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