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

Federal Register: June 27, 2008 (Volume 73, Number 125)

Rules and Regulations

Page 36435-36439

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr27jn08-13

ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52

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

Approval and Promulgation of Implementation Plans Florida;

Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to conditionally approve revisions to the Florida State Implementation Plan (SIP) submitted by the State of Florida on February 3, 2006. The SIP revisions modify the Florida

Prevention of Significant Deterioration (PSD) program to address changes to the federal new source review (NSR) regulations, which were promulgated by EPA on December 31, 2002, and reconsidered with minor changes on November 7, 2003 (commonly referred to as the ``2002 NSR

Reform Rules''). In addition EPA is approving Florida's concurrent

February 3, 2006, request to make the State's PSD permitting program applicable to electric power plants, which are also subject to the

Florida Electrical Power Plant Siting Act (PPSA). EPA proposed conditional approval of these revisions on April 4, 2008; no comments were received on that proposal.

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

ADDRESSES: EPA has established a docket for this action under Docket

Identification No. EPA-R04-OAR-2006-0130. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e.,

Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning

Branch, Air, Pesticides and Toxics Management Division, U.S.

Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,

Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Florida

State Implementation Plan, contact Ms. Heidi LeSane, Regulatory

Development Section, Air Planning Branch, Air, Pesticides and Toxics

Management Division, Region 4, U.S. Environmental Protection Agency, 61

Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9074. Ms. LeSane can also be reached via electronic mail at lesane.heidi@epa.gov. For information regarding New Source Review, contact Ms. Yolanda Adams, Air Permits Section, at the same address above. The telephone number is (404) 562-9214. Ms. Adams can also be reached via electronic mail at adams.yolanda@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. What action is EPA taking?

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

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

4. Final Action

5. Statutory and Executive Order Reviews

1. What action is EPA taking?

   NSR Reform Revisions. EPA is taking final action to conditionally approve revisions to the Florida SIP (Florida Administrative Code

   (F.A.C.) Chapters 62-204, 62-210, and 62-212) as submitted by the

   Florida Department of Environmental Protection (FDEP) on February 3, 2006, which included changes to Florida's PSD program. As part of the current conditional approval, Florida has agreed to (1) revise the definition of ``new emissions unit'' to be consistent with the federal definition or revise the definition to define what is meant by

   ``beginning normal operation'' and provide an equivalency demonstration supporting the revised definition; (2) revise the definition of

   ``significant emissions rate'' to include ozone depleting substances;

   (3)

   Page 36436

   withdraw the request that EPA include a significant emissions rate for mercury in the Florida SIP, specifically F.A.C. Chapter 62- 210.200(243)(a)2; and (4) revise the recordkeeping requirements at

   F.A.C. section 62-212.300(3)(a)1 to be consistent with federal requirements found at 40 CFR 51.166(r)(6).

   Applicability of Florida's SIP-approved PSD permitting program to electric power plants. In addition to and in conjunction with the conditional approval of Florida's PSD SIP revisions, EPA is approving

   Florida's concurrent February 3, 2006, request to make the State's PSD permitting program applicable to electric power plants subject to the

   Florida PPSA. This means that Florida's SIP-approved PSD permitting program, including the conditional approval of the State's PSD revisions noted above, will apply to electric power plants in Florida in lieu of the current federally delegated PSD program.

   On April 4, 2008 (73 FR 18466), EPA published a notice of proposed rulemaking (NPR) in the Federal Register, proposing to conditionally approve the Florida SIP revisions and proposing to approve Florida's request to make the State's PSD program applicable to electric power plants, which are also subject to the Florida PPSA. The April 4, 2008,

   NPR provides additional information about the proposed Florida SIP revisions and the rationale for this final action. The public comment period for the proposed action ended on May 5, 2008. No comments were received on EPA's proposed action. EPA is now taking final action to conditionally approve the February 3, 2006, SIP revision from Florida and to approve Florida's request to make the State's PSD permitting program applicable to electric power plants subject to the Florida

   PPSA.

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

   On December 31, 2002 (67 FR 80186), EPA published final rule changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, regarding the Clean Air Act (``CAA'' or ``Act'') PSD and nonattainment new source review (NNSR) programs. On November 7, 2003 (68 FR 63021),

   EPA published a notice of final action on its reconsideration of the

   December 31, 2002, final rule changes. In that November 7, 2003, final action, EPA added the definition of ``replacement unit,'' and clarified an issue regarding plant-wide applicability limitations. Collectively, these EPA final actions are referred to as the ``2002 NSR Reform

   Rules.'' On June 13, 2007 (72 FR 32526), EPA took final action to revise the 2002 NSR Reform Rules to exclude the clean units and PCP provisions that were vacated by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) on June 24, 2005.

   Further, on December 21, 2007, EPA took final action on the portion of the 2002 NSR Reform Rules remanded by the D.C. Circuit Court, regarding the reasonable possibility in recordkeeping provision. The ``reasonable possibility'' provision identifies, for sources and reviewing authorities, the circumstances under which a major stationary source undergoing a modification that does not trigger major NSR must keep records. On December 21, 2007, EPA established that a ``reasonable possibility'' exists where source emissions equal or exceed 50 percent of the CAA NSR significance levels for any pollutant (72 FR 72607).

   These changes became effective on January 22, 2008, and the final action on that provision explains the process that states should follow if a SIP revision is necessary.\1\

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

   The Florida SIP revisions being approved today revise Florida's PSD program consistent with the federal program. In so doing, Florida not only provided substantive revisions to its rules, but also reorganized the rules to better follow the outline of the corresponding federal rules. This reorganization does not have any substantive impact on the

   PSD program as a whole, or its relationship with Florida's operating permits program (CAA title V program). Florida's PSD program continues to work in concert with its title V operating permit program to ensure that applicable requirements, including any applicable PSD requirements, are a part of lawful operation of a source under

   Florida's title V program.

   The February 3, 2006, SIP submittal consists of revisions to the following FDEP rules: F.A.C. Chapter 62-204, ``Air Pollution Control--

   General Provisions;'' F.A.C. Chapter 62-210, ``Stationary Sources--

   General Provisions;'' and F.A.C. Chapter 62-212, ``Stationary Sources--

   Preconstruction Review.'' The revisions were made to update the Florida

   PSD program to make it consistent with the December 31, 2002, changes to the federal NSR program. EPA is conditionally approving the February 3, 2006, SIP submittal consistent with section 110(k)(4) of the CAA. As part of the conditional approval, Florida will have twelve months from the date of EPA's final conditional approval of the SIP revisions in which to further revise its PSD rules, as described herein, to be consistent with existing federal law.

   Pursuant to section 110(k)(4) of the CAA, EPA may conditionally approve a portion of a SIP revision based on a commitment from the state to adopt specific, enforceable measures no later than twelve months from the date of final conditional approval. If the state fails to make the changes within the twelve month period, EPA will issue a finding of disapproval. EPA is not required to propose the finding of disapproval. The necessary revisions to the Florida SIP will materially alter the existing SIP-approved rule. As a result, Florida must also provide a new SIP submittal to EPA for approval that includes the rule changes. As with any SIP revision, Florida must provide an opportunity for public notice and comment, and allow for a public hearing (and any other procedures required by State law) on the proposed rule changes.

   If Florida timely revises its rules and submits the revised SIP submittal, EPA will process that SIP revision consistent with the CAA.

   With regard to the conditional approval of the PSD program, Florida must: (1) Revise the definition of ``new emissions unit'' to be consistent with the federal definition or revise the definition to define what is meant by ``beginning normal operation'' and provide an equivalency demonstration supporting the revised definition; (2) revise the definition of ``significant emissions rate'' to include ozone depleting substances; (3) withdraw the request that EPA include a significant emissions rate for mercury in the Florida SIP, specifically

   F.A.C. 62-210.200(243)(a)2; and (4) revise the recordkeeping requirements at F.A.C. 62-212.300(3)(a)1 to require a record of the amount of emissions excluded pursuant to the projected actual emissions requirements, an explanation as to why these emissions were excluded, and any netting calculations if applicable, consistent with the federal recordkeeping requirements at 40 CFR 51.166(r)(6).

   The April 4, 2008, NPR and the docket for this action provide more details about the SIP revisions being approved and the rationale for

   EPA's final action. For additional information on EPA's 2002 NSR Reform

   Rules, see 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr.

   Page 36437

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

   Electric power plants subject to the Florida PPSA have historically been permitted by FDEP (through a federal delegation of authority from

   EPA) under the federal PSD program rather than the Florida SIP-approved

   PSD permitting program. The Florida PSD program was initially approved by EPA into the Florida SIP on December 22, 1983 (48 FR 52713). The approval transferred to FDEP the legal authority to process and issue

   PSD permits to sources in Florida that are required to obtain PSD permits.

   One category of sources not covered by EPA's 1983 approval of

   Florida's PSD program was electric power plants. This was because, at the time, a separate Florida law known as the Florida PPSA, Florida

   Statutes Section 403.501 et seq., required permits for electric power plants to be issued solely by the Power Plant Site Certification Board under the PPSA, rather than by FDEP under Florida's PSD regulations.

   Such a conflict between the PPSA and Florida's PSD program created impediments to implementation and enforcement of the State's PSD program by FDEP for such power plants and precluded EPA's SIP-approval of Florida's PSD program as to these sources. As a result, for electric power plants subject to the PPSA, FDEP has been operating under either a partial or full delegation of authority to implement the federal PSD program since 1983, while various attempts to amend the PPSA to correct the conflict were made. Currently, FDEP is operating under a full delegation of authority to implement the federal PSD program for electric power plants, following further amendments to the PPSA in 1993. The 1993 PPSA amendment made clear that FDEP is the final permitting authority for PSD and new source review permits and can act in a manner different from the PPSA Siting Board if Florida's PSD or new source review regulations require such different action. The statutory amendment to the PPSA made by the Florida Legislature in 1993 forms the basis of the State's 2006 request for EPA approval to make

   Florida's SIP-approved State PSD program, rather than the federal PSD program, applicable to sources subject to the PPSA. In addition, during

   EPA's review of this request, the PPSA was again amended (on June 19, 2006), to among other things, further extricate Florida's PSD permitting process from its PPSA process. See, Florida Public Health

   Code 403.0872.

   Following EPA review of both the 1993 and June 19, 2006, amendments to the PPSA, the Agency published a direct final rule on May 25, 2007, finding that the PPSA amendments provided FDEP the authority to fully implement and enforce Florida's PSD program for electric power plants located within the State, and we granted it full approval to implement the State's PSD program for electric power plants subject to the PPSA. 72 FR 29287 (May 25, 2007). However, because adverse comments on the direct final rule were received, EPA withdrew the rule on June 28, 2007

   (72 FR 35355) and indicated that the rule would not take effect.

   As is described in greater detail in the April 4, 2008, proposal, the 1993 and June 2006 Florida legislative amendments to the State's

   PPSA rectified past concerns that the Florida PPSA infringed on FDEP's authority to issue State PSD permits to sources subject to both the

   State's PSD regulations and the Florida PPSA in such a manner that SIP- approval of the State's PSD program for those sources was precluded. By proposing this SIP-approval through this new rulemaking process, and in conjunction with our proposed action on the Florida PSD program SIP revisions, we have addressed the main concerns raised by commenters in response to our May 25, 2007, direct final rule. For additional information on the concerns raised by commenters, see the April 4, 2008, proposal.

   EPA is now approving Florida's February 3, 2006, request that EPA grant Florida SIP-approval to implement the State's PSD program for electric power plants subject to the PPSA. EPA is approving this specific request under section 110 of the Act because there is no longer a conflict between the State's PSD regulations and the PPSA and because FDEP now has adequate and effective procedures for full implementation of the State's PSD program for electric power plants.

   The April 4, 2008, NPR and the docket for this action provide more details about the approval of Florida's PSD program for electric power plants and the rationale for EPA's final action.

4. Final Action

   EPA is taking final action to conditionally approve changes to the

   Florida Administrative Code Chapter 62-204 entitled ``Air Pollution

   Control--General Provisions''; Chapter 62-210 entitled ``Stationary

   Sources--General Provisions''; and Chapter 62-212 entitled ``Stationary

   Sources--Preconstruction Review,'' as submitted by the State of Florida on February 3, 2006, as revisions to the Florida SIP.

   In addition to and in conjunction with the conditional approval of

   Florida's PSD SIP revisions, EPA is taking final action to approve

   Florida's concurrent February 3, 2006, request to make the State's PSD permitting program applicable to electric power plants subject to the

   Florida PPSA. As a result of this final action, EPA's October 26, 1993, federal delegation of PSD authority to FDEP will be withdrawn effective

   July 28, 2008. This final approval means that Florida's SIP-approved

   PSD permitting program, including the final conditional approval of the

   State's PSD revisions noted above, applies to electric power plants in

   Florida in lieu of the current federally delegated PSD program.

5. Statutory and Executive Order Reviews

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

   Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

   Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

   Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

   Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory

   Flexibility Act (5 U.S.C. 601 et seq.);

   Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded

   Mandates Reform Act of 1995 (Pub. L. 104-4);

   Does not have Federalism implications as specified in

   Executive Order 13132 (64 FR 43255, August 10, 1999);

   Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

   Is not a significant regulatory action subject to

   Executive Order 13211 (66 FR 28355, May 22, 2001);

   Page 36438

   Is not subject to requirements of Section 12(d) of the

   National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

   Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under

   Executive Order 12898 (59 FR 7629, February 16, 1994).

   In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

   The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

   Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the

   United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of

   Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal

   Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

   Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 26, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

   List of Subjects in 40 CFR Part 52

   Environmental protection, Air pollution control, Carbon monoxide,

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

   Dated: June 16, 2008.

   J.I. Palmer, Jr.,

   Regional Administrator, Region 4. 0 40 CFR part 52 is amended as follows:

   PART 52--[AMENDED] 0 1. The authority citation for part 52 continues to read as follows:

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

   Subpart K--Florida 0 2. Section 52.519 is revised to read as follows:

   Sec. 52.519 Identification of plan-conditional approval.

   EPA is conditionally approving a revision to the Florida State

   Implementation Plan (SIP) consisting of revisions to Florida

   Administrative Code Chapters 62-210 and 62-212. Based upon a commitment from the State, Florida must (1) revise the definition of ``new emissions unit'' to be consistent with the federal definition or revise the definition to define what is meant by ``beginning normal operation'' and provide an equivalency demonstration supporting the revised definition; (2) revise the definition of ``significant emissions rate'' to include ozone depleting substances; (3) withdraw the request that EPA include a significant emissions rate for mercury in the Florida SIP, specifically F.A.C. 62-210.200(243)(a)2; and (4) revise the recordkeeping requirements at F.A.C. 62-212.300 to be consistent with federal requirements. If the State fails to meet its commitment by June 29, 2009, the approval is treated as a disapproval. 0 3. Section 52.520(c) is amended by: 0 a. Revising entries under Chapter 62-204 for ``62-204.200,'' and ``62- 204.260,'' under Chapter 62-210 for ``62-210.200,'' ``62-210.300,''

   ``62-210.350''and ``62-210.370,'' under Chapter 62-212 for ``62- 212.300,'' ``62-212.400,'' and ``62-212.500'' and 0 b. Adding in numerical order a new entry under Chapter 62-212 for ``62- 212.720'' to read as follows:

   Sec. 52.520 Identification of plan.

   * * * * *

   (c) * * *

   EPA-Approved Florida Regulations

   State

   State citation

   Title/subject

   effective date

   EPA approval date

   Explanation

   Chapter 62-204 Air Pollution Control--General Provisions

   * * * * * * * 62-204.200..................... Definitions.........

   02/12/06 06/27/08 [Insert citation of publication].

   * * * * * * * 62-204.260..................... Prevention of

   02/12/06 06/27/08 [Insert

   Significant

   citation of

   Deterioration

   publication].

   Maximum Allowable

   Increases (PSD

   Increments).

   * * * * * * *

   Chapter 62-210 Stationary Sources--General Requirements

   * * * * * * * 62-210.200..................... Definitions.........

   02/02/06 06/27/08 [Insert

   Except for the citation of

   following publication].

   definitions which are being conditionally approved: (1)

   ``New emissions unit;'' and (2)

   ``significant emissions rate.''

   Page 36439

   * * * * * * * 62-210.300..................... Permits Required....

   02/02/06 06/27/08 [Insert citation of publication]. 62-210.350..................... Public Notice and

   02/02/06 06/27/08 [Insert

   Comment.

   citation of publication].

   * * * * * * * 62-210.370..................... Emissions

   02/02/06 06/27/08 [Insert

   Computation and

   citation of

   Reporting.

   publication].

   * * * * * * *

   Chapter 62-212 Stationary Sources--Preconstruction Review

   * * * * * * * 62-212.300..................... General

   02/02/06 06/27/08 [Insert

   Except provisions

   Preconstruction

   citation of

   at 62-

   Review Requirements.

   publication].

   212.300(3)(a)1, which are being conditionally approved. 62-212.400..................... Prevention of

   02/02/06 06/27/08 [Insert

   Significant

   citation of

   Deterioration (PSD).

   publication]. 62-212.500..................... Preconstruction

   02/02/06 06/27/08 [Insert

   Review for

   citation of

   Nonattainment Areas.

   publication].

   * * * * * * * 62-212.720..................... Actuals Plantwide

   02/02/06 06/27/08 [Insert

   Applicability

   citation of

   Limits (PALs).

   publication].

   * * * * * 0 4. Section 52.530 is amended by revising paragraph (a) to read as follows:

   Sec. 52.530 Significant deterioration of air quality.

   (a) EPA approves the Florida Prevention of Significant

   Deterioration program, as incorporated into this chapter, for power plants subject to the Florida Power Plant Siting Act.

   * * * * *

   FR Doc. E8-14400 Filed 6-26-08; 8:45 am

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