Approval and Promulgation of Implementation Plans; Florida: New Source Review-Prevention of Significant Deterioration; Fine Particulate Matter (PM2.5, 58027-58032 [2012-22976]

Download as PDF 58027 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations The basis for this determination is that our decision is on a State regulatory program and does not involve Federal regulations involving Indian lands. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211, which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.). Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a Original amendment submission date * September 19, 2012 [FR Doc. 2012–23075 Filed 9–18–12; 8:45 am] BILLING CODE 4310–05–P This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. List of Subjects in 30 CFR Part 943 Intergovernmental relations, Surface mining, Underground mining. Dated: July 17, 2012. Ervin J. Barchenger, Regional Director, Mid-Continent Region. For the reasons set out in the preamble, 30 CFR part 943 is amended as set forth below: PART 943—TEXAS 1. The authority citation for Part 943 continues to read as follows: ■ Authority: 30 U.S.C. 1201 et seq. 2. Section 943.15 is amended in the table by adding a new entry in chronological order by ‘‘Date of final publication’’ to read as follows: ■ § 943.15 Approval of Texas regulatory program amendments. * [EPA–R04–OAR–2012–0555; FRL–9728–1] Approval and Promulgation of Implementation Plans; Florida: New Source Review—Prevention of Significant Deterioration; Fine Particulate Matter (PM2.5) Environmental Protection Agency (EPA). AGENCY: VerDate Mar<15>2010 19:23 Sep 18, 2012 Jkt 226001 PO 00000 Final rule. Frm 00043 Fmt 4700 * * 16 TAC 12.108(b)(1)–(3) ENVIRONMENTAL PROTECTION AGENCY ACTION: * * * Citation/description 40 CFR Part 52 srobinson on DSK4SPTVN1PROD with RULES Unfunded Mandates Date of final publication * * * February 9, 2012 ............................................................. determination made that the Federal regulation was not considered a major rule. Sfmt 4700 * * 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 (PM2.5) national ambient air quality standards (NAAQS) as promulgated in EPA’s 2008 NSR PM2.5 Implementation Rule and the 2010 PM2.5 PSD Increment, Significant Impact SUMMARY: E:\FR\FM\19SER1.SGM 19SER1 srobinson on DSK4SPTVN1PROD with RULES 58028 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations 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 PM2.5 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 19:23 Sep 18, 2012 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 (PM2.5),’’ 73 FR 28321 (May 16, 2008), hereafter referred to as the ‘‘NSR PM2.5 Rule’’ and ‘‘Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC),’’ 75 FR 64864 (October 20, 2010), hereafter referred to as the ‘‘PM2.5 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 PM2.5 PSD Increment-SILsSMC 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 PM2.5 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 PM2.5 Rule EPA finalized the NSR PM2.5 Rule on May 16, 2008, which revised the NSR I. Background II. This Action III. Final Action VerDate Mar<15>2010 IV. Statutory and Executive Order Reviews Jkt 226001 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 program requirements to establish the framework for implementing preconstruction permit review for the PM2.5 NAAQS in both attainment areas and nonattainment areas (NAA) that: (1) Require NSR permits to address directly emitted PM2.5 and precursor pollutants; (2) establish significant emission rates for direct PM2.5 and precursor pollutants (including sulfur dioxide (SO2) and nitrogen oxides (NOX)); (3) establish PM2.5 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 PM2.5 and PM10 emission limits in PSD or nonattainment NSR (NNSR) permits. Additionally, the NSR PM2.5 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 PM2.5 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 PM2.5 Rule.1 1. PM10 Surrogate and Grandfathering Policy In the NSR PM2.5 Rule, EPA required that major stationary sources seeking permits must begin directly satisfying the PM2.5 requirements, as of the effective date of the rule, rather than relying on PM10 as a surrogate, with two exceptions.2 The first exception is a ‘‘grandfathering’’ provision in the federal PSD program at 40 CFR 1 Florida’s March 15, 2012, SIP revision only addresses the State’s PSD permitting program and does not adopt the NNSR permitting requirements for PM2.5 emission offsets, condensable provision or the discretionary interpollutant trading policy and ratios promulgated in the 2008 NSR PM2.5 Rule. Moreover Florida is in attainment of the 1997 annual and 2006 24-hour PM2.5 NAAQS. 2 After EPA promulgated the NAAQS for PM 2.5 in 1997, the Agency issued guidance documents related to using PM10 as a surrogate for PM2.5 entitled: ‘‘Interim Implementation of New Source Review Requirements for PM2.5.’’ John S. Seitz, EPA, October 23, 1997 (the ‘‘Seitz Memo’’) and ‘‘Implementation of New Source Review Requirements in PM–2.5 Nonattainment Areas’’ (the ‘‘2005 PM2.5 NNSR Guidance’’). The Seitz Memo was designed to help states implement NSR requirements pertaining to the new PM2.5 NAAQS in light of technical difficulties posed by PM2.5 at that time. The 2005 PM2.5 NNSR Guidance provided direction regarding implementation of the NNSR provisions in PM2.5 nonattainment areas in the interim period between the effective date of the PM2.5 nonattainment designations (April 5, 2005) and EPA’s promulgation of final PM2.5 NNSR regulations (this included recommending that until EPA promulgated the PM2.5 major NSR regulations, ‘‘States should use a PM10 nonattainment major NSR program as a surrogate to address the requirements of nonattainment major NSR for the PM2.5 NAAQS.’’). E:\FR\FM\19SER1.SGM 19SER1 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations 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 PM2.5 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) 3 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 PM2.5 unless the application includes a valid surrogacy demonstration.4 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. srobinson on DSK4SPTVN1PROD with RULES 2. ‘‘Condensable’’ Provision In the NSR PM2.5 Rule, EPA revised the definition of ‘‘regulated NSR pollutant’’ for PSD to add a paragraph providing that ‘‘particulate matter (PM) emissions, PM2.5 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, PM2.5 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 3 Sources that applied for a PSD permit under the federal PSD program on or after July 15, 2008, are already excluded from using the 1997 PM10 Surrogate Policy as a means of satisfying the PSD requirements for PM2.5. See 76 FR 28321. 4 Additional information on this issue can also be found in an August 12, 2009, final order on a title V petition describing the use of PM10 as a surrogate for PM2.5. In the Matter of Louisville Gas & Electric Company, Petition No. IV–2008–3, Order on Petition (August 12, 2009). VerDate Mar<15>2010 19:23 Sep 18, 2012 Jkt 226001 16, 2012, EPA proposed a rulemaking to amend the definition of ‘‘regulated NSR pollutant’’ promulgated in the NSR PM2.5 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 PM2.5 Rule that the measurement of condensable ‘‘particulate matter emissions’’ be included as part of the measurement and regulation of ‘‘particulate matter emissions.’’ 5 B. PM2.5 PSD IncrementSILs-SMC Rule The PM2.5 PSD Increment-SILs-SMC Rule provided additional regulatory requirements under the PSD program regarding the implementation of the PM2.5 NAAQS for NSR including: (1) PM2.5 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 PM2.5 data gathering required for a PSD permit application. The SILs and SMC are numerical values that represent thresholds of insignificant, i.e., de minimis,6 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 PM2.5. EPA’s authority to implement the SILs and SMC for PSD purposes has been challenged by the Sierra Club. Sierra 5 The term ‘‘particulate matter emissions’’ includes particles that are larger than PM2.5 and PM10 and is an indicator measured under various New Source Performance Standards (NSPS) at 40 CFR part 60. In addition to the NSPS for PM, it is noted that states have regulated ‘‘particulate matter emissions’’ for many years in their SIPs for PM, and the same indicator has been used as a surrogate for determining compliance with certain standards contained in 40 CFR part 63, regarding National Emission Standards for Hazardous Air Pollutants. 6 The de minimis principle is grounded in a decision described by the court case Alabama Power Co. v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1980). In this case, reviewing EPA’s 1978 PSD regulations, the court recognized that ‘‘there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value.’’ 636 F.2d at 360. See 75 FR 64864. PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 58029 Club v. EPA, Case No. 10–1413 (DC Circuit Court).7 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’’ 8 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 PM2.5 PSD Increment-SILs-SMC Rule, pursuant to the authority under section 166(a) of the CAA, EPA promulgated numerical PSD increments for PM2.5 as a new pollutant 9 for which NAAQS were established after August 7, 1977,10 and derived 24-hour and annual PM2.5 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 PM2.5 NAAQS, the PM2.5 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 PM2.5 NAAQS specific dates associated with the 7 On April 6, 2012, EPA filed a brief with the D.C. Circuit court defending the Agency’s authority to implement SILs and SMC for PSD purposes. 8 Significant deterioration occurs when the amount of the new pollution exceeds the applicable PSD increment, which is the ‘‘maximum allowable increase’’ of an air pollutant allowed to occur above the applicable baseline concentration1 for that pollutant. Section 169(4) of the CAA provides that the baseline concentration of a pollutant for a particular baseline area is generally the air quality at the time of the first application for a PSD permit in the area. 9 EPA generally characterized the PM 2.5 NAAQS as a NAAQS for a new indicator of PM. EPA did not replace the PM10 NAAQS with the NAAQS for PM2.5 when the PM2.5 NAAQS were promulgated in 1997. EPA rather retained the annual and 24-hour NAAQS for PM2.5 as if PM2.5 was a new pollutant even though EPA had already developed air quality criteria for PM generally. See 75 FR 64864 (October 20, 2012). 10 EPA interprets 166(a) to authorize EPA to promulgate pollutant-specific PSD regulations meeting the requirements of section 166(c) and 166(d) for any pollutant for which EPA promulgates a NAAQS after 1977. E:\FR\FM\19SER1.SGM 19SER1 58030 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations implementation of PM2.5 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 PM2.5 PSD Increment-SILs-SMC Rule, EPA established a PM2.5 SMC of 4 mg/m3 to be used as a screening tool by a major source subject to PSD to determine the subsequent level of PM2.5 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 PM2.5 SILs 11 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.12 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 srobinson on DSK4SPTVN1PROD with RULES 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 PM2.5 NAAQS including the NSR PM2.5 and PM2.5 Increment11 As mentioned earlier, due to litigation by the Sierra Club, EPA is not taking final action on the SILs portion of the Florida March 15, 2012, SIP revision at this time but will take action once the court case regarding SILs implementation is resolved. 12 Additional information on this issue can also be found in an April 25, 2010, comment letter from EPA Region 6 to the Louisiana Department of Environmental Quality regarding the SILs-SMC litigation. A copy of this letter can be found in the docket for today’s rulemaking at www.regulations.gov using docket ID: EPA–R04– OAR–2012–0555. VerDate Mar<15>2010 19:23 Sep 18, 2012 Jkt 226001 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 PM2.5 Rule PSD provisions including: (1) The requirement for NSR permits to address directly emitted PM2.5 and precursor pollutants; (2) the amendment establishing significant emission rates for direct PM2.5 and precursor pollutants (SO2 and NOX) and recognizing PM2.5 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 PM2.5 (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 PM2.5 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 PM2.5 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 PM2.5 and PM10. Florida’s March 15, 2012, SIP revision added definitions for ‘‘condensable PM10’’ at 62–210.200(94), ‘‘condensable PM2.5’’ 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 PM2.5 PSD Increment-SILs SMC Rule, EPA is taking final action to also approve into the Florida SIP the PSD increments for PM2.5 annual and 24-hour NAAQS pursuant to section 166(a) of the CAA PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 and SMC of 4 mg/m3 for PM2.5 NAAQS. The March 15, 2012, SIP revision: (1) Revises the definition for ‘‘maximum allowable increase’’ to incorporate by reference (IBR) the PM2.5 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.13); (2) amends the definitions for ‘‘major source baseline date’’ and ‘‘minor source baseline date’’ to establish relevant dates for PM2.5 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 PM2.5 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 PM2.5 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 PM2.5 so that EPA can make necessary rulemaking revisions to that text.14 In light of EPA’s request for remand and vacatur and our acknowledgement of 13 Florida IBR federal rules at rule 62–204.800 F.A.C. 14 In the preamble to the October 20, 2010, final rule EPA indicates that the Agency does not consider the SILs to be a mandatory SIP element, but regard them as discretionary on the part of regulating authority for use in the PSD permitting process. See 75 FR 64864 at 64899. E:\FR\FM\19SER1.SGM 19SER1 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations 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.15 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 PM2.5 and the PM2.5 PSD Increment-SILs-SMC Rules to implement the PM2.5 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, 58031 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. Dated: September 6, 2012. A. Stanley Meiburg, Acting Regional Administrator, Region 4. 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: ■ § 52.520 * Identification of plan. * * (c) * * * * * EPA-APPROVED FLORIDA REGULATIONS srobinson on DSK4SPTVN1PROD with RULES State citation Title/subject State effective date 15 EPA is currently developing guidance to provide a provisional course of action to implement the PM2.5 SILs pending revision to implementing VerDate Mar<15>2010 19:23 Sep 18, 2012 Jkt 226001 EPA approval date Explanation (k)(2) provisions and the litigation. The guidance will ensure that the PM2.5 SILs are properly applied as part of a PSD compliance demonstration to show PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 that a source’s impact will not cause or contribute to a violation of the PM2.5 NAAQS or increment. E:\FR\FM\19SER1.SGM 19SER1 58032 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations EPA-APPROVED FLORIDA REGULATIONS—Continued Title/subject State effective date * State citation * * EPA approval date * Chapter 62–210 62–210.200 ... Definitions ......... * March 28, 2012 * * * * March 28, 2012 * * * * * BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R06–OAR–2009–0648; FRL–9728–7] Approval and Promulgation of Implementation Plans; New Mexico; Albuquerque/Bernalillo County: Infrastructure and Interstate Transport Requirements for the 1997 and 2008 Ozone and the 1997 and 2006 PM2.5 NAAQS Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is approving submittals from the Governor of New Mexico for the City of Albuquerque/Bernalillo County area, pursuant to the Clean Air Act (CAA or the Act). These submittals address the infrastructure elements specified in the CAA necessary to implement, maintain, and enforce the 1997 and 2008 8-hour ozone and the 1997 and 2006 fine particulate matter (PM2.5) national ambient air quality standards (NAAQS or standards). We find that the current Albuquerque/ Bernalillo County State Implementation Plan (SIP) meets the infrastructure elements for the 1997 and 2008 8-hour ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS. We also find that the current Albuquerque/Bernalillo County SIP meets the CAA requirement that srobinson on DSK4SPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 19:23 Sep 18, 2012 Jkt 226001 As of September 19, 2012, 61–210.200 does not include Florida’s revision to adopt the PM2.5 SILs threshold and provisions (as promulgated in the October 20, 2010, PM2.5 PSD Increment-SILsSMC Rule at 40 CFR 52.21(k)(2)). * September 19, 2012 [Insert citation of publication]. * * * As of September 19, 2012, 61–212.400 does not include Florida’s revision to adopt the PM2.5 SILs threshold and provisions (as promulgated in the October 20, 2010, PM2.5 PSD Increment-SILsSMC Rule at 40 CFR 52.21(k)(2)). * emissions from sources in the area do not interfere with prevention of significant deterioration (PSD) measures required in the SIP of any other state, with regard to the 1997 and 2008 ozone and 1997 and 2006 PM2.5 NAAQS. EPA is also approving SIP revisions that modify the PSD SIP to include nitrogen oxides (NOX) as an ozone precursor. EPA is approving revisions to the Albuquerque/Bernalillo County PSD SIP that identify the PM2.5 precursors and establish significant emission rates for said precursors, consistent with the federal requirements. We are also approving other revisions to the Albuquerque/Bernalillo County PSD SIP to maintain consistency with the federal PSD permitting requirements. In addition to these revisions, EPA is approving other revisions to the Albuquerque/Bernalillo County SIP necessary to implement the NAAQS. DATES: This final rule is effective on October 19, 2012. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA–R06–OAR– 2009–0648. All documents in the docket are listed in the www.regulations.gov index. 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, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Planning Section (6PD–L), Environmental Protection Agency, 1445 PO 00000 * Stationary Sources—Preconstruction Review * [FR Doc. 2012–22976 Filed 9–18–12; 8:45 am] * Stationary Sources—General Requirements * Prevention of Significant Deterioration. * September 19, 2012 [Insert citation of publication]. Chapter 62–212 62–212.400 ... Explanation Frm 00048 Fmt 4700 Sfmt 4700 * * Ross Avenue, Suite 700, Dallas, Texas 75202–2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at 214–665–7253 to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a fee of 15 cents per page for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas. The State submittal is also available for public inspection during official business hours, by appointment, at the City of Albuquerque, Environmental Health Department—Air Quality Division, One Civic Plaza, Room 3047, Albuquerque, New Mexico 87103, telephone 505–768–1972, email address aqd@cabq.gov. FOR FURTHER INFORMATION CONTACT: Mr. John Walser, Air Planning Section (6PD–L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202–2733, telephone 214–665–7128; fax number 214–665–6762; email address walser.john@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document, ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ means EPA. Table of Contents I. Background a. Section 110(a)(1) and (2) E:\FR\FM\19SER1.SGM 19SER1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Rules and Regulations]
[Pages 58027-58032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22976]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0555; FRL-9728-1]

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.

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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 (PM2.5) national ambient air quality
standards (NAAQS) as promulgated in EPA's 2008 NSR PM2.5
Implementation Rule and the 2010 PM2.5 PSD Increment,
Significant Impact

[[Page 58028]]

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
PM2.5 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 (PM2.5),'' 73 FR 28321 (May 16, 2008), hereafter
referred to as the ``NSR PM2.5 Rule'' and ``Prevention of
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5
Micrometers (PM2.5)--Increments, Significant Impact Levels
(SILs) and Significant Monitoring Concentration (SMC),'' 75 FR 64864
(October 20, 2010), hereafter referred to as the ``PM2.5 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 PM2.5 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 PM2.5 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 PM2.5 Rule

EPA finalized the NSR PM2.5 Rule on May 16, 2008, which
revised the NSR program requirements to establish the framework for
implementing preconstruction permit review for the PM2.5
NAAQS in both attainment areas and nonattainment areas (NAA) that: (1)
Require NSR permits to address directly emitted PM2.5 and
precursor pollutants; (2) establish significant emission rates for
direct PM2.5 and precursor pollutants (including sulfur
dioxide (SO2) and nitrogen oxides (NOX)); (3)
establish PM2.5 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
PM2.5 and PM10 emission limits in PSD or
nonattainment NSR (NNSR) permits. Additionally, the NSR
PM2.5 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 PM2.5 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 PM2.5
Rule.\1\
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\1\ Florida's March 15, 2012, SIP revision only addresses the
State's PSD permitting program and does not adopt the NNSR
permitting requirements for PM2.5 emission offsets,
condensable provision or the discretionary interpollutant trading
policy and ratios promulgated in the 2008 NSR PM2.5 Rule.
Moreover Florida is in attainment of the 1997 annual and 2006 24-
hour PM2.5 NAAQS.
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1. PM10 Surrogate and Grandfathering Policy
In the NSR PM2.5 Rule, EPA required that major
stationary sources seeking permits must begin directly satisfying the
PM2.5 requirements, as of the effective date of the rule,
rather than relying on PM10 as a surrogate, with two
exceptions.\2\ The first exception is a ``grandfathering'' provision in
the federal PSD program at 40 CFR

[[Page 58029]]

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 PM2.5 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) \3\ 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 PM2.5 unless the
application includes a valid surrogacy demonstration.\4\ 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.
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\2\ After EPA promulgated the NAAQS for PM2.5 in
1997, the Agency issued guidance documents related to using
PM10 as a surrogate for PM2.5 entitled:
``Interim Implementation of New Source Review Requirements for
PM2.5.'' John S. Seitz, EPA, October 23, 1997 (the
``Seitz Memo'') and ``Implementation of New Source Review
Requirements in PM-2.5 Nonattainment Areas'' (the ``2005
PM2.5 NNSR Guidance''). The Seitz Memo was designed to
help states implement NSR requirements pertaining to the new
PM2.5 NAAQS in light of technical difficulties posed by
PM2.5 at that time. The 2005 PM2.5 NNSR
Guidance provided direction regarding implementation of the NNSR
provisions in PM2.5 nonattainment areas in the interim
period between the effective date of the PM2.5
nonattainment designations (April 5, 2005) and EPA's promulgation of
final PM2.5 NNSR regulations (this included recommending
that until EPA promulgated the PM2.5 major NSR
regulations, ``States should use a PM10 nonattainment
major NSR program as a surrogate to address the requirements of
nonattainment major NSR for the PM2.5 NAAQS.'').
\3\ Sources that applied for a PSD permit under the federal PSD
program on or after July 15, 2008, are already excluded from using
the 1997 PM10 Surrogate Policy as a means of satisfying
the PSD requirements for PM2.5. See 76 FR 28321.
\4\ Additional information on this issue can also be found in an
August 12, 2009, final order on a title V petition describing the
use of PM10 as a surrogate for PM2.5. In the
Matter of Louisville Gas & Electric Company, Petition No. IV-2008-3,
Order on Petition (August 12, 2009).
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2. ``Condensable'' Provision
In the NSR PM2.5 Rule, EPA revised the definition of
``regulated NSR pollutant'' for PSD to add a paragraph providing that
``particulate matter (PM) emissions, PM2.5 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,
PM2.5 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 PM2.5 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 PM2.5 Rule that the measurement of
condensable ``particulate matter emissions'' be included as part of the
measurement and regulation of ``particulate matter emissions.'' \5\
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\5\ The term ``particulate matter emissions'' includes particles
that are larger than PM2.5 and PM10 and is an
indicator measured under various New Source Performance Standards
(NSPS) at 40 CFR part 60. In addition to the NSPS for PM, it is
noted that states have regulated ``particulate matter emissions''
for many years in their SIPs for PM, and the same indicator has been
used as a surrogate for determining compliance with certain
standards contained in 40 CFR part 63, regarding National Emission
Standards for Hazardous Air Pollutants.
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B. PM2.5 PSD IncrementSILs-SMC Rule

The PM2.5 PSD Increment-SILs-SMC Rule provided
additional regulatory requirements under the PSD program regarding the
implementation of the PM2.5 NAAQS for NSR including: (1)
PM2.5 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 PM2.5 data gathering required for a PSD permit
application. The SILs and SMC are numerical values that represent
thresholds of insignificant, i.e., de minimis,\6\ 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
PM2.5. 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).\7\
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\6\ The de minimis principle is grounded in a decision described
by the court case Alabama Power Co. v. Costle, 636 F.2d 323, 360
(D.C. Cir. 1980). In this case, reviewing EPA's 1978 PSD
regulations, the court recognized that ``there is likely a basis for
an implication of de minimis authority to provide exemption when the
burdens of regulation yield a gain of trivial or no value.'' 636
F.2d at 360. See 75 FR 64864.
\7\ On April 6, 2012, EPA filed a brief with the D.C. Circuit
court defending the Agency's authority to implement SILs and SMC for
PSD purposes.
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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'' \8\ 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 PM2.5 PSD
Increment-SILs-SMC Rule, pursuant to the authority under section 166(a)
of the CAA, EPA promulgated numerical PSD increments for
PM2.5 as a new pollutant \9\ for which NAAQS were
established after August 7, 1977,\10\ and derived 24-hour and annual
PM2.5 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 PM2.5 NAAQS,
the PM2.5 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 PM2.5 NAAQS specific dates associated with the

[[Page 58030]]

implementation of PM2.5 PSD increments. See 75 FR 64864.
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\8\ Significant deterioration occurs when the amount of the new
pollution exceeds the applicable PSD increment, which is the
``maximum allowable increase'' of an air pollutant allowed to occur
above the applicable baseline concentration1 for that pollutant.
Section 169(4) of the CAA provides that the baseline concentration
of a pollutant for a particular baseline area is generally the air
quality at the time of the first application for a PSD permit in the
area.
\9\ EPA generally characterized the PM2.5 NAAQS as a
NAAQS for a new indicator of PM. EPA did not replace the
PM10 NAAQS with the NAAQS for PM2.5 when the
PM2.5 NAAQS were promulgated in 1997. EPA rather retained
the annual and 24-hour NAAQS for PM2.5 as if
PM2.5 was a new pollutant even though EPA had already
developed air quality criteria for PM generally. See 75 FR 64864
(October 20, 2012).
\10\ EPA interprets 166(a) to authorize EPA to promulgate
pollutant-specific PSD regulations meeting the requirements of
section 166(c) and 166(d) for any pollutant for which EPA
promulgates a NAAQS after 1977.
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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 PM2.5 PSD Increment-SILs-
SMC Rule, EPA established a PM2.5 SMC of 4 [micro]g/m\3\ to
be used as a screening tool by a major source subject to PSD to
determine the subsequent level of PM2.5 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 PM2.5 SILs \11\ 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.\12\ 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.
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\11\ As mentioned earlier, due to litigation by the Sierra Club,
EPA is not taking final action on the SILs portion of the Florida
March 15, 2012, SIP revision at this time but will take action once
the court case regarding SILs implementation is resolved.
\12\ Additional information on this issue can also be found in
an April 25, 2010, comment letter from EPA Region 6 to the Louisiana
Department of Environmental Quality regarding the SILs-SMC
litigation. A copy of this letter can be found in the docket for
today's rulemaking at www.regulations.gov using docket ID: EPA-R04-
OAR-2012-0555.
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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 PM2.5 NAAQS including the NSR
PM2.5 and PM2.5 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
PM2.5 Rule PSD provisions including: (1) The requirement for
NSR permits to address directly emitted PM2.5 and precursor
pollutants; (2) the amendment establishing significant emission rates
for direct PM2.5 and precursor pollutants (SO2
and NOX) and recognizing PM2.5 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 PM2.5 (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 PM2.5 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
PM2.5 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
PM2.5 and PM10. Florida's March 15, 2012, SIP
revision added definitions for ``condensable PM10'' at 62-210.200(94),
``condensable PM2.5'' 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 PM2.5 PSD Increment-SILs SMC Rule,
EPA is taking final action to also approve into the Florida SIP the PSD
increments for PM2.5 annual and 24-hour NAAQS pursuant to
section 166(a) of the CAA and SMC of 4 [micro]g/m\3\ for
PM2.5 NAAQS. The March 15, 2012, SIP revision: (1) Revises
the definition for ``maximum allowable increase'' to incorporate by
reference (IBR) the PM2.5 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.\13\); (2) amends the definitions for
``major source baseline date'' and ``minor source baseline date'' to
establish relevant dates for PM2.5 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.
---------------------------------------------------------------------------

\13\ Florida IBR federal rules at rule 62-204.800 F.A.C.
---------------------------------------------------------------------------

Regarding the SILs and SMC, EPA's authority to implement the
PM2.5 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 PM2.5
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 PM2.5
so that EPA can make necessary rulemaking revisions to that text.\14\
In light of EPA's request for remand and vacatur and our
acknowledgement of

[[Page 58031]]

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.\15\
---------------------------------------------------------------------------

\14\ In the preamble to the October 20, 2010, final rule EPA
indicates that the Agency does not consider the SILs to be a
mandatory SIP element, but regard them as discretionary on the part
of regulating authority for use in the PSD permitting process. See
75 FR 64864 at 64899.
\15\ EPA is currently developing guidance to provide a
provisional course of action to implement the PM2.5 SILs
pending revision to implementing (k)(2) provisions and the
litigation. The guidance will ensure that the PM2.5 SILs
are properly applied as part of a PSD compliance demonstration to
show that a source's impact will not cause or contribute to a
violation of the PM2.5 NAAQS or increment.
---------------------------------------------------------------------------

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 PM2.5 and the PM2.5 PSD Increment-SILs-SMC
Rules to implement the PM2.5 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.

Dated: September 6, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart K--Florida

0
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:

Sec. 52.520 Identification of plan.

* * * * *
(c) * * *

EPA-Approved Florida Regulations
----------------------------------------------------------------------------------------------------------------
State effective
State citation Title/subject date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------

[[Page 58032]]

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 62-210 Stationary Sources--General Requirements
----------------------------------------------------------------------------------------------------------------
62-210.200........ Definitions...... March 28, 2012... September 19, 2012 As of September 19, 2012, 61-
[Insert citation of 210.200 does not include
publication]. Florida's revision to adopt
the PM2.5 SILs threshold and
provisions (as promulgated in
the October 20, 2010, PM2.5
PSD Increment-SILs-SMC Rule at
40 CFR 52.21(k)(2)).

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter 62-212 Stationary Sources--Preconstruction Review
----------------------------------------------------------------------------------------------------------------
62-212.400........ Prevention of March 28, 2012... September 19, 2012 As of September 19, 2012, 61-
Significant [Insert citation of 212.400 does not include
Deterioration. publication]. Florida's revision to adopt
the PM2.5 SILs threshold and
provisions (as promulgated in
the October 20, 2010, PM2.5
PSD Increment-SILs-SMC Rule at
40 CFR 52.21(k)(2)).

* * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2012-22976 Filed 9-18-12; 8:45 am]
BILLING CODE 6560-50-P

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