[Federal Register Volume 82, Number 134 (Friday, July 14, 2017)]
[Rules and Regulations]
[Pages 32474-32480]
[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.

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,<PHONE_NUMBER>, or by email at<EMAIL_ADDRESS>
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

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

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

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.

------------------------------------------------------------------------
                                                         Air monitoring
             Date                      Activity               data
------------------------------------------------------------------------
June 2010.....................  NAAQS exceeded........  0.201 [micro]g/
                                                         m\3\ 3 month
                                                         rolling avg.
June 2014.....................  TBRCI ceased            0.423 [micro]g/
                                 operations.             m\3\ 3 month
                                                         rolling avg.
July 2015.....................  Last time NAAQS was     0.184 [micro]g/
                                 exceeded.               m\3\ 3 month
                                                         rolling avg.
September 2015................  Individual sample       0.004 [micro]g/
                                 dated September 3,      m\3\ individual
                                 2015 showed a           sample.
                                 decrease; PREQB
                                 pulled TBRCI permits
                                 prior to this sample
                                 collection. EPA
                                 Superfund personnel
                                 on TBRCI property in
                                 September 2015.
November 2015.................  Values below NAAQS....  0.022 [micro]g/
                                                         m\3\ 3 month
                                                         rolling avg.
May 2016......................  Values below NAAQS....  0.021 [micro]g/
                                                         m\3\ 3 month
                                                         rolling avg.
------------------------------------------------------------------------

    16. Comment: Earthjustice stated that the contingency measures
included in the lead SIP revision of increased monitoring,
investigation, removal orders, air pollution alerts, etc., require
`further action by the State' and therefore do not satisfy the CAA.
    EPA Response: As Earthjustice indicates, CAA section 172(c)(9)
provides that ``contingency measures [are] to take effect in any such
case without further action by the State or the Administrator.'' In
Greenbaum v. EPA, 370 F.3d 527 (6th Cir. 2004), in upholding a
redesignation determination by the EPA, the court agreed with the EPA's
interpretation that ``without further action'' means without further
rulemaking by the State or the EPA. The court stated, citing to the
EPA's Calcagni memo,\4\ ``With respect to triggers, the EPA correctly
argues that monitored violations of the NAAQS can be possible triggers.
Calcagni Memo at 12. The contingency measures may be triggered upon
notification by the Ohio EPA or the United States EPA of a
determination by either agency that a violation has occurred. With
respect to schedules, the EPA correctly explains that the contingency
measures were initially developed pursuant to [CAA] Sec.  172(c)(9),
which requires that the measures take effect without further action by
the State or the EPA, which the EPA interprets to mean `that no further
rulemaking activities by the State or the EPA would be needed to
implement the contingency measures.' State Implementation Plans;
General Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990, 57 FR 13498, 13512 (April 16, 1992). The Calcagni
Memorandum also states that `for the purposes of Section 175A, a State
is not required to have fully adopted contingency measures that will
take effect without further action by the State in order for the
maintenance plan to be approved.' Calcagni Memorandum at 12. Thus, no
pre-determined schedule for adoption of the measures is necessary in
each specific case.'' Greenbaum, 370 F.3d at 541.
---------------------------------------------------------------------------

    \4\ The ``Calcagni Memorandum,'' referenced above, is a
memorandum dated September 4, 1992, to EPA Regional Air Directors
from John Calcagni, Director, EPA Air Quality Management Division,
titled ``Procedures for Processing Requests to Redesignate Areas to
Attainment.'' The Calcagni Memorandum is available at https://www.epa.gov/sites/production/files/2016-03/documents/calcagni_memo_-_procedures_for_processing_requests_to_redesignate_areas_to_attainment_090492.pdf.
---------------------------------------------------------------------------

    The contingency measures in Puerto Rico's attainment plan can take
effect without further rulemaking activities; thus, the EPA disagrees
that the contingency measures included in the SIP revision do not
satisfy the CAA.
    17. Comment: Earthjustice stated that monitoring, by itself, does
not satisfy the CAA's requirements for a control measure, and therefore
cannot be a contingency measure.
    EPA Response: The EPA disagrees that the PREQB intends for
monitoring, by itself, to serve as a contingency measure. Monitoring is
used as a trigger to activate contingency measures, not as a control
measure and potential contingency measure itself. The substantive
contingency measures the EPA is approving can be found in the PREQB SIP
submittal at pages 24-27.
    18. Comment: Earthjustice reviewed the EPA Air Quality Data and
noted that exceedances of the lead NAAQS have been measured in Arecibo
at least 26 times after the TBRCI shutdown, as recent as May 2016.
    EPA Response: The data points Earthjustice referenced are not
exceedances of the NAAQS. Compliance with the 2008 Lead NAAQS is
assessed by averaging data points over a three month period, not on the
basis of individual values. While the individual data points may be
greater than 0.15 [micro]g/m\3\, this does not mean there has been a
violation of the NAAQS; once the relevant values averaged over three
months, the data is still below the 2008 Lead NAAQS.

III. What action is EPA taking?

    The EPA is approving into the SIP Puerto Rico's lead attainment
plan for the Arecibo Area. Specifically, the EPA is taking final action
to approve Puerto Rico's August 30, 2016 submittal, which includes the
attainment demonstration, base year emissions inventory, modeling, and
contingency measures, and addresses RACM/RACT and the RFP plan.\5\
Permits for the lead smelter, TBRCI, which was documented as the source
of high lead emissions contributing to nonattainment of the NAAQS, have
been withdrawn and TBRCI is no longer operating. The requirements for
RACM/RACT and the RFP plan are satisfied because the Commonwealth of
Puerto Rico demonstrated that the Area will attain the 2008 Lead NAAQS
as expeditiously as practicable, and could not implement any additional
measures to attain the NAAQS any sooner.
---------------------------------------------------------------------------

    \5\ See EPA's proposed approval of the Attainment Demonstration
for the Arecibo Lead Nonattainment Area 81 FR 78097 (November 7,
2016).
---------------------------------------------------------------------------

    The EPA notes that since September 2015, the month after the PREQB
withdrew the construction and operating permits for TBRCI, the data
from the source oriented Arecibo air monitoring site indicates the lead
concentration in the ambient air has been below the three-month rolling
average for the 2008 Lead NAAQS and the 2016 modeling indicates the
area will attain the NAAQS. The SIP for the Arecibo Area adequately
demonstrates a trajectory towards attainment; thus, the EPA is
approving the attainment demonstration, emissions inventory, modeling,
control measures, RACM/RACT and RFP.
    The EPA's review of the materials submitted indicates that Puerto
Rico has developed the Lead attainment plan in accordance with the
requirements of the CAA, 40 CFR part 51, and the EPA's technical
requirements for a Lead SIP. Therefore, the EPA is approving into the
SIP the Lead attainment plan for Arecibo, Puerto Rico.
    A detailed analysis of the EPA's review and rationale for approving
the lead SIP submittal as addressing these CAA requirements may be
found in the November 7, 2016 proposed rulemaking action (81 FR 78097)
which is available on line at www.regulations.gov, Docket ID Number
EPA-R02-OAR-2016-0560.

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


[Federal Register: July 22, 2008 (Volume 73, Number 141)]
[Notices]
[Page 42559-42560]
[DOCID:fr22jy08-37]

-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ER08-1202-000]

Huntrise Energy Fund LLC; Supplemental Notice That Initial
Market-Based Rate Filing Includes Request for Blanket Section 204
Authorization

July 11, 2008.
    This is a supplemental notice in the above-referenced proceeding of
Huntrise Energy Fund LLC's application for market-based rate authority,
with an accompanying rate schedule, noting that such application
includes a request for blanket authorization, under 18 CFR part 34, of
future issuances of securities and assumptions of liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426, in accordance with Rules 211 and 214 of the
Commission's Rules of Practice and Procedure (18 CFR 385.211 and
385.214). Anyone filing a motion to intervene or protest must serve a
copy of that document on the Applicant.
    Notice is hereby given that the deadline for filing protests with
regard to the applicant's request for blanket authorization, under 18
CFR part 34, of future issuances of securities and assumptions of
liability, is July 31, 2008.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://
www.ferc.gov. To facilitate electronic service, persons with Internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies of the intervention or protest to the Federal Energy
Regulatory Commission,

888 First St., NE., Washington, DC 20426.
    The filings in the above-referenced proceeding are accessible in
the Commission's eLibrary system by clicking on the appropriate link in
the above list. They are also available for review in the Commission's
Public Reference Room in Washington, DC. There is an eSubscription link
on the Web site that enables subscribers to receive e-mail notification
when a document is added to a subscribed docket(s). For assistance with
any FERC Online service, please e-mail<EMAIL_ADDRESS>or
call<PHONE_NUMBER> (toll-free). For TTY, call<PHONE_NUMBER>.

Kimberly D. Bose,
Secretary.
 [FR Doc. E8-16698 Filed 7-21-08; 8:45 am]

BILLING CODE 6717-01-P


UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation on September 15, 2005

NOTICE OF ACTION TAKEN -- DOCKET OST-1996-1405

________________________________________________________________________
________________________________

This serves as notice to the public of the action described below, taken
by the Department official indicated (no additional confirming order
will be issued in this matter).

Applicant:  AEROVICS, S.A. de C.V.  							Date Filed:  August 11, 2005

Relief requested:  Renewal of exemption from 49 USC § 41301 to permit
the applicant to conduct passenger charter operations between Mexico and
the United States, and other passenger charters in accordance with 14
CFR Part 212, using small equipment.  The applicant also requests
renewal of its stopover privileges and continued relief from the
requirement to provide advance notice of each flight, or series of
flights, between Mexico and the United States.  Furthermore, the
applicant requests that the authority be granted for a two-year term.

If renewal, date and citation of last action:  August 31, 2004, in this
Docket.

Applicant representative:  Lee A. Bauer,<PHONE_NUMBER>	  		DOT analyst:
Robert J. Finamore,<PHONE_NUMBER>

Responsive pleadings:  None.

	DISPOSITION

Action:  Approved, in part, remainder dismissed.
                                        	Action date:  September 15,
2005

Effective dates of authority granted:  September 15, 2005, through
September 15, 2006.

Basis for approval (bilateral agreement/reciprocity):  United
States-Mexico Air Transport Services Agreement (“the Agreement”).

Except to the extent exempted/waived, this authority is subject to the
terms, conditions, and limitations of our standard exemption conditions
(attached).

Special conditions/Remarks:  In the conduct of these operations, the
carrier must adhere to all applicable provisions of the Agreement.  In
the conduct of these operations, the carrier may only use aircraft
capable of carrying no more than 60 passengers and having a maximum
payload capacity of no more than 18,000 pounds (small equipment).  The
above grant includes authority to operate Third and Fourth Freedom
charters.  While we have subjected, consistent with the provisions of
the Agreement, Mexican carriers conducting charter operations with large
aircraft to prior approval or submission of notice for their Third and
Fourth Freedom charters, we determined that any such requirement was not
necessary on public interest grounds in the case of this carrier, since
the carrier will be conducting these operations solely with small
aircraft.  (Other charter operations to/from the United States under
this authority, however, are subject to prior approval under 14 CFR Part
212.)  Further, we are continuing to allow Mexican carriers conducting
passenger charters using small equipment to make stopovers in the United
States in the conduct of such operations.  The one-year duration of the
authority we granted is consistent with our usual policy of granting
exemption authority in the circumstances presented.  We, therefore,
dismissed the application to the extent that it sought authority for a
longer period.

Action taken by:   Paul L. Gretch, Director, Office of International
Aviation

________________________________________________________________________
________________________________

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) our action was consistent with Department
policy; (2) the applicant was qualified to perform its proposed
operations; (3) grant of the authority was consistent with the public
interest; and (4) grant of the authority would not constitute a major
regulatory action under the Energy Policy and Conservation Act of 1975.
To the extent not granted/deferred/dismissed, we denied all requests in
the referenced Docket.  We may amend, modify, or revoke the authority
granted in this Notice at any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set
forth in this Notice under the Department’s regulations, 14 CFR
§385.30, may file their petitions within seven (7) days after the date
of issuance of this Notice.  This action was effective when taken, and
the filing of a petition for review will not alter such effectiveness.

An electronic version of this document is available on the World Wide
Web at:

http://dms.dot.gov//reports/reports_aviation.asp

FOREIGN CARRIER EXEMPTION CONDITIONS
                              ATTACHMENT

In the conduct of the operations authorized, the foreign carrier
applicant(s) shall:

1) Not conduct any operations unless it holds a currently effective
authorization from its homeland for such operations, and it has filed a
copy of such authorization with the Department;

2) Comply with all applicable requirements of the Federal Aviation
Administration, including, but not limited to, 14 CFR Parts 129, 91, and
36, and with all applicable U.S. Government requirements concerning
security, including, but not limited to, 49 CFR Part 1546 or 1550, as
applicable.  To assure compliance with all applicable U.S. Government
requirements concerning security, the holder shall, before commencing
any new service (including charter flights) from a foreign airport that
would be the holder’s last point of departure for the United States,
contact its International Principal Security Inspector (IPSI) to advise
the IPSI of its plans and to find out whether the Transportation
Security Administration has determined that security is adequate to
allow such airport(s) to be served;

3) Comply with the requirements for minimum insurance coverage contained
in 14 CFR Part 205, and, prior to the commencement of any operations
under this authority, file evidence of such coverage, in the form of a
completed OST Form 6411, with the Federal Aviation Administration’s
Program Management Branch (AFS-260), Flight Standards Service (any
changes to, or termination of, insurance also shall be filed with that
office);

4) Not operate aircraft under this authority unless it complies with
operational safety requirements at least equivalent to Annex 6 of the
Chicago Convention;

5) Conform to the airworthiness and airman competency requirements of
its Government for international air services;

6) Except as specifically exempted or otherwise provided for in a
Department Order, comply with the requirements of 14 CFR Part 203,
concerning waiver of Warsaw Convention liability limits and defenses;

7) Agree that operations under this authority constitute a waiver of
sovereign immunity, for the purposes of 28 U.S.C. 1605(a), but only with
respect to those actions or proceedings instituted against it in any
court or other tribunal in the United States that are: a) based on its
operations in international air transportation that, according to the
contract of carriage, include a point in the United States as a point of
origin, point of destination, or agreed stopping place, or for which the
contract of carriage was purchased in the United States; or b) based on
a claim under any international agreement or treaty cognizable in any
court or other tribunal of the United States.  In this condition, the
term “international air transportation” means “international
transportation” as defined by the Warsaw Convention, except that all
States shall be considered to be High Contracting Parties for the
purpose of this definition;

8) Except as specifically authorized by the Department, originate or
terminate all flights to/from the United States in its homeland;

9) Comply with the requirements of 14 CFR Part 217, concerning the
reporting of scheduled, nonscheduled, and charter data;

10) If charter operations are authorized, except as otherwise provided
in the applicable aviation agreement, comply with the Department’s
rules governing charters (including 14 CFR Parts 212 and 380); and

11) Comply with such other reasonable terms, conditions, and limitations
required by the public interest as may be prescribed by the Department,
with all applicable orders or regulations of other U.S. agencies and
courts, and with all applicable laws of the United States.

This authority shall not be effective during any period when the holder
is not in compliance with the conditions imposed above.  Moreover, this
authority cannot be sold or otherwise transferred without explicit
Department approval under Title 49 of the U.S. Code.

 05/2004