[Federal Register Volume 77, Number 66 (Thursday, April 5, 2012)]
[Proposed Rules]
[Pages 20582-20585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8197]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0166; FRL-9655-6]


Approval and Promulgation of Implementation Plans; State of 
Florida: New Source Review Prevention of Significant Deterioration: 
Nitrogen Oxides as a Precursor to Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve changes to the Florida State 
Implementation Plan (SIP), submitted by the Florida Department of 
Environmental Protection (FDEP) through the Division of Air Resource 
Management to EPA in two separate SIP revisions on October 19, 2007, 
and July 1, 2011. These SIP revisions modify Florida's New Source 
Review (NSR) Prevention of Significant Deterioration (PSD) program to 
address requirements promulgated in the 1997 8-hour ozone national 
ambient air quality standards (NAAQS) Implementation Rule NSR Update 
Phase II (hereafter referred to as the ``Ozone Implementation NSR 
Update'' or ``Phase II Rule'') recognizing nitrogen oxide 
(NOX) as an ozone precursor, among other requirements. In 
addition, both SIP revisions make corrective and clarifying changes to 
Florida's regulations. EPA is proposing approval of both SIP revisions 
because the Agency has preliminarily determined that the changes are in 
accordance with the Clean Air Act (CAA or Act) and EPA regulations 
regarding NSR permitting.

DATES: Comments must be received on or before May 7, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0166, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2012-0166, 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.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, 
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. 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-
2012-0166.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at 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 
www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The www.regulations.gov Web site 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 email comment directly to EPA without 
going through www.regulations.gov, your email 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

[[Page 20583]]

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 
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 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. Telephone number: (404) 562-9352; email 
address: [email protected]. For information regarding NSR, 
contact Ms. Yolanda Adams, Air Permits Section, at the same address 
above. Telephone number: (404) 562-9214; email address: 
[email protected]. For information regarding 8-hour ozone NAAQS, 
contact Ms. Jane Spann, Regulatory Development Section, at the same 
address above. Telephone number: (404) 562-9029; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What action is EPA proposing?
II. What is the background for EPA's proposed action?
    A. What is the NSR program?
    B. What are the NSR requirements for the Phase II rule?
III. What is EPA's analysis of Florida's SIP revisions?
IV. Proposed action
V. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    On October 19, 2007, and July 1, 2011, FDEP submitted revisions to 
EPA for approval into the Florida SIP to adopt federal requirements for 
NSR permitting promulgated in the Phase II Rule. Florida's October 19, 
2007, SIP revision makes changes to the State's Air Quality Regulations 
at Chapter 62-210, Florida Administrative Code (F.A.C.), Stationary 
Sources--General Requirements, Section 200--Definitions (rule 62-
210.200), and Chapter 62-212, F.A.C., Stationary Sources--
Preconstruction Review, Section 400--Prevention of Significant 
Deterioration (rule 62-210.400). Florida's July 1, 2011,\1\ SIP 
revision also makes changes at Chapter 62-210, F.A.C., to adopt PSD 
provisions promulgated in the Phase II Rule. Specifically, both SIP 
revisions propose to amend the State's PSD regulations to establish 
that PSD permit applicants must identify NOX as an ozone 
precursor as established in the Phase II Rule. Lastly, both SIP 
revisions make corrective and clarifying changes to Florida's rules at 
Chapters 62-210 and 62-212, F.A.C. Pursuant to section 110 of the CAA, 
EPA is proposing to approve these changes into the Florida SIP.
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    \1\ Florida's July 1, 2011, revision also makes additional 
changes to Chapters 62-210, 212 and 296, F.A.C. which will be 
addressed in a separate rulemaking.
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    Florida's October 19, 2007, SIP submission also made changes to 
rule 62-212.400(11), F.A.C., regarding applicable public participation 
requirements for PSD permitting. However, because Florida's subsequent 
July 1, 2011, SIP revision made further revisions to this public 
participation provision, EPA is not taking action to approve Florida's 
October 19, 2007, revision to rule 62-212.400(11), F.A.C. Instead, EPA 
is proposing to approve the revisions to rule 62-212.400(11), F.A.C., 
included in Florida's July 1, 2011, SIP revision.

II. What is the background for EPA's proposed action?

A. What is the NSR program?

    The CAA NSR program is a preconstruction review and permitting 
program applicable to certain new and modified stationary sources of 
air pollutants regulated under the CAA. The program includes a 
combination of air quality planning and air pollution control 
technology requirements. The CAA NSR program is comprised of three 
separate programs: PSD, nonattainment NSR (NNSR), and minor NSR. PSD is 
established in Part C of title I of the CAA and applies in areas that 
meet the NAAQS--``attainment areas''--as well as areas where there is 
insufficient information to determine if the area meets the NAAQS--
``unclassifiable areas.'' The NNSR program is established in Part D of 
title I of the CAA and applies in areas that are not in attainment of 
the NAAQS--``nonattainment areas.'' The minor NSR program addresses 
construction or modification activities that do not qualify as 
``major'' and applies regardless of the designation of the area in 
which a source is located. Together, these programs are referred to as 
NSR programs. EPA regulations governing the implementation of these 
programs are contained in 40 CFR 51.160 through .166; 40 CFR 52.21 
through .24; and, part 51, appendix S.
    Section 109 of the CAA requires EPA to promulgate a primary NAAQS 
to protect public health and a secondary NAAQS to protect public 
welfare. Once EPA sets those standards, states must develop, adopt, and 
submit a SIP to EPA for approval that includes emission limitations and 
other control measures to attain and maintain the NAAQS. See CAA 
section 110, 42 U.S.C. 7410. Pursuant to section 110(a)(2)(C) of the 
CAA, each SIP is required to include a preconstruction review program 
for the construction and modification of any stationary source of air 
pollution to assure the maintenance of the NAAQS.

B. What are the NSR requirements for the Phase II Rule?

    Today's proposed action on the Florida SIP relates to EPA's Phase 
II Rule. See 70 FR 71612 (November 29, 2005). On July 18, 1997, EPA 
promulgated a revised 8-hour ozone NAAQS of 0.08 parts per million--
also referred to as the 1997 8-hour ozone NAAQS. On April 30, 2004, EPA 
designated areas as attainment, nonattainment and unclassifiable for 
the 1997 8-hour ozone NAAQS. As part of the framework to implement the 
1997 8-hour ozone NAAQS, EPA promulgated an implementation rule in two 
phases. Phase I of EPA's 1997 8-hour ozone implementation rule (Phase I 
Rule), published on April 30, 2004, effective on June 15, 2004, 
provided the implementation requirements for designating areas under 
subpart 1 and subpart 2 of the CAA (69 FR 23951).
    On November 29, 2005, EPA promulgated the second phase for 
implementation provisions related to the 1997 8-hour ozone NAAQS--also

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known as the Phase II Rule (70 FR 71612). The Phase II Rule addressed 
control and planning requirements as they applied to areas designated 
nonattainment for the 1997 8-hour ozone NAAQS such as reasonably 
available control technology, reasonably available control measures, 
reasonable further progress, modeling and attainment demonstrations and 
NSR, and the impact to reformulated gas for the 1997 8-hour ozone NAAQS 
transition. The Phase II Rule requirements include, among other 
changes, a provision stating that NOX is an ozone precursor. 
See 70 FR 71612, 71679. In the Phase II Rule, EPA stated as follows:

    The EPA has recognized NOX as an ozone precursor in 
several national rules because of its contribution to ozone 
transport and the ozone nonattainment problem. The EPA's recognition 
of NOX as an ozone precursor is supported by scientific 
studies, which have long recognized the role of NOX in 
ozone formation and transport. Such formation and transport is not 
limited to nonattainment areas. Therefore, we believe NOX 
should be treated consistently as an ozone precursor in both our PSD 
and nonattainment NSR regulations. For these reasons, we have 
promulgated final regulations providing that NOX is an 
ozone precursor in attainment areas.

    The Phase II Rule made changes to federal regulations at 40 CFR 
51.165 and 51.166 (which governs the NNSR and PSD permitting programs 
respectively). The changes made to the PSD federal regulations at 40 
CFR 52.21 recognizing NOX as an ozone precursor included 
changes to the definitions for ``major stationary source'' (40 CFR 
52.21(b)(1)), ``major modification'' (40 CFR 52.21(b)(2)), 
``significant'' (for significant emissions rate) (at 40 CFR 
52.21(b)(23)(i)), ``regulated NSR pollutant'' (40 CFR 52.21(b)(50)), 
and the addition of a footnote at 40 CFR 52.21(i)(5)(i)(f) establishing 
the requirement for ambient air impact analysis. The Phase II rule also 
made other revisions to the NSR program; however, only the addition of 
NOX as a precursor for ozone is relevant to today's action.
    Pursuant to these requirements, states were required to submit SIP 
revisions adopting the relevant federal requirements of the Phase II 
Rule (at 40 CFR 51.165, 51.166 and 52.21) into their SIP no later than 
June 15, 2007. On October 19, 2007, and July 1, 2011, Florida submitted 
SIP revisions (the subject of this action) to adopt the relevant PSD 
provisions at 40 CFR 52.21 into the Florida SIP to be consistent with 
federal regulations for NSR permitting purposes promulgated in the 
Phase II Rule.

III. What is EPA's analysis of Florida's SIP revisions?

    Florida currently has a SIP-approved NSR program for new and 
modified stationary sources. FDEP's PSD related definitions and 
preconstruction rules are found at 62-210.200, F.A.C, and 62-212.400, 
F.A.C. These rules apply to major stationary sources or modifications 
constructed in areas designated attainment as required under Part C of 
title I of the CAA with respect to the NAAQS. The current changes to 
Chapters 62-210, F.A.C., and 62-212, F.A.C., which EPA is now proposing 
to approve into the Florida SIP, were submitted to update the existing 
Florida regulations to be consistent with the federal PSD requirements, 
promulgated in the Phase II Rule.
    Florida's October 19, 2007, SIP revision, which became state 
effective July 16, 2007, revised Chapters 62-210, F.A.C., and 62-212, 
F.A.C., to establish NOX as an ozone precursor in the 
Florida SIP. Specifically for rule 62-210.200, F.A.C., the SIP revision 
changed the definitions for ``major stationary source,'' ``significant 
emissions rate'' (or ``significant'' at 40 CFR 52.21(b)(23)(i)), and 
``PSD pollutant'' \2\ (Florida's equivalent to the federal term 
``regulated NSR pollutant'' at 40 CFR 52.21(b)(50)) to include the term 
``nitrogen oxides.'' Florida defines ``PSD Pollutant'' at rule 62-
210.200, F.A.C., as ``any pollutant listed as having a significant 
emissions rate.'' Florida's October 19, 2007, SIP revision (the subject 
of this action) amends the definition of ``significant emissions rate'' 
to adopt the Phase II Rule provisions by listing NOX for the 
pollutant ``ozone.'' In doing so, Florida's definition of ``PSD 
pollutant'' is also amended to establish NOX as an ozone 
precursor. The changes at rule 62-212.400, F.A.C., also addressed the 
inclusion of ``nitrogen oxides'' in the footnote at 62-
212.400(3)(e)1.e., (as amended at 40 CFR 52.21(i)(5)(i)(f)) regarding 
air quality level for ozone. The rule at 40 CFR 52.21(i)(5)(i)(f) 
establishes that there is no de minimis air quality level for ozone, 
however any source subject to PSD with a net increase of 100 tons per 
year or more of volatile organic compounds or NOX is 
required to perform an ambient impact analysis. Florida's October 19, 
2007, SIP revision also makes clarifying and corrective changes to rule 
62-212.400, F.A.C. First, FDEP amends the subsection entitled ``General 
Prohibitions'' at rule 62-212.400(1) by replacing the term 
``Prohibitions'' with the term ``Provisions.'' Second, FDEP includes 
language at rule 62-212.400(1)(c) and 62-212.720--Actuals Plantwide 
Applicability Limits (PALs), to clarify that the term ``Administrator'' 
in 40 CFR 52.21 shall mean ``Department'' when applying the portions of 
the federal rule cited from within the FDEP rules.
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    \2\ On, June 27, 2008 (73 FR 36435), EPA took final action to 
approve a February 3, 2006, Florida SIP revision to adopt the 
provisions promulgated in the 2002 NSR Reform Rule. See 67 FR 80186. 
In the June 27, 2008, final rulemaking, EPA approved Florida's 
definition of ``PSD Pollutant'' as an equivalent to the federal term 
``regulated NSR pollutant'' into the Florida SIP. As part of its 
February 3, 2006, SIP revision to adopt the NSR Reform provisions, 
Florida provided an equivalency demonstration that addressed how the 
State's definition of ``PSD pollutant'' was comparable to the 
federal term ``regulated NSR pollutant.'' EPA's June 27, 2008, 
rulemaking also conditionally approved portions of Florida's PSD 
program that were not consistent with federal PSD regulations 
(including the definition for significant emissions rate). On June 
17, 2009, in response to the conditional approval, FDEP submitted a 
SIP revision to revise portions of its PSD program to be consistent 
with the federal PSD regulations. EPA took final action to approve 
this revision on April 12, 2011, which converted the State's PSD 
program from conditional to full approval. See 76 FR 20239.
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    Florida's July 1, 2011, SIP revision, which became state effective 
October 12, 2008, revised the definition for ``major modification'' to 
be consistent with the definition promulgated in the Phase II Rule to 
include NOX as an ozone precursor. In addition, the July 1, 
2011, SIP revision corrected an administrative error in the definition 
of ``major modification'' by replacing the term ``PSD pollutant'' with 
``regulated air pollutant'' at rule 62-210.200(186)(d), F.A.C. Lastly, 
the July 1, 2011, SIP revision revises the public participation 
provision at 62-212.400(11), F.A.C., to clarify that the applicable 
public notice and participation provisions can be found at 62-210.350, 
F.A.C., and 62-110.106, F.A.C., to satisfy the federal public 
participation requirements. As described earlier, Florida's October 19, 
2007, SIP submission also made changes to rule 62-212.400(11), F.A.C., 
regarding applicable public participation requirements for PSD 
permitting. However, Florida's July 1, 2011, SIP revision made further 
changes to the public participation provision at rule 62-212.400(11), 
F.A.C., and therefore, EPA is not taking action to approve Florida's 
October 19, 2007, revision to rule 62-212.400(11), F.A.C. Instead, EPA 
is proposing to approve the revision to rule 62-212.400(11), F.A.C., 
included in Florida's July 1, 2011, SIP revision.
    As part of its review of the Florida SIP revisions, EPA performed a 
line-by-line

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review of the proposed SIP revisions including the provision that may 
differ from the federal rules, and determined that they are consistent 
with the program requirements for NSR, set forth at 40 CFR 51.166. 
States may meet the requirements of 40 CFR part 51 and the Phase II 
Rules with alternative but equivalent regulations.

IV. Proposed Action

    EPA is proposing to approve Florida's October 19, 2007, and July 1, 
2011, SIP revisions adopting federal regulations amended in the Phase 
II Rule recognizing NOx as an ozone precursor into the Florida SIP and 
making clarifying and corrective changes at Chapters 62-210 and 62-212, 
F.A.C. EPA has made the preliminary determination that these SIP 
revisions are approvable because it is in accordance with the CAA and 
EPA regulations regarding NSR permitting.

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 
proposed 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 proposed 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 proposed 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Oxides of nitrogen, Recordkeeping and reporting, 
Volatile organic compounds.

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

    Dated: March 23, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-8197 Filed 4-4-12; 8:45 am]
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