[Federal Register Volume 61, Number 22 (Thursday, February 1, 1996)]
[Rules and Regulations]
[Pages 3572-3575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1937]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[FL-064-1-7179a; FRL-5305-7]


Approval and Promulgation of Implementation Plans: Florida

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a revision to Florida's State Implementation 
Plan (SIP) to allow the State of Florida to issue Federally enforceable 
state operating permits (FESOP). On December 21, 1994, the State of 
Florida through the Florida Department of Environmental Protection 
(FDEP), submitted a SIP revision fulfilling the requirements necessary 
for a state FESOP program to become Federally enforceable. In order to 
extend the Federal enforceability of Florida's FESOP program to 
hazardous air pollutants (HAP), EPA is also approving Florida's FESOP 
program pursuant to section 112 of the Clean Air Act as amended in 1990 
(CAA) so that Florida may issue Federally enforceable state operating 
permits for HAP.

DATES: This final rule is effective April 1, 1996 unless adverse or 
critical comments are received by March 4, 1996. If the effective date 
is delayed, timely notice will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to Gracy R. Danois, at 
the EPA Regional Office listed below. Copies of the documents relative 
to this action are available for public inspection during normal 
business hours at the following locations. The interested persons 
wanting to examine these documents should make an appointment with the 
appropriate office at least 24 hours before the visiting day.

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345 
Courtland Street, NE, Atlanta, Georgia 30365.
Florida Department of Environmental Protection, Twin Towers Office 
Building, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400.

FOR FURTHER INFORMATION CONTACT: Gracy R. Danois, Air Programs Branch, 
Air, Pesticides & Toxics Management Division, Region 4 Environmental 
Protection Agency, 345 Courtland Street, NE, Atlanta, Georgia 30365. 
The telephone number is 404/347-3555, extension 4150. Reference file 
FL-064-1-7179a.

SUPPLEMENTARY INFORMATION:

I. Summary of State Submittal

    On December 21, 1994, the State of Florida through the FDEP 
submitted a SIP revision designed to make certain permits issued under 
the State's existing minor source operating permit program Federally 
enforceable pursuant to EPA requirements as specified in a Federal 
Register notice, ``Requirements for the preparation, adoption, and 
submittal of implementation plans; air quality, new source review; 
final rules.'' (see 54 FR 22274, June 28, 1989). Additional materials 
were provided by FDEP to EPA in a supplemental submittal on April 24, 
1995.
    Florida will continue to issue permits which are not Federally 
enforceable under its existing minor source operating permit rules as 
it has done in the past. The SIP revision, which is the subject of this 
document, adds requirements to Florida's current minor source operating 
permit program, which allows the State to issue FESOP. This voluntary 
SIP revision allows EPA and citizens under the CAA to enforce terms and 
conditions of Florida's FESOP program. Operating permits that are 
issued under the State's FESOP program that is approved into the SIP 
and under section 112(l), will provide Federally enforceable limits to 
an air pollution source's potential to emit. Limiting a source's 
potential to emit through Federally enforceable operating permits can 
affect the applicability of Federal regulations, such as title V 
operating permits, New Source Review (NSR) preconstruction permits, 
Prevention of Significant Deterioration (PSD) preconstruction permits 
for criteria pollutants and federal air toxics requirements mandated 
under section 112 of the CAA, to a source.
    In the aforementioned June 28, 1989, Federal Register document, EPA 
listed 

[[Page 3573]]
five criteria necessary to make a State's minor source operating permit 
program Federally enforceable and, therefore, approvable into the SIP. 
This revision satisfies the five criteria for Federal enforceability of 
Florida's FESOP program.
    The first criterion for a state's operating permit program to be 
Federally enforceable is EPA's approval of the permit program into the 
SIP. On December 21, 1994, the State of Florida submitted through FDEP 
a SIP revision designed to meet the five criteria for Federal 
enforceability. The State supplemented their submittal with additional 
information on April 24, 1995. Today's action will approve these 
regulations into the Florida SIP, and therefore satisfy the first 
criterion for Federal enforceability.
    The second criterion for a state's operating permit program to be 
Federally enforceable is that the regulations approved into the SIP 
must impose a legal obligation that operating permit holders adhere to 
the terms and limitations of such permits. Florida's program meets this 
criterion in Rule 62-210.300(2)(b)1.d. of the Florida Administrative 
Code (F.A.C.), by stating that ``each permit shall be conditioned such 
that the owner or operator is legally obligated to adhere to the terms 
and limitations of such permit, and of any revision or renewal of such 
permit made in accordance with the requirements of this paragraph * * 
*'' Moreover, F.A.C. 62-210.300(2)(b)1., states that only permits 
issued, renewed or revised in accordance with the requirements of this 
rule shall be deemed Federally enforceable. Hence, the second criterion 
for Federal enforceability is satisfied.
    The third criterion for a state's operating permit program to be 
Federally enforceable is that the state operating permit program must 
require all emissions limitations, controls, and other requirements 
imposed by permits to be at least as stringent as any other applicable 
limitations and requirements contained in the SIP or enforceable under 
the SIP, and the program may not issue permits that waive, or make less 
stringent, any limitations or requirements contained in or issued 
pursuant to the SIP, or that are otherwise ``Federally enforceable'' 
(e.g., standards established under sections 111 and 112 of the CAA). 
The first paragraph of F.A.C. Rule 62-210.300, requires that ``all 
emissions limitations, controls, and other requirements imposed by such 
permits shall be at least as stringent as any applicable limitations 
and requirements contained in or enforceable under the SIP or that are 
otherwise Federally enforceable''. Additionally, this paragraph 
specifies that ``issuance of a permit does not relieve the owner or 
operator of any emission unit from complying with applicable emission 
limiting standards or other requirements of the air pollution rules of 
the Department or any other applicable requirements under Federal, 
state, or local law.'' Therefore, this section of Florida's permits 
rule satisfies the third criterion for Federal enforceability.
    The fourth criterion for a state's operating permit program to be 
Federally enforceable is that limitations, controls, and requirements 
in the operating permits must be permanent, quantifiable, and otherwise 
enforceable as a practical matter. With respect to this criterion, 
enforceability is essentially provided on a permit-by-permit basis, 
particularly by writing practical and quantitative enforcement 
procedures into each permit. EPA will review the Federal enforceability 
of Florida's permits by using the policy memorandum entitled, ``Options 
for Limiting the Potential to Emit (PTE) of a Stationary Source Under 
Section 112 and title V of the Clean Air Act (Act),'' dated January 25, 
1995, which describes the types of limitations that reduce potential to 
emit in a Federally enforceable manner. Florida's F.A.C. Section 62-
210.300(2)(b)1.e. provides for fully enforceable permit requirements. 
Concerning permanence, F.A.C. Section 62-210.300(2)(b)(2), establishes 
that once a facility obtains a synthetic non-title V permit, the 
facility is subject to its requirements unless the source becomes a 
title V source or the facility can demonstrate that is ``naturally 
minor'' without any Federally enforceable limitations. Consequently, 
Florida's rules provide for the degree of permanence necessary for 
enforcement of the applicable provisions, and provide that the permit 
limitations will be fully enforceable. Hence, the fourth criterion for 
Federal enforceability is met.
    The fifth criterion for a state's operating permit program to be 
Federally enforceable is providing EPA and the public with timely 
notice of the proposal and issuance of such permits, and providing EPA, 
on a timely basis, with a copy of each proposed (or draft) and final 
permit intended to be Federally enforceable. This process must also 
provide for an opportunity for public comment on the permit 
applications prior to issuance of the final permit. Florida satisfies 
this criteria in F.A.C. Sections 62-210.300(2)(b)1.b., 62-
210.350(1)(a)2. and 62-210.350(4), which require the State to provide a 
30 day public comment period of proposed permitting actions, and to 
provide a copy of each proposed (or draft) and final permit to the 
Administrator. EPA notes that any permit which has not gone through an 
opportunity for public comment and EPA review under the Florida FESOP 
program will not be Federally enforceable.
    In addition to requesting approval into the SIP, Florida has also 
requested approval of its FESOP program under section 112(l) of the Act 
for the purpose of creating Federally enforceable limitations on the 
potential to emit of HAP through the issuance of Federally enforceable 
state operating permits. Approval under section 112(l) is necessary 
because the proposed SIP approval discussed above only extends to the 
control of criteria pollutants.
    EPA believes that the five criteria for Federal enforceability are 
also appropriate for evaluating and approving FESOP programs under 
section 112(l). The June 28, 1989, Federal Register document did not 
specifically address HAPs because it was written prior to the 1990 
amendments to section 112, not because it establishes requirements 
unique to criteria pollutants.
    In addition to meeting the criteria in the June 28, 1989, document, 
a FESOP program that addresses HAP must meet the statutory criteria for 
approval under section 112(l)(5). Section 112(l) gives EPA authority to 
approve a program only if it: (1) contains adequate authority to assure 
compliance with any section 112 standards or requirements; (2) provides 
for adequate resources; (3) provides for an expeditious schedule for 
assuring compliance with section 112 requirements; and (4) is otherwise 
likely to satisfy the objectives of the CAA. The January 25, 1995, 
memorandum cited above, provides further discussion of these criteria 
and of the extent to which limits on criteria pollutants such as 
volatile organic compounds and particulate matter may be considered to 
limit sources' potential to emit HAP.
    EPA plans to codify the approval criteria for programs limiting the 
potential to emit for HAP, such as FESOP programs, through amendments 
to Subpart E of Part 63, the regulations promulgated to implement 
section 112(l) of the CAA. (See 58 FR 62262, November 26, 1993). EPA 
anticipates that these regulatory criteria, as they apply to FESOP 
programs, will mirror those set forth in the June 28, 1989, Federal 
Register document. The EPA also anticipates that since FESOP programs 
approved pursuant to section 112(l) prior to the planned Subpart E 

[[Page 3574]]
revisions will have been approved as meeting these criteria, further 
approval actions for those programs will not be necessary.
    EPA has authority under section 112(l) to approve programs to limit 
the potential to emit of HAP directly under section 112(l) prior to the 
Subpart E revisions. Section 112(l)(5) requires the EPA to disapprove 
programs that are inconsistent with guidance required to be issued 
under section 112(l)(2). This might be read to suggest that the 
``guidance'' referred to in section 112(l)(2) was intended to be a 
binding rule. Even under this interpretation, EPA does not believe that 
section 112(l) requires this rulemaking to be comprehensive. That is to 
say, it need not address every possible instance of approval under 
section 112(l). EPA has already issued regulations under section 112(l) 
that would satisfy any section 112(l)(2) requirement for rulemaking. 
Given the severe timing problems posed by impending deadlines set forth 
in ``maximum achievable control technology'' (MACT) emission standards 
under section 112 and for submittal of title V permit applications, EPA 
believes it is reasonable to read section 112(l) to allow for approval 
of programs to limit potential to emit prior to promulgation of a rule 
specifically addressing this issue. Therefore, EPA is approving 
Florida's FESOP program so that Florida may begin to issue Federally 
enforceable operating permits as soon as possible.
    Regarding the statutory criteria of section 112(l)(5) referred to 
above, EPA believes Florida's FESOP program contains adequate authority 
to assure compliance with section 112 requirements because the third 
criterion of the June 28, 1989, Federal Register document is met. That 
is to say, Florida's program does not allow for the waiver of any 
section 112 requirements. Sources that become minor through a permit 
issued pursuant to this program would still be required to meet the 
section 112 requirements applicable to non-major sources.
    Regarding the requirement for adequate resources, EPA believes 
Florida has demonstrated that it will provide adequate resources to 
support the FESOP program. EPA expects that resources will continue to 
be adequate to administer that portion of the State's minor source 
operating permit program under which Federally enforceable operating 
permits will be issued since Florida has administered a minor source 
operating permit program for several years. EPA will monitor Florida's 
implementation of its FESOP program to ensure that adequate resources 
are in fact available.
    EPA also believes that Florida's FESOP program provides for an 
expeditious schedule to assure compliance with section 112 
requirements. This program will be used to allow a source to establish 
a voluntary limit on potential to emit to avoid being subject to a CAA 
requirement applicable on a particular date. Nothing in Florida's FESOP 
program would allow a source to avoid or delay compliance with a CAA 
requirement if it fails to obtain an appropriate Federally enforceable 
limit by the relevant deadline. Finally, EPA believes Florida's program 
is consistent with the intent of section 112 and the CAA for states to 
provide a mechanism through which sources may avoid classification as 
major sources by obtaining Federally enforceable limits on potential to 
emit.
    Eligibility for Federally enforceable permits extends not only to 
permits issued after the effective date of this rule, but also to 
permits issued under the State's current rule prior to the effective 
date of today's rulemaking. If the State followed its own regulation, 
each issued permit that established a title I condition (e.g. for a 
source to have minor source potential to emit) was subject to public 
notice and prior EPA review. Therefore, EPA will consider all such 
operating permits which were issued in a manner consistent with both 
the State regulations and the five criteria as federally enforceable 
upon the effective date of this action provided that any permits that 
the State wishes to make federally enforceable are submitted to EPA and 
accompanied by documentation that the procedures approved today have 
been followed. EPA will expeditiously review any individual permits so 
submitted to ensure their conformity with the program requirements.
    With Florida's addition of these provisions and EPA's approval of 
this revision to the SIP, Florida's FESOP program satisfies the 
criteria described in the June 28, 1989, Federal Register document.

II. Final Action

    In this action, EPA is approving Florida's FESOP program. EPA is 
publishing this action without prior proposal because the Agency views 
this as a noncontroversial amendment and anticipates no adverse 
comments. However, in a separate document in this Federal Register 
publication, EPA is proposing to approve the SIP revision should 
adverse or critical comments be filed. This action will be effective 
April 1, 1996 unless, within 30 days of its publication, adverse or 
critical comments are received. If EPA receives such comments, this 
action will be withdrawn before the effective date by publishing a 
subsequent document that will withdraw the final action. All public 
comments received will then be addressed in a subsequent final rule 
based on this action serving as a proposed rule. EPA will not institute 
a second comment period on this action. Any parties interested in 
commenting on this action should do so at this time. If no such 
comments are received, the public is advised that this action will be 
effective April 1, 1996.
    The Agency has reviewed this request for revision of the Federally-
approved SIP for conformance with the provisions of the 1990 Clean Air 
Act Amendments enacted on November 15, 1990. EPA has determined that 
this action conforms with those requirements.
    Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1), 
petitions for judicial review of this action must be filed in the 
United States Court of Appeals for the appropriate circuit by April 1, 
1996. Filing a petition for reconsideration by the Administrator of 
this final rule does not affect the finality of this rule for 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) of the CAA, 42 U.S.C. 7607 (b)(2).)
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from Executive Order 12866 review.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any SIP. Each request for revision to the SIP shall be considered 
separately in light of specific technical, economic, and environmental 
factors and in relation to relevant statutory and regulatory 
requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify 

[[Page 3575]]
that the rule will not have a significant impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and government entities with 
jurisdiction over populations of less than 50,000.
    SIP approvals under section 110 and subchapter I, part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-state relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 
42 U.S.C. section 7410(a)(2) and 7410(R).
    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
State, local, or tribal governments in the aggregate.
    Through submission of this state implementation plan or plan 
revision, the State has elected to adopt the program provided for under 
Section 112(l) of the Clean Air Act. These rules may bind the State 
government to perform certain actions and also require the private 
sector to perform certain duties. To the extent that the rules being 
approved by this action would impose no new requirements, such sources 
are already subject to these regulations under State law. Accordingly, 
no additional costs to the State government, or to the private sector, 
result from this action. EPA has also determined that this final action 
does not include a mandate that may result in estimated costs of $100 
million or more to the State government in the aggregate or to the 
private sector.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

    Dated: September 20, 1995.
Patrick M. Tobin,
Acting Regional Administrator.

    Part 52 of chapter I, title 40, Code of Federal Regulations, is 
amended as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart K--Florida

    2. Section 52.520 is amended by adding paragraph (c)(90) to read as 
follows:


Sec. 52.520  Identification of plan.

* * * * *
    (c) * * *
    (90) Revisions to Chapter 62-210, Stationary Sources--General 
Requirements, submitted by the Florida Department of Environmental 
Protection on December 21, 1994 and April 24, 1995.
    (i) Incorporation by reference.
    (A) Revised Sections 62-210.300, ``Permits Required'', except 62-
210.300(2)(b)1., and 62-210.350, ``Public Notice and Comment'', 
effective November 23, 1994. Revised Section 62-210.300(2)(b)1., 
effective April 18, 1995.

[FR Doc. 96-1937 Filed 1-31-96; 8:45 am]
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