[Federal Register Volume 60, Number 219 (Tuesday, November 14, 1995)]
[Proposed Rules]
[Pages 57204-57207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28065]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[PROO1; FRL-5331-1]
Clean Air Act Proposed Full Approval of Operating Permits
Program: the Commonwealth of Puerto Rico
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed full approval.
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SUMMARY: The EPA proposes full approval of the operating permits
program submitted by the Commonwealth of Puerto Rico for the purpose of
complying with Federal requirements for an approvable state program to
issue operating permits to all major stationary sources and to certain
other sources.
DATES: Comments on this proposed action must be received in writing by
December 14, 1995.
ADDRESSES: Written comments should be addressed to Steven C. Riva,
Chief, Permitting and Toxics Support Section, at the New York Region II
Office listed below. Copies of the State's submittal and other
supporting information used in developing the proposed full approval as
well as the Technical Support Document are available for inspection
during normal business hours at the following locations:
EPA Region II, 290 Broadway, 21st Floor, New York, New York 10007-
1866, Attention: Steven C. Riva.
EPA Region II, Caribbean Field Office, Centro Europa Building,
Suite 417, 1492 Ponce de Leon Avenue, Stop 22, San Juan, Puerto Rico
00907-4127, Attention: Jose Ivan Guzman.
Puerto Rico Environmental Quality Board, Air Programs Area,
Eurobank Building, 431 Ponce de Leon Avenue, Hato Rey, PR 00910,
Attention: Francisco Claudio.
FOR FURTHER INFORMATION CONTACT: Christine Fazio, Permitting and Toxics
Support Section, at the above EPA office in New York or at telephone
number (212) 637-4015. Jose Ivan Guzman of the Caribbean Field Office
can be reached at (809) 729-6951, extention 223.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
As required under title V of the Clean Air Act (``the Act'') as
amended (1990), EPA has promulgated rules which define the minimum
elements of an approvable State operating permits program and the
corresponding standards and procedures by which the EPA will approve,
oversee, and withdraw approval of State operating permits programs (see
57 FR 32250 (July 21, 1992)). These rules are codified at 40 Code of
Federal Regulations (CFR) Part 70. Title V requires States to develop,
and submit to EPA, programs for issuing these operating permits to all
major stationary sources and to certain other sources.
The Act requires that States develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within 1 year after receiving the submittal. The EPA's
program review occurs pursuant to section 502 of the Act and the part
70 regulations, which together outline criteria for approval or
disapproval. Where a program substantially, but not fully, meets the
requirements of part 70, EPA may grant the program interim approval for
a period of up to 2 years. If EPA has not fully approved a program by 2
years after the November 15, 1993 date, or by the end of an interim
program, it must establish and implement a Federal program.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
The Chairman of the Environmental Quality Board (EQB) submitted a
part 70 permitting program for the Commonwealth of Puerto Rico with a
letter requesting EPA's approval on November 15, 1993 and a
supplemental package on March 22, 1994. The program contains a
description of how the EQB intends to implement the program consistent
with the requirements of the Act and 40 CFR part 70. The program
includes supporting documentation such as evidence of the procedurally
correct adoption of the permitting rule, permit application forms, and
a sample permit form. On April 11, 1994 the Attorney General of Puerto
Rico submitted a legal opinion stating that EQB has adequate legal
authority to carry out the program. On September 29, 1995, EQB
submitted a revised regulation which included minor changes to the
regulation submitted on March 22, 1994. The EPA intends to develop an
implementation agreement with Puerto Rico which will define EPA's and
EQB's responsibilities and commitments for administering the program,
although this proposed action does not depend on the implementation
agreement.
2. Regulations and Program Implementation
Puerto Rico's part 70 permitting regulation is contained in Part I,
Rule 102; Part II, Rule 206; Part VI, Rules 601 through 610; and
Appendices A through E of the Regulation For The Control Of Atmospheric
Pollution (RCAP) dated September 1995. Puerto Rico's regulation meets
the main requirements of Part 70 as described below:
a. applicability (40 CFR 70.2 and 70.3): Sources required to obtain
a permit under Puerto Rico's regulation are defined as ``Title V
sources'' and
[[Page 57205]]
include all major part 70 sources. The rule defers non-major sources
until the Administrator completes a rulemaking to determine how the
title V program should be structured for non-major sources and the
appropriateness of any permanent exemptions. The regulation permanently
exempts any source that would be required to obtain a permit solely
because it is subject to Standards of Performance for New Residential
Wood Heaters or the National Emission Standard for Hazardous Air
Pollutants for Asbestos, Standards for Demolition and Renovation.
(Rules 102 and 601 of the RCAP)
b. permit content (40 CFR 70.6): Rule 603 requires that each permit
contain emission limitations and standards to ensure compliance with
all applicable requirements. Permits may also contain certain
operational flexibility requirements such as terms and conditions for
reasonably anticipated operating scenarios (including worst-case
operational scenarios) and for the trading of emissions increases and
decreases (to the extent the applicable requirements provide for such
trading) in the permitted facility. Such operational flexibility
provisions are explained more fully in Rules 603 and 607 of the RCAP.
c. public participation (40 CFR 70.7): The public will be provided
with notice of, and an opportunity to comment on, draft permits
relating to initial permit issuance, permit renewals, and significant
modifications (Rule 609 of the RCAP).
d. permit modifications (40 CFR 70.7): Sources may apply for
expedited permit changes for minor permit modifications. Significant
modifications must undergo all part 70 permit issuance procedures (Rule
606 of the RCAP).
e. EPA oversight (40 CFR 70.8): Each permit, renewal, and minor or
significant modification is subject to EPA oversight and veto (Rule 609
of the RCAP).
f. insignificant activities (40 CFR 70.5): The lists of
insignificant activities can be found at Rule 206 and Appendix B of the
RCAP (the two lists are different). Insignificant activities which need
not be described in the permit application include sources on the two
lists provided no applicable requirements apply to the source and the
source emits 2 tons per year or less of a criteria pollutant or 5 tons
per year or less of any combination of criteria pollutants; and 2 tons
per year or the de minimis rates for hazardous air pollutants listed in
Appendix E (whichever is lower). For insignificant activities exempted
because of size or production rate, a list of such insignificant
activities must be included in the permit application. In addition, any
unit with allowable emission rates less than certain quantities
identified in Item P of Appendix B (e.g., from 1 to 2 tpy depending on
pollutant) can be listed on the permit application as an insignificant
activity if no applicable requirements apply to the unit.
g. enforcement authority (40 CFR 70.11): Article 17 of Law No. 9 of
June 18, 1970 as amended on November 12, 1993 (``Law No. 9'') directly
provides for enforcement and penalties for civil and criminal
violations of permits and rules. Penalties will be assessed up to
$25,000 per day per violation.
h. complete application forms (40 CFR 70.5): Rule 602 defines what
elements must be in an application in order for it to be complete. All
information is included in EQB's permit application.
i. variance provisions: Part III, Rule 301 of the RCAP contains
provisions for EQB to approve variances from the strict application of
substantive requirements of the Puerto Rico regulation, except for NSPS
and NESHAP requirements. Rule 301 also states that no variance will be
approved by EQB unless it has been approved by EPA. Under Rule 302, EQB
may provide for an emergency variance of up to 90 days under very
special circumstances such as to avoid an imminent health threat. EPA
regards Rules 301 and 302 as wholly external to the program submitted
for approval under part 70. The EPA does not recognize the ability of a
permitting authority to grant relief from the duty to comply with a
federally enforceable part 70 permit, except where such relief is
granted through the procedures allowed by part 70. A part 70 permit may
be issued or revised (consistent with part 70 permitting procedures) to
incorporate those terms of a variance that are consistent with
applicable requirements. A part 70 permit may also incorporate, via
part 70 permit issuance or modification procedures, the schedule of
compliance set forth in a variance. However, EPA reserves the right to
pursue enforcement of applicable requirements notwithstanding the
existence of a compliance schedule in a permit to operate. This is
consistent with 40 CFR 70.5(c)(8)(iii)(C), which states that a schedule
of compliance ``shall be supplemental to, and shall not sanction
noncompliance with, the applicable requirements on which it is based.''
3. Permit Fee Demonstration
Puerto Rico's workload analysis and fee demonstration shows that
the state will collect sufficient revenue to implement the Title V
program. Puerto Rico will collect permit fees beginning at $25 adjusted
by the Consumer Price Index (base year 1989) per ton of allowable
emissions of regulated pollutants. However, the state-owned utility
will be capped at a fee of $1 million per year for its existing
facilities and the state hospital is exempt from fees. Puerto Rico's
fee demonstration and regulation (Rule 610 of the RCAP) state that
Puerto Rico may raise fees if necessary in the future. Furthermore,
Article 11 of Law No. 9 requires that sufficient fees be collected to
cover the direct and indirect expenses necessary to develop, administer
and enforce Puerto Rico's Title V program, including the Small Business
Technical and Environmental Compliance Assistance Program as required
by section 507 of the Act. Article 11 of Law No. 9 establishes a
special account which is independent and separate from any other
account in Puerto Rico and must be used only for the Air Quality
Program.
4. Provisions Implementing Section 112 of the Act
a. authority for Section 112 Implementation: Puerto Rico has
demonstrated in its title V program submittal adequate legal authority
to implement and enforce all section 112 requirements through the title
V permit. This legal authority is contained in Puerto Rico's enabling
legislation (Article 12 of Law No. 9) and in regulatory provisions
defining ``applicable requirements'' and stating that the permit must
incorporate all applicable requirements. EPA has determined that this
is sufficient to allow Puerto Rico to issue permits that assure
compliance with all section 112 requirements. The Attorney General's
legal opinion also certifies that EQB has authority to implement the
air toxics program and to accept automatic delegation of future
national emission standards for hazardous air pollutants. Rule
110(A)(2) of the Regulation for the Control of Atmospheric Pollution
(RCAP) provides that NESHAPs when promulgated by the EPA Administrator
will become effective as part of Puerto Rico's rules and regulations.
Rule 604 of the RCAP provides for the following section 112
requirements:
i. case-by-case MACT determinations: In the event that no
applicable emissions limitations have been established by the
Administrator, EQB will make case-by-case Maximum Achievable Control
Technology (MACT) determinations as required under sections 112 (j) and
(g) of the Act.
[[Page 57206]]
ii. early reductions: Rule 604 authorizes EQB to issue permits with
an alternate emission limit under the Act's section 112(i)(5) early
reductions program.
iii. implementation of section 112(r): Rule 604 requires sources
subject to section 112(r) of the Act to prepare and submit risk
management plans. A source must submit an annual certification ensuring
the proper implementation of the risk management plan.
b. implementation of section 112(g): The EPA issued an interpretive
notice on February 14, 1995 (60 FR 8333), which outlines EPA's revised
interpretation of 112(g) applicability. The notice postpones the
effective date of 112(g) until after EPA has promulgated a rule
addressing that provision. The notice sets forth in detail the
rationale for the revised interpretation.
The section 112(g) interpretive notice explains that EPA is still
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the Federal rule so as to
allow states time to adopt rules implementing the Federal rule, and
that EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until EPA provides for such an
additional postponing of section 112(g), Puerto Rico must be able to
implement section 112(g) during the period between promulgation of the
Federal section 112(g) rule and the adoption of Puerto Rico rules
implementing EPA's section 112(g) regulations.
The EPA is proposing to approve Puerto Rico's preconstruction
permitting program found in Rule 203 of the RCAP under the authority of
title V and part 70 solely for the purpose of implementing section
112(g) to the extent necessary during the transition period between
title V approval and adoption of a State rule implementing EPA's
section 112(g) regulations. Furthermore, EQB has provided broad
language in its regulation that will allow the implementation of 112(g)
immediately after EPA establishes and adopts final guidelines (Rule 604
of the RCAP). EQB defines the de minimis levels under Appendix E based
on the 112(g) draft rule but stipulates if the final 112(g) rule
differs in any way, the federal de minimis levels prevail (Rule 102 of
the RCAP--definition of de minimis).
c. Section 112(l): Requirements for approval specified in 40 CFR
70.4(b), encompass section 112(l)(5) approval requirements for
delegation of section 112 standards as they apply to part 70 sources.
Section 112(l)(5) requires that the state's program contain adequate
authorities, adequate resources for implementation, an expeditious
compliance schedule, and adequate enforcement ability, which are also
requirements under part 70. In a letter dated December 29, 1994, EQB
requested delegation through 112(l) of all existing 112 standards and
all future 112 standards for both part 70 and non-part 70 sources and
infrastructure programs. In the letter, EQB demonstrated that they have
sufficient legal authorities, adequate resources, the capability for
automatic delegation of future standards, and adequate enforcement
ability for implementation of section 112 of the Act for both part 70
sources and non-part 70 sources. Therefore, the EPA is proposing to
grant approval under section 112(l)(5) and 40 CFR 63.91 to Puerto Rico
for its program mechanism for receiving delegation of all existing and
future section 112(d) standards for both part 70 and non-part 70
sources, and section 112 infrastructure programs that are unchanged
from Federal rules as promulgated.
Puerto Rico commits to appropriately implementing the existing and
future requirements of sections 111, 112 and 129 of the Act, and all
MACT standards promulgated in the future, in a timely manner.
B. Options for Approval/Disapproval and Implications
The EPA is proposing full approval of the operating permits program
submitted to EPA by the Commonwealth of Puerto Rico on November 15,
1993 and supplemented on March 18, 1994, April 8, 1994, and September
29, 1995. Among other things, Puerto Rico has demonstrated that the
program will be adequate to meet the minimum elements of a State
operating permits program as specified in 40 CFR part 70.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 and standards as promulgated by EPA as they apply to
part 70 sources. Section 112(l)(5) requires that the State's program
contain adequate authorities, adequate resources for implementation,
and an expeditious compliance schedule, which are also requirements
under part 70. Therefore, the EPA is also proposing to grant approval
under section 112(l)(5) and 40 CFR 63.91 to Puerto Rico for its program
mechanism for receiving delegation of all existing and future section
112(d) standards for both part 70 and non-part 70 sources, and
infrastructure programs under section 112 that are unchanged from
Federal rules as promulgated.
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed full
approval. Copies of the State's submittal and other information relied
upon for the proposed full approval are contained in a docket
maintained at the EPA Regional Offices located in New York and San Juan
and at the EQB. The docket is an organized and complete file of all the
information submitted to, or otherwise considered by, EPA in the
development of this proposed rulemaking. The principal purposes of the
docket are:
(1) to allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process; and
(2) to serve as the record in case of judicial review. The EPA will
consider any comments received by December 14, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
D. Unfunded Mandates Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the proposed approval action promulgated
today does not include a federal mandate that may result in estimated
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costs of $100 million or more to either State, local, or tribal
governments in the aggregate, or to the private sector. This federal
action approves pre-existing requirements under State or local law, and
imposes no new federal requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 30, 1995.
William J. Muszynski,
Acting Regional Administrator.
[FR Doc. 95-28065 Filed 11-13-95; 8:45 am]
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