[Federal Register Volume 77, Number 116 (Friday, June 15, 2012)]
[Rules and Regulations]
[Pages 35862-35866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14419]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0166; FRL-9687-1]


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: Final rule.

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SUMMARY: EPA is taking final action to approve changes to the Florida 
State Implementation Plan (SIP), submitted by the Florida 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 clarifying and corrective changes to Florida's 
regulations. EPA is approving both SIP revisions because the Agency has 
determined that the changes are in accordance with the Clean Air Act 
(CAA or Act) and EPA regulations regarding NSR permitting.

DATES: Effective Date: This rule will be effective July 16, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0166. All documents in the docket 
are listed on the www.regulations.gov web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form.

[[Page 35863]]

Publicly available docket materials are available either electronically 
through www.regulations.gov or in hard copy at the Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if 
at all possible, you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Florida 
SIP, contact Ms. Twunjala Bradley, Regulatory Development Section, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. 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. Background
II. This Action
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    EPA is taking final action to approve changes to the Florida SIP 
such that it is consistent with federal requirements for NSR 
permitting. On October 19, 2007, and July 1, 2011,\1\ 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, 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 
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 clarifying and 
corrective changes to Florida's rules at Chapters 62-210 and 62-212, 
F.A.C. Pursuant to section 110 of the CAA, EPA is approving these 
changes into the Florida SIP. EPA notes that Florida's October 19, 
2007, SIP submission makes clarifying 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 subsequent 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. EPA is taking final 
action to approve the subsequent July 1, 2011, clarifying amendments to 
rule 62-212.400(11), F.A.C. into the Florida SIP.
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    \1\ Florida's July 1, 2011, SIP 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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    On April 5, 2012, EPA published a proposed rulemaking to approve 
the aforementioned changes to Florida's NSR PSD program. See 77 FR 
20582. Comments on the proposed rulemaking were due on or before May 7, 
2012. No comments, adverse or otherwise, were received on EPA's April 
5, 2012, proposed rulemaking. EPA is now taking final action to approve 
the changes to Florida's NSR PSD program as outlined in EPA's April 5, 
2012, proposed rulemaking. A summary of the background for today's 
final actions is provided below.

a. Phase II Rule

    With regard to the 1997 8-hour ozone NAAQS,\2\ EPA's Phase II Rule, 
finalized on November 29, 2005, 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, NSR, and the impact 
to reformulated gas for the 1997 8-hour ozone NAAQS transition. See 70 
FR 71612. The NSR permitting requirements established in the rule 
included the following provisions: Recognizing NOX as an 
ozone precursor for PSD purposes; changes to the nonattainment new 
source review (NNSR) rules establishing major stationary thresholds 
(marginal, moderate, serious, severe, and extreme nonattainment 
classifications) and significant emission rates for the 8-hour ozone, 
PM10 and carbon monoxide NAAQS; revising the criteria for 
crediting emission reductions credits from operation shutdowns and 
curtailments as offsets, and changes to offset ratios for marginal, 
moderate, serious, severe, and extreme ozone nonattainment.
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    \2\ 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 
unclassifiable/attainment, nonattainment and unclassifiable for the 
1997 8-hour ozone NAAQS. In addition, on April 30, 2004, as part of 
the framework to implement the 1997 8-hour ozone NAAQS, EPA 
promulgated an implementation rule in two phases (Phase I and II). 
The Phase I Rule (effective on June 15, 2004), provided the 
implementation requirements for designating areas under subpart 1 
and subpart 2 of the CAA. See 69 FR 23951.
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    The Phase II Rule made changes to federal regulations at 40 CFR 
51.165 and 51.166 (which govern the NNSR and PSD permitting programs 
respectively). 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 and 51.166) into their SIP no later 
than June 15, 2007. Florida's October 19, 2007, and July 1, 2011, SIP 
revisions adopt the relevant provisions at 40 CFR 51.66 into the 
Florida SIP to be consistent with federal regulations for NSR PSD 
permitting requirements promulgated in the Phase II Rule with minor 
variations. States may meet the requirements of 40 CFR part 51 and the 
Phase II Rules with alternative but equivalent regulations. As part of 
its analysis of Florida's October 19, 2007 and July 1, 2011, SIP 
revisions, EPA conducted a thorough review of the State's submittals 
including those provisions that differ from the federal rules 
(specifically the term ``regulated NSR pollutant'' at 40 CFR 
51.166(b)(49)). EPA determined that Florida's term ``PSD pollutant'' 
\3\ is

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equivalent to the federal PSD definition ``regulated NSR pollutant'' 
and consistent with the program requirements for NSR, set forth at 40 
CFR 51.166 related to the relevant revisions amended in the Phase II 
Rule. For more detail on Florida's equivalent PSD provisions for the 
definition of ``regulated NSR pollutant'' related to the Phase II Rule, 
please refer to EPA's proposed rulemaking at 77 FR 20584 (May 5, 2012). 
See also 73 FR 36435 (June 27, 2008).
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    \3\ 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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b. Florida's Clarifying Changes and Corrections

    Finally, Florida's October 19, 2007, and July 1, 2011, SIP 
revisions make clarifying changes and typographical corrections to 
portions of the State's NSR regulations at Chapter 62-210 and 212. 
Florida's October 19, 2007, SIP revisions make clarifying and/or 
corrective changes to rule 62-212.400, F.A.C including amending 
subsection entitled ``General Prohibitions'' at rule 62-212.400(1) by 
replacing the term ``Prohibitions'' with the term ``Provisions''; and 
adding 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.
    In addition, Florida's 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. The July 1, 2011, SIP revision also 
amends 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. 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 
subsequent 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. EPA 
is instead approving the latest revision to rule 62-212.400(11), 
F.A.C., included in Florida's July 1, 2011, SIP revision.

II. This Action

    Florida's October 19, 2007 and July 1, 2011, SIP revisions update 
the State's PSD definitions at Chapter 62-210, F.A.C. and provisions at 
Chapter 62-212, F.A.C. to adopt the NSR requirements promulgated in the 
Phase II Rule (at 40 CFR 52.21) recognizing NOX as an ozone 
precursor regarding: amendments 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 NNSR 
program; however, only the addition of PSD amendments recognizing 
NOX as an ozone precursor is relevant to this action.
    Florida's October 19, 2007, SIP revision, which became state 
effective July 16, 2007, revised definitions at rule 62-210.200, 
F.A.C., for ``major stationary source,'' ``significant emissions rate'' 
(or ``significant'' at 40 CFR 52.21(b)(23)(i)), and ``PSD pollutant'' 
\4\ (Florida's equivalent to the federal term ``regulated NSR 
pollutant'' at 40 CFR 52.21 (b)(50)) by adding the term ``nitrogen 
oxides'' to recognize 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.\5\ 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.
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    \4\ 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.
    \5\ 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.
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    As mentioned above, both Florida SIP submittals made clarifying 
changes and corrected typographical errors at Florida Chapter 62-210 
and 212, F.A.C. Specifically Florida's October 19, 2007, SIP submission 
made changes to rule 62-212.400(11), F.A.C., regarding applicable 
public participation requirements for PSD permitting. However, because 
Florida's July 1, 2011 SIP revision made subsequent changes 62-
212.400(11), F.A.C., EPA is not approving the October 19, 2007 SIP 
revision to 62-212.400(11), F.A.C., into the Florida SIP. EPA is 
instead approving the latest revision to rule 62-212.400(11), F.A.C., 
included in Florida's July 1, 2011, SIP revision. EPA has determined 
that Florida's October 19, 2007, and July 1, 2011, SIP revisions, both 
meet the NSR PSD permitting requirements established in the Phase II 
Rule and are consistent with section 110 of the CAA.

III. Final Action

    Pursuant to section 110 of the CAA, EPA is taking final action to 
approve Florida's October 19, 2007, and July 1, 2011, SIP revisions 
adopting federal PSD definitions and provisions amended in the Phase II 
Rule specifically recognizing NOX as an ozone precursor into 
the Florida SIP. EPA is also taking final action to approve Florida's 
clarifying changes and correction to Florida's NSR rules. EPA is 
approving these revisions into the Florida SIP because they are 
consistent with section 110 of the CAA and EPA implementing NSR 
regulations.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

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     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country 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 14, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See CAA section 307(b)(2), 42 U.S.C. 
7607(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Oxides of nitrogen, Ozone, 
Reporting and recordkeeping requirements.

    Dated: June 5, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart K--Florida

0
2. Section 52.520(c) is amended under Chapters 62-210 and 62-212 by 
revising the entries for ``Section 62-210.200'' and ``Section 62-
212.400'' to read as follows:


Sec.  52.520  Identification of plan

* * * * *
    (c) * * *

                                        EPA-Approved Florida Regulations
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                                                       State
 State citation (section)       Title/subject     effective date    EPA approval date          Explanation
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                                                  * * * * * * *
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                             Chapter 62-210 Stationary Source--General Requirements
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                                                  * * * * * * *
62-210.200................  Definitions.........        10/12/08  6/15/12 [Insert       This final rulemaking
                                                                   citation of           approves changes to the
                                                                   publication].         following definitions:
                                                                                         ``major modification,''
                                                                                         ``major stationary
                                                                                         source,'' ``PSD
                                                                                         pollutant'' and
                                                                                         ``significant emissions
                                                                                         rate.''
 
                                                  * * * * * * *
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                            Chapter 62-212 Stationary Source--Preconstruction Review
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                                                  * * * * * * *
62-212.400................  Prevention of                10/6/08  6/15/12 [Insert       ........................
                             Significant                           citation of
                             Deterioration.                        publication].
 
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[FR Doc. 2012-14419 Filed 6-14-12; 8:45 am]
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