
[Federal Register Volume 81, Number 33 (Friday, February 19, 2016)]
[Proposed Rules]
[Pages 8455-8460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03395]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2016-0060, FRL-9942-52-Region 2]


Approval of Air Quality Implementation Plans; Puerto Rico; 
Infrastructure Requirements for the 1997 and 2008 Ozone, 1997 and 2006 
Fine Particulate Matter and 2008 Lead NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve most elements of the five State Implementation Plan (SIP) 
revision submittals from the Commonwealth of Puerto Rico to demonstrate 
that the State meets the requirements of section 110(a)(1) and (2) of 
the Clean Air Act (CAA) for the 1997 and 2008 ozone, 1997 and 2006 fine 
particulate matter (PM2.5) and 2008 lead National Ambient 
Air Quality Standards (NAAQS). The plan is required to address basic 
program elements, including, but not limited to, regulatory structure, 
monitoring, modeling, legal authority, and adequate resources necessary 
to assure attainment and maintenance of the standards. These elements 
are referred to as infrastructure requirements. In this rulemaking 
action, EPA is proposing to approve, in accordance with the 
requirements of the CAA, the infrastructure SIP submissions with the 
exception of some portions of the submittals addressing Prevention of 
Significant Deterioration (PSD).

DATES: Written comments must be received on or before March 21, 2016.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2016-0060 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Raymond K. Forde, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3716, or by email at 
forde.raymond@epa.gov.

SUPPLEMENTARY INFORMATION: 
    The SUPPLEMENTARY INFORMATION section is arranged as follows:

Table of Contents

I. Background
II. Summary of State Submittals
III. EPA's Approach To Review Infrastructure SIPs
IV. Summary of EPA's Rationale for Proposing Approval and 
Disapproval
V. Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, the Environmental Protection Agency (EPA) 
promulgated a revised national ambient air quality standard (NAAQS or 
standards) for ozone (62 FR 38856) and a new NAAQS for fine particle 
matter (PM2.5) (62 FR 38652). The revised ozone NAAQS was 
based on 8-hour average concentrations. The 8-hour averaging period 
replaced the previous 1-hour averaging period, and the level of the 
NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm. The 
new PM2.5 NAAQS established a health-based annual standard 
of 15.0 micrograms per cubic meter ([micro]g/m\3\) based on a 3-year 
average of annual mean PM2.5 concentrations, and a 24-hour 
standard of 65 [micro]g/m\3\ based on a 3-year average of the 98th 
percentile of 24-hour concentrations.
    On October 17, 2006 (71 FR 61144), effective December 18, 2006, EPA 
revised the 24-hour average PM2.5

[[Page 8456]]

primary and secondary NAAQS from 65 [micro]g/m\3\ to 35 [micro]g/m\3\. 
As required by section 110(a)(1) of the CAA, the 110(a)(2) submittals 
were due within three years after promulgation of the revised standard.
    On March 27, 2008 (73 FR 16436) EPA strengthened its NAAQS for 
ground-level ozone, revising the 8-hour primary ozone standard to 0.075 
ppm. EPA also strengthened the secondary 8-hour ozone standard to the 
level of 0.075 ppm making it identical to the revised primary standard.
    On November 12, 2008 (73 FR 66964), EPA promulgated a revised NAAQS 
for lead. The Agency revised the level of the primary lead standard 
from 1.5 [micro]g/m\3\ to 0.15 [micro]g/m\3\ . The EPA also revised the 
secondary NAAQS to 0.15 [micro]g/m\3\ and made it identical to the 
revised primary standard.
    Pursuant to section 110(a)(1) of the CAA, states are required to 
submit SIPs meeting the applicable requirements of section 110(a)(2) 
within three years after promulgation of a new or revised NAAQS or 
within such shorter period as EPA may prescribe. Section 110(a)(2) 
requires states to address basic SIP elements such as requirements for 
monitoring, basic program requirements, and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The content of such SIP submission may also vary depending 
upon what provisions the state's existing SIP already contains.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned earlier, these 
requirements include basic SIP elements such as requirements for 
monitoring, basic program requirements, and legal authority that are 
designed to assure attainment and maintenance of the NAAQS.

II. Summary of State Submittals

    The Commonwealth of Puerto Rico through the Commonwealth of Puerto 
Rico Environmental Quality Board (PREQB) submitted five revisions to 
its SIP to satisfy the requirements of section 110(a)(2) of the CAA for 
the five different NAAQS. On November 29, 2006, PREQB submitted SIP 
revisions addressing the infrastructure requirements for the 1997 ozone 
and PM2.5 NAAQS. On January 22, 2013 and April 16, 2015, 
PREQB submitted SIP revisions addressing the infrastructure 
requirements for the 2006 PM2.5 and 2008 ozone NAAQS, and 
supplemented the November 2006 submittal for the 1997 ozone and 
PM2.5 NAAQS. On January 31, 2013, PREQB submitted SIP 
revisions addressing the infrastructure requirements for the 2008 lead 
NAAQS. On February 1, 2016, PREQB submitted additional provisions for 
inclusion into the SIP which address infrastructure SIP requirements 
for 1997 and 2008 ozone, 1997 and 2006 PM2.5 and 2008 lead 
NAAQS. Each of the infrastructure SIP revisions addressed the following 
infrastructure elements for the applicable NAAQS which EPA is proposing 
to approve pursuant to section 110(a)(2) of the CAA. Specifically 
sections 110(a)(2)(A), (B), portions of (C), portions of (D), (E), (F), 
(G), (H), portions of (J), (K), (L), and (M) for the 1997 and 2008 
ozone, 1997 and 2006 PM2.5 and 2008 lead NAAQS.

III. EPA's Approach To Review Infrastructure SIPs

    EPA is acting upon Puerto Rico's SIP submissions that address the 
infrastructure requirements of section 110(a)(1) and (2) of the CAA for 
the 1997 and 2008 ozone, 1997 and 2006 PM2.5 and 2008 lead 
NAAQS. The requirement for states to make a SIP submission of this type 
arises out of section 110(a)(1). Pursuant to section 110(a)(1), states 
must make SIP submissions ``within 3 years (or such shorter period as 
the Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 302(d) of the CAA includes the Commonwealth of Puerto Rico in 
the definition of the term ``State.'' Section 110(a)(2) includes a list 
of specific elements that ``each such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of section 110(a)(1) and (2) as 
``infrastructure SIP'' submissions. Although the term ``infrastructure 
SIP'' does not appear in the CAA, EPA uses the term to distinguish this 
particular type of SIP submission from submissions that are intended to 
satisfy other SIP requirements under the CAA, such as ``nonattainment 
SIP'' or ``attainment plan SIP'' submissions to address the 
nonattainment planning requirements of part D of Title I of the CAA, 
``regional haze SIP'' submissions required by EPA rule to address the 
visibility protection requirements of section 169A of the CAA, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, Title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\1\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; Section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of Title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of Title I of the 
CAA, which specifically address nonattainment SIP

[[Page 8457]]

requirements.\2\ Section 110(a)(2)(I) pertains to nonattainment SIP 
requirements and part D addresses when attainment plan SIP submissions 
to address nonattainment area requirements are due. For example, 
section 172(b) requires EPA to establish a schedule for submission of 
such plans for certain pollutants when the Administrator promulgates 
the designation of an area as nonattainment, and section 107(d)(1)(B) 
allows up to two years or in some cases three years, for such 
designations to be promulgated.\3\ This ambiguity illustrates that 
rather than apply all the stated requirements of section 110(a)(2) in a 
strict literal sense, EPA must determine which provisions of section 
110(a)(2) are applicable for a particular infrastructure SIP 
submission.
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    \2\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \3\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within section 110(a)(1) and (2) with 
respect to infrastructure SIPs pertains to whether states must meet all 
of the infrastructure SIP requirements in a single SIP submission, and 
whether EPA must act upon such SIP submission in a single action. 
Although section 110(a)(1) directs states to submit ``a plan'' to meet 
these requirements, EPA interprets the CAA to allow states to make 
multiple SIP submissions separately addressing infrastructure SIP 
elements for the same NAAQS. If states elect to make such multiple SIP 
submissions to meet the infrastructure SIP requirements, EPA can elect 
to act on such submissions either individually or in a larger combined 
action.\4\ Similarly, EPA interprets the CAA to allow it to take action 
on the individual parts of one larger, comprehensive infrastructure SIP 
submission for a given NAAQS without concurrent action on the entire 
submission. For example, EPA has sometimes elected to act at different 
times on various elements and sub-elements of the same infrastructure 
SIP submission.\5\
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    \4\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \5\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within section 110(a)(1) and (2) may also arise with 
respect to infrastructure SIP submission requirements for different 
NAAQS. Thus, EPA notes that not every element of section 110(a)(2) 
would be relevant, or as relevant, or relevant in the same way, for 
each new or revised NAAQS. The states' attendant infrastructure SIP 
submissions for each NAAQS therefore could be different. For example, 
the monitoring requirements that a state might need to meet in its 
infrastructure SIP submission for purposes of section 110(a)(2)(B) 
could be very different for different pollutants, because the content 
and scope of a state's infrastructure SIP submission to meet this 
element might be very different for an entirely new NAAQS than for a 
minor revision to an existing NAAQS.\6\
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    \6\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires attainment plan SIP submissions 
required by part D to meet the ``applicable requirements'' of section 
110(a)(2); thus, attainment plan SIP submissions must meet the 
requirements of section 110(a)(2)(A) regarding enforceable emission 
limits and control measures and section 110(a)(2)(E)(i) regarding air 
agency resources and authority. By contrast, it is clear that 
attainment plan SIP submissions required by part D would not need to 
meet the portion of section 110(a)(2)(C) that pertains to the PSD 
program required in part C of Title I of the CAA, because PSD does not 
apply to a pollutant for which an area is designated nonattainment and 
thus subject to part D planning requirements. As this example 
illustrates, each type of SIP submission may implicate some elements of 
section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\7\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\8\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure

[[Page 8458]]

SIP submissions.\9\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). EPA interprets section 110(a)(1) and (2) such that 
infrastructure SIP submissions need to address certain issues and need 
not address others. Accordingly, EPA reviews each infrastructure SIP 
submission for compliance with the applicable statutory provisions of 
section 110(a)(2), as appropriate.
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    \7\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \8\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' 
Memorandum from Stephen D. Page, September 13, 2013.
    \9\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address Section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's SIP 
appropriately addresses the requirements of section 110(a)(2)(E)(ii) 
and section 128. The 2013 Guidance explains EPA's interpretation that 
there may be a variety of ways by which states can appropriately 
address these substantive statutory requirements, depending on the 
structure of an individual state's permitting or enforcement program 
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are 
addressed by the state, the substantive requirements of Section 128 are 
necessarily included in EPA's evaluation of infrastructure SIP 
submissions because section 110(a)(2)(E)(ii) explicitly requires that 
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in section 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
Green House Gases (GHGs). By contrast, structural PSD program 
requirements do not include provisions that are not required under 
EPA's regulations at 40 CFR 51.166 but are merely available as an 
option for the state, such as the option to provide grandfathering of 
complete permit applications with respect to the PM2.5 
NAAQS. Accordingly, the latter optional provisions are types of 
provisions EPA considers irrelevant in the context of an infrastructure 
SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, EPA evaluates whether the 
state has an EPA-approved minor new source review program and whether 
the program addresses the pollutants relevant to that NAAQS. In the 
context of acting on an infrastructure SIP submission, however, EPA 
does not think it is necessary to conduct a review of each and every 
provision of a state's existing minor source program (i.e., already in 
the existing SIP) for compliance with the requirements of the CAA and 
EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction (SSM) that may be contrary to the CAA and 
EPA's policies addressing such excess emissions; (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR 
Reform). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\10\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \10\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in section 110(a)(2) as requiring 
review of each and every provision of a state's existing SIP against 
all requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
section 110(a)(1) and (2) because the CAA provides other

[[Page 8459]]

avenues and mechanisms to address specific substantive deficiencies in 
existing SIPs. These other statutory tools allow EPA to take 
appropriately tailored action, depending upon the nature and severity 
of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to 
issue a ``SIP call'' whenever the Agency determines that a state's SIP 
is substantially inadequate to attain or maintain the NAAQS, to 
mitigate interstate transport, or to otherwise comply with the CAA.\11\
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    \11\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Findings of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
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    Section 110(k)(6) authorizes EPA to correct errors in past actions, 
such as past approvals of SIP submissions.\12\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\13\
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    \12\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under section 110(k)(6) of the CAA to 
remove numerous other SIP provisions that the Agency determined it 
had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 
FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004 
(corrections to California SIP); and 74 FR 57051 (November 3, 2009) 
(corrections to Arizona and Nevada SIPs).
    \13\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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IV. Summary of EPA's Rationale for Proposing Approval and Disapproval

    In this rulemaking action, EPA is proposing approval of Puerto 
Rico's infrastructure SIP submittals for the 1997 and 2008 ozone, 1997 
and 2006 PM2.5 and 2008 lead NAAQS as addressing 
requirements in section 110(a)(2)(A), (B), (C) (with the exception of 
program requirements for PSD), (D)(i) (with the exception of program 
requirements related to PSD), (D)(ii) (with the exception of program 
requirements related to PSD), (E), (F), (G), (H), (J) (with the 
exception of program requirements related to PSD), (K), (L), and (M) of 
the CAA.
    On February 1, 2016, PREQB submitted rules from the Commonwealth of 
Puerto Rico Statutes, ``Environmental Public Policy Act,'' Act No. 416 
(2004, as amended), Section 7.A, and Section 7.D and ``Puerto Rico 
Government Ethics Law,'' Act. No 1 (approved January 3, 2012), Section 
5, for incorporation into the SIP to address the requirements of 
Sections 110(a)(2)(E)(ii) and 128 of the CAA. Among other things, these 
collective provisions prohibit members of the Commonwealth's 
Environmental Quality Board from having any ``conflicts of interests 
that might interfere with the discharge their offices,'' and require 
disclosure of potential conflicts of interest. EPA is proposing to 
approve these submissions, which are intended to apply to any person 
subject to CAA 128, for inclusion into the SIP as meeting CAA 
obligations under section 110(a)(2)(E)(ii) for the 1997 ozone, 1997 
PM2.5, 2006 PM2.5, 2008 lead, and 2008 ozone 
NAAQS.
    EPA Region 2 is the permitting authority for Puerto Rico's PSD 
Major Source Program. The sources affected by PSD Program are subject 
to the Federal Implementation Plan PSD control requirements in 40 CFR 
Sections 52.21. Puerto Rico does not have its own state adopted PSD 
program, its infrastructure submission is not approvable with respect 
to this element. Therefore, EPA is disapproving the following 
infrastructure SIP elements as they relate to the PSD program for lack 
of a State adopted PSD rule to satisfy section 110(a)(2) for the 1997 
and 2008 ozone, 1997 and 2006 PM2.5, and 2008 lead NAAQS: 
sections 110(a)(2)(C), (D)(i) prong 3, (D)(ii) and (J). It should be 
noted that a FIP clock will not be started because a PSD FIP is 
currently in place, and sanctions will not be triggered.
    Section 110(a)(2)(J) requires SIPs to meet applicable requirements 
of part C of the CAA related to visibility. Puerto Rico's submittal 
does not address the visibility portion of J, including submission of 
any visibility measures under this sub-element. As indicated in EPA's 
September 2013 Infrastructure Guidance, although states are subject to 
visibility and regional haze program requirements under part C, the 
visibility and regional haze program requirements under part C do not 
change due to promulgation of, or revision to, a NAAQS. The SIP is not 
required to be revised with respect to visibility protection since 
there are no new visibility obligations. Accordingly, air agencies do 
not need to address the visibility sub-element of section 110(a)(2)(J) 
in infrastructure SIP submissions. Since Puerto Rico did not make a 
submission addressing the visibility portion of (J), action on this 
sub-element is not applicable.
    EPA is not acting on section 110(a)(2)(I), plan revisions for 
nonattainment areas. Specific SIP submissions for nonattainment areas, 
as required under CAA title I part D, are subject to a different 
submission schedule \14\ than those for section 110 infrastructure 
elements and are reviewed and acted upon under a separate process.
---------------------------------------------------------------------------

    \14\ These elements are typically referred to as nonattainment 
SIP or attainment plan elements and are due by the dates prescribed 
under subparts 2 through 5 of part D.
---------------------------------------------------------------------------

    A detailed analysis of EPA's review and rationale for proposing to 
approve and disapprove elements of the infrastructure SIP submittals as 
addressing these CAA requirements may be found in the Technical Support 
Document (TSD) for this proposed rulemaking action which is available 
on line at www.regulations.gov, Docket ID Number EPA-R02-OAR-2016-0060.
    EPA is soliciting public comments on the issues discussed in this 
document. These comments will be considered before taking final action.

V. Proposed Action

    EPA is proposing to approve Puerto Rico's infrastructure submittals 
dated November 29, 2006, January 22 and 31, 2013, April 16, 2005 and 
February 1, 2016, for the 1997 and 2008 ozone, 1997 and 2006 
PM2.5 and 2008 lead NAAQS, respectively, as meeting the 
requirements of section 110(a)(2) of the CAA, including specifically 
section 110(a)(2)(A), (B), (C) (with the exception of program 
requirements for PSD), (D)(i) (with the exception of program 
requirements related to PSD), (D)(ii) (with the exception of program 
requirements related to PSD), (E), (F), (G), (H), (J) (with the 
exception of program requirements related to PSD), (K), (L), and (M).
    EPA is proposing to incorporate the Commonwealth of Puerto Rico's 
``Environmental Public Policy Act'', Act No. 416 (2004, as amended), 
Section 7.A, and Section 7.D and the ``Puerto Rico Government Ethics 
Law,'' Act. No. 1 (approved January 3, 2012), Section 5,

[[Page 8460]]

for inclusion into Puerto Rico's SIP to address the requirements of 
Sections 110(a)(2)(E)(ii) and 128 of the CAA. EPA is further proposing 
to approve these submissions, which are intended to apply to any person 
subject to CAA 128, for inclusion into the SIP as meeting CAA 
obligations section 110(a)(2)(E)(ii) for the 1997 ozone, 1997 
PM2.5, 2006 PM2.5, 2008 lead, and 2008 ozone 
NAAQS.
    EPA is disapproving the following infrastructure SIP requirements 
as they relate to the PSD program for lack of a State adopted PSD rule 
to satisfy section 110(a)(2) for the 1997 and 2008 ozone NAAQS, 1997 
and 2006 PM2.5 NAAQS, and 2008 lead NAAQS: sections 
110(a)(2)(C), (D)(i) prong 3, (D)(ii) and (J). It should be noted that 
a FIP clock will not be started because a PSD FIP is currently in 
place, and sanctions will not be triggered. Since Puerto Rico is not 
required to address the visibility portion of section 110(a)(2)(J) in 
the context of an infrastructure SIP, and therefore did not make a 
submission, action on this sub-element is not applicable.

VI. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference Puerto Rico's ``Environmental Public Policy Act,'' Act No. 
416 (2004, as amended), Section 7.A, and Section 7.D and ``Puerto Rico 
Government Ethics Law,'' Act. No. 1 (approved January 3, 2012), Section 
5. These provisions are intended to apply to any person subject to CAA 
Section 128. The EPA has made, and will continue to make, these 
documents generally available electronically through http://www.regulations (see the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rulemaking action, pertaining to Puerto 
Rico's section 110(a)(2) infrastructure requirements for the 1997 and 
2008 ozone NAAQS, 1997 and 2006 PM2.5 NAAQS, and 2008 lead 
NAAQS does not have tribal implications as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000), because the SIP is not approved 
to apply in Indian country located in the state, and EPA notes that it 
will not impose substantial direct costs on tribal governments or 
preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Intergovernmental relations, Lead, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: February 9, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2016-03395 Filed 2-18-16; 8:45 am]
 BILLING CODE 6560-50-P


