
[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]


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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.

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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.
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    \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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    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.
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    \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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    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.
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    \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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    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.
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    \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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    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]
 BILLING CODE 6560-50-P


