Approval of Air Quality Implementation Plans; Puerto Rico; Attainment Demonstration for the Arecibo Area for the 2008 Lead National Ambient Air Quality Standards, 32474-32480 [2017-14730]
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Federal Register / Vol. 82, No. 134 / Friday, July 14, 2017 / Rules and Regulations
Dated: July 10, 2017.
J.S. Dufresne,
Captain, U.S. Coast Guard, Captain of the
Port Buffalo.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
[FR Doc. 2017–14844 Filed 7–13–17; 8:45 am]
BILLING CODE 9110–04–P
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
Authority: 33 U.S.C. 1231; 50 U.S.C. 191;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 0170.1.
2. Add § 165.T09–0386 to read as
follows:
■
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§ 165.T09–0386 Safety Zone; BASS Master
Fireworks Display, Saint Lawrence River,
Ogden Island, Waddington, NY.
(a) Location. This zone will
encompass all waters of the Saint
Lawrence River, Ogden Island,
Waddington, NY within a 560-foot
radius of position 44°52′16.58″ N. and
075°12′18.08″ W. (NAD 83).
(b) Enforcement period. This
regulation is effective on July 22, 2017
from 8:45 p.m. until 10:15 p.m.
(c) Regulations. (1) In accordance with
the general regulations in § 165.23 of
this part, entry into, transiting, or
anchoring within this safety zone is
prohibited unless authorized by the
Captain of the Port Buffalo or his
designated on-scene representative.
(2) This safety zone is closed to all
vessel traffic, except as may be
permitted by the Captain of the Port
Buffalo or his designated on-scene
representative.
(3) The ‘‘on-scene representative’’ of
the Captain of the Port Buffalo is any
Coast Guard commissioned, warrant or
petty officer who has been designated
by the Captain of the Port Buffalo to act
on his behalf.
(4) Vessel operators desiring to enter
or operate within the safety zone must
contact the Captain of the Port Buffalo
or his on-scene representative to obtain
permission to do so. The Captain of the
Port Buffalo or his on-scene
representative may be contacted via
VHF Channel 16. Vessel operators given
permission to enter or operate in the
safety zone must comply with all
directions given to them by the Captain
of the Port Buffalo, or his on-scene
representative.
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POSTAL SERVICE
PART 233—[AMENDED]
1. The authority citation for part 233
continues to read as follows:
■
Authority: 39 U.S.C. 101, 102, 202, 204,
401, 402, 403, 404, 406, 410, 411, 1003,
3005(e)(1); 12 U.S.C. 3401–3422; 18 U.S.C.
981, 983, 1956, 1957, 2254, 3061; 21 U.S.C.
881; Sec. 662, Pub. L. 104–208, 110 Stat.
3009–378.
§ 233.3
39 CFR Part 233
[Amended]
2. In § 233.3(c)(4), remove the words
‘‘Standard Mail,’’ and add in their place
the words ‘‘USPS Marketing Mail.’’
■
Inspection Service Authority;
Technical Correction
Postal ServiceTM.
ACTION: Final rule; technical correction.
AGENCY:
The U.S. Postal Service® is
making a technical correction to ensure
that its regulations governing the use of
mail covers are consistent with current
mail classification terminology, by
changing the product name ‘‘Standard
Mail®’’ to ‘‘USPS Marketing MailTM’’
wherever necessary.
DATES: This rule is effective July 14,
2017.
SUMMARY:
Questions or comments on
this action are welcome. Mail or deliver
written comments to David Forde,
Acting Assistant Postal Inspector in
Charge, Office of Counsel, U.S. Postal
Inspection Service, 475 L’Enfant Plaza
SW., Room 3136, Washington, DC
20260–3100.
FOR FURTHER INFORMATION CONTACT:
David Forde, Acting Assistant Postal
Inspector in Charge, Office of Counsel,
U.S. Postal Inspection Service, 202–
268–7402, DC Forde@uspis.gov.
SUPPLEMENTARY INFORMATION: On
December 21, 2016, the Postal ServiceTM
published a final rule replacing the
product name ‘‘Standard Mail’’ with the
new name ‘‘USPS Marketing Mail’’
throughout subchapter 240 of Mailing
Standards of the United States Postal
Service, Domestic Mail Manual (DMM).
See, 81 FR 93606, 93613–93615. This
rebranding is intended to enhance the
public’s perception of this service, and
improve its position in the marketplace.
Consistent with these objectives, we are
amending our regulations as necessary
to reflect that the product name
‘‘Standard Mail’’ has been changed to
‘‘USPS Marketing Mail.’’
ADDRESSES:
List of Subjects in 39 CFR Part 233
Administrative practice and
procedure, Crime, Law enforcement,
Penalties, Privacy.
For the reasons stated in the
preamble, the Postal Service amends 39
CFR part 233 as follows:
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Stanley F. Mires,
Attorney, Federal Compliance.
[FR Doc. 2017–14763 Filed 7–13–17; 8:45 am]
BILLING CODE 7710–12–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R02–OAR–2016–0559; FRL–9964–87–
Region 2]
Approval of Air Quality Implementation
Plans; Puerto Rico; Attainment
Demonstration for the Arecibo Area for
the 2008 Lead National Ambient Air
Quality Standards
Environmental Protection
Agency.
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency is approving a State
Implementation Plan (SIP) revision
dated August 30, 2016, submitted by the
Commonwealth of Puerto Rico to the
EPA. The purpose of this SIP revision is
to provide for attainment of the 2008
Lead National Ambient Air Quality
Standard in the Arecibo Lead
Nonattainment Area. The Arecibo
Nonattainment Area is comprised of a
portion of Arecibo Municipality in
Puerto Rico with a 4 kilometer radius
surrounding The Battery Recycling
Company, Inc. This SIP revision
includes a base year emissions
inventory, a modeling demonstration
showing attainment of the Lead
National Ambient Air Quality Standard,
contingency measures and a narrative
on control measures that includes
reasonably available control measures/
reasonably available control technology,
and reasonable further progress.
DATES: This rule is effective on August
14, 2017. The incorporation by reference
of certain publications listed in the
regulations is approved by the Director
of the Federal Register as of August 14,
2017.
SUMMARY:
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EPA has established a
docket for this action under Docket ID
No. EPA–R02–OAR–2016–0559. All
documents in the docket are listed on
the www.regulations.gov Web site.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available electronically through
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Mazeeda Khan, Air Programs Branch,
Environmental Protection Agency, 290
Broadway, New York, New York 10007–
1866, (212) 637–3715, or by email at
khan.mazeeda@epa.gov.
SUPPLEMENTARY INFORMATION:
The SUPPLEMENTARY INFORMATION
section is arranged as follows:
ADDRESSES:
Table of Contents
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I. What is the background information?
II. What comments did the EPA receive on
the proposal and what are the EPA’s
responses?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background information?
On November 12, 2008 (73 FR 66964),
the Environmental Protection Agency
(EPA) revised the Lead National
Ambient Air Quality Standard
(NAAQS), lowering the level from 1.5
micrograms per cubic meter (mg/m3) to
0.15 mg/m3 calculated over a threemonth rolling average. The EPA
established the 2008 Lead NAAQS
based on significant evidence and
numerous health studies demonstrating
that serious health effects are associated
with exposures to lead emissions.
Following promulgation of a new or
revised NAAQS, the EPA is required by
the Clean Air Act (CAA) to designate
areas throughout the United States as
attaining or not attaining the NAAQS;
this designation process is described in
CAA section 107(d)(1). On November
22, 2010 (75 FR 71033), the EPA
promulgated initial air quality
designations for the 2008 Lead NAAQS
(first round of designations), which
became effective on December 31, 2010,
based on air quality monitoring data for
calendar years 2007–2009, where there
was sufficient data to support a
nonattainment designation. On
November 22, 2011 (76 FR 72097), the
EPA promulgated its second round of
designations for the 2008 Lead NAAQS,
which became effective on December
31, 2011, based on air quality
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monitoring data for calendar years
2008–2010. The Arecibo Area was
designated as nonattainment for the
2008 Lead NAAQS in the second round
of designations, based on air quality
monitoring data that exceeded the 2008
Lead NAAQS. This designation
triggered a requirement for Puerto Rico
to submit a State Implementation Plan
(SIP) revision by June 30, 2013, with a
plan for how the Area would attain the
2008 Lead NAAQS, as expeditiously as
practicable, but no later than December
31, 2016. See 42 U.S.C. 7514(a),
7514a(a).
The Puerto Rico Environmental
Quality Board (PREQB) initially
submitted a lead SIP revision for the
Arecibo Area on January 30, 2015. The
EPA proposed to disapprove the January
30, 2015 submittal on February 29, 2016
(81 FR 10159). One comment was
received from the Chairman of the
PREQB, Weldin Ortiz Franco. The
PREQB rescinded the January 30, 2015
submittal and replaced it with the
August 30, 2016 lead SIP submittal for
the Arecibo Area. The August 30, 2016
SIP submittal included the base year
emissions inventory and the attainment
demonstration. The EPA proposed to
approve this submittal on November 7,
2016. (81 FR 78097). The EPA’s analysis
of the submitted attainment plan
includes a review of the pollutant
addressed, emissions inventory
requirements, modeling demonstration
of lead attainment, contingency
measures and narrative on control
measures that includes reasonably
available control measures (RACM)/
reasonably available control technology
(RACT), and reasonable further progress
(RFP) for the Arecibo Area. Today’s rule
represents the EPA’s final action on
Puerto Rico lead SIP attainment plan.
II. What comments did the EPA receive
on the proposal and what are the EPA’s
responses?
The public comment period for the
November 7, 2016 proposed approval of
the PREQB lead SIP revision closed on
December 7, 2016. We received
comments from Mr. Jesus Garcia Oyola
and Mr. Wilfredo Velez Hernandez,
Earthjustice, and Madres De Negro De
Arecibo, Inc. In general, all three
commenters stated that the EPA should
disapprove Puerto Rico’s proposed
August 30, 2016 SIP revision.
A summary of the comments and the
EPA’s responses are provided below.
Comments from Jesus Garcia Oyola and
Wilfredo Velez Hernandez are referred
to as ‘‘Garcia/Velez’’, comments from
Earthjustice are referred to as
‘‘Earthjustice’’ and comments from
Madres De Negro De Arecibo, Inc. are
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referred to as ‘‘Madres De Negro.’’ These
responses address ‘‘significant
comments, criticisms, and new data’’
submitted during the comment period,
pursuant to CAA section 307(d)(6)(B),
42 U.S.C. 7607(d)(6)(B). The EPA is not
addressing those comments that do not
relate to the underlying purpose of the
November 17, 2016 proposed SIP
approval of the attainment
demonstration for the Arecibo Area,
such as comments related to the Clean
Water Act and Resource Conservation
and Recovery Act.
1. Comment: In general, there were
several comments that the Spanish and
English versions of the lead SIP revision
available for public comment by the
PREQB were not identical (such as
sections addressing the emissions
inventory), and that the documents were
too technical.
EPA Response: The EPA has
reviewed, evaluated, and proposed
action on the August 30, 2016 lead SIP
revision submitted by PREQB to the
EPA. The August 30, 2016 SIP submittal
(lead SIP submittal or lead SIP revision),
which is in English, is the official
submittal. The PREQB followed the
process set forth in CAA sections 110
and 172 and 40 CFR part 51, appendix
V in preparing and submitting the lead
SIP revision. Consistent with the
relevant requirements, the official
August 30, 2016 SIP submittal included
the sources within the boundaries of the
lead modeling domain (sources in
Arecibo and its bordering
municipalities, see pages 34–36 and
pages 62–64 of the SIP submittal).
Emissions from sources outside of the
modeling domain were not included in
the attainment demonstration modeling
because their effect, if any, on the area
within the lead modeling domain would
be negligible. See Responses to
Comments #4 and #5.
2. Comment: Garcia/Velez stated that
the 2011 emissions inventory contains
allowable emissions of lead but should
contain actual emissions of lead, in
accordance with 42 U.S.C. 7502(c)(3)
which requires ‘‘a comprehensive,
accurate, current inventory of actual
emissions from all sources of the
relevant pollutant.’’
EPA Response: The lead SIP submittal
provided the 2011 actual emissions and,
for those sources where actual
emissions could not be calculated due
to lack of activity data, provided
allowable emissions. The PREQB’s use
of allowable emissions for the 2011
calendar year, instead of actual
emissions, is a more conservative
approach which may result in the plan
requiring additional controls to reach
attainment in the future. As stated in
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Table 8.1 in 40 CFR part 51, appendix
W (Guideline on Air Quality Models),
this methodology is acceptable in
attainment demonstrations instead of
including a zero value due to lack of
actual activity data.
3. Comment: Garcia/Velez stated that
in 2011, Energy Answers and Sunbeam
Synergy were not in operation, however,
Energy Answers was included in the
2011 emissions inventory and Sunbeam
Synergy was not.
EPA Response: The commenter is
correct that on pages 18–19 of the lead
SIP revision, the text stated that 2011
facility emissions for Energy Answers
are included in the 2011 emissions
inventory. However, although Energy
Answers 2011 emissions are mentioned
in the text on pages 18–19, the actual
2011 facility emissions numbers that are
included in the air quality attainment
demonstration do not include emissions
from Energy Answers as it was not
operating at that time. In fact, the
facility has not been constructed yet.
See the PREQB lead SIP submittal, page
32, Table A1, for 2011 emissions
inventory numbers. The sources
included in the air quality attainment
demonstration were listed in the
PREQB’s 2011 emissions inventory at
page 33, Table A1 of the submittal.
These sources were included in Table 1
of the EPA’s notice of proposed
rulemaking, 81 FR at 78100. Although
they are not included in the 2011
emissions inventory, as discussed in
response #11 below, Energy Answers
and Sunbeam Synergy are included in
the 2016 projection inventory totals. See
PREQB lead SIP submittal, page 57,
Table B1.
4. Comment: Earthjustice stated that
the EPA regulations mandate that
‘‘emissions inventories such as this one
use the ‘[m]aximum allowable emission
limit or federally enforceable permit
limit’ to model concentrations. But the
AEROMOD Model in the lead SIP
revision uses inputs that are lower than
permit limits or maximum allowable
emissions’’ for PREPA and Safetech
facilities. Accordingly, Earthjustice
stated that the PREQB must redo its
model using maximum allowable
emissions as required by the EPA
regulations.
EPA Response: According to the EPA
2008 Lead NAAQS Implementation
Questions and Answers Memorandum
document dated July 8, 2011 (see page
7, answer to question 12), the emission
rate input for attainment demonstrations
should be based on maximum allowable
or federally enforceable permit limits.
The commenter is correct that the
PREQB did not use the permit limits for
PREPA and Safetech, which are 0.3 and
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0.013 tons per year (tpy), respectively.
However, in this particular instance, it
is reasonable not to require the PREQB
to remodel 2016 lead concentrations
using maximum allowable emissions
because doing so would not change the
conclusion that the SIP submittal
demonstrates attainment of the 2008
Lead NAAQS. The PREQB used 2016
emissions values for PREPA and
Safetech of 0.28 and 0.009 tpy,
respectively, resulting in a combined
lead contribution for these two sources
equal to 0.0178 percent of total
cumulative lead contribution of 0.09352
mg/m3. Furthermore, the modeled 3month rolling average cumulative lead
concentration from all sources, 0.09352
mg/m3, is substantially below the 2008
Lead NAAQS of 0.15 mg/m3. Given the
minimal contribution of these two
sources to the overall lead contribution
for this area, if the emissions for these
two sources were increased to the
permit levels of 0.3 tpy and 0.013 tpy,
respectively, the increase would not
impact the attainment demonstration of
the 2008 Lead NAAQS. Consequently,
the PREQB actions were within reason.
5. Comment: Madres de Negro and
Earthjustice commented on the
substance and approval status of
permitted facilities in Arecibo and other
municipalities. Specifically,
commenters stated that the 2016
projected emissions inventory in the
lead SIP revision does not match the
permits inventory for the PREPA and
Safetech facilities. Commenters
suggested that these inconsistencies in
information require the EPA to
disapprove the lead SIP revision.
EPA Response: See the Responses to
Comments #3 and #4. These enforceable
limits were established pursuant to the
Regulation for the Control of the
Atmospheric Pollution (RCAP) Rules
203 (Permit to Construct a Source rule)
and 204 (Permit to Operate a Source
rule). RCAP Rules 203 and 204 require
air emissions sources to obtain permits
prior to the construction or operation of
the source and also require the source
to demonstrate compliance with all
applicable rules and regulations prior to
obtaining a construction permit. The
EPA agrees that, for PREPA and
Safetech, the emissions inventory in the
lead SIP revision is slightly different
from that in the permits included as
Exhibits 3 and 4 to Earthjustice letter.
The 2011 emissions inventory included
the The Battery Recycling Company,
Inc. (TBRCI) facility and the facilities in
surrounding municipalities listed in the
EPA’s Emissions Inventory System
(EIS)/National Emissions Inventory
(NEI) database. TBRCI, a secondary lead
smelter representing 85 percent of the
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2011 emissions inventory, was the
primary source of the high lead
concentration, and the nonattainment
area was established with this facility at
its center. The other facilities
contributed to lead concentrations
representing a total of 13 percent of the
2011 emission inventory. As explained
in the Responses to Comments #3 and
#4, emissions from these sources
contribute minimally to the cumulative
lead concentration in the nonattainment
area in the 2016 modeling, and slight
differences between permitted and
modeled emissions are unlikely to
impact the attainment demonstration
contained in the PREQB’s SIP revision.
6. Comment: Several comments were
made that the emissions included in the
lead SIP revision were not inclusive of
all TBRCI operations (including lead
emissions to water and hazardous
waste) and did not include all emissions
of lead in the areas as far away as
Camuy and Manati municipalities,
including the airports.
EPA Response: The EPA disagrees
that the emissions to water and
hazardous waste as well as emissions
from non-bordering municipalities
should be included. PREQB’s SIP
emissions inventory included air lead
emission sources consistent with the
EPA guidance 2008 Lead NAAQS
Implementation Questions and
Answers.1 Consistent with the Lead
Guidance, any ambient air lead
emissions recorded in the EPA EIS/NEI
database for Arecibo and its bordering
municipalities were included in this
lead SIP revision. Emissions from
Antonio Nery Juarbe Airport, which is
located within the Arecibo Area, were
also included. For additional facility
emissions calculated and included in
the inventory, see Responses to
Comments #1–#4.
7. Comment: Madres de Negro states
that the PREQB announced its intention
to issue Energy Answers a construction
permit in October 2014, and that
authorizing construction of a new leademitting facility in a nonattainment area
without a SIP violates 40 CFR 52.24.
EPA Response: The EPA disagrees
that the timing of Energy Answers
construction permit is relevant to the
current rulemaking, which constitutes
the EPA’s action on the PREQB’s
attainment demonstration for the
Arecibo lead nonattainment area. The
PREQB has an approved nonattainment
new source review program (NNSR) that
includes lead and that meets the
1 Memorandum from Scott L. Mathias, Interim
Director, Air Quality Policy Division, to Regional
Air Division Directors Regions I–X, dated July 8,
2011 (Lead Guidance).
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statutory requirements. Proposed
facilities must, at the time of permit
application, meet the requirements of
the PREQB RCAP 203, the PREQB’s
NNSR program and any applicable
federal requirements. As stated above,
however, the permitting of new sources
under this program is independent of
considerations relevant to determining
whether the PREQB has submitted an
approvable attainment plan. Regardless,
the 2016 modeling included in the
Arecibo attainment demonstration
shows that the new planned sources,
including the Energy Answers facility,
will not cause or contribute to lead
concentrations in excess of the 2008
Lead NAAQS.
8. Comment: Earthjustice stated that
the lead SIP revision does not include
emissions limitations for any facility
within or near the nonattainment area
but rather sets forth general provisions
of the PREQB regulations. Specifically,
the commenter asserts that ‘‘[t]hese
vague prohibitions on general
pollution’’ do not comply with the
CAA’s requirement of particularized
emission limits and control technologies
applied to the emitting facilities within
the nonattainment area.
EPA Response: The EPA disagrees
that the attainment SIP does not provide
for the statutorily required permanent
and enforceable emissions limitations as
may be necessary to provide for
attainment. The lead SIP revision is a
plan to control ambient air lead
emissions from the primary sources (or,
in this case, source) of emissions. The
PREQB’s attainment modeling took into
account all ambient air lead emissions
recorded in the EPA EIS/NEI database in
Arecibo and its bordering
municipalities, in addition to emissions
from the primary source. The modeling
also conservatively incorporated other
planned facilities that emit lead to
ensure that the area will attain the
standard. The PREQB’s modeling
demonstration determined that TBRCI
was the primary source of ambient air
lead emissions contributing to
nonattainment in the Arecibo Area and
was thereby, the only source required to
implement control technologies. On
August 19, 2015, the PREQB rescinded
the TBRCI operating and construction
permits. Because TBRCI is no longer
permitted to emit lead at the ambient air
levels that contributed to nonattainment
(or indeed at any level whatsoever), the
permit rescission provides the
permanent and enforceable emission
reductions necessary to bring the
Arecibo Area into attainment with the
2008 Lead NAAQS. As stated in both
the lead SIP revision submitted by the
PREQB and the EPA’s proposed
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approval, should TBRCI or any other
entity decide to start up business as a
secondary lead smelter facility in the
Arecibo Area, the company will need to
obtain the appropriate permits to
operate in accordance with all
applicable laws and regulations of the
Commonwealth of Puerto Rico and the
EPA, including the Commonwealth of
Puerto Rico RCAP, the Puerto Rico
Environmental Public Policy Act, Act
416–2004 as amended (PREPPA Act
416) and CAA Section 112
requirements. These relevant laws and
programs are intended, among other
things, to ensure that emissions from
new sources do not interfere with the
attainment of the 2008 Lead NAAQS.
The EPA and the PREQB also
considered fugitive emissions from the
piles of lead slag and other materials
stored on the facility property. It is
noteworthy that the TBRCI site has been
proposed for the Superfund National
Priorities List 2 and that the EPA has
been conducting activities on TBRCI
property since September 2015.
Additionally, RCAP Rule 404, which
requires any person to take reasonable
precautions to prevent fugitive
emissions from becoming airborne has
already been adopted, is approved into
the Puerto Rico’s SIP.3 The
requirements of RCAP Rule 404 are,
therefore, enforceable measures for
controlling fugitive emissions from the
TBRCI site.
9. Comment: Earthjustice stated that
the Energy Answers and PREPA
Cambalache Plant are the highest 2016
emitters and should be the subject of
more stringent emissons limitations and
control measures in the Arecibo SIP
Revision.
EPA Response: The EPA disagrees.
See Response to Comment #8. The
PREQB’s modeling indicates that the
shutdown of TBRCI, coupled with the
backstop of the fugitive emissions
provisions in RCAP Rule 404, are
sufficient for the Arecibo Area to
achieve attainment of the 2008 Lead
NAAQS.
10. Comment: Garcia/Velez stated that
the PREQB should not have included
facilities that are not operational in the
2016 projected emission inventory.
EPA Response: A projected emissions
inventory is the basis for determining
whether the area will attain and
maintain the lead standard based on
permitted allowances. As discussed in
Response to Comment #3, the proposed
2 National Priorities List Proposed Site, The
Battery Recycling Company, https://
semspub.epa.gov/work/02/363680.pdf, 81 FR 62428
(September 9, 2016).
3 62 FR 3213 (January 22, 1997), 40 CFR 52.2723.
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sources Energy Answers and Sunbeam
were added to the projected emissions
inventory for 2016. This is a
conservative approach for modeling the
air quality in the Arecibo Area. By
including the Energy Answers and
Sunbeam Synergy facilities as part of
the 2016 projected inventory for the
attainment demonstration, the PREQB’s
lead SIP revision is demonstrating that
future growth in lead emissions from
these sources will not cause or
contribute to a violation of the 2008
Lead NAAQS. The Arecibo ambient air
lead attainment demonstration SIP is
not required to address specific
proposed facilities. Rather, consistent
with RCAP Rule 203, pre-construction
requirements, those proposed facilities
are required to conduct a demonstration
of compliance with all applicable rules
and regulations at the time of permit
application. In addition, proposed
facilities will be required to comply
with PREQB’s approved NNSR program.
The Arecibo attainment demonstration
model demonstrates that the planned
facilities will not cause an exceedance
in the 2008 Lead NAAQS.
11. Comment: Several commenters
questioned whether, if TBRCI is the
cause of the ambient air lead problem in
the area and its 2016 potential
emissions of lead are 0.33538 tpy, then
Energy Answers with slightly higher
emissions may also be a problem.
EPA response: The 2016 projected
emissions inventory for TBRCI in the
January 30, 2015 lead SIP submittal was
0.33538 tpy. This number represented
stack emissions from TBRCI. However,
now that TBRCI’s permits have been
pulled and the facility has shut down,
stack emissions from this facility are
zero, as reflected in the more recent
August 30, 2016 SIP revision. The lead
SIP attainment demonstration in the
2015 submission assumed continued
operation at TBRCI which includes
fugitive emissions and materials
handling and transport from TBRCI.
When TBRCI was modeled in the
previous submission, the modeling
indicated that these low elevation
fugitive emissions and materials
handling and transport were the major
contributor to overall emissions because
they are subject to less dispersion, even
exceeding the magnitude of the stack
emissions. As modeled in the 2015
submission, TBRCI’s cumulative
emissions resulted in the Arecibo Area
exceeding the 2008 Lead NAAQS of
0.15 mg/m 3. However, with the
cessation of operations at TBRCI, the
PREQB’s updated modeling shows the
area coming into attainment.
Regardless, while the emissions
inventory number associated with the
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Energy Answers proposed incinerator
may be similar to TBRCI’s combined
stack and fugitive/materials handling
and transport emissions, the model in
the Puerto Rico’s SIP shows that the
proposed incinerator’s maximum air
quality impact for lead is close to
Energy Answer’s fence-line and results
in a lead concentration for the Arecibo
Area that is 200 times less than the level
of the 2008 Lead NAAQS. The model
also shows that the proposed
incinerator’s impact in the Arecibo Area
is 3000 times less than the 2008 Lead
NAAQS and would have a negligible
contribution to the lead emissions in the
area. This information is included in
Energy Answer’s PSD permit
application as well as EPA’s Response
to Comment document regarding its
permit.
12. Comment: Earthjustice stated that
even with TBRCI shutdown, the PREQB
estimates that the other lead-emitting
facilities in the area, collectively, will
emit 0.78 tons of lead, a significant
amount that is still about 65 percent of
the 1.21 tons of lead that TBRCI emitted
in 2011, leading to nonattainment.
EPA Response: The EPA disagrees
that emissions from other lead-emitting
facilities will result in nonattainment in
the Arecibo Area. The attainment
demonstration is not simply based on a
summing of air lead emission values
from all sources in the area, as
presented by the commenter. Rather, the
EPA’s Lead Guidance requires that an
attainment demonstration include an
emissions inventory, ambient air
monitoring data, and the EPA-approved
air quality modeling dispersion
analysis, which also takes into
consideration atmospheric conditions,
dispersion, chemical transformation in
the area under analysis, emissions,
background concentration, stack heights
and stack down wash and building
wake. The modeled attainment
demonstration accounted for the
collective ambient air lead emissions
from sources in Arecibo and in
bordering municipalities, including the
emissions cited by the commenter, and
shows that those emissions will not
result in lead levels above the 2008 Lead
NAAQS in the nonattainment area. See
PREQB SIP Plan Appendix C.
13. Comment: Earthjustice stated that
the EPA cannot approve a SIP revision
when the air monitoring data does not
demonstrate that attainment can be
achieved until the end of 2018.
EPA Response: The EPA disagrees
with this comment. As stated in the
Lead Guidance, ‘‘[a]n attainment SIP
may be approvable even if the state does
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not anticipate having 3 full years of
clean data by the attainment date. See
EDF v. EPA, 369 F.3d 193 (2d Cir. 2004);
Sierra Club v. EPA, 356 F.3d 296 (D.C.
Cir. 2004) amended 2004 WL 877850
(D.C. Cir. 2004).’’ Lead Guidance, page
4, Question 9. The ambient air
monitoring data show clean data
starting in September 2015, following
the withdrawal of TBRCI permits on
August 19, 2015; the closure of TBRCI
will facilitate the attainment of the 2008
lead NAAQS by 2018. The fact that the
area is unable to attain until 2018 does
not abrogate either the PREQB’s
statutory obligation to submit a SIP
demonstrating how it will reach
attainment of the NAAQS as
expeditiously as possible, or the EPA’s
responsibility to act on such a SIP
submission. The EPA’s approval of the
attainment plan is based on the finding
that the area meets all applicable lead
NAAQS attainment plan requirements
under CAA sections 172, 191, and 192,
42 U.S.C. 7502, 7514, and 7514a.
14. Comment: Earthjustice
commented that one of the two lead air
monitoring sites referenced in the SIP,
Victor Santoni Cordero site, was not
operational from October 3, 2015, to
May 6, 2016, and that at the other lead
air monitoring site, Road #2, there are
data gaps between December 13, 2014,
and January 12, 2015, and between July
5, 2015, and September 3, 2015.
Earthjustice asserted that the EPA
should ensure that both air monitoring
sites are fully operational before
approving the Arecibo Lead SIP
Revision. Earthjustice stated that the
PREQB has never published the air
monitoring data relative to ambient air
lead in Arecibo.
EPA Response: The EPA disagrees
with Earthjustice’s characterization of
the PREQB’s air monitoring network in
the Arecibo Area. In accordance with 40
CFR part 58, appendix D section 4.5, the
state is required to have at a minimum
one source-oriented air monitoring site
located to measure the maximum lead
concentration in ambient air resulting
from each non-airport lead source
which emits 0.50 or more tpy. In
Arecibo, the PREQB operates two
monitoring sites, which is more than the
required number. The data from both of
the monitors is used to determine
compliance with the NAAQS. Any 3month period can show a violation of
the standard, while a 36-month period
can show attainment of the standard.
While it is optimal to collect all the data
points, mechanical issues may occur,
thereby making sampling difficult. If an
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Sfmt 4700
issue arises, the PREQB and the EPA
work as expeditiously as possible to
address it. Even though the Victor
Santoni Cordero site was not
operational from October 3, 2015, to
May 6, 2016, the closer monitoring site,
Road #2 was operational at that time.
Similarly, the PREQB advised the EPA
that, due to a mechanical issue, samples
were not collected from July 11, 2015 to
August 28, 2015 (nine samples) at the
Road #2 site. However, the Victor
Cordero site continued to operate during
that time with sampling data ranging
from 0.002 mg/m3 to 0.005 mg/m3.
Consistent with 40 CFR part 58,
appendix D section 4.5, one air
monitoring site was operational. This
data gap may affect the timeframe (three
years of monitored clean data) by which
the area can show attainment of the
standard; however, it does not affect the
SIP process of approving a plan to attain
the standard.
The data is published in AQS as
required by 40 CFR part 58. The public
can access this data by visiting
www.epa.gov/airdata.
15. Comment: Earthjustice stated that
the proposed SIP action overlooks air
quality monitoring data that clearly
show continued exceedances of the lead
NAAQS (0.15 mg/m3) even after the
temporary shutdown of TBRCI and,
therefore, the cessation of operations at
TBRCI cannot serve as a basis for
demonstrating attainment.
EPA Response: When TBRCI ceased
lead smelter operations on June 2, 2014,
the handling of the slag piles continued,
causing the exceedances of the 2008
Lead NAAQS until July 2015. The air
quality data measured after the PREQB
rescinded TBRCI’s permits (August 19,
2015) demonstrates that pulling the
source’s operating permit and
terminating handling of slag piles, as
opposed to just ceasing stack emissions,
is an appropriate control measure that
has a positive effect on the air quality.
These slag piles, which generate the
fugitive emissions, are part of a
Superfund removal action. As identified
in EPA’s proposed approval, the
existing SIP provision, Puerto Rico
RCAP Rule 404, is in place as a control
measure for fugitive emissions. RCAP
Rule 404(E) provides that ‘‘[a]ny new or
modified source, the construction of
which causes or may cause fugitive
emissions, shall apply for a permit as
required in Rule 203.’’ All other control
measures were discussed in the
proposed approval. Also see Response
to Comment #18.
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Date
Activity
June 2010 ...............
June 2014 ...............
July 2015 ................
September 2015 .....
NAAQS exceeded ..................................................................................................
TBRCI ceased operations ......................................................................................
Last time NAAQS was exceeded ..........................................................................
Individual sample dated September 3, 2015 showed a decrease; PREQB pulled
TBRCI permits prior to this sample collection. EPA Superfund personnel on
TBRCI property in September 2015.
Values below NAAQS ............................................................................................
Values below NAAQS ............................................................................................
November 2015 ......
May 2016 ................
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16. Comment: Earthjustice stated that
the contingency measures included in
the lead SIP revision of increased
monitoring, investigation, removal
orders, air pollution alerts, etc., require
‘further action by the State’ and
therefore do not satisfy the CAA.
EPA Response: As Earthjustice
indicates, CAA section 172(c)(9)
provides that ‘‘contingency measures
[are] to take effect in any such case
without further action by the State or
the Administrator.’’ In Greenbaum v.
EPA, 370 F.3d 527 (6th Cir. 2004), in
upholding a redesignation
determination by the EPA, the court
agreed with the EPA’s interpretation
that ‘‘without further action’’ means
without further rulemaking by the State
or the EPA. The court stated, citing to
the EPA’s Calcagni memo,4 ‘‘With
respect to triggers, the EPA correctly
argues that monitored violations of the
NAAQS can be possible triggers.
Calcagni Memo at 12. The contingency
measures may be triggered upon
notification by the Ohio EPA or the
United States EPA of a determination by
either agency that a violation has
occurred. With respect to schedules, the
EPA correctly explains that the
contingency measures were initially
developed pursuant to [CAA]
§ 172(c)(9), which requires that the
measures take effect without further
action by the State or the EPA, which
the EPA interprets to mean ‘that no
further rulemaking activities by the
State or the EPA would be needed to
implement the contingency measures.’
State Implementation Plans; General
Preamble for the Implementation of
Title I of the Clean Air Act Amendments
of 1990, 57 FR 13498, 13512 (April 16,
1992). The Calcagni Memorandum also
states that ‘for the purposes of Section
175A, a State is not required to have
4 The ‘‘Calcagni Memorandum,’’ referenced
above, is a memorandum dated September 4, 1992,
to EPA Regional Air Directors from John Calcagni,
Director, EPA Air Quality Management Division,
titled ‘‘Procedures for Processing Requests to
Redesignate Areas to Attainment.’’ The Calcagni
Memorandum is available at https://www.epa.gov/
sites/production/files/2016-03/documents/
calcagni_memo_-_procedures_for_processing_
requests_to_redesignate_areas_to_attainment_
090492.pdf.
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Air monitoring data
fully adopted contingency measures that
will take effect without further action by
the State in order for the maintenance
plan to be approved.’ Calcagni
Memorandum at 12. Thus, no predetermined schedule for adoption of the
measures is necessary in each specific
case.’’ Greenbaum, 370 F.3d at 541.
The contingency measures in Puerto
Rico’s attainment plan can take effect
without further rulemaking activities;
thus, the EPA disagrees that the
contingency measures included in the
SIP revision do not satisfy the CAA.
17. Comment: Earthjustice stated that
monitoring, by itself, does not satisfy
the CAA’s requirements for a control
measure, and therefore cannot be a
contingency measure.
EPA Response: The EPA disagrees
that the PREQB intends for monitoring,
by itself, to serve as a contingency
measure. Monitoring is used as a trigger
to activate contingency measures, not as
a control measure and potential
contingency measure itself. The
substantive contingency measures the
EPA is approving can be found in the
PREQB SIP submittal at pages 24–27.
18. Comment: Earthjustice reviewed
the EPA Air Quality Data and noted that
exceedances of the lead NAAQS have
been measured in Arecibo at least 26
times after the TBRCI shutdown, as
recent as May 2016.
EPA Response: The data points
Earthjustice referenced are not
exceedances of the NAAQS. Compliance
with the 2008 Lead NAAQS is assessed
by averaging data points over a three
month period, not on the basis of
individual values. While the individual
data points may be greater than 0.15 mg/
m3, this does not mean there has been
a violation of the NAAQS; once the
relevant values averaged over three
months, the data is still below the 2008
Lead NAAQS.
III. What action is EPA taking?
The EPA is approving into the SIP
Puerto Rico’s lead attainment plan for
the Arecibo Area. Specifically, the EPA
is taking final action to approve Puerto
Rico’s August 30, 2016 submittal, which
includes the attainment demonstration,
base year emissions inventory,
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32479
Sfmt 4700
0.201
0.423
0.184
0.004
μg/m3
μg/m3
μg/m3
μg/m3
3 month rolling avg.
3 month rolling avg.
3 month rolling avg.
individual sample.
0.022 μg/m3 3 month rolling avg.
0.021 μg/m3 3 month rolling avg.
modeling, and contingency measures,
and addresses RACM/RACT and the
RFP plan.5 Permits for the lead smelter,
TBRCI, which was documented as the
source of high lead emissions
contributing to nonattainment of the
NAAQS, have been withdrawn and
TBRCI is no longer operating. The
requirements for RACM/RACT and the
RFP plan are satisfied because the
Commonwealth of Puerto Rico
demonstrated that the Area will attain
the 2008 Lead NAAQS as expeditiously
as practicable, and could not implement
any additional measures to attain the
NAAQS any sooner.
The EPA notes that since September
2015, the month after the PREQB
withdrew the construction and
operating permits for TBRCI, the data
from the source oriented Arecibo air
monitoring site indicates the lead
concentration in the ambient air has
been below the three-month rolling
average for the 2008 Lead NAAQS and
the 2016 modeling indicates the area
will attain the NAAQS. The SIP for the
Arecibo Area adequately demonstrates a
trajectory towards attainment; thus, the
EPA is approving the attainment
demonstration, emissions inventory,
modeling, control measures, RACM/
RACT and RFP.
The EPA’s review of the materials
submitted indicates that Puerto Rico has
developed the Lead attainment plan in
accordance with the requirements of the
CAA, 40 CFR part 51, and the EPA’s
technical requirements for a Lead SIP.
Therefore, the EPA is approving into the
SIP the Lead attainment plan for
Arecibo, Puerto Rico.
A detailed analysis of the EPA’s
review and rationale for approving the
lead SIP submittal as addressing these
CAA requirements may be found in the
November 7, 2016 proposed rulemaking
action (81 FR 78097) which is available
on line at www.regulations.gov, Docket
ID Number EPA–R02–OAR–2016–0560.
5 See EPA’s proposed approval of the Attainment
Demonstration for the Arecibo Lead Nonattainment
Area 81 FR 78097 (November 7, 2016).
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IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the
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 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 rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and the EPA notes
that it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
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The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. The EPA will
submit a report containing this action
and other required information to the
U.S. Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. A major rule cannot take effect
until 60 days after it is published in the
Federal Register. This action is not a
‘‘major rule’’ as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by September 12, 2017. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and
recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Subpart BBB—Puerto Rico
2. Section 52.2720 is amended by
adding paragraph (c)(40) to read as
follows:
■
§ 52.2720
Identification of plan.
*
*
*
*
*
(c) * * *
(40) Revisions to the State
Implementation Plan submitted by the
Puerto Rico Environmental Quality
Board (EQB) on August 30, 2016 for the
2008 lead NAAQS.
(i) [Reserved]
(ii) Additional information—EPA
approves Puerto Rico’s Attainment
Demonstration for the Arecibo Lead
Nonattainment Area including the base
year emissions inventory, modeling
demonstration of lead attainment,
contingency measures, reasonably
available control measures/reasonably
available control technology, and
reasonable further progress.
■ 3. Add § 52.2727 to read as follows:
§ 52.2727 Control strategy and
regulations: Lead.
EPA approves revisions to the Puerto
Rico State Implementation Plan
submitted on August 30, 2016,
consisting of the base year emissions
inventory, modeling demonstration of
lead attainment, contingency measures,
reasonably available control measures/
reasonably available control technology,
and reasonable further progress for the
Arecibo Lead Nonattainment Area.
These revisions contain control
measures that will bring Puerto Rico
into attainment for the Lead NAAQS by
the end of 2018.
[FR Doc. 2017–14730 Filed 7–13–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
Authority: 42 U.S.C. 7401 et seq.
Dated: June 20, 2017.
Catherine R. McCabe,
Acting Regional Administrator, Region 2.
For the reasons set forth in the
preamble, the Environmental Protection
Agency amends part 52 of chapter I, title
40 of the Code of Federal Regulations as
follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Frm 00034
Fmt 4700
Sfmt 4700
[EPA–R01–OAR–2016–0296; A–1–FRL–
9964–81–Region 1]
Air Plan Approval; Maine;
Decommissioning of Stage II Vapor
Recovery Systems
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a State
Implementation Plan (SIP) revision
submitted by the State of Maine
Department of Environmental Protection
(Maine DEP). This SIP revision includes
regulatory amendments that repeal
SUMMARY:
■
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]]>Agencies
[Federal Register Volume 82, Number 134 (Friday, July 14, 2017)]
[Rules and Regulations]
[Pages 32474-32480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14730]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2016-0559; FRL-9964-87-Region 2]
Approval of Air Quality Implementation Plans; Puerto Rico;
Attainment Demonstration for the Arecibo Area for the 2008 Lead
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency is approving a State
Implementation Plan (SIP) revision dated August 30, 2016, submitted by
the Commonwealth of Puerto Rico to the EPA. The purpose of this SIP
revision is to provide for attainment of the 2008 Lead National Ambient
Air Quality Standard in the Arecibo Lead Nonattainment Area. The
Arecibo Nonattainment Area is comprised of a portion of Arecibo
Municipality in Puerto Rico with a 4 kilometer radius surrounding The
Battery Recycling Company, Inc. This SIP revision includes a base year
emissions inventory, a modeling demonstration showing attainment of the
Lead National Ambient Air Quality Standard, contingency measures and a
narrative on control measures that includes reasonably available
control measures/reasonably available control technology, and
reasonable further progress.
DATES: This rule is effective on August 14, 2017. The incorporation by
reference of certain publications listed in the regulations is approved
by the Director of the Federal Register as of August 14, 2017.
[[Page 32475]]
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R02-OAR-2016-0559. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mazeeda Khan, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, New York, New York
10007-1866, (212) 637-3715, or by email at khan.mazeeda@epa.gov.
SUPPLEMENTARY INFORMATION:
The Supplementary Information section is arranged as follows:
Table of Contents
I. What is the background information?
II. What comments did the EPA receive on the proposal and what are
the EPA's responses?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background information?
On November 12, 2008 (73 FR 66964), the Environmental Protection
Agency (EPA) revised the Lead National Ambient Air Quality Standard
(NAAQS), lowering the level from 1.5 micrograms per cubic meter
([micro]g/m\3\) to 0.15 [micro]g/m\3\ calculated over a three-month
rolling average. The EPA established the 2008 Lead NAAQS based on
significant evidence and numerous health studies demonstrating that
serious health effects are associated with exposures to lead emissions.
Following promulgation of a new or revised NAAQS, the EPA is
required by the Clean Air Act (CAA) to designate areas throughout the
United States as attaining or not attaining the NAAQS; this designation
process is described in CAA section 107(d)(1). On November 22, 2010 (75
FR 71033), the EPA promulgated initial air quality designations for the
2008 Lead NAAQS (first round of designations), which became effective
on December 31, 2010, based on air quality monitoring data for calendar
years 2007-2009, where there was sufficient data to support a
nonattainment designation. On November 22, 2011 (76 FR 72097), the EPA
promulgated its second round of designations for the 2008 Lead NAAQS,
which became effective on December 31, 2011, based on air quality
monitoring data for calendar years 2008-2010. The Arecibo Area was
designated as nonattainment for the 2008 Lead NAAQS in the second round
of designations, based on air quality monitoring data that exceeded the
2008 Lead NAAQS. This designation triggered a requirement for Puerto
Rico to submit a State Implementation Plan (SIP) revision by June 30,
2013, with a plan for how the Area would attain the 2008 Lead NAAQS, as
expeditiously as practicable, but no later than December 31, 2016. See
42 U.S.C. 7514(a), 7514a(a).
The Puerto Rico Environmental Quality Board (PREQB) initially
submitted a lead SIP revision for the Arecibo Area on January 30, 2015.
The EPA proposed to disapprove the January 30, 2015 submittal on
February 29, 2016 (81 FR 10159). One comment was received from the
Chairman of the PREQB, Weldin Ortiz Franco. The PREQB rescinded the
January 30, 2015 submittal and replaced it with the August 30, 2016
lead SIP submittal for the Arecibo Area. The August 30, 2016 SIP
submittal included the base year emissions inventory and the attainment
demonstration. The EPA proposed to approve this submittal on November
7, 2016. (81 FR 78097). The EPA's analysis of the submitted attainment
plan includes a review of the pollutant addressed, emissions inventory
requirements, modeling demonstration of lead attainment, contingency
measures and narrative on control measures that includes reasonably
available control measures (RACM)/reasonably available control
technology (RACT), and reasonable further progress (RFP) for the
Arecibo Area. Today's rule represents the EPA's final action on Puerto
Rico lead SIP attainment plan.
II. What comments did the EPA receive on the proposal and what are the
EPA's responses?
The public comment period for the November 7, 2016 proposed
approval of the PREQB lead SIP revision closed on December 7, 2016. We
received comments from Mr. Jesus Garcia Oyola and Mr. Wilfredo Velez
Hernandez, Earthjustice, and Madres De Negro De Arecibo, Inc. In
general, all three commenters stated that the EPA should disapprove
Puerto Rico's proposed August 30, 2016 SIP revision.
A summary of the comments and the EPA's responses are provided
below. Comments from Jesus Garcia Oyola and Wilfredo Velez Hernandez
are referred to as ``Garcia/Velez'', comments from Earthjustice are
referred to as ``Earthjustice'' and comments from Madres De Negro De
Arecibo, Inc. are referred to as ``Madres De Negro.'' These responses
address ``significant comments, criticisms, and new data'' submitted
during the comment period, pursuant to CAA section 307(d)(6)(B), 42
U.S.C. 7607(d)(6)(B). The EPA is not addressing those comments that do
not relate to the underlying purpose of the November 17, 2016 proposed
SIP approval of the attainment demonstration for the Arecibo Area, such
as comments related to the Clean Water Act and Resource Conservation
and Recovery Act.
1. Comment: In general, there were several comments that the
Spanish and English versions of the lead SIP revision available for
public comment by the PREQB were not identical (such as sections
addressing the emissions inventory), and that the documents were too
technical.
EPA Response: The EPA has reviewed, evaluated, and proposed action
on the August 30, 2016 lead SIP revision submitted by PREQB to the EPA.
The August 30, 2016 SIP submittal (lead SIP submittal or lead SIP
revision), which is in English, is the official submittal. The PREQB
followed the process set forth in CAA sections 110 and 172 and 40 CFR
part 51, appendix V in preparing and submitting the lead SIP revision.
Consistent with the relevant requirements, the official August 30, 2016
SIP submittal included the sources within the boundaries of the lead
modeling domain (sources in Arecibo and its bordering municipalities,
see pages 34-36 and pages 62-64 of the SIP submittal). Emissions from
sources outside of the modeling domain were not included in the
attainment demonstration modeling because their effect, if any, on the
area within the lead modeling domain would be negligible. See Responses
to Comments #4 and #5.
2. Comment: Garcia/Velez stated that the 2011 emissions inventory
contains allowable emissions of lead but should contain actual
emissions of lead, in accordance with 42 U.S.C. 7502(c)(3) which
requires ``a comprehensive, accurate, current inventory of actual
emissions from all sources of the relevant pollutant.''
EPA Response: The lead SIP submittal provided the 2011 actual
emissions and, for those sources where actual emissions could not be
calculated due to lack of activity data, provided allowable emissions.
The PREQB's use of allowable emissions for the 2011 calendar year,
instead of actual emissions, is a more conservative approach which may
result in the plan requiring additional controls to reach attainment in
the future. As stated in
[[Page 32476]]
Table 8.1 in 40 CFR part 51, appendix W (Guideline on Air Quality
Models), this methodology is acceptable in attainment demonstrations
instead of including a zero value due to lack of actual activity data.
3. Comment: Garcia/Velez stated that in 2011, Energy Answers and
Sunbeam Synergy were not in operation, however, Energy Answers was
included in the 2011 emissions inventory and Sunbeam Synergy was not.
EPA Response: The commenter is correct that on pages 18-19 of the
lead SIP revision, the text stated that 2011 facility emissions for
Energy Answers are included in the 2011 emissions inventory. However,
although Energy Answers 2011 emissions are mentioned in the text on
pages 18-19, the actual 2011 facility emissions numbers that are
included in the air quality attainment demonstration do not include
emissions from Energy Answers as it was not operating at that time. In
fact, the facility has not been constructed yet. See the PREQB lead SIP
submittal, page 32, Table A1, for 2011 emissions inventory numbers. The
sources included in the air quality attainment demonstration were
listed in the PREQB's 2011 emissions inventory at page 33, Table A1 of
the submittal. These sources were included in Table 1 of the EPA's
notice of proposed rulemaking, 81 FR at 78100. Although they are not
included in the 2011 emissions inventory, as discussed in response #11
below, Energy Answers and Sunbeam Synergy are included in the 2016
projection inventory totals. See PREQB lead SIP submittal, page 57,
Table B1.
4. Comment: Earthjustice stated that the EPA regulations mandate
that ``emissions inventories such as this one use the `[m]aximum
allowable emission limit or federally enforceable permit limit' to
model concentrations. But the AEROMOD Model in the lead SIP revision
uses inputs that are lower than permit limits or maximum allowable
emissions'' for PREPA and Safetech facilities. Accordingly,
Earthjustice stated that the PREQB must redo its model using maximum
allowable emissions as required by the EPA regulations.
EPA Response: According to the EPA 2008 Lead NAAQS Implementation
Questions and Answers Memorandum document dated July 8, 2011 (see page
7, answer to question 12), the emission rate input for attainment
demonstrations should be based on maximum allowable or federally
enforceable permit limits. The commenter is correct that the PREQB did
not use the permit limits for PREPA and Safetech, which are 0.3 and
0.013 tons per year (tpy), respectively. However, in this particular
instance, it is reasonable not to require the PREQB to remodel 2016
lead concentrations using maximum allowable emissions because doing so
would not change the conclusion that the SIP submittal demonstrates
attainment of the 2008 Lead NAAQS. The PREQB used 2016 emissions values
for PREPA and Safetech of 0.28 and 0.009 tpy, respectively, resulting
in a combined lead contribution for these two sources equal to 0.0178
percent of total cumulative lead contribution of 0.09352 [mu]g/m\3\.
Furthermore, the modeled 3-month rolling average cumulative lead
concentration from all sources, 0.09352 [mu]g/m\3\, is substantially
below the 2008 Lead NAAQS of 0.15 [mu]g/m\3\. Given the minimal
contribution of these two sources to the overall lead contribution for
this area, if the emissions for these two sources were increased to the
permit levels of 0.3 tpy and 0.013 tpy, respectively, the increase
would not impact the attainment demonstration of the 2008 Lead NAAQS.
Consequently, the PREQB actions were within reason.
5. Comment: Madres de Negro and Earthjustice commented on the
substance and approval status of permitted facilities in Arecibo and
other municipalities. Specifically, commenters stated that the 2016
projected emissions inventory in the lead SIP revision does not match
the permits inventory for the PREPA and Safetech facilities. Commenters
suggested that these inconsistencies in information require the EPA to
disapprove the lead SIP revision.
EPA Response: See the Responses to Comments #3 and #4. These
enforceable limits were established pursuant to the Regulation for the
Control of the Atmospheric Pollution (RCAP) Rules 203 (Permit to
Construct a Source rule) and 204 (Permit to Operate a Source rule).
RCAP Rules 203 and 204 require air emissions sources to obtain permits
prior to the construction or operation of the source and also require
the source to demonstrate compliance with all applicable rules and
regulations prior to obtaining a construction permit. The EPA agrees
that, for PREPA and Safetech, the emissions inventory in the lead SIP
revision is slightly different from that in the permits included as
Exhibits 3 and 4 to Earthjustice letter. The 2011 emissions inventory
included the The Battery Recycling Company, Inc. (TBRCI) facility and
the facilities in surrounding municipalities listed in the EPA's
Emissions Inventory System (EIS)/National Emissions Inventory (NEI)
database. TBRCI, a secondary lead smelter representing 85 percent of
the 2011 emissions inventory, was the primary source of the high lead
concentration, and the nonattainment area was established with this
facility at its center. The other facilities contributed to lead
concentrations representing a total of 13 percent of the 2011 emission
inventory. As explained in the Responses to Comments #3 and #4,
emissions from these sources contribute minimally to the cumulative
lead concentration in the nonattainment area in the 2016 modeling, and
slight differences between permitted and modeled emissions are unlikely
to impact the attainment demonstration contained in the PREQB's SIP
revision.
6. Comment: Several comments were made that the emissions included
in the lead SIP revision were not inclusive of all TBRCI operations
(including lead emissions to water and hazardous waste) and did not
include all emissions of lead in the areas as far away as Camuy and
Manati municipalities, including the airports.
EPA Response: The EPA disagrees that the emissions to water and
hazardous waste as well as emissions from non-bordering municipalities
should be included. PREQB's SIP emissions inventory included air lead
emission sources consistent with the EPA guidance 2008 Lead NAAQS
Implementation Questions and Answers.\1\ Consistent with the Lead
Guidance, any ambient air lead emissions recorded in the EPA EIS/NEI
database for Arecibo and its bordering municipalities were included in
this lead SIP revision. Emissions from Antonio Nery Juarbe Airport,
which is located within the Arecibo Area, were also included. For
additional facility emissions calculated and included in the inventory,
see Responses to Comments #1-#4.
---------------------------------------------------------------------------
\1\ Memorandum from Scott L. Mathias, Interim Director, Air
Quality Policy Division, to Regional Air Division Directors Regions
I-X, dated July 8, 2011 (Lead Guidance).
---------------------------------------------------------------------------
7. Comment: Madres de Negro states that the PREQB announced its
intention to issue Energy Answers a construction permit in October
2014, and that authorizing construction of a new lead-emitting facility
in a nonattainment area without a SIP violates 40 CFR 52.24.
EPA Response: The EPA disagrees that the timing of Energy Answers
construction permit is relevant to the current rulemaking, which
constitutes the EPA's action on the PREQB's attainment demonstration
for the Arecibo lead nonattainment area. The PREQB has an approved
nonattainment new source review program (NNSR) that includes lead and
that meets the
[[Page 32477]]
statutory requirements. Proposed facilities must, at the time of permit
application, meet the requirements of the PREQB RCAP 203, the PREQB's
NNSR program and any applicable federal requirements. As stated above,
however, the permitting of new sources under this program is
independent of considerations relevant to determining whether the PREQB
has submitted an approvable attainment plan. Regardless, the 2016
modeling included in the Arecibo attainment demonstration shows that
the new planned sources, including the Energy Answers facility, will
not cause or contribute to lead concentrations in excess of the 2008
Lead NAAQS.
8. Comment: Earthjustice stated that the lead SIP revision does not
include emissions limitations for any facility within or near the
nonattainment area but rather sets forth general provisions of the
PREQB regulations. Specifically, the commenter asserts that ``[t]hese
vague prohibitions on general pollution'' do not comply with the CAA's
requirement of particularized emission limits and control technologies
applied to the emitting facilities within the nonattainment area.
EPA Response: The EPA disagrees that the attainment SIP does not
provide for the statutorily required permanent and enforceable
emissions limitations as may be necessary to provide for attainment.
The lead SIP revision is a plan to control ambient air lead emissions
from the primary sources (or, in this case, source) of emissions. The
PREQB's attainment modeling took into account all ambient air lead
emissions recorded in the EPA EIS/NEI database in Arecibo and its
bordering municipalities, in addition to emissions from the primary
source. The modeling also conservatively incorporated other planned
facilities that emit lead to ensure that the area will attain the
standard. The PREQB's modeling demonstration determined that TBRCI was
the primary source of ambient air lead emissions contributing to
nonattainment in the Arecibo Area and was thereby, the only source
required to implement control technologies. On August 19, 2015, the
PREQB rescinded the TBRCI operating and construction permits. Because
TBRCI is no longer permitted to emit lead at the ambient air levels
that contributed to nonattainment (or indeed at any level whatsoever),
the permit rescission provides the permanent and enforceable emission
reductions necessary to bring the Arecibo Area into attainment with the
2008 Lead NAAQS. As stated in both the lead SIP revision submitted by
the PREQB and the EPA's proposed approval, should TBRCI or any other
entity decide to start up business as a secondary lead smelter facility
in the Arecibo Area, the company will need to obtain the appropriate
permits to operate in accordance with all applicable laws and
regulations of the Commonwealth of Puerto Rico and the EPA, including
the Commonwealth of Puerto Rico RCAP, the Puerto Rico Environmental
Public Policy Act, Act 416-2004 as amended (PREPPA Act 416) and CAA
Section 112 requirements. These relevant laws and programs are
intended, among other things, to ensure that emissions from new sources
do not interfere with the attainment of the 2008 Lead NAAQS.
The EPA and the PREQB also considered fugitive emissions from the
piles of lead slag and other materials stored on the facility property.
It is noteworthy that the TBRCI site has been proposed for the
Superfund National Priorities List \2\ and that the EPA has been
conducting activities on TBRCI property since September 2015.
Additionally, RCAP Rule 404, which requires any person to take
reasonable precautions to prevent fugitive emissions from becoming
airborne has already been adopted, is approved into the Puerto Rico's
SIP.\3\ The requirements of RCAP Rule 404 are, therefore, enforceable
measures for controlling fugitive emissions from the TBRCI site.
---------------------------------------------------------------------------
\2\ National Priorities List Proposed Site, The Battery
Recycling Company, https://semspub.epa.gov/work/02/363680.pdf, 81 FR
62428 (September 9, 2016).
\3\ 62 FR 3213 (January 22, 1997), 40 CFR 52.2723.
---------------------------------------------------------------------------
9. Comment: Earthjustice stated that the Energy Answers and PREPA
Cambalache Plant are the highest 2016 emitters and should be the
subject of more stringent emissons limitations and control measures in
the Arecibo SIP Revision.
EPA Response: The EPA disagrees. See Response to Comment #8. The
PREQB's modeling indicates that the shutdown of TBRCI, coupled with the
backstop of the fugitive emissions provisions in RCAP Rule 404, are
sufficient for the Arecibo Area to achieve attainment of the 2008 Lead
NAAQS.
10. Comment: Garcia/Velez stated that the PREQB should not have
included facilities that are not operational in the 2016 projected
emission inventory.
EPA Response: A projected emissions inventory is the basis for
determining whether the area will attain and maintain the lead standard
based on permitted allowances. As discussed in Response to Comment #3,
the proposed sources Energy Answers and Sunbeam were added to the
projected emissions inventory for 2016. This is a conservative approach
for modeling the air quality in the Arecibo Area. By including the
Energy Answers and Sunbeam Synergy facilities as part of the 2016
projected inventory for the attainment demonstration, the PREQB's lead
SIP revision is demonstrating that future growth in lead emissions from
these sources will not cause or contribute to a violation of the 2008
Lead NAAQS. The Arecibo ambient air lead attainment demonstration SIP
is not required to address specific proposed facilities. Rather,
consistent with RCAP Rule 203, pre-construction requirements, those
proposed facilities are required to conduct a demonstration of
compliance with all applicable rules and regulations at the time of
permit application. In addition, proposed facilities will be required
to comply with PREQB's approved NNSR program. The Arecibo attainment
demonstration model demonstrates that the planned facilities will not
cause an exceedance in the 2008 Lead NAAQS.
11. Comment: Several commenters questioned whether, if TBRCI is the
cause of the ambient air lead problem in the area and its 2016
potential emissions of lead are 0.33538 tpy, then Energy Answers with
slightly higher emissions may also be a problem.
EPA response: The 2016 projected emissions inventory for TBRCI in
the January 30, 2015 lead SIP submittal was 0.33538 tpy. This number
represented stack emissions from TBRCI. However, now that TBRCI's
permits have been pulled and the facility has shut down, stack
emissions from this facility are zero, as reflected in the more recent
August 30, 2016 SIP revision. The lead SIP attainment demonstration in
the 2015 submission assumed continued operation at TBRCI which includes
fugitive emissions and materials handling and transport from TBRCI.
When TBRCI was modeled in the previous submission, the modeling
indicated that these low elevation fugitive emissions and materials
handling and transport were the major contributor to overall emissions
because they are subject to less dispersion, even exceeding the
magnitude of the stack emissions. As modeled in the 2015 submission,
TBRCI's cumulative emissions resulted in the Arecibo Area exceeding the
2008 Lead NAAQS of 0.15 [mu]g/m \3\. However, with the cessation of
operations at TBRCI, the PREQB's updated modeling shows the area coming
into attainment.
Regardless, while the emissions inventory number associated with
the
[[Page 32478]]
Energy Answers proposed incinerator may be similar to TBRCI's combined
stack and fugitive/materials handling and transport emissions, the
model in the Puerto Rico's SIP shows that the proposed incinerator's
maximum air quality impact for lead is close to Energy Answer's fence-
line and results in a lead concentration for the Arecibo Area that is
200 times less than the level of the 2008 Lead NAAQS. The model also
shows that the proposed incinerator's impact in the Arecibo Area is
3000 times less than the 2008 Lead NAAQS and would have a negligible
contribution to the lead emissions in the area. This information is
included in Energy Answer's PSD permit application as well as EPA's
Response to Comment document regarding its permit.
12. Comment: Earthjustice stated that even with TBRCI shutdown, the
PREQB estimates that the other lead-emitting facilities in the area,
collectively, will emit 0.78 tons of lead, a significant amount that is
still about 65 percent of the 1.21 tons of lead that TBRCI emitted in
2011, leading to nonattainment.
EPA Response: The EPA disagrees that emissions from other lead-
emitting facilities will result in nonattainment in the Arecibo Area.
The attainment demonstration is not simply based on a summing of air
lead emission values from all sources in the area, as presented by the
commenter. Rather, the EPA's Lead Guidance requires that an attainment
demonstration include an emissions inventory, ambient air monitoring
data, and the EPA-approved air quality modeling dispersion analysis,
which also takes into consideration atmospheric conditions, dispersion,
chemical transformation in the area under analysis, emissions,
background concentration, stack heights and stack down wash and
building wake. The modeled attainment demonstration accounted for the
collective ambient air lead emissions from sources in Arecibo and in
bordering municipalities, including the emissions cited by the
commenter, and shows that those emissions will not result in lead
levels above the 2008 Lead NAAQS in the nonattainment area. See PREQB
SIP Plan Appendix C.
13. Comment: Earthjustice stated that the EPA cannot approve a SIP
revision when the air monitoring data does not demonstrate that
attainment can be achieved until the end of 2018.
EPA Response: The EPA disagrees with this comment. As stated in the
Lead Guidance, ``[a]n attainment SIP may be approvable even if the
state does not anticipate having 3 full years of clean data by the
attainment date. See EDF v. EPA, 369 F.3d 193 (2d Cir. 2004); Sierra
Club v. EPA, 356 F.3d 296 (D.C. Cir. 2004) amended 2004 WL 877850 (D.C.
Cir. 2004).'' Lead Guidance, page 4, Question 9. The ambient air
monitoring data show clean data starting in September 2015, following
the withdrawal of TBRCI permits on August 19, 2015; the closure of
TBRCI will facilitate the attainment of the 2008 lead NAAQS by 2018.
The fact that the area is unable to attain until 2018 does not abrogate
either the PREQB's statutory obligation to submit a SIP demonstrating
how it will reach attainment of the NAAQS as expeditiously as possible,
or the EPA's responsibility to act on such a SIP submission. The EPA's
approval of the attainment plan is based on the finding that the area
meets all applicable lead NAAQS attainment plan requirements under CAA
sections 172, 191, and 192, 42 U.S.C. 7502, 7514, and 7514a.
14. Comment: Earthjustice commented that one of the two lead air
monitoring sites referenced in the SIP, Victor Santoni Cordero site,
was not operational from October 3, 2015, to May 6, 2016, and that at
the other lead air monitoring site, Road #2, there are data gaps
between December 13, 2014, and January 12, 2015, and between July 5,
2015, and September 3, 2015. Earthjustice asserted that the EPA should
ensure that both air monitoring sites are fully operational before
approving the Arecibo Lead SIP Revision. Earthjustice stated that the
PREQB has never published the air monitoring data relative to ambient
air lead in Arecibo.
EPA Response: The EPA disagrees with Earthjustice's
characterization of the PREQB's air monitoring network in the Arecibo
Area. In accordance with 40 CFR part 58, appendix D section 4.5, the
state is required to have at a minimum one source-oriented air
monitoring site located to measure the maximum lead concentration in
ambient air resulting from each non-airport lead source which emits
0.50 or more tpy. In Arecibo, the PREQB operates two monitoring sites,
which is more than the required number. The data from both of the
monitors is used to determine compliance with the NAAQS. Any 3-month
period can show a violation of the standard, while a 36-month period
can show attainment of the standard. While it is optimal to collect all
the data points, mechanical issues may occur, thereby making sampling
difficult. If an issue arises, the PREQB and the EPA work as
expeditiously as possible to address it. Even though the Victor Santoni
Cordero site was not operational from October 3, 2015, to May 6, 2016,
the closer monitoring site, Road #2 was operational at that time.
Similarly, the PREQB advised the EPA that, due to a mechanical issue,
samples were not collected from July 11, 2015 to August 28, 2015 (nine
samples) at the Road #2 site. However, the Victor Cordero site
continued to operate during that time with sampling data ranging from
0.002 [micro]g/m\3\ to 0.005 [micro]g/m\3\. Consistent with 40 CFR part
58, appendix D section 4.5, one air monitoring site was operational.
This data gap may affect the timeframe (three years of monitored clean
data) by which the area can show attainment of the standard; however,
it does not affect the SIP process of approving a plan to attain the
standard.
The data is published in AQS as required by 40 CFR part 58. The
public can access this data by visiting www.epa.gov/airdata.
15. Comment: Earthjustice stated that the proposed SIP action
overlooks air quality monitoring data that clearly show continued
exceedances of the lead NAAQS (0.15 [mu]g/m\3\) even after the
temporary shutdown of TBRCI and, therefore, the cessation of operations
at TBRCI cannot serve as a basis for demonstrating attainment.
EPA Response: When TBRCI ceased lead smelter operations on June 2,
2014, the handling of the slag piles continued, causing the exceedances
of the 2008 Lead NAAQS until July 2015. The air quality data measured
after the PREQB rescinded TBRCI's permits (August 19, 2015)
demonstrates that pulling the source's operating permit and terminating
handling of slag piles, as opposed to just ceasing stack emissions, is
an appropriate control measure that has a positive effect on the air
quality. These slag piles, which generate the fugitive emissions, are
part of a Superfund removal action. As identified in EPA's proposed
approval, the existing SIP provision, Puerto Rico RCAP Rule 404, is in
place as a control measure for fugitive emissions. RCAP Rule 404(E)
provides that ``[a]ny new or modified source, the construction of which
causes or may cause fugitive emissions, shall apply for a permit as
required in Rule 203.'' All other control measures were discussed in
the proposed approval. Also see Response to Comment #18.
[[Page 32479]]
------------------------------------------------------------------------
Air monitoring
Date Activity data
------------------------------------------------------------------------
June 2010..................... NAAQS exceeded........ 0.201 [micro]g/
m\3\ 3 month
rolling avg.
June 2014..................... TBRCI ceased 0.423 [micro]g/
operations. m\3\ 3 month
rolling avg.
July 2015..................... Last time NAAQS was 0.184 [micro]g/
exceeded. m\3\ 3 month
rolling avg.
September 2015................ Individual sample 0.004 [micro]g/
dated September 3, m\3\ individual
2015 showed a sample.
decrease; PREQB
pulled TBRCI permits
prior to this sample
collection. EPA
Superfund personnel
on TBRCI property in
September 2015.
November 2015................. Values below NAAQS.... 0.022 [micro]g/
m\3\ 3 month
rolling avg.
May 2016...................... Values below NAAQS.... 0.021 [micro]g/
m\3\ 3 month
rolling avg.
------------------------------------------------------------------------
16. Comment: Earthjustice stated that the contingency measures
included in the lead SIP revision of increased monitoring,
investigation, removal orders, air pollution alerts, etc., require
`further action by the State' and therefore do not satisfy the CAA.
EPA Response: As Earthjustice indicates, CAA section 172(c)(9)
provides that ``contingency measures [are] to take effect in any such
case without further action by the State or the Administrator.'' In
Greenbaum v. EPA, 370 F.3d 527 (6th Cir. 2004), in upholding a
redesignation determination by the EPA, the court agreed with the EPA's
interpretation that ``without further action'' means without further
rulemaking by the State or the EPA. The court stated, citing to the
EPA's Calcagni memo,\4\ ``With respect to triggers, the EPA correctly
argues that monitored violations of the NAAQS can be possible triggers.
Calcagni Memo at 12. The contingency measures may be triggered upon
notification by the Ohio EPA or the United States EPA of a
determination by either agency that a violation has occurred. With
respect to schedules, the EPA correctly explains that the contingency
measures were initially developed pursuant to [CAA] Sec. 172(c)(9),
which requires that the measures take effect without further action by
the State or the EPA, which the EPA interprets to mean `that no further
rulemaking activities by the State or the EPA would be needed to
implement the contingency measures.' State Implementation Plans;
General Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990, 57 FR 13498, 13512 (April 16, 1992). The Calcagni
Memorandum also states that `for the purposes of Section 175A, a State
is not required to have fully adopted contingency measures that will
take effect without further action by the State in order for the
maintenance plan to be approved.' Calcagni Memorandum at 12. Thus, no
pre-determined schedule for adoption of the measures is necessary in
each specific case.'' Greenbaum, 370 F.3d at 541.
---------------------------------------------------------------------------
\4\ The ``Calcagni Memorandum,'' referenced above, is a
memorandum dated September 4, 1992, to EPA Regional Air Directors
from John Calcagni, Director, EPA Air Quality Management Division,
titled ``Procedures for Processing Requests to Redesignate Areas to
Attainment.'' The Calcagni Memorandum is available at https://www.epa.gov/sites/production/files/2016-03/documents/calcagni_memo_-_procedures_for_processing_requests_to_redesignate_areas_to_attainment_090492.pdf.
---------------------------------------------------------------------------
The contingency measures in Puerto Rico's attainment plan can take
effect without further rulemaking activities; thus, the EPA disagrees
that the contingency measures included in the SIP revision do not
satisfy the CAA.
17. Comment: Earthjustice stated that monitoring, by itself, does
not satisfy the CAA's requirements for a control measure, and therefore
cannot be a contingency measure.
EPA Response: The EPA disagrees that the PREQB intends for
monitoring, by itself, to serve as a contingency measure. Monitoring is
used as a trigger to activate contingency measures, not as a control
measure and potential contingency measure itself. The substantive
contingency measures the EPA is approving can be found in the PREQB SIP
submittal at pages 24-27.
18. Comment: Earthjustice reviewed the EPA Air Quality Data and
noted that exceedances of the lead NAAQS have been measured in Arecibo
at least 26 times after the TBRCI shutdown, as recent as May 2016.
EPA Response: The data points Earthjustice referenced are not
exceedances of the NAAQS. Compliance with the 2008 Lead NAAQS is
assessed by averaging data points over a three month period, not on the
basis of individual values. While the individual data points may be
greater than 0.15 [micro]g/m\3\, this does not mean there has been a
violation of the NAAQS; once the relevant values averaged over three
months, the data is still below the 2008 Lead NAAQS.
III. What action is EPA taking?
The EPA is approving into the SIP Puerto Rico's lead attainment
plan for the Arecibo Area. Specifically, the EPA is taking final action
to approve Puerto Rico's August 30, 2016 submittal, which includes the
attainment demonstration, base year emissions inventory, modeling, and
contingency measures, and addresses RACM/RACT and the RFP plan.\5\
Permits for the lead smelter, TBRCI, which was documented as the source
of high lead emissions contributing to nonattainment of the NAAQS, have
been withdrawn and TBRCI is no longer operating. The requirements for
RACM/RACT and the RFP plan are satisfied because the Commonwealth of
Puerto Rico demonstrated that the Area will attain the 2008 Lead NAAQS
as expeditiously as practicable, and could not implement any additional
measures to attain the NAAQS any sooner.
---------------------------------------------------------------------------
\5\ See EPA's proposed approval of the Attainment Demonstration
for the Arecibo Lead Nonattainment Area 81 FR 78097 (November 7,
2016).
---------------------------------------------------------------------------
The EPA notes that since September 2015, the month after the PREQB
withdrew the construction and operating permits for TBRCI, the data
from the source oriented Arecibo air monitoring site indicates the lead
concentration in the ambient air has been below the three-month rolling
average for the 2008 Lead NAAQS and the 2016 modeling indicates the
area will attain the NAAQS. The SIP for the Arecibo Area adequately
demonstrates a trajectory towards attainment; thus, the EPA is
approving the attainment demonstration, emissions inventory, modeling,
control measures, RACM/RACT and RFP.
The EPA's review of the materials submitted indicates that Puerto
Rico has developed the Lead attainment plan in accordance with the
requirements of the CAA, 40 CFR part 51, and the EPA's technical
requirements for a Lead SIP. Therefore, the EPA is approving into the
SIP the Lead attainment plan for Arecibo, Puerto Rico.
A detailed analysis of the EPA's review and rationale for approving
the lead SIP submittal as addressing these CAA requirements may be
found in the November 7, 2016 proposed rulemaking action (81 FR 78097)
which is available on line at www.regulations.gov, Docket ID Number
EPA-R02-OAR-2016-0560.
[[Page 32480]]
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the 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 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 rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and the EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 12, 2017. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 20, 2017.
Catherine R. McCabe,
Acting Regional Administrator, Region 2.
For the reasons set forth in the preamble, the Environmental
Protection Agency amends part 52 of chapter I, title 40 of the Code of
Federal Regulations as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart BBB--Puerto Rico
0
2. Section 52.2720 is amended by adding paragraph (c)(40) to read as
follows:
Sec. 52.2720 Identification of plan.
* * * * *
(c) * * *
(40) Revisions to the State Implementation Plan submitted by the
Puerto Rico Environmental Quality Board (EQB) on August 30, 2016 for
the 2008 lead NAAQS.
(i) [Reserved]
(ii) Additional information--EPA approves Puerto Rico's Attainment
Demonstration for the Arecibo Lead Nonattainment Area including the
base year emissions inventory, modeling demonstration of lead
attainment, contingency measures, reasonably available control
measures/reasonably available control technology, and reasonable
further progress.
0
3. Add Sec. 52.2727 to read as follows:
Sec. 52.2727 Control strategy and regulations: Lead.
EPA approves revisions to the Puerto Rico State Implementation Plan
submitted on August 30, 2016, consisting of the base year emissions
inventory, modeling demonstration of lead attainment, contingency
measures, reasonably available control measures/reasonably available
control technology, and reasonable further progress for the Arecibo
Lead Nonattainment Area. These revisions contain control measures that
will bring Puerto Rico into attainment for the Lead NAAQS by the end of
2018.
[FR Doc. 2017-14730 Filed 7-13-17; 8:45 am]
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