[Federal Register Volume 72, Number 101 (Friday, May 25, 2007)]
[Rules and Regulations]
[Pages 29273-29276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10061]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2006-0130-200714(a); FRL-8317-8]


Approval and Promulgation of Implementation Plans: State of 
Florida; Prevention of Significant Deterioration Requirements for Power 
Plants Subject to the Florida Power Plant Siting Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: On February 3, 2006, the State of Florida, through a State 
Implementation Plan (SIP) submittal addressing New Source Review (NSR) 
Reform requirements, requested that EPA grant it full approval to 
implement the State's Clean Air Act (CAA or Act) Prevention of 
Significant Deterioration (PSD) program for electric power plants 
subject to the Florida Electrical Power Plant Siting Act. EPA is 
proposing to approve this specific request under section 110 of the 
Act. EPA intends to take action on all other portions of Florida's 
February 3, 2006, NSR Reform SIP submittal in a future rulemaking.

DATES: This direct final rule is effective July 24, 2007 without 
further notice, unless EPA receives adverse comment by June 25, 2007. 
If EPA receives such comments, it will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2006-0130, by one of the following methods:

[[Page 29274]]

    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: 404-562-9066.
    4. Mail: ``EPA-R04-OAR-2006-0130'', Air Permits 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.
    5. Hand Delivery or Courier: Ms. Kelly Fortin, Air Permits 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. Such deliveries are only accepted during 
the Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2006-0130''. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov website is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://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 a.m. to 4:30 
p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Kelly Fortin, Air Permits 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. The telephone number is (404) 562-9117. 
Ms. Fortin can also be reached via electronic mail at 
[email protected]

SUPPLEMENTARY INFORMATION:

I. Background

    Part C of the CAA establishes the PSD program, the preconstruction 
review program that applies to areas of the country that have attained 
the National Ambient Air Quality Standards (NAAQS). CAA sections 160-
169, 42 U.S.C. 7470-7479. In such areas, a major stationary source may 
not begin construction or undertake certain modifications without first 
obtaining a PSD permit. In broad overview, the program (1) limits the 
impact of new or modified major stationary sources on ambient air 
quality and (2) requires the application of state-of-the-art pollution 
control technology, known as best available control technology. CAA 
section 165, 42 U.S.C. 7475.
    EPA has promulgated two largely identical sets of regulations to 
implement the PSD program. One set, at 40 CFR 52.21, contains EPA's own 
federal PSD program under which EPA is the permitting authority in 
states operating without an EPA-approved state program. The other set 
of regulations contain minimum requirements that state PSD programs 
must meet to be approved by EPA as part of a SIP. 40 CFR 51.166. Over 
time, most states have received EPA approval for their PSD programs.
    In order to comply with the established minimum requirements of the 
CAA, the State of Florida adopted its own PSD regulations on June 10 
and October 28, 1981. The Florida PSD program was initially approved by 
EPA into the Florida SIP on December 22, 1983. 48 FR 52713. The 
approval transferred to the Florida Department of Environmental 
Protection (FDEP) the legal authority to process and issue PSD permits 
to sources in Florida that are required to obtain PSD permits.
    One category of sources not covered by EPA's 1983 approval of 
Florida's PSD program was electric power plants. This was because, at 
the time, a separate Florida law known as the Florida Electrical Power 
Plant Siting Act (PPSA) required permits for electric power plants to 
be issued solely by the PPSA's Site Certification Board, rather than by 
FDEP. Such a conflict between the PPSA and Florida's PSD program 
created impediments to implementation and enforcement of the State's 
PSD program by FDEP for such power plants and precluded EPA's SIP-
approval of Florida's PSD program as to these sources. As a result, for 
electric power plants subject to the PPSA, FDEP has been operating 
under either a partial or full delegation of authority to implement the 
federal PSD program since 1983, while various attempts to amend the 
PPSA to correct the conflict were made. Currently, FDEP is operating 
under a full delegation of authority to implement the federal PSD 
program for electric power plants, following further amendments to the 
PPSA in 1993.
    In light of the 1993 amendments to the PPSA, the State has 
requested, through its February 3, 2006, NSR Reform SIP submittal, that 
EPA grant Florida SIP-approval to implement the State's PSD program for 
electric power plants subject to the PPSA. EPA is approving this 
specific request under section 110 of the Act because there is no 
longer a conflict between the State's PSD regulations and the PPSA and 
because FDEP now has adequate and effective procedures for full 
implementation of the State's PSD program for sources in Florida, 
including electric power plants.

II. Analysis of State's Request

    The statutory amendments to the PPSA made by the Florida 
legislature in 1993 form the basis of the State's request for SIP-
approval of its PSD program for sources subject to the PPSA.

[[Page 29275]]

Those amendments, which took effect on April 22, 1993, expressly 
provide that the ``[D]epartment's action on a federally required new 
source review or prevention of significant deterioration permit shall 
differ from the actions taken by the siting board regarding the 
certification if the federally approved state implementation plan 
requires such a different action to be taken by the department. Nothing 
in this part [the PPSA] shall be construed to displace the department's 
authority as the final permitting entity under the federally approved 
permit program.'' The amendments make clear that FDEP is the final 
permitting authority for PSD and new source review permits and can act 
in a manner different from the PPSA Siting Board if Florida's PSD or 
new source review regulations require such a different action.
    In addition, subsequent to the State's February 3, 2006, NSR Reform 
SIP submittal, the PPSA was again amended (on June 19, 2006), to among 
other things, wholly extricate the PSD permitting process from the PPSA 
process. See, Florida Public Health Code 403.0872. Specifically, 
language requiring that a PPSA application for certification include 
``documents necessary for the department to render a decision on any 
permit required pursuant to any federally delegated or approved permit 
program'' was deleted from the PPSA; language requiring that FDEP's 
action on a PSD permit be based on the recommended order of the PPSA 
certification hearing was removed; and requirements that administrative 
procedures used in the issuance of PSD and operating permits follow the 
administrative procedures of the PPSA were also removed.
    EPA has reviewed the 1993 and June 19, 2006 amendments to the PPSA 
and concludes that they provide FDEP the authority to fully implement 
and enforce Florida's PSD program for electric power plants located 
within the State.

III. Final Action

    EPA is approving the aforementioned change to the Florida SIP. This 
approval means that Florida's SIP-approved PSD program includes 
coverage of electric power plants in the State. EPA is not, in this 
rulemaking, taking any other action on Florida's February 3, 2006 NSR 
Reform SIP submittal. EPA intends to take action on the remaining 
portions of Florida's February 3, 2006, NSR Reform SIP submittal in a 
future rulemaking. EPA is publishing this rule without prior proposal 
because the Agency views this as a noncontroversial submittal and 
anticipates no adverse comments. However, in the proposed rules section 
of this Federal Register publication, EPA is publishing a separate 
document that will serve as the proposal to approve the SIP revision 
should adverse comments be filed. This rule will be effective July 24, 
2007 without further notice unless the Agency receives adverse comments 
by June 25, 2007.
    If EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on July 24, 2007 and no 
further action will be taken on the proposed rule.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves State law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator 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.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the CAA. 
This rule also is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 rule 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 July 24, 2007. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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

[[Page 29276]]

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, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: May 16, 2007.
Russell L. Wright, Jr.,
Acting Regional Administrator, Region 4.

0
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 52.530 is amended by revising paragraphs (a) and (b) to read 
as follows:


Sec.  52.530  Significant deterioration of air quality.

    (a) EPA approves the Florida Prevention of Significant 
Deterioration program, as incorporated into this chapter, for power 
plants subject to the Florida Power Plant Siting Act.
    (b) [Reserved]
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[FR Doc. E7-10061 Filed 5-24-07; 8:45 am]
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