[Federal Register Volume 73, Number 125 (Friday, June 27, 2008)]
[Rules and Regulations]
[Pages 36435-36439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14400]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2006-0130-200814; FRL-8684-4]


Approval and Promulgation of Implementation Plans Florida; 
Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is taking final action to conditionally approve revisions 
to the Florida State Implementation Plan (SIP) submitted by the State 
of Florida on February 3, 2006. The SIP revisions modify the Florida 
Prevention of Significant Deterioration (PSD) program to address 
changes to the federal new source review (NSR) regulations, which were 
promulgated by EPA on December 31, 2002, and reconsidered with minor 
changes on November 7, 2003 (commonly referred to as the ``2002 NSR 
Reform Rules''). In addition EPA is approving Florida's concurrent 
February 3, 2006, request to make the State's PSD permitting program 
applicable to electric power plants, which are also subject to the 
Florida Electrical Power Plant Siting Act (PPSA). EPA proposed 
conditional approval of these revisions on April 4, 2008; no comments 
were received on that proposal.

DATES: Effective Date: This rule will be effective July 28, 2008.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2006-0130. All documents in the docket 
are listed on the http://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 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 to 4:30 excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Florida 
State Implementation Plan, contact Ms. Heidi LeSane, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, Region 4, U.S. Environmental Protection Agency, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number 
is (404) 562-9074. Ms. LeSane can also be reached via electronic mail 
at [email protected]. For information regarding New Source Review, 
contact Ms. Yolanda Adams, Air Permits Section, at the same address 
above. The telephone number is (404) 562-9214. Ms. Adams can also be 
reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking?
II. What is the background of EPA's action on the Florida PSD rule 
revisions?
III. What is the background of EPA's action on Florida's PSD program 
for electric power plants?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    NSR Reform Revisions. EPA is taking final action to conditionally 
approve revisions to the Florida SIP (Florida Administrative Code 
(F.A.C.) Chapters 62-204, 62-210, and 62-212) as submitted by the 
Florida Department of Environmental Protection (FDEP) on February 3, 
2006, which included changes to Florida's PSD program. As part of the 
current conditional approval, Florida has agreed to (1) revise the 
definition of ``new emissions unit'' to be consistent with the federal 
definition or revise the definition to define what is meant by 
``beginning normal operation'' and provide an equivalency demonstration 
supporting the revised definition; (2) revise the definition of 
``significant emissions rate'' to include ozone depleting substances; 
(3)

[[Page 36436]]

withdraw the request that EPA include a significant emissions rate for 
mercury in the Florida SIP, specifically F.A.C. Chapter 62-
210.200(243)(a)2; and (4) revise the recordkeeping requirements at 
F.A.C. section 62-212.300(3)(a)1 to be consistent with federal 
requirements found at 40 CFR 51.166(r)(6).
    Applicability of Florida's SIP-approved PSD permitting program to 
electric power plants. In addition to and in conjunction with the 
conditional approval of Florida's PSD SIP revisions, EPA is approving 
Florida's concurrent February 3, 2006, request to make the State's PSD 
permitting program applicable to electric power plants subject to the 
Florida PPSA. This means that Florida's SIP-approved PSD permitting 
program, including the conditional approval of the State's PSD 
revisions noted above, will apply to electric power plants in Florida 
in lieu of the current federally delegated PSD program.
    On April 4, 2008 (73 FR 18466), EPA published a notice of proposed 
rulemaking (NPR) in the Federal Register, proposing to conditionally 
approve the Florida SIP revisions and proposing to approve Florida's 
request to make the State's PSD program applicable to electric power 
plants, which are also subject to the Florida PPSA. The April 4, 2008, 
NPR provides additional information about the proposed Florida SIP 
revisions and the rationale for this final action. The public comment 
period for the proposed action ended on May 5, 2008. No comments were 
received on EPA's proposed action. EPA is now taking final action to 
conditionally approve the February 3, 2006, SIP revision from Florida 
and to approve Florida's request to make the State's PSD permitting 
program applicable to electric power plants subject to the Florida 
PPSA.

II. What is the background of EPA's action on the Florida PSD rule 
revisions?

    On December 31, 2002 (67 FR 80186), EPA published final rule 
changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, 
regarding the Clean Air Act (``CAA'' or ``Act'') PSD and nonattainment 
new source review (NNSR) programs. On November 7, 2003 (68 FR 63021), 
EPA published a notice of final action on its reconsideration of the 
December 31, 2002, final rule changes. In that November 7, 2003, final 
action, EPA added the definition of ``replacement unit,'' and clarified 
an issue regarding plant-wide applicability limitations. Collectively, 
these EPA final actions are referred to as the ``2002 NSR Reform 
Rules.'' On June 13, 2007 (72 FR 32526), EPA took final action to 
revise the 2002 NSR Reform Rules to exclude the clean units and PCP 
provisions that were vacated by the United States Court of Appeals for 
the District of Columbia Circuit (D.C. Circuit Court) on June 24, 2005. 
Further, on December 21, 2007, EPA took final action on the portion of 
the 2002 NSR Reform Rules remanded by the D.C. Circuit Court, regarding 
the reasonable possibility in recordkeeping provision. The ``reasonable 
possibility'' provision identifies, for sources and reviewing 
authorities, the circumstances under which a major stationary source 
undergoing a modification that does not trigger major NSR must keep 
records. On December 21, 2007, EPA established that a ``reasonable 
possibility'' exists where source emissions equal or exceed 50 percent 
of the CAA NSR significance levels for any pollutant (72 FR 72607). 
These changes became effective on January 22, 2008, and the final 
action on that provision explains the process that states should follow 
if a SIP revision is necessary.\1\
---------------------------------------------------------------------------

    \1\ Florida's regulations do not include the ``reasonable 
possibility'' language. Florida's SIP revisions require all 
modifications that use the actual-to-projected-actual methodology to 
meet the recordkeeping requirements. Thus, with regard to the 
reasonable possibility issue, Florida's rules are at least as 
stringent as the current federal rules.
---------------------------------------------------------------------------

    The Florida SIP revisions being approved today revise Florida's PSD 
program consistent with the federal program. In so doing, Florida not 
only provided substantive revisions to its rules, but also reorganized 
the rules to better follow the outline of the corresponding federal 
rules. This reorganization does not have any substantive impact on the 
PSD program as a whole, or its relationship with Florida's operating 
permits program (CAA title V program). Florida's PSD program continues 
to work in concert with its title V operating permit program to ensure 
that applicable requirements, including any applicable PSD 
requirements, are a part of lawful operation of a source under 
Florida's title V program.
    The February 3, 2006, SIP submittal consists of revisions to the 
following FDEP rules: F.A.C. Chapter 62-204, ``Air Pollution Control--
General Provisions;'' F.A.C. Chapter 62-210, ``Stationary Sources--
General Provisions;'' and F.A.C. Chapter 62-212, ``Stationary Sources--
Preconstruction Review.'' The revisions were made to update the Florida 
PSD program to make it consistent with the December 31, 2002, changes 
to the federal NSR program. EPA is conditionally approving the February 
3, 2006, SIP submittal consistent with section 110(k)(4) of the CAA. As 
part of the conditional approval, Florida will have twelve months from 
the date of EPA's final conditional approval of the SIP revisions in 
which to further revise its PSD rules, as described herein, to be 
consistent with existing federal law.
    Pursuant to section 110(k)(4) of the CAA, EPA may conditionally 
approve a portion of a SIP revision based on a commitment from the 
state to adopt specific, enforceable measures no later than twelve 
months from the date of final conditional approval. If the state fails 
to make the changes within the twelve month period, EPA will issue a 
finding of disapproval. EPA is not required to propose the finding of 
disapproval. The necessary revisions to the Florida SIP will materially 
alter the existing SIP-approved rule. As a result, Florida must also 
provide a new SIP submittal to EPA for approval that includes the rule 
changes. As with any SIP revision, Florida must provide an opportunity 
for public notice and comment, and allow for a public hearing (and any 
other procedures required by State law) on the proposed rule changes. 
If Florida timely revises its rules and submits the revised SIP 
submittal, EPA will process that SIP revision consistent with the CAA.
    With regard to the conditional approval of the PSD program, Florida 
must: (1) Revise the definition of ``new emissions unit'' to be 
consistent with the federal definition or revise the definition to 
define what is meant by ``beginning normal operation'' and provide an 
equivalency demonstration supporting the revised definition; (2) revise 
the definition of ``significant emissions rate'' to include ozone 
depleting substances; (3) withdraw the request that EPA include a 
significant emissions rate for mercury in the Florida SIP, specifically 
F.A.C. 62-210.200(243)(a)2; and (4) revise the recordkeeping 
requirements at F.A.C. 62-212.300(3)(a)1 to require a record of the 
amount of emissions excluded pursuant to the projected actual emissions 
requirements, an explanation as to why these emissions were excluded, 
and any netting calculations if applicable, consistent with the federal 
recordkeeping requirements at 40 CFR 51.166(r)(6).
    The April 4, 2008, NPR and the docket for this action provide more 
details about the SIP revisions being approved and the rationale for 
EPA's final action. For additional information on EPA's 2002 NSR Reform 
Rules, see 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr.

[[Page 36437]]

III. What is the background of EPA's action on Florida's PSD program 
for electric power plants?

    Electric power plants subject to the Florida PPSA have historically 
been permitted by FDEP (through a federal delegation of authority from 
EPA) under the federal PSD program rather than the Florida SIP-approved 
PSD permitting program. The Florida PSD program was initially approved 
by EPA into the Florida SIP on December 22, 1983 (48 FR 52713). The 
approval transferred to 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 PPSA, Florida 
Statutes Section 403.501 et seq., required permits for electric power 
plants to be issued solely by the Power Plant Site Certification Board 
under the PPSA, rather than by FDEP under Florida's PSD regulations. 
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. The 1993 PPSA amendment made 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 different action. The 
statutory amendment to the PPSA made by the Florida Legislature in 1993 
forms the basis of the State's 2006 request for EPA approval to make 
Florida's SIP-approved State PSD program, rather than the federal PSD 
program, applicable to sources subject to the PPSA. In addition, during 
EPA's review of this request, the PPSA was again amended (on June 19, 
2006), to among other things, further extricate Florida's PSD 
permitting process from its PPSA process. See, Florida Public Health 
Code 403.0872.
    Following EPA review of both the 1993 and June 19, 2006, amendments 
to the PPSA, the Agency published a direct final rule on May 25, 2007, 
finding that the PPSA amendments provided FDEP the authority to fully 
implement and enforce Florida's PSD program for electric power plants 
located within the State, and we granted it full approval to implement 
the State's PSD program for electric power plants subject to the PPSA. 
72 FR 29287 (May 25, 2007). However, because adverse comments on the 
direct final rule were received, EPA withdrew the rule on June 28, 2007 
(72 FR 35355) and indicated that the rule would not take effect.
    As is described in greater detail in the April 4, 2008, proposal, 
the 1993 and June 2006 Florida legislative amendments to the State's 
PPSA rectified past concerns that the Florida PPSA infringed on FDEP's 
authority to issue State PSD permits to sources subject to both the 
State's PSD regulations and the Florida PPSA in such a manner that SIP-
approval of the State's PSD program for those sources was precluded. By 
proposing this SIP-approval through this new rulemaking process, and in 
conjunction with our proposed action on the Florida PSD program SIP 
revisions, we have addressed the main concerns raised by commenters in 
response to our May 25, 2007, direct final rule. For additional 
information on the concerns raised by commenters, see the April 4, 
2008, proposal.
    EPA is now approving Florida's February 3, 2006, request 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 electric power plants. 
The April 4, 2008, NPR and the docket for this action provide more 
details about the approval of Florida's PSD program for electric power 
plants and the rationale for EPA's final action.

IV. Final Action

    EPA is taking final action to conditionally approve changes to the 
Florida Administrative Code Chapter 62-204 entitled ``Air Pollution 
Control--General Provisions''; Chapter 62-210 entitled ``Stationary 
Sources--General Provisions''; and Chapter 62-212 entitled ``Stationary 
Sources--Preconstruction Review,'' as submitted by the State of Florida 
on February 3, 2006, as revisions to the Florida SIP.
    In addition to and in conjunction with the conditional approval of 
Florida's PSD SIP revisions, EPA is taking final action to approve 
Florida's concurrent February 3, 2006, request to make the State's PSD 
permitting program applicable to electric power plants subject to the 
Florida PPSA. As a result of this final action, EPA's October 26, 1993, 
federal delegation of PSD authority to FDEP will be withdrawn effective 
July 28, 2008. This final approval means that Florida's SIP-approved 
PSD permitting program, including the final conditional approval of the 
State's PSD revisions noted above, applies to electric power plants in 
Florida in lieu of the current federally delegated PSD program.

V. 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);

[[Page 36438]]

     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 August 26, 2008. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: June 16, 2008.
J.I. Palmer, Jr.,
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 52.519 is revised to read as follows:


Sec.  52.519  Identification of plan-conditional approval.

    EPA is conditionally approving a revision to the Florida State 
Implementation Plan (SIP) consisting of revisions to Florida 
Administrative Code Chapters 62-210 and 62-212. Based upon a commitment 
from the State, Florida must (1) revise the definition of ``new 
emissions unit'' to be consistent with the federal definition or revise 
the definition to define what is meant by ``beginning normal 
operation'' and provide an equivalency demonstration supporting the 
revised definition; (2) revise the definition of ``significant 
emissions rate'' to include ozone depleting substances; (3) withdraw 
the request that EPA include a significant emissions rate for mercury 
in the Florida SIP, specifically F.A.C. 62-210.200(243)(a)2; and (4) 
revise the recordkeeping requirements at F.A.C. 62-212.300 to be 
consistent with federal requirements. If the State fails to meet its 
commitment by June 29, 2009, the approval is treated as a disapproval.

0
3. Section 52.520(c) is amended by:
0
a. Revising entries under Chapter 62-204 for ``62-204.200,'' and ``62-
204.260,'' under Chapter 62-210 for ``62-210.200,'' ``62-210.300,'' 
``62-210.350''and ``62-210.370,'' under Chapter 62-212 for ``62-
212.300,'' ``62-212.400,'' and ``62-212.500'' and
0
b. Adding in numerical order a new entry under Chapter 62-212 for ``62-
212.720'' to read as follows:


Sec.  52.520  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Florida Regulations
----------------------------------------------------------------------------------------------------------------
                                                            State
         State citation              Title/subject     effective date    EPA approval date       Explanation
----------------------------------------------------------------------------------------------------------------
                            Chapter 62-204 Air Pollution Control--General Provisions
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
62-204.200.....................  Definitions.........        02/12/06  06/27/08 [Insert
                                                                        citation of
                                                                        publication].
 
                                                  * * * * * * *
62-204.260.....................  Prevention of               02/12/06  06/27/08 [Insert
                                  Significant                           citation of
                                  Deterioration                         publication].
                                  Maximum Allowable
                                  Increases (PSD
                                  Increments).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                             Chapter 62-210 Stationary Sources--General Requirements
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
62-210.200.....................  Definitions.........        02/02/06  06/27/08 [Insert      Except for the
                                                                        citation of           following
                                                                        publication].         definitions which
                                                                                              are being
                                                                                              conditionally
                                                                                              approved: (1)
                                                                                              ``New emissions
                                                                                              unit;'' and (2)
                                                                                              ``significant
                                                                                              emissions rate.''

[[Page 36439]]

 
 
                                                  * * * * * * *
62-210.300.....................  Permits Required....        02/02/06  06/27/08 [Insert
                                                                        citation of
                                                                        publication].
62-210.350.....................  Public Notice and           02/02/06  06/27/08 [Insert
                                  Comment.                              citation of
                                                                        publication].
 
                                                  * * * * * * *
62-210.370.....................  Emissions                   02/02/06  06/27/08 [Insert
                                  Computation and                       citation of
                                  Reporting.                            publication].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                            Chapter 62-212 Stationary Sources--Preconstruction Review
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
62-212.300.....................  General                     02/02/06  06/27/08 [Insert      Except provisions
                                  Preconstruction                       citation of           at 62-
                                  Review Requirements.                  publication].         212.300(3)(a)1,
                                                                                              which are being
                                                                                              conditionally
                                                                                              approved.
62-212.400.....................  Prevention of               02/02/06  06/27/08 [Insert
                                  Significant                           citation of
                                  Deterioration (PSD).                  publication].
62-212.500.....................  Preconstruction             02/02/06  06/27/08 [Insert
                                  Review for                            citation of
                                  Nonattainment Areas.                  publication].
 
                                                  * * * * * * *
62-212.720.....................  Actuals Plantwide           02/02/06  06/27/08 [Insert
                                  Applicability                         citation of
                                  Limits (PALs).                        publication].
----------------------------------------------------------------------------------------------------------------

* * * * *
0
4. Section 52.530 is amended by revising paragraph (a) 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.
* * * * *
[FR Doc. E8-14400 Filed 6-26-08; 8:45 am]
BILLING CODE 6560-50-P