 and 2008 ozone
NAAQS, 1997 and 2006 PM2.5 NAAQS,
and 2008 lead NAAQS: sections
110(a)(2)(C), (D)(i) prong 3, (D)(ii) and
(J). It should be noted that a FIP clock
will not be started because a PSD FIP is
currently in place, and sanctions will
not be triggered. Since Puerto Rico is
not required to address the visibility
portion of section 110(a)(2)(J) in the
context of an infrastructure SIP, and
therefore did not make a submission,
action on this sub-element is not
applicable.
VI. Incorporation by Reference
In this rule, EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, the EPA is
proposing to incorporate by reference
Puerto Rico’s ‘‘Environmental Public
Policy Act,’’ Act No. 416 (2004, as
amended), Section 7.A, and Section 7.D
and ‘‘Puerto Rico Government Ethics
Law,’’ Act. No. 1 (approved January 3,
2012), Section 5. These provisions are
intended to apply to any person subject
to CAA Section 128. The EPA has made,
and will continue to make, these
documents generally available
electronically through https://
www.regulations (see the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
VII. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA 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 CAA. Accordingly, this action
merely proposes to approve state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
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• 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 CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rulemaking
action, pertaining to Puerto Rico’s
section 110(a)(2) infrastructure
requirements for the 1997 and 2008
ozone NAAQS, 1997 and 2006 PM2.5
NAAQS, and 2008 lead NAAQS 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Nitrogen dioxide,
Intergovernmental relations, Lead,
Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
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Fmt 4702
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Dated: February 9, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2016–03395 Filed 2–18–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR part 52
[EPA–R05–OAR–2015–0529; FRL–9942–57–
Region 5]
Air Plan Approval; Wisconsin;
Infrastructure SIP Requirements for
the 2012 PM2.5 NAAQS
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
some elements of a state
implementation plan (SIP) submission
from Wisconsin regarding the
infrastructure requirements of section
110 of the Clean Air Act (CAA) for the
2012 fine particulate matter (PM2.5)
National Ambient Air Quality Standards
(NAAQS). The infrastructure
requirements are designed to ensure that
the structural components of each
state’s air quality management program
are adequate to meet the state’s
responsibilities under the CAA.
DATES: Comments must be received on
or before March 21, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2015–0529 at https://
www.regulations.gov or via email to
aburano.douglas@epa.gov. For
comments submitted at Regulations.gov,
follow the online instructions for
submitting comments. Once submitted,
comments cannot be edited or removed
from Regulations.gov. For either manner
of submission, EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.
on the Web, cloud, or other file sharing
system). For additional submission
methods, please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section. For the
SUMMARY:
E:\FR\FM\19FEP1.SGM
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]]>Agencies
[Federal Register Volume 81, Number 33 (Friday, February 19, 2016)]
[Proposed Rules]
[Pages 8455-8460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03395]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2016-0060, FRL-9942-52-Region 2]
Approval of Air Quality Implementation Plans; Puerto Rico;
Infrastructure Requirements for the 1997 and 2008 Ozone, 1997 and 2006
Fine Particulate Matter and 2008 Lead NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve most elements of the five State Implementation Plan (SIP)
revision submittals from the Commonwealth of Puerto Rico to demonstrate
that the State meets the requirements of section 110(a)(1) and (2) of
the Clean Air Act (CAA) for the 1997 and 2008 ozone, 1997 and 2006 fine
particulate matter (PM2.5) and 2008 lead National Ambient
Air Quality Standards (NAAQS). The plan is required to address basic
program elements, including, but not limited to, regulatory structure,
monitoring, modeling, legal authority, and adequate resources necessary
to assure attainment and maintenance of the standards. These elements
are referred to as infrastructure requirements. In this rulemaking
action, EPA is proposing to approve, in accordance with the
requirements of the CAA, the infrastructure SIP submissions with the
exception of some portions of the submittals addressing Prevention of
Significant Deterioration (PSD).
DATES: Written comments must be received on or before March 21, 2016.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2016-0060 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Raymond K. Forde, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-3716, or by email at
forde.raymond@epa.gov.
SUPPLEMENTARY INFORMATION:
The SUPPLEMENTARY INFORMATION section is arranged as follows:
Table of Contents
I. Background
II. Summary of State Submittals
III. EPA's Approach To Review Infrastructure SIPs
IV. Summary of EPA's Rationale for Proposing Approval and
Disapproval
V. Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews
I. Background
On July 18, 1997, the Environmental Protection Agency (EPA)
promulgated a revised national ambient air quality standard (NAAQS or
standards) for ozone (62 FR 38856) and a new NAAQS for fine particle
matter (PM2.5) (62 FR 38652). The revised ozone NAAQS was
based on 8-hour average concentrations. The 8-hour averaging period
replaced the previous 1-hour averaging period, and the level of the
NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm. The
new PM2.5 NAAQS established a health-based annual standard
of 15.0 micrograms per cubic meter ([micro]g/m\3\) based on a 3-year
average of annual mean PM2.5 concentrations, and a 24-hour
standard of 65 [micro]g/m\3\ based on a 3-year average of the 98th
percentile of 24-hour concentrations.
On October 17, 2006 (71 FR 61144), effective December 18, 2006, EPA
revised the 24-hour average PM2.5
[[Page 8456]]
primary and secondary NAAQS from 65 [micro]g/m\3\ to 35 [micro]g/m\3\.
As required by section 110(a)(1) of the CAA, the 110(a)(2) submittals
were due within three years after promulgation of the revised standard.
On March 27, 2008 (73 FR 16436) EPA strengthened its NAAQS for
ground-level ozone, revising the 8-hour primary ozone standard to 0.075
ppm. EPA also strengthened the secondary 8-hour ozone standard to the
level of 0.075 ppm making it identical to the revised primary standard.
On November 12, 2008 (73 FR 66964), EPA promulgated a revised NAAQS
for lead. The Agency revised the level of the primary lead standard
from 1.5 [micro]g/m\3\ to 0.15 [micro]g/m\3\ . The EPA also revised the
secondary NAAQS to 0.15 [micro]g/m\3\ and made it identical to the
revised primary standard.
Pursuant to section 110(a)(1) of the CAA, states are required to
submit SIPs meeting the applicable requirements of section 110(a)(2)
within three years after promulgation of a new or revised NAAQS or
within such shorter period as EPA may prescribe. Section 110(a)(2)
requires states to address basic SIP elements such as requirements for
monitoring, basic program requirements, and legal authority that are
designed to assure attainment and maintenance of the NAAQS. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The content of such SIP submission may also vary depending
upon what provisions the state's existing SIP already contains.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned earlier, these
requirements include basic SIP elements such as requirements for
monitoring, basic program requirements, and legal authority that are
designed to assure attainment and maintenance of the NAAQS.
II. Summary of State Submittals
The Commonwealth of Puerto Rico through the Commonwealth of Puerto
Rico Environmental Quality Board (PREQB) submitted five revisions to
its SIP to satisfy the requirements of section 110(a)(2) of the CAA for
the five different NAAQS. On November 29, 2006, PREQB submitted SIP
revisions addressing the infrastructure requirements for the 1997 ozone
and PM2.5 NAAQS. On January 22, 2013 and April 16, 2015,
PREQB submitted SIP revisions addressing the infrastructure
requirements for the 2006 PM2.5 and 2008 ozone NAAQS, and
supplemented the November 2006 submittal for the 1997 ozone and
PM2.5 NAAQS. On January 31, 2013, PREQB submitted SIP
revisions addressing the infrastructure requirements for the 2008 lead
NAAQS. On February 1, 2016, PREQB submitted additional provisions for
inclusion into the SIP which address infrastructure SIP requirements
for 1997 and 2008 ozone, 1997 and 2006 PM2.5 and 2008 lead
NAAQS. Each of the infrastructure SIP revisions addressed the following
infrastructure elements for the applicable NAAQS which EPA is proposing
to approve pursuant to section 110(a)(2) of the CAA. Specifically
sections 110(a)(2)(A), (B), portions of (C), portions of (D), (E), (F),
(G), (H), portions of (J), (K), (L), and (M) for the 1997 and 2008
ozone, 1997 and 2006 PM2.5 and 2008 lead NAAQS.
III. EPA's Approach To Review Infrastructure SIPs
EPA is acting upon Puerto Rico's SIP submissions that address the
infrastructure requirements of section 110(a)(1) and (2) of the CAA for
the 1997 and 2008 ozone, 1997 and 2006 PM2.5 and 2008 lead
NAAQS. The requirement for states to make a SIP submission of this type
arises out of section 110(a)(1). Pursuant to section 110(a)(1), states
must make SIP submissions ``within 3 years (or such shorter period as
the Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 302(d) of the CAA includes the Commonwealth of Puerto Rico in
the definition of the term ``State.'' Section 110(a)(2) includes a list
of specific elements that ``each such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of section 110(a)(1) and (2) as
``infrastructure SIP'' submissions. Although the term ``infrastructure
SIP'' does not appear in the CAA, EPA uses the term to distinguish this
particular type of SIP submission from submissions that are intended to
satisfy other SIP requirements under the CAA, such as ``nonattainment
SIP'' or ``attainment plan SIP'' submissions to address the
nonattainment planning requirements of part D of Title I of the CAA,
``regional haze SIP'' submissions required by EPA rule to address the
visibility protection requirements of section 169A of the CAA, and
nonattainment new source review permit program submissions to address
the permit requirements of CAA, Title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\1\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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\1\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; Section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of Title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of Title I of the
CAA, which specifically address nonattainment SIP
[[Page 8457]]
requirements.\2\ Section 110(a)(2)(I) pertains to nonattainment SIP
requirements and part D addresses when attainment plan SIP submissions
to address nonattainment area requirements are due. For example,
section 172(b) requires EPA to establish a schedule for submission of
such plans for certain pollutants when the Administrator promulgates
the designation of an area as nonattainment, and section 107(d)(1)(B)
allows up to two years or in some cases three years, for such
designations to be promulgated.\3\ This ambiguity illustrates that
rather than apply all the stated requirements of section 110(a)(2) in a
strict literal sense, EPA must determine which provisions of section
110(a)(2) are applicable for a particular infrastructure SIP
submission.
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\2\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\3\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within section 110(a)(1) and (2) with
respect to infrastructure SIPs pertains to whether states must meet all
of the infrastructure SIP requirements in a single SIP submission, and
whether EPA must act upon such SIP submission in a single action.
Although section 110(a)(1) directs states to submit ``a plan'' to meet
these requirements, EPA interprets the CAA to allow states to make
multiple SIP submissions separately addressing infrastructure SIP
elements for the same NAAQS. If states elect to make such multiple SIP
submissions to meet the infrastructure SIP requirements, EPA can elect
to act on such submissions either individually or in a larger combined
action.\4\ Similarly, EPA interprets the CAA to allow it to take action
on the individual parts of one larger, comprehensive infrastructure SIP
submission for a given NAAQS without concurrent action on the entire
submission. For example, EPA has sometimes elected to act at different
times on various elements and sub-elements of the same infrastructure
SIP submission.\5\
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\4\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\5\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within section 110(a)(1) and (2) may also arise with
respect to infrastructure SIP submission requirements for different
NAAQS. Thus, EPA notes that not every element of section 110(a)(2)
would be relevant, or as relevant, or relevant in the same way, for
each new or revised NAAQS. The states' attendant infrastructure SIP
submissions for each NAAQS therefore could be different. For example,
the monitoring requirements that a state might need to meet in its
infrastructure SIP submission for purposes of section 110(a)(2)(B)
could be very different for different pollutants, because the content
and scope of a state's infrastructure SIP submission to meet this
element might be very different for an entirely new NAAQS than for a
minor revision to an existing NAAQS.\6\
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\6\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires attainment plan SIP submissions
required by part D to meet the ``applicable requirements'' of section
110(a)(2); thus, attainment plan SIP submissions must meet the
requirements of section 110(a)(2)(A) regarding enforceable emission
limits and control measures and section 110(a)(2)(E)(i) regarding air
agency resources and authority. By contrast, it is clear that
attainment plan SIP submissions required by part D would not need to
meet the portion of section 110(a)(2)(C) that pertains to the PSD
program required in part C of Title I of the CAA, because PSD does not
apply to a pollutant for which an area is designated nonattainment and
thus subject to part D planning requirements. As this example
illustrates, each type of SIP submission may implicate some elements of
section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\7\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\8\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
[[Page 8458]]
SIP submissions.\9\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). EPA interprets section 110(a)(1) and (2) such that
infrastructure SIP submissions need to address certain issues and need
not address others. Accordingly, EPA reviews each infrastructure SIP
submission for compliance with the applicable statutory provisions of
section 110(a)(2), as appropriate.
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\7\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\8\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),''
Memorandum from Stephen D. Page, September 13, 2013.
\9\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address Section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's SIP
appropriately addresses the requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Guidance explains EPA's interpretation that
there may be a variety of ways by which states can appropriately
address these substantive statutory requirements, depending on the
structure of an individual state's permitting or enforcement program
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are
addressed by the state, the substantive requirements of Section 128 are
necessarily included in EPA's evaluation of infrastructure SIP
submissions because section 110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section 128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and NSR pollutants, including
Green House Gases (GHGs). By contrast, structural PSD program
requirements do not include provisions that are not required under
EPA's regulations at 40 CFR 51.166 but are merely available as an
option for the state, such as the option to provide grandfathering of
complete permit applications with respect to the PM2.5
NAAQS. Accordingly, the latter optional provisions are types of
provisions EPA considers irrelevant in the context of an infrastructure
SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, EPA evaluates whether the
state has an EPA-approved minor new source review program and whether
the program addresses the pollutants relevant to that NAAQS. In the
context of acting on an infrastructure SIP submission, however, EPA
does not think it is necessary to conduct a review of each and every
provision of a state's existing minor source program (i.e., already in
the existing SIP) for compliance with the requirements of the CAA and
EPA's regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and
EPA's policies addressing such excess emissions; (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR
Reform). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\10\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\10\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in section 110(a)(2) as requiring
review of each and every provision of a state's existing SIP against
all requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
section 110(a)(1) and (2) because the CAA provides other
[[Page 8459]]
avenues and mechanisms to address specific substantive deficiencies in
existing SIPs. These other statutory tools allow EPA to take
appropriately tailored action, depending upon the nature and severity
of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to
issue a ``SIP call'' whenever the Agency determines that a state's SIP
is substantially inadequate to attain or maintain the NAAQS, to
mitigate interstate transport, or to otherwise comply with the CAA.\11\
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\11\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Findings of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
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Section 110(k)(6) authorizes EPA to correct errors in past actions,
such as past approvals of SIP submissions.\12\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\13\
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\12\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under section 110(k)(6) of the CAA to
remove numerous other SIP provisions that the Agency determined it
had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62
FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004
(corrections to California SIP); and 74 FR 57051 (November 3, 2009)
(corrections to Arizona and Nevada SIPs).
\13\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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IV. Summary of EPA's Rationale for Proposing Approval and Disapproval
In this rulemaking action, EPA is proposing approval of Puerto
Rico's infrastructure SIP submittals for the 1997 and 2008 ozone, 1997
and 2006 PM2.5 and 2008 lead NAAQS as addressing
requirements in section 110(a)(2)(A), (B), (C) (with the exception of
program requirements for PSD), (D)(i) (with the exception of program
requirements related to PSD), (D)(ii) (with the exception of program
requirements related to PSD), (E), (F), (G), (H), (J) (with the
exception of program requirements related to PSD), (K), (L), and (M) of
the CAA.
On February 1, 2016, PREQB submitted rules from the Commonwealth of
Puerto Rico Statutes, ``Environmental Public Policy Act,'' Act No. 416
(2004, as amended), Section 7.A, and Section 7.D and ``Puerto Rico
Government Ethics Law,'' Act. No 1 (approved January 3, 2012), Section
5, for incorporation into the SIP to address the requirements of
Sections 110(a)(2)(E)(ii) and 128 of the CAA. Among other things, these
collective provisions prohibit members of the Commonwealth's
Environmental Quality Board from having any ``conflicts of interests
that might interfere with the discharge their offices,'' and require
disclosure of potential conflicts of interest. EPA is proposing to
approve these submissions, which are intended to apply to any person
subject to CAA 128, for inclusion into the SIP as meeting CAA
obligations under section 110(a)(2)(E)(ii) for the 1997 ozone, 1997
PM2.5, 2006 PM2.5, 2008 lead, and 2008 ozone
NAAQS.
EPA Region 2 is the permitting authority for Puerto Rico's PSD
Major Source Program. The sources affected by PSD Program are subject
to the Federal Implementation Plan PSD control requirements in 40 CFR
Sections 52.21. Puerto Rico does not have its own state adopted PSD
program, its infrastructure submission is not approvable with respect
to this element. Therefore, EPA is disapproving the following
infrastructure SIP elements as they relate to the PSD program for lack
of a State adopted PSD rule to satisfy section 110(a)(2) for the 1997
and 2008 ozone, 1997 and 2006 PM2.5, and 2008 lead NAAQS:
sections 110(a)(2)(C), (D)(i) prong 3, (D)(ii) and (J). It should be
noted that a FIP clock will not be started because a PSD FIP is
currently in place, and sanctions will not be triggered.
Section 110(a)(2)(J) requires SIPs to meet applicable requirements
of part C of the CAA related to visibility. Puerto Rico's submittal
does not address the visibility portion of J, including submission of
any visibility measures under this sub-element. As indicated in EPA's
September 2013 Infrastructure Guidance, although states are subject to
visibility and regional haze program requirements under part C, the
visibility and regional haze program requirements under part C do not
change due to promulgation of, or revision to, a NAAQS. The SIP is not
required to be revised with respect to visibility protection since
there are no new visibility obligations. Accordingly, air agencies do
not need to address the visibility sub-element of section 110(a)(2)(J)
in infrastructure SIP submissions. Since Puerto Rico did not make a
submission addressing the visibility portion of (J), action on this
sub-element is not applicable.
EPA is not acting on section 110(a)(2)(I), plan revisions for
nonattainment areas. Specific SIP submissions for nonattainment areas,
as required under CAA title I part D, are subject to a different
submission schedule \14\ than those for section 110 infrastructure
elements and are reviewed and acted upon under a separate process.
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\14\ These elements are typically referred to as nonattainment
SIP or attainment plan elements and are due by the dates prescribed
under subparts 2 through 5 of part D.
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A detailed analysis of EPA's review and rationale for proposing to
approve and disapprove elements of the infrastructure SIP submittals as
addressing these CAA requirements may be found in the Technical Support
Document (TSD) for this proposed rulemaking action which is available
on line at www.regulations.gov, Docket ID Number EPA-R02-OAR-2016-0060.
EPA is soliciting public comments on the issues discussed in this
document. These comments will be considered before taking final action.
V. Proposed Action
EPA is proposing to approve Puerto Rico's infrastructure submittals
dated November 29, 2006, January 22 and 31, 2013, April 16, 2005 and
February 1, 2016, for the 1997 and 2008 ozone, 1997 and 2006
PM2.5 and 2008 lead NAAQS, respectively, as meeting the
requirements of section 110(a)(2) of the CAA, including specifically
section 110(a)(2)(A), (B), (C) (with the exception of program
requirements for PSD), (D)(i) (with the exception of program
requirements related to PSD), (D)(ii) (with the exception of program
requirements related to PSD), (E), (F), (G), (H), (J) (with the
exception of program requirements related to PSD), (K), (L), and (M).
EPA is proposing to incorporate the Commonwealth of Puerto Rico's
``Environmental Public Policy Act'', Act No. 416 (2004, as amended),
Section 7.A, and Section 7.D and the ``Puerto Rico Government Ethics
Law,'' Act. No. 1 (approved January 3, 2012), Section 5,
[[Page 8460]]
for inclusion into Puerto Rico's SIP to address the requirements of
Sections 110(a)(2)(E)(ii) and 128 of the CAA. EPA is further proposing
to approve these submissions, which are intended to apply to any person
subject to CAA 128, for inclusion into the SIP as meeting CAA
obligations section 110(a)(2)(E)(ii) for the 1997 ozone, 1997
PM2.5, 2006 PM2.5, 2008 lead, and 2008 ozone
NAAQS.
EPA is disapproving the following infrastructure SIP requirements
as they relate to the PSD program for lack of a State adopted PSD rule
to satisfy section 110(a)(2) for the 1997 and 2008 ozone NAAQS, 1997
and 2006 PM2.5 NAAQS, and 2008 lead NAAQS: sections
110(a)(2)(C), (D)(i) prong 3, (D)(ii) and (J). It should be noted that
a FIP clock will not be started because a PSD FIP is currently in
place, and sanctions will not be triggered. Since Puerto Rico is not
required to address the visibility portion of section 110(a)(2)(J) in
the context of an infrastructure SIP, and therefore did not make a
submission, action on this sub-element is not applicable.
VI. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference Puerto Rico's ``Environmental Public Policy Act,'' Act No.
416 (2004, as amended), Section 7.A, and Section 7.D and ``Puerto Rico
Government Ethics Law,'' Act. No. 1 (approved January 3, 2012), Section
5. These provisions are intended to apply to any person subject to CAA
Section 128. The EPA has made, and will continue to make, these
documents generally available electronically through https://www.regulations (see the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed 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 CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rulemaking action, pertaining to Puerto
Rico's section 110(a)(2) infrastructure requirements for the 1997 and
2008 ozone NAAQS, 1997 and 2006 PM2.5 NAAQS, and 2008 lead
NAAQS 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Intergovernmental relations, Lead, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: February 9, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2016-03395 Filed 2-18-16; 8:45 am]
BILLING CODE 6560-50-P
