Approval and Promulgation of Implementation Plans; Florida: New Source Review-Prevention of Significant Deterioration; Fine Particulate Matter (PM2.5

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve changes to the Florida State Implementation Plan (SIP), submitted by the Florida Department of Environmental Protection (FDEP) to EPA on March 15, 2012. The March 15, 2012, SIP revision modifies Florida's New Source Review (NSR) Prevention of Significant Deterioration (PSD) permitting regulations to adopt, into the Florida SIP, federal NSR PSD requirements for the fine particulate matter (PM_2.5) national ambient air quality standards (NAAQS) as promulgated in EPA's 2008 NSR PM_2.5 Implementation Rule and the 2010 PM_2.5 PSD Increment, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC) Rule. EPA is approving portions of Florida's March 15, 2012, SIP revision because they are consistent with the Clean Air Act (CAA or Act) and EPA regulations regarding NSR permitting.

DATES:

Effective Date: This rule will be effective October 19, 2012.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2012-0555. 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, i.e., Confidential Business Information 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 either electronically through www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

For information regarding the Florida SIP, contact Ms. Twunjala Bradley, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Bradley's telephone number is (404) 562-9352; email address: bradley.twunjala@epa.gov. For information regarding NSR, contact Ms. Yolanda Adams, Air Permits Section, at the same address above. Ms. Adams' telephone number is (404) 562-9214; email address: adams.yolanda@epa.gov. For information regarding the PM_2.5 NAAQS, contact Mr. Joel Huey, Regulatory Development Section, at the same address above. Mr. Huey's telephone number is (404) 562-9104; email address: huey.joel@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. This Action

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

EPA is taking final action to approve portions of Florida's March 15, 2012, SIP revision to adopt federal NSR permitting requirements. Florida's March 15, 2012, SIP revision includes changes to the Florida Administrative Code (F.A.C.) Chapter 62-210, Stationary Sources—General Requirements, Section 200—Definitions (rule 62-210.200), and Chapter 62-212, F.A.C., Stationary Sources—Preconstruction Review, Section 300—General Preconstruction Review Requirements (rule 62-212.300) and Section 400—Prevention of Significant Deterioration (rule 62-212.400). These changes adopt federal PSD permitting regulations promulgated in the final rulemakings entitled “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM_2.5),” 73 FR 28321 (May 16, 2008), hereafter referred to as the “NSR PM_2.5 Rule” and “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM_2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC),” 75 FR 64864 (October 20, 2010), hereafter referred to as the “PM_2.5 PSD Increment-SILs-SMC Rule.” EPA is not approving in this action Florida's incorporation into its SIP of the SIL thresholds and provisions promulgated in EPA's PM_2.5 PSD Increment-SILs-SMC Rule.

On July 27, 2012, EPA published a proposed rulemaking to approve the aforementioned changes to Florida's NSR PSD program. See 77 FR 44198. Comments on the proposed rulemaking were due on or before August 27, 2012. No comments, adverse or otherwise, were received on EPA's July 27, 2012 proposed rulemaking. Pursuant to section 110 of the CAA, EPA is now taking final action to approve the changes to Florida's NSR PSD program as provided in EPA's July 27, 2012, proposed rulemaking. A summary of the background for today's final action is provided below. EPA's July 27, 2012, proposed rulemaking contains more detailed information regarding the Florida SIP revision being approved today and the rationale for today's final action. Detailed information regarding the PM_2.5 NAAQS and NSR Program can also be found in EPA's July 27, 2012, proposed rulemaking as well as the abovementioned final rulemakings.

A. NSR PM _2.5 Rule

EPA finalized the NSR PM_2.5 Rule on May 16, 2008, which revised the NSR program requirements to establish the framework for implementing preconstruction permit review for the PM_2.5 NAAQS in both attainment areas and nonattainment areas (NAA) that: (1) Require NSR permits to address directly emitted PM_2.5 and precursor pollutants; (2) establish significant emission rates for direct PM_2.5 and precursor pollutants (including sulfur dioxide (SO₂) and nitrogen oxides (NO_X)); (3) establish PM_2.5 emission offsets; (4) provide exceptions to the grandfathering policy for permits being reviewed under the PM₁₀ surrogate program; and (5) require states to account for gases that condense to form particles (condensables) in PM_2.5 and PM₁₀ emission limits in PSD or nonattainment NSR (NNSR) permits. Additionally, the NSR PM_2.5 Rule authorized states to adopt provisions in their NNSR rules that would allow interpollutant offset trading. See 73 FR 28321. States were required to provide SIP submissions to address the requirements for the NSR PM_2.5 Rule by May 16, 2011. Florida's March 15, 2012, SIP revision addresses only the PSD requirements related to EPA's May 16, 2008, NSR PM_2.5 Rule.

1. PM₁₀ Surrogate and Grandfathering Policy

In the NSR PM_2.5 Rule, EPA required that major stationary sources seeking permits must begin directly satisfying the PM_2.5 requirements, as of the effective date of the rule, rather than relying on PM₁₀ as a surrogate, with two exceptions. The first exception is a “grandfathering” provision in the federal PSD program at 40 CFR 52.21(i)(1)(xi). This grandfathering provision applied to sources that had applied for, but had not yet received, a final and effective PSD permit before the July 15, 2008, effective date of the May 2008 final rule. The second exception was that states with SIP-approved PSD programs could continue to implement the Seitz Memo's PM₁₀ Surrogate Policy for up to three years (until May 2011) or until the individual revised state PSD programs for PM_2.5 are approved by EPA, whichever comes first. On May 18, 2011 (76 FR 28646), EPA took final action to repeal the grandfathering provision at 40 CFR 52.21(i)(1)(xi). This final action ended the use of the 1997 PM₁₀ Surrogate Policy for PSD permits under the federal PSD program at 40 CFR 52.21. In effect, any PSD permit applicant previously covered by the grandfathering provision (for sources that completed and submitted a permit application before July 15, 2008) that did not have a final and effective PSD permit before the effective date of the repeal will not be able to rely on the 1997 PM₁₀ Surrogate Policy to satisfy the PSD requirements for PM_2.5 unless the application includes a valid surrogacy demonstration. See 76 FR 28646. In its March 15, 2012, SIP revision, Florida did not adopt the grandfathering provision at 40 CFR 52.21(i)(1)(xi) into its PSD regulations. Therefore, Florida's SIP is consistent with current federal regulations regarding the repeal of the grandfathering provision.

2. “Condensable” Provision

In the NSR PM_2.5 Rule, EPA revised the definition of “regulated NSR pollutant” for PSD to add a paragraph providing that “particulate matter (PM) emissions, PM_2.5 emissions and PM₁₀ emissions” shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures and that on or after January 1, 2011, such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM, PM_2.5 and PM₁₀ in permits issued. See 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(vi) and “Emissions Offset Interpretative Ruling” (40 CFR part 51, appendix S). On March 16, 2012, EPA proposed a rulemaking to amend the definition of “regulated NSR pollutant” promulgated in the NSR PM_2.5 Rule regarding the PM condensable provision at 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(i) and EPA's Emissions Offset Interpretative Ruling. See 77 FR 15656. The rulemaking proposes to remove the inadvertent requirement in the NSR PM_2.5 Rule that the measurement of condensable “particulate matter emissions” be included as part of the measurement and regulation of “particulate matter emissions.”

B. PM _2.5 PSD IncrementSILs-SMC Rule

The PM_2.5 PSD Increment-SILs-SMC Rule provided additional regulatory requirements under the PSD program regarding the implementation of the PM_2.5 NAAQS for NSR including: (1) PM_2.5 increments pursuant to section 166(a) of the CAA to prevent significant deterioration of air quality in areas meeting the NAAQS; (2) SILs used as a screening tool (by a major source subject to PSD) to evaluate the impact a proposed major source or modification may have on the NAAQS or PSD increment; and (3) a SMC, (also a screening tool) used by a major source subject to PSD to determine the subsequent level of PM_2.5 data gathering required for a PSD permit application. The SILs and SMC are numerical values that represent thresholds of insignificant, i.e., de minimis, modeled source impacts or monitored (ambient) concentrations, respectively. EPA established such values to be used as screening tools by a major source subject to PSD to determine the subsequent level of analysis and data gathering required for a PSD permit application for emissions of PM_2.5. EPA's authority to implement the SILs and SMC for PSD purposes has been challenged by the Sierra Club. Sierra Club v. EPA, Case No. 10-1413 (DC Circuit Court).

1. PSD Increments

PSD increments prevent air quality in clean areas from deteriorating to the level set by the NAAQS. Therefore, an increment is the mechanism used to estimate “significant deterioration” of air quality for a pollutant in an area. Under section 165(a)(3) of the CAA, a PSD permit applicant must demonstrate that emissions from the proposed construction and operation of a facility “will not cause, or contribute to, air pollution in excess of any maximum allowable increase or allowable concentration for any pollutant.” When a source applies for a permit to emit a regulated pollutant in an area that meets the NAAQS, the state and EPA must determine if emissions of the regulated pollutant from the source will cause significant deterioration in air quality. As described in the PM_2.5 PSD Increment-SILs-SMC Rule, pursuant to the authority under section 166(a) of the CAA, EPA promulgated numerical PSD increments for PM_2.5 as a new pollutant for which NAAQS were established after August 7, 1977, and derived 24-hour and annual PM_2.5 increments for the three area classifications (Class I, II and III) using the “contingent safe harbor” approach. See 75 FR 64869 and the ambient air increment tables at 40 CFR 51.166(c)(1) and 52.21(c). In addition to PSD increments for the PM_2.5 NAAQS, the PM_2.5 PSD Increment-SILs-SMC Rule amended the definition at 40 CFR 51.166 and 52.21 for “major source baseline date” and “minor source baseline date” (including trigger date) to establish the PM_2.5 NAAQS specific dates associated with the implementation of PM_2.5 PSD increments. See 75 FR 64864.

2. Significant Monitoring Concentrations

As mentioned above, the SMC numerical value represents a threshold of insignificant (i.e., de minimis) monitored ambient impacts on pollutant concentrations. In the PM_2.5 PSD Increment-SILs-SMC Rule, EPA established a PM_2.5 SMC of 4 µg/m³ to be used as a screening tool by a major source subject to PSD to determine the subsequent level of PM_2.5 data gathering required for a PSD permit application. Using the SMC as a screening tool, sources may be able to demonstrate that the modeled air quality impact of emissions from the new source or modification, or the existing air quality level in the area where the source would construct, is less than the SMC (i.e., de minimis), and as such, may be allowed to forego the preconstruction monitoring requirement for a particular pollutant at the discretion of the reviewing authority.

Recently, the Sierra Club filed suit challenging EPA's authority to implement the PM_2.5 SILs as well as the SMC for PSD purposes as promulgated in the October 20, 2012, rule. Sierra Club v. EPA, Case No 10-1413, DC Circuit Court. Specifically, regarding the SMC, Sierra Club claims that the use of SMCs to exempt a source from submitting a year's worth of monitoring data is inconsistent with the CAA. EPA responded to Sierra Club's claims in a Brief dated April 6, 2012, which describes the Agency's authority to develop and promulgate SMC. A copy of EPA's April 6, 2010, Brief can be found in the docket for today's final rulemaking at www.regulations.gov using docket ID: EPA-R04-OAR-2012-0555.

II. This Action

EPA is taking final action to approve into the Florida SIP portions of the State's March 15, 2012, SIP revision to adopt the PSD permitting regulations to implement the PM_2.5 NAAQS including the NSR PM_2.5 and PM_2.5 Increment-SILs-SMC Rules. FDEP's PSD program definitions and preconstruction permitting rules are found at rule 62-210.200, F.A.C., and rules 62-212.300 through 62-212.400, F.A.C., respectively and apply to major stationary sources or modifications constructed in areas designated attainment or unclassifiable/attainment as required under part C of title I of the CAA with respect to the NAAQS. These changes to Florida's rules became state effective on March 28, 2012. FDEP's SIP revision adopts the NSR PM_2.5 Rule PSD provisions including: (1) The requirement for NSR permits to address directly emitted PM_2.5 and precursor pollutants; (2) the amendment establishing significant emission rates for direct PM_2.5 and precursor pollutants (SO₂ and NO_X) and recognizing PM_2.5 precursors for the definition of “significant emission rates” (at rule 62-21.200(282)) (as amended at 40 CFR 51.166(b)(23)(i)); and (3) the PSD requirement for states to address condensable PM in establishing enforceable emission limits for PM₁₀ and PM_2.5 (at 62-212.300(1)(f)) as promulgated at 40 CFR 51.166(b)(49). Additionally, Florida's March 15, 2012, SIP revision did not adopt the grandfathering provision at 40 CFR 52.21(i)(1)(xi) in accordance with the repeal of the PM_2.5 grandfathering provision.

Regarding the condensable provision and EPA's intent to amend the definition of “regulated NSR pollutant” as discussed in the March 16, 2012, correction rulemaking, Florida's March 15, 2012, SIP revision did not adopt the term “particulate matter emissions” regarding the requirement to consider condensables as promulgated in the NSR PM_2.5 Rule. See 77 FR 15656. As mentioned above, EPA is taking final action to approve into the Florida SIP the remaining condensable requirement at 40 CFR 51.166(b)(49)(vi), which requires that condensable emissions be accounted for in applicability determinations and in establishing emissions limitations for PM_2.5 and PM_10. Florida's March 15, 2012, SIP revision added definitions for “condensable PM ₁₀ ” at 62-210.200(94), “condensable PM _2.5 ” at 62-210-200(95) and “condensable PM” at 62-210.200(93), for clarification purposes. EPA is taking final action to approve the aforementioned changes into the Florida SIP.

With respect to the PM_2.5 PSD Increment-SILs SMC Rule, EPA is taking final action to also approve into the Florida SIP the PSD increments for PM_2.5 annual and 24-hour NAAQS pursuant to section 166(a) of the CAA and SMC of 4 µg/m for PM_2.5 NAAQS. The March 15, 2012, SIP revision: (1) Revises the definition for “maximum allowable increase” to incorporate by reference (IBR) the PM_2.5 PSD increments numerical values (established in the ambient air increment tables at 40 CFR 51.166(c)(1) and 52.21(c) at 62-204.800, F.A.C. ); (2) amends the definitions for “major source baseline date” and “minor source baseline date” to establish relevant dates for PM_2.5 increment consumption and establish trigger dates (as established at 40 CFR 51.166(b)(14)(i)(c) and 51.166(b)(14)(ii)(c) respectively) and; (3) revises the definition for “baseline area” as promulgated at 40 CFR 51.166(b)(15)(i) and (ii) and adds definitions for “baseline concentration.” The March 15, 2012, SIP submission also adds definitions for “Class I Area” and “Class II Area” at Chapter 62-210.200(77) and (78), F.A.C., respectively. The definition for Class I Area IBR 40 CFR part 81, Subpart D (the federal Class I Area list) at rule 62-204.800, F.A.C.

Regarding the SILs and SMC, EPA's authority to implement the PM_2.5 SILs and SMC is currently the subject of litigation by the Sierra Club. In a brief filed in the DC Circuit on April 6, 2012, EPA described the Agency's authority under the CAA to promulgate and implement the SMCs and SILs de minimis thresholds. Sierra Club v. EPA, Case No 10-1413 DC Circuit. However, EPA is finalizing approval of the promulgated SMC thresholds into the Florida SIP (at rule 62-212.400(3)(e)1, F.A.C.) because the Agency believes the SMC is a valid exercise of the Agency's de minimis authority as well as the fact they are consistent with EPA's promulgated levels in the PM_2.5 PSD Increment-SILs-SMC Rule. The ongoing litigation may result in the court decision that may require subsequent rule revisions and SIP revisions from Florida.

In response to the litigation, EPA requested that the court remand and vacate the new regulatory text at 40 CFR 51.166(k)(2) and 52.21(k)(2) concerning the implementation of SILs for PM_2.5 so that EPA can make necessary rulemaking revisions to that text. In light of EPA's request for remand and vacatur and our acknowledgement of the need to revise the regulatory text presently contained at paragraph (k)(2) of sections 51.166 and 52.21, the Agency has determined at this time not to approve the SILs portion of FDEP's March 15, 2012, SIP revision that contains the affected regulatory text in Florida's PSD regulations at rule, 62-212.400(5), F.A.C., and 62-210.200(283)(c), F.A.C. EPA will take action on the SILs portion of Florida's March 15, 2012, SIP revision in a separate rulemaking once the issue regarding the court case has been resolved.

III. Final Action

EPA is taking final action to approve portions of Florida's March 15, 2012, SIP revision (with the exception of the SILs threshold and provisions), that adopt federal permitting regulations amended in the NSR PM_2.5 and the PM_2.5 PSD Increment-SILs-SMC Rules to implement the PM_2.5 NAAQS for the NSR program because they are consistent with section 110 of the CAA and its regulations regarding NSR permitting.

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, 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 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. 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 November 19, 2012. 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
• Particulate matter
• Reporting and recordkeeping requirements, and Volatile organic compounds

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart K—Florida

2. Section 52.520(c) is amended under Chapters 62-210 and 62-212 by revising the entries for “Section 62-210.200” and “Section 62-212.400” to read as follows: