[Federal Register Volume 77, Number 145 (Friday, July 27, 2012)]
[Proposed Rules]
[Pages 44198-44204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18131]



[[Page 44198]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0555; FRL-9704-6]


Approval and Promulgation of Implementation Plans; State of 
Florida: New Source Review; Prevention of Significant Deterioration; 
Fine Particulate Matter (PM2.5)

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) to EPA on March 15, 2012. The SIP 
revision modifies Florida's New Source Review (NSR) Prevention of 
Significant Deterioration (PSD) permitting program. The SIP revision 
adopts, into the Florida SIP, federal NSR permitting provisions to 
address the implementation of the fine particulate matter 
(PM2.5) national ambient air quality standards (NAAQS) as 
amended in EPA's 2008 NSR PM2.5 Implementation Rule 
(hereafter referred to as the ``NSR PM2.5 Rule'') and the 
2010 PM2.5 PSD Increment, Significant Impact Levels (SILs) 
and Significant Monitoring Concentration (SMC) Rule (hereafter referred 
to as the ``PM2.5 PSD Increment-SILs-SMC Rule''). EPA is 
proposing to approve portions of Florida's SIP revision because the 
Agency has preliminarily determined that the changes are consistent 
with the Clean Air Act (CAA or Act) and EPA regulations regarding NSR 
permitting.

DATES: Comments must be received on or before August 27, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2012-0555, 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-2012-0555, 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-
2012-0555 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 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 PM2.5 
NAAQS, contact Mr. Joel Huey, Regulatory Development Section, at the 
same address above. Telephone number: (404) 562-9104; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 
I. What action is EPA proposing?
II. What is the background for EPA's proposed action?
III. What are the NSR implementation requirements for the 
PM2.5 NAAQS?
IV. What is EPA's analysis of Florida's SIP revision?
V. Proposed Rule
VI. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    On March 15, 2012, FDEP submitted a SIP revision to EPA for 
approval into the Florida SIP to adopt federal requirements for NSR 
permitting. Florida's 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 300--General Preconstruction 
Review Requirements (rule 62-212.300) and Section 400--Prevention of 
Significant Deterioration (rule 62-212.400). These rule changes were 
provided to comply with federal NSR permitting provisions related to 
the implementation of the PSD program for the PM2.5 NAAQS as 
promulgated in the NSR PM2.5 Rule entitled ``Implementation 
of the New Source Review (NSR) Program for Particulate

[[Page 44199]]

Matter Less than 2.5 Micrometers (PM2.5),'' Final Rule, 73 
FR 28321 (May 16, 2008) and the PM2.5 PSD Increment-SILs-SMC 
Rule entitled ``Prevention of Significant Deterioration (PSD) for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels SILs and Significant Monitoring 
Concentration (SMC),'' Final Rule,'' 75 FR 64864, (October 20, 2010). 
Pursuant to section 110 of the CAA, EPA is proposing to approve into 
the Florida SIP these changes submitted by the State, with the 
exception of the SILs provisions pursuant to EPA's PM2.5 PSD 
Increment-SILs-SMC Rule.\1\ See 75 FR 64864. More details regarding 
SILs are summarized below in Sections III and IV.
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    \1\ EPA's authority to implement the SILs and SMC for PSD 
purposes has been challenged by the Sierra Club. Sierra Club v. EPA, 
Case No 10-1413 United States Court of Appeals for the District of 
Columbia (D.C. Circuit Court).
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II. What is the background for EPA's proposed action?

    Today's proposed action to revise Florida's SIP relates to EPA's 
NSR PM2.5 Rule \2\ and the PM2.5 PSD Increment-
SILs-SMC Rule. In the NSR PM2.5 Rule, EPA finalized 
regulations to implement the NSR program for the PM2.5 
NAAQS. As a result of EPA's final NSR PM2.5 Rule, states 
were required to submit SIP revisions to EPA no later than May 16, 
2011, to address these requirements for both the PSD and Nonattainment 
NSR (NNSR) programs. EPA's PM2.5 PSD Increment-SILs-SMC Rule 
established PSD increments, SILs and SMC which address additional 
components for making PSD permitting determinations for the 
PM2.5 NAAQS. These requirements address air quality modeling 
and monitoring provisions for fine particle pollution in areas 
protected by the PSD program (that is, attainment or unclassifiable/
attainment areas for the NAAQS). The PM2.5 PSD Increment-
SILs-SMC Rule requires states to submit SIP revisions to adopt the 
required PSD increments by July 20, 2012. Promulgation of these two 
rules provided the framework states need to address the NSR permitting 
requirements for the PM2.5 NAAQS. Florida's March 15, 2012, 
SIP revision adopts into the Florida SIP the PSD requirements 
promulgated in these two rules to be consistent with federal 
regulations for the PM2.5 NAAQS. More detail on the NSR 
PM2.5 Rule and the PM2.5 PSD Increment-SILs-SMC 
Rule can be found in EPA's May 16, 2008, and October 20, 2010, final 
rules, respectively, and are summarized below. See 73 FR 28321 and 75 
FR 64864.
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    \2\ On November 1, 2005, EPA proposed a rule to implement the 
1997 PM2.5 NAAQS, including proposed revisions to the NSR 
program. See 70 FR 65984.
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A. Fine Particulate Matter and the NAAQS

    Fine particles in the atmosphere are made up of a complex mixture 
of components. Common constituents include sulfate; nitrate; ammonium; 
elemental carbon; a great variety of organic compounds; and inorganic 
material (including metals, dust, sea salt, and other trace elements) 
generally referred to as ``crustal'' material, although it may contain 
material from other sources. Airborne particulate matter (PM) with a 
nominal aerodynamic diameter of 2.5 micrometers or less (a micrometer 
is one-millionth of a meter, and 2.5 micrometers is less than one-
seventh the average width of a human hair) are considered to be ``fine 
particles'' and are also known as PM2.5. ``Primary'' 
particles are emitted directly into the air as a solid or liquid 
particle (e.g., elemental carbon from diesel engines or fire 
activities, or condensable organic particles from gasoline engines). 
``Secondary'' particles (e.g., sulfate and nitrate) form in the 
atmosphere as a result of various chemical reactions.
    The health effects associated with exposure to PM2.5 
include potential aggravation of respiratory and cardiovascular disease 
(i.e., lung disease, decreased lung function asthma attacks and certain 
cardiovascular issues). Epidemiological studies have indicated a 
correlation between elevated PM2.5 levels and premature 
mortality. Groups considered especially sensitive to PM2.5 
exposure include older adults, children, and individuals with heart and 
lung diseases. For more details regarding health effects and 
PM2.5 see EPA's Web site at http://www.epa.gov/oar/particlepollution/ (See heading ``Health and Welfare'').
    On July 18, 1997, EPA revised the NAAQS for PM to add new standards 
for fine particles, using PM2.5 as the indicator. 
Previously, EPA used PM10 (inhalable particles smaller than 
or equal to 10 micrometers in diameter) as the indicator for the PM 
NAAQS. EPA established health-based (primary) annual and 24-hour 
standards for PM2.5, setting an annual standard at a level 
of 15 micrograms per cubic meter ([mu]g/m\3\) and a 24-hour standard at 
a level of 65 [mu]g/m\3\. See 62 FR 38652. At the time the 1997 primary 
standards were established, EPA also established welfare-based 
(secondary) standards identical to the primary standards. The secondary 
standards are designed to protect against major environmental effects 
of PM2.5, such as visibility impairment, soiling, and 
materials damage. On October 17, 2006, EPA revised the primary and 
secondary NAAQS for PM2.5. In that rulemaking, EPA reduced 
the 24-hour NAAQS for PM2.5 to 35 [mu]g/m\3\ and retained 
the existing annual PM2.5 NAAQS of 15 [mu]g/m\3\. See 71 FR 
61236.

B. 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 composed of three 
separate programs: PSD, 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 the NSR program. EPA 
regulations governing the implementation of these programs are 
contained in 40 CFR 51.160-.166; 52.21, .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. 
Each SIP is also 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. The applicability of 
the PSD program to a major stationary source must be determined in 
advance of construction and is a pollutant-specific determination. Once 
a major source is determined to be subject to the PSD program (and thus 
is a ``PSD source''), among other requirements, it must undertake a 
series of analyses to demonstrate that it will use the best available 
control technology and will

[[Page 44200]]

not cause or contribute to a violation of any NAAQS or increment. 
Florida's March 15, 2012, SIP revision consists of rule amendments to 
adopt into Florida's PSD program provisions related to the review and 
control of PM2.5 emissions from major stationary sources and 
modifications.

III. What are the NSR implementation requirements for the 
PM2.5 NAAQS?

A. NSR PM2.5 Rule

    On May 16, 2008, EPA finalized the NSR PM2.5 Rule to 
implement the PM2.5 NAAQS, including changes to the NSR 
program. See 73 FR 28321. The NSR PM2.5 Rule revised the 
federal NSR program requirements to establish the framework for 
implementing preconstruction permit review for the PM2.5 
NAAQS in both attainment and nonattainment areas. Specifically, the NSR 
PM2.5 Rule established NSR requirements to implement the 
PM2.5 NAAQS that: (1) Require NSR permits to address 
directly emitted PM2.5 and precursor pollutants; (2) 
establish significant emission rates for direct PM2.5 and 
precursor pollutants (including sulfur dioxide (SO2) and 
nitrogen oxides (NOX)); (3) establish PM2.5 
emission offsets; (4) provide exceptions to the PM10 
grandfathering policy; and (5) require states to account for gases that 
condense to form particles (``condensables'') in PM2.5 and 
PM10 emission limits in PSD or NNSR permits. Additionally, 
the NSR PM2.5 Rule authorized states to adopt provisions in 
their NNSR rules that would allow interpollutant offset trading. 
Florida's March 15, 2012, SIP revision addresses the PSD permitting 
requirements promulgated in the NSR PM2.5 Rule.\3\ A few key 
issues described in greater detail below include the PM10 
surrogate and grandfathering policy and the condensable provision.
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    \3\ Florida's March 15, 2012, SIP revision only addresses the 
State's PSD permitting program and does not adopt the NNSR 
permitting requirements for PM2.5 emission offsets, 
condensable provision or the discretionary interpollutant trading 
policy and ratios promulgated in the 2008 NSR PM2.5 Rule. 
Moreover Florida is attainment for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS.
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1. PM10 Surrogate and Grandfathering Policy
    After EPA promulgated the NAAQS for PM2.5 in 1997 (62 FR 
38652, July 18, 1997), the Agency issued a guidance document entitled 
``Interim Implementation of New Source Review Requirements for 
PM2.5.'' John S. Seitz, EPA, October 23, 1997 (the ``Seitz 
Memo''). The Seitz Memo was designed to help states implement NSR 
requirements pertaining to the new PM2.5 NAAQS in light of 
technical difficulties posed by PM2.5 at that time. 
Specifically, the Seitz Memo stated: ``PM-10 may properly be used as a 
surrogate for PM-2.5 in meeting NSR requirements until these 
difficulties are resolved.'' EPA also issued a guidance document 
entitled ``Implementation of New Source Review Requirements in PM-2.5 
Nonattainment Areas'' (the ``2005 PM2.5 NNSR Guidance'') on 
April 5, 2005, the date that EPA's PM2.5 nonattainment area 
designations became effective for the 1997 NAAQS. The 2005 
PM2.5 NNSR Guidance provided direction regarding 
implementation of the nonattainment major NSR provisions in 
PM2.5 nonattainment areas in the interim period between the 
effective date of the PM2.5 nonattainment area designations 
(April 5, 2005) and EPA's promulgation of final PM2.5 NNSR 
regulations. Besides re-affirming the continuation of the 
PM10 Surrogate Policy for PM2.5 attainment areas 
set forth in the Seitz memo, the 2005 PM2.5 NNSR Guidance 
recommended that until EPA promulgated the PM2.5 major NSR 
regulations, ``States should use a PM10 nonattainment major 
NSR program as a surrogate to address the requirements of nonattainment 
major NSR for the PM2.5 NAAQS.''
    In the NSR PM2.5 Rule, EPA required that major 
stationary sources seeking permits must begin directly satisfying the 
PM2.5 requirements, as of the effective date of the rule, 
rather than relying on PM10 as a surrogate, with two 
exceptions. The first exception is the ``grandfathering'' provision in 
the federal PSD program at 40 CFR 52.21(i)(1)(xi). This grandfathering 
provision applied to sources that had applied for, but had not yet 
received, a final and effective PSD permit before the July 15, 2008, 
effective date of the May 16, 2008, final rule. The second exception 
was that states with SIP-approved PSD programs could continue to 
implement the Seitz Memo's PM10 Surrogate Policy for up to 
three years (until May 2011) or until EPA approved the individual 
revised state PSD programs for PM2.5, whichever came first. 
See 73 FR 28321.\4\
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    \4\ Additional information on this issue can also be found in an 
August 12, 2009, final order on a title V petition describing the 
use of PM10 as a surrogate for PM2.5. In the 
Matter of Louisville Gas & Electric Company, Petition No. IV-2008-3, 
Order on Petition (August 12, 2009).
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    On February 11, 2010, EPA proposed to repeal the grandfathering 
provision for PM2.5 contained in the federal PSD program at 
40 CFR 52.21(i)(1)(xi) and to end early the PM10 Surrogate 
Policy applicable in states that have a SIP-approved PSD program. See 
75 FR 6827. In support of this proposal, EPA explained that the 
PM2.5 implementation issues that led to the adoption of the 
PM10 Surrogate Policy in 1997 have been largely resolved to 
a degree sufficient for sources and permitting authorities to conduct 
meaningful permit-related PM2.5 analyses.
    On May 18, 2011 (76 FR 28646), EPA took final action to repeal the 
PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi). 
This final action ended the use of the 1997 PM10 Surrogate 
Policy for PSD permits under the federal PSD program at 40 CFR 52.21. 
In effect, any PSD permit applicant previously covered by the 
grandfathering provision (for sources that completed and submitted a 
permit application before July 15, 2008) \5\ that did not have a final 
and effective PSD permit before the effective date of the repeal would 
no longer be able to rely on the 1997 PM10 Surrogate Policy 
to satisfy the PSD requirements for PM2.5 unless the 
application included a valid surrogacy demonstration. See 76 FR 28646. 
Florida's March 15, 2012, SIP revision did not adopt the grandfathering 
provision at 40 CFR 52.21(i)(1)(xi), in accordance with the repeal of 
the PM2.5 grandfathering provision.
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    \5\ Sources that applied for a PSD permit under the federal PSD 
program on or after July 15, 2008, are already excluded from using 
the 1997 PM10 Surrogate Policy as a means of satisfying 
the PSD requirements for PM2.5. See 76 FR 28321.
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2. ``Condensable'' Provision
    In the NSR PM2.5 Rule, EPA revised the definition of 
``regulated NSR pollutant'' for PSD to add a paragraph providing that 
``particulate matter (PM) emissions, PM2.5 emissions and 
PM10 emissions'' shall include gaseous emissions from a 
source or activity which condense to form particulate matter at ambient 
temperatures and that on or after January 1, 2011, such condensable 
particulate matter shall be accounted for in applicability 
determinations and in establishing emissions limitations for PM, 
PM2.5 and PM10 in permits. See 40 CFR 
51.166(b)(49)(vi), 52.21(b)(50)(vi) and ``Emissions Offset 
Interpretative Ruling'' (40 CFR part 51, appendix S). A similar 
paragraph added to the NNSR rule does not include ``particulate matter 
(PM) emissions.'' See 40 CFR 51.165(a)(1)(xxxvii)(D).
    On March 16, 2012, EPA proposed a rulemaking to amend the 
definition of ``regulated NSR pollutant'' promulgated in the NSR 
PM2.5 Rule regarding the PM condensable provision at 40 CFR 
51.166(b)(49)(vi), 52.21(b)(50)(i) and

[[Page 44201]]

EPA's Emissions Offset Interpretative Ruling. See 77 FR 15656. The 
rulemaking proposes to remove the inadvertent requirement in the NSR 
PM2.5 Rule that the measurement of condensable ``particulate 
matter emissions'' be included as part of the measurement and 
regulation of ``particulate matter emissions.'' The term ``particulate 
matter emissions'' includes particles that are larger than 
PM2.5 and PM10 and is an indicator measured under 
various New Source Performance Standards (NSPS) (40 CFR part 60).\6\ 
Florida's March 15, 2012, SIP revision did not adopt the term 
``particulate matter emissions'' regarding the requirement to consider 
condensables as promulgated in the NSR PM2.5 Rule.
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    \6\ In addition to the NSPS for PM, states have regulated 
``particulate matter emissions'' for many years in their SIPs for 
PM, and the same indicator has been used as a surrogate for 
determining compliance with certain standards contained in 40 CFR 
part 63 regarding National Emission Standards for Hazardous Air 
Pollutants.
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B. PM2.5 PSD Increment-SILs-SMC-Rule

    As mentioned above, EPA finalized the PM2.5 PSD 
Increment-SILs-SMC Rule to provide additional regulatory requirements 
under the PSD program regarding the implementation of the 
PM2.5 NAAQS for NSR.\7\ Specifically, the rule establishes 
the following to implement the PM2.5 NAAQS for the PSD 
program: (1) PM2.5 increments pursuant to section 166(a) of 
the CAA to prevent significant deterioration of air quality in areas 
meeting the NAAQS; (2) SILs used as a screening tool (by a major source 
subject to PSD) to evaluate the impact a proposed major source or 
modification may have on the NAAQS or PSD increment; and (3) a SMC, 
(also a screening tool) used by a major source subject to PSD to 
determine the subsequent level of data gathering required for a PSD 
permit application for emissions of PM2.5. As part of the 
response to comments on October 20, 2010 final rulemaking, EPA 
explained that, the agency agrees that the SILs and SMC used as de 
minimis thresholds for the various pollutants are useful tools that 
enable permitting authorities and PSD applicants to screen out 
``insignificant'' activities; however, the fact remains that these 
values are not required by the Act as part of an approvable SIP 
program. EPA believes that most states are likely to adopt the SILs and 
SMC because of the useful purpose they serve regardless of our position 
that the values are not mandatory. Alternatively, states may develop 
more stringent values if they desire to do so. In any case, states are 
not under any SIP-related deadline for revising their PSD programs to 
add these screening tools. See 75 FR 64864, 64900.
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    \7\ EPA proposed approval of the PSD Increments-SILs-SMC Rule on 
September 21, 2007. See 72 FR 54112.
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    Florida's March 15, 2012, SIP revision adopts the PM2.5 
PSD Increments (which are statutorily required) as well as the SILs and 
SMC promulgated in the PM2.5 PSD Increment-SILs-SMC Rule to 
be consistent with the federal NSR regulations and to appropriately 
implement the State's NSR program for the PM2.5 NAAQS. More 
detail on the PM2.5 PSD Increment-SILs-SMC Rule can be found 
in EPA's October 20, 2010, final rule and is summarized below. See 75 
FR 64864. EPA is not proposing to approve the SILs provisions 
(promulgated in the PM2.5 PSD Increment-SILs-SMC Rule) into 
the Florida SIP in this rulemaking. EPA's authority to implement the 
SILs and SMC for PSD purposes has been challenged by the Sierra Club. 
See Sierra Club v. EPA, Case No. 10-1413 (D.C. Circuit Court).\8\ More 
details regarding Florida's changes to its NSR regulations are also 
summarized below in Section IV.
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    \8\ On April 6, 2012, EPA filed a brief with the D.C. Circuit 
court defending the Agency's authority to implement SILs and SMC for 
PSD purposes.
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1. What are PSD increments?
    As established in part C of title I of the CAA, EPA's PSD program 
protects public health from adverse effects of air pollution by 
ensuring that construction of new or modified sources in attainment or 
unclassifiable/attainment areas does not lead to significant 
deterioration of air quality while simultaneously ensuring that 
economic growth will occur in a manner consistent with preservation of 
clean air resources. Under section 165(a)(3) of the CAA, a PSD permit 
applicant must demonstrate that emissions from the proposed 
construction and operation of a facility ``will not cause, or 
contribute to, air pollution in excess of any maximum allowable 
increase or allowable concentration for any pollutant.'' In other 
words, when a source applies for a permit to emit a regulated pollutant 
in an area that meets the NAAQS, the state and EPA must determine if 
emissions of the regulated pollutant from the source will cause 
significant deterioration in air quality. Significant deterioration 
occurs when the amount of the new pollution exceeds the applicable PSD 
increment, which is the ``maximum allowable increase'' of an air 
pollutant allowed to occur above the applicable baseline concentration 
\9\ for that pollutant. PSD increments prevent air quality in clean 
areas from deteriorating to the level set by the NAAQS. Therefore an 
increment is the mechanism used to estimate ``significant 
deterioration'' of air quality for a pollutant in an area.
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    \9\ Section 169(4) of the CAA provides that the baseline 
concentration of a pollutant for a particular baseline area is 
generally the same air quality at the time of the first application 
for a PSD permit in the area.
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    For PSD baseline purposes, a baseline area for a particular 
pollutant emitted from a source includes the attainment or 
unclassifiable/attainment area in which the source is located as well 
as any other attainment or unclassifiable/attainment area in which the 
source's emissions of that pollutant are projected (by air quality 
modeling) to result in an ambient pollutant increase of at least 1 
[mu]g/m\3\ (annual average). See 40 CFR 52.21(b)(15)(i). Under EPA's 
existing regulations, the establishment of a baseline area for any PSD 
increment results from the submission of the first complete PSD permit 
application and is based on the location of the proposed source and its 
emissions impact on the area. Once the baseline area is established, 
subsequent PSD sources locating in that area need to consider that a 
portion of the available increment may have already been consumed by 
previous emissions increases. In general, the submittal date of the 
first complete PSD permit application in a particular area is the 
operative ``baseline date.'' \10\ On or before the date of the first 
complete PSD application, emissions generally are considered to be part 
of the baseline concentration, except for certain emissions from major 
stationary sources. Most emissions increases that occur after the 
baseline date will be counted toward the amount of increment consumed. 
Similarly, emissions decreases after the baseline date restore or 
expand the amount of increment that is available. See 75 FR 64864. As 
described in the PM2.5 PSD Increment-SILs-SMC Rule, pursuant 
to the authority under section 166(a) of the CAA, EPA promulgated 
numerical increments for PM2.5 as a new pollutant \11\ for 
which the NAAQS were

[[Page 44202]]

established after August 7, 1977,\12\ and derived 24-hour and annual 
PM2.5 increments for the three area classifications (Class 
I, II and III) using the ``contingent safe harbor'' approach. See 75 FR 
64864 at 64869 and table at 40 CFR 51.166(c)(1).
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    \10\ Baseline dates are pollutant specific. That is, a complete 
PSD application establishes the baseline date only for those 
regulated NSR pollutants that are projected to be emitted in 
significant amounts (as defined in the regulations) by the 
applicant's new source or modification. Thus, an area may have 
different baseline dates for different pollutants.
    \11\ EPA generally characterized the PM2.5 NAAQS as a 
NAAQS for a new indicator of PM. EPA did not replace the 
PM10 NAAQs with the NAAQS for PM2.5 when the 
PM2.5 NAAQS were promulgated in 1997. EPA rather retained 
the annual and 24-hour NAAQS for PM2.5 as if 
PM2.5 was a new pollutant even though EPA had already 
developed air quality criteria for PM generally. See 75 FR 64864 
(October 20, 2012).
    \12\ EPA interprets 166(a) to authorize EPA to promulgate 
pollutant-specific PSD regulations meeting the requirements of 
section 166(c) and 166(d) for any pollutant for which EPA 
promulgates a NAAQS after 1977.
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    In addition to PSD increments for the PM2.5 NAAQS, the 
PM2.5 PSD Increment-SILs-SMC Rule amended the definition at 
40 CFR 51.166 and 52.21 for ``major source baseline date'' and ``minor 
source baseline date'' (including trigger dates) to establish the 
PM2.5 NAAQS specific dates associated with the 
implementation of PM2.5 PSD increments. See 75 FR 64864. In 
accordance with section 166(b) of the CAA, EPA required the states to 
submit revised implementation plans to EPA for approval (to adopt the 
PM2.5 PSD increments) within 21 months from promulgation of 
the final rule (by July 20, 2012). Each state was responsible for 
determining how increment consumption and the setting of the minor 
source baseline date for PM2.5 would occur under its own PSD 
program. Regardless of when a State begins to require PM2.5 
increment analysis and how it chooses to set the PM2.5 minor 
source baseline date, the emissions from sources subject to PSD for 
PM2.5 for which construction commenced after October 20, 
2010, (major source baseline date) consume the PM2.5 
increment and should be included in the increment analyses occurring 
after the minor source baseline date is established for an area under 
the state's revised PSD program. As discussed in detail in Section IV, 
Florida's March 15, 2012, SIP revision adopts the PM2.5 
increment permitting requirements promulgated in the PM2.5 
PSD Increment-SILs-SMC Rule.
2. What are significant monitoring concentrations?
    Under the CAA and EPA regulations, an applicant for a PSD permit is 
required to gather preconstruction monitoring data in certain 
circumstances. Section 165(a)(7) calls for ``such monitoring as may be 
necessary to determine the effect which emissions from any such 
facility may have, or is having, on air quality in any areas which may 
be affected by emissions from such source.'' In addition, section 
165(e) requires an analysis of the air quality in areas affected by a 
proposed major facility or major modification and calls for gathering 
one year of monitoring data unless the reviewing authority determines 
that a complete and adequate analysis may be accomplished in a shorter 
period. These requirements are codified in EPA's PSD regulations at 40 
CFR 51.166(m) and 40 CFR 52.21(m). In accordance with EPA's Guideline 
for Air Quality Modeling (40 CFR part 51, appendix W), the 
preconstruction monitoring data is primarily used to determine 
background concentrations in modeling conducted to demonstrate that the 
proposed source or modification will not cause or contribute to a 
violation of the NAAQS. See 40 CFR part 51, appendix W, section 9.2. 
SMCs are numerical values that represent thresholds of insignificant 
(i.e., de minimis \13\), monitored (ambient) impacts on pollutant 
concentrations. In EPA's PM2.5 PSD Increment-SILs-SMC Rule, 
EPA established a SMC of 4 [micro]g/m\3\ for PM2.5 to be 
used as a screening tool by a major source subject to PSD to determine 
the subsequent level of data gathering required for a PSD permit 
application for emissions of PM2.5. See 75 FR 64864.
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    \13\ The de minimis principle is grounded in decision described 
by the court case Alabama Power Co. v. Costle, 636 F.2d 323, 360 
(D.C. Cir. 1980). In this case reviewing EPA's 1978 PSD regulations, 
the court recognized that ``there is likely a basis for an 
implication of de minimis authority to provide exemption when the 
burdens of regulation yield a gain of trivial or no value.'' 636 
F.2d at 360.
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    Using the SMC as a screening tool, sources may be able to 
demonstrate that the modeled air quality impact of emissions from the 
new source or modification, or the existing air quality level in the 
area where the source would construct, is less than the SMC (i.e., de 
minimis), and as such, may be allowed to forego the preconstruction 
monitoring requirement for a particular pollutant at the discretion of 
the reviewing authority. See 40 CFR 51.166(i)(5) and 52.21(i)(5). SMCs 
are not minimum required elements of an approvable SIP under the CAA. 
This de minimis value is widely considered to be a useful component for 
implementing the PSD program, but is not absolutely necessary for the 
states to implement PSD programs. States can satisfy the statutory 
requirements for a PSD program by requiring each PSD applicant to 
submit air quality monitoring data for PM2.5 without using 
de minimis thresholds to exempt certain sources from such requirements. 
See 75 FR 64864. The SMC became effective under the federal PSD program 
on December 20, 2010. States with EPA-approved PSD programs that adopt 
the SMC for PM2.5, however, may use the SMC, once it is part 
of an approved SIP, to determine when it may be appropriate to exempt a 
particular major stationary source or major modification from the 
monitoring requirements under its state PSD program. Florida's March 
15, 2012, SIP revision adopts the SMC provision into the Florida SIP.
    Recently, the Sierra Club filed suit challenging EPA's authority to 
implement the PM2.5 SILs \14\ as well as the SMC for PSD 
purposes as promulgated in the October 20, 2010, rule. Sierra Club v. 
EPA, Case No 10-1413, D.C. Circuit Court. Specifically regarding the 
SMC, the Sierra Club claims that the use of an SMC to exempt a source 
from submitting a year's worth of monitoring data is inconsistent with 
the CAA. EPA responded to Sierra Club's claims in a Brief dated April 
6, 2012, which described the Agency's authority to develop and 
promulgate SMC.\15\ A copy of EPA's April 6, 2012, Brief can be found 
in the docket for today's rulemaking at www.regulations.gov using 
docket ID: EPA-R04-OAR-2012-0555.
---------------------------------------------------------------------------

    \14\ As mentioned earlier, due to litigation by the Sierra Club, 
EPA is not proposing to take action on the SILs portion of Florida's 
March 15, 2012, SIP revision at this time but will take action once 
the court case regarding SILs implementation is resolved.
    \15\ Additional information on this issue can also be found in 
an April 25, 2010, comment letter from EPA Region 6 to the Louisiana 
Department of Environmental Quality regarding the SILs-SMC 
litigation. A copy of this letter can be found in the docket for 
today's rulemaking at www.regulations.gov using docket ID: EPA-R04-
OAR-2012-0555.
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IV. What is EPA's analysis of Florida's SIP revision?

    Florida currently has a SIP-approved NSR program for new and 
modified stationary sources. FDEP's PSD program definitions and 
preconstruction permitting rules are found at rule 62-210.200, F.A.C, 
and rules 62-212.300 through 62-212.400, F.A.C., respectively. These 
rules apply to major stationary sources or modifications constructed in 
areas designated attainment or unclassifiable/attainment as required 
under part C of title I of the CAA with respect to the NAAQS. FDEP's 
March 15, 2012, changes to Chapters 62-210, F.A.C., and 62-212, F.A.C., 
were submitted to adopt into Florida's NSR permitting program PSD 
provisions promulgated in the NSR PM2.5 Rule and the 
PM2.5 PSD Increment-SILs-SMC rule. These changes to 
Florida's regulations became

[[Page 44203]]

state effective on March 28, 2012. EPA is proposing to approve these 
changes into the Florida SIP to be consistent with federal NSR 
regulations (at 40 CFR 51.166 and 52.21) and the CAA.

A. NSR PM2.5 Implementation Rule

    Florida's March 15, 2012, SIP revision establishes that the State's 
existing NSR permitting program requirements for PSD apply to the 
PM2.5 NAAQS and its precursors. Specifically, the SIP 
revision adopts the following NSR PM2.5 Rule PSD provisions 
into the Florida SIP: (1) The requirement for NSR permits to address 
directly emitted PM2.5 and precursor pollutants; (2) 
significant emission rates for direct PM2.5 and precursor 
pollutants (SO2 and NOX) and (3) the requirement 
that condensable PM be addressed in enforceable PM10 and 
PM2.5 emission limits included in PSD permits. The March 15, 
2012 changes revised the definition for ``significant emissions rates'' 
at 62-21.200(282) to establish SO2 and NOx as 
PM2.5 precursors and adopt significant emission rates for 
direct PM2.5 and PM2.5 precursors for major 
modifications at existing sources (as amended at 40 CFR 
51.166(b)(23)(i)) and established the requirement that condensable 
PM10 and PM2.5 emissions be accounted for in PSD 
applicability determinations and in establishing emissions limitations 
for PM at 62-212.300(1)(f) as amended at 40 CFR 51.166(b)(49). In 
addition, Florida's March 15, 2012, SIP revision added definitions for 
``condensable PM10'' at 62-210.200(94), ``condensable PM2.5'' at 62-
210-200(95) and ``condensable PM'' at 62-210.200(93), for clarification 
purposes. EPA is proposing to approve the aforementioned changes into 
the Florida SIP.

B. PM2.5 PSD Increment-SILs-SMC Rule

    Florida's March 15, 2012, SIP revision adopts, into the Florida 
SIP, the following PSD provisions promulgated in the PM2.5 
PSD Increment-SILs-SMC Rule: (1) PSD increments for PM2.5 
annual and 24-hour NAAQS pursuant to section 166(a) of the CAA (at 
Chapter 62-210, F.A.C.); (2) SILs to be used as a screening tool to 
evaluate the impact a proposed major source or modification may have on 
the NAAQS or PSD increment (at Chapters 62-210, F.A.C., and 62-212, 
F.A.C.); and (3) SMC, also used as a screening tool, to determine the 
level of data gathering required of a major source in support of its 
PSD permit application for PM2.5 emissions.
    Specifically, the SIP revision makes the following changes to 
Florida's PSD regulations to adopt PSD increment provisions established 
in the PM2.5 PSD Increment-SILs-SMC rule at Chapters 62-210 
and 62-212, F.A.C.: (1) Revises the definition for ``maximum allowable 
increase'' to incorporate by reference (IBR) the PM2.5 PSD 
increments numerical values (established in the tables at 40 CFR 
52.21(c) at 62-204.800, F.A.C.\16\); (2) amends definitions for ``major 
source baseline date'' and ``minor source baseline date'' to establish 
relevant dates for PM2.5 increment consumption and establish 
trigger dates (as established at 40 CFR 51.166(b)(14)(i)(c) and 
51.166(b)(14)(ii)(c) respectively) and; (3) revises the definition for 
``baseline area'' as promulgated at 40 CFR 51.166(b)(15)(i) and (ii) 
and adds definitions for ``baseline concentration.'' The March 15, 
2012, SIP submission also adds a definitions for ``Class I and II 
Areas'' at Chapter 62-210.200(77) and (78), F.A.C. respectively. The 
definition for Class I Areas IBR 40 CFR part 81, Subpart D (the federal 
Class I Area list) at rule 61 62-204.800, F.A.C.). In today's action, 
EPA is proposing to approve Florida's March 15, 2012, SIP revision to 
address PM2.5 PSD increments.
---------------------------------------------------------------------------

    \16\ Florida IBR federal rules at rule 62-204.800 F.A.C.
---------------------------------------------------------------------------

    Regarding the SILs and SMC established in the October 20, 2010, 
PM2.5 PSD Increment-SILs-SMC Rule, the Sierra Club has 
challenged EPA's authority to implement SILs and SMC. In a brief filed 
in the D.C. Circuit on April 6, 2012, EPA described the Agency's 
authority under the CAA to promulgate and implement the SMC and SILs de 
minimis thresholds. Florida's SIP revision includes the SMC of 4 
[micro]g/m\3\ for PM2.5 NAAQS (at rule 62-212.400(3)(e)1, 
F.A.C.) that was added to the existing monitoring exemption at 40 CFR 
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c). With respect to the SMC, EPA 
is proposing to approve these promulgated thresholds into the Florida 
SIP as EPA believes the use of the SMC is a valid exercise of the 
Agency's de minimis authority. Furthermore, Florida's March 15, 2012, 
SIP revision is consistent with EPA's current promulgated provisions in 
the October 20, 2010, rule. However, EPA notes that future court action 
may require subsequent rule revisions and SIP revisions from Florida.
    The March 15, 2012, SIP revision submitted by Florida to adopt the 
new PSD requirements for PM2.5 pursuant to the 
PM2.5 PSD Increment-SILs-SMC Rule also includes the new 
regulatory text at 40 CFR 51.166(k)(2) and 52.21(k)(2), concerning the 
implementation of SILs for PM2.5. EPA stated in the preamble 
to the October 20, 2010 final rule that we do not consider the SILs to 
be a mandatory SIP element, but regard them as discretionary on the 
part of regulating authority for use in the PSD permitting process. 
Nevertheless, the PM2.5 SILs are currently the subject of 
litigation before the U.S. Court of Appeals. (Sierra Club v. EPA, Case 
No 10-1413 D.C. Circuit). In response to that litigation, EPA has 
requested that the Court remand and vacate the regulatory text in the 
EPA's PSD regulations at paragraph (k)(2) so that EPA can make 
necessary rulemaking revisions to that text. In light of EPA's request 
for remand and vacatur and our acknowledgement of the need to revise 
the regulatory text presently contained at paragraph (k)(2) of sections 
51.166 and 52.21, EPA does not believe that it is appropriate at this 
time to approve that portion of the State's implementation plan 
revision that contains or is related to the affected regulatory text in 
the State's PSD regulations, at rule, 62-212.400(5), F.A.C and 62-
210.200(283)(c), F.A.C.. Instead, EPA is taking no action at this time 
with regard to these specific provisions contained in the SIP revision. 
EPA will take action on the SILs portion of Florida's March 15, 2012, 
SIP revision in a separate rulemaking once the issue regarding the 
court case has been resolved.
    The aforementioned amendments to Florida's SIP provide the 
framework for implementation of PM2.5 NAAQS in the states 
NSR permitting. Based on review and consideration of Florida's March 
15, 2012, SIP revision, EPA has made the preliminary determination to 
approve the aforementioned PSD permitting provisions promulgated in the 
NSR PM2.5 Rule and PM2.5 PSD Increment-SILs-SMC 
Rule into the Florida SIP to implement the NSR program for the 
PM2.5 NAAQS.

V. Proposed Action

    EPA is proposing to approve portions of Florida March 15, 2012, SIP 
revision adopting federal regulations amended in the May 16, 2008, NSR 
PM2.5 Rule and the October 20, 2010, PM2.5 PSD 
Increment-SILs-SMC rule into the Florida SIP with the exception of the 
SILs provisions. EPA has made the preliminary determination that this 
SIP revision, with regard to aforementioned proposed actions, is 
approvable because it is consistent with section 110 of the CAA and EPA 
regulations regarding NSR permitting.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the

[[Page 44204]]

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 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Particulate 
matter, Reporting and recordkeeping requirements.

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

    Dated: July 16, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-18131 Filed 7-26-12; 8:45 am]
BILLING CODE 6560-50-P