[Federal Register Volume 73, Number 66 (Friday, April 4, 2008)]
[Proposed Rules]
[Pages 18466-18473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7073]
[[Page 18466]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2006-0130-200725; FRL-8551-5]
Approval and Promulgation of Implementation Plans Florida:
Prevention of Significant Deterioration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed approval and proposed conditional approval.
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SUMMARY: EPA is proposing to conditionally approve State Implementation
Plan (SIP) revisions submitted by the State of Florida on February 3,
2006. The proposed revisions modify Florida's Prevention of Significant
Deterioration (PSD) permitting regulations in the SIP 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 (collectively, these two final actions are
referred to as the ``2002 NSR Reform Rules''). The proposed revisions
include provisions for baseline emissions calculations, an actual-to-
projected-actual methodology for calculating emissions changes, options
for plantwide applicability limits, and recordkeeping and reporting
requirements. 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 revise its PSD recordkeeping requirements and
several definitions in order to be consistent with existing federal
law.
In addition to and in conjunction with the proposed conditional
approval of Florida's PSD permitting program SIP revisions, EPA is
proposing to approve 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). This proposed approval follows the receipt of
adverse comments on, and EPA's subsequent withdrawal of, EPA's May 25,
2007, direct final rule granting full approval to Florida to implement
its PSD permitting program for sources subject to the PPSA.
DATES: Comments must be received on or before May 5, 2008.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2006-0130, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: 404-562-9019.
4. Mail: ``EPA-R04-OAR-2006-0130,'' 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. Yolanda Adams, 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-
2006-0130.'' 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 e-mail, 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 e-mail comment directly to EPA without
going through www.regulations.gov, your e-mail 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 a.m. to 4:30 p.m.,
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, U.S. Environmental Protection Agency, Region 4, 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 [email protected]. 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 [email protected].
SUPPLEMENTARY INFORMATION:
I. What actions are being proposed?
II. What is the background of EPA's proposed action on the Florida
PSD rule revisions?
III. What is EPA's Analysis of Florida's PSD program revisions and
what are the conditions for full SIP-approval?
IV. What is the background of prior EPA action on Florida's PSD
program for electric power plants?
V. What is the basis for EPA's proposed SIP-approval of the
inclusion of electric power plants in Florida's PSD program?
VI. Proposed Action
VII. Statutory and Executive Order Reviews
I. What actions are being proposed?
NSR Reform Revisions. On February 3, 2006, the State of Florida,
through the Florida Department of Environmental Protection (FDEP),
submitted revisions to the Florida SIP. The submittal consists of
revisions to the following
[[Page 18467]]
FDEP rules: Chapter 62-204, ``Air Pollution Control--General
Provisions;'' Chapter 62-210, ``Stationary Sources--General
Provisions;'' and Chapter 62-212, ``Stationary Sources--Preconstruction
Review.'' The revisions were made to update the Florida PSD program to
make it consistent with changes to the federal NSR regulations
published on December 31, 2002 (67 FR 80186) and November 7, 2003 (68
FR 63021). EPA is proposing to conditionally approve the February 3,
2006, SIP submittal consistent with section 110(k)(4) of the Clean Air
Act (``CAA'' or ``Act'').
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 commit to undertake the necessary changes, or fails to actually 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, the State must also provide a
new SIP submittal to EPA for approval that includes the rule changes
within twelve months from the date of EPA's final action conditionally
approving Florida's PSD program. As with any SIP revision, Florida must
undergo public notice and comment, and allow for a public hearing (and
any other procedures required by State law) on the proposed changes to
its rules. If Florida fails to adopt and submit the specified measures
by the end of one year (from the final conditional approval), or fails
to make a SIP submittal to EPA within twelve months following the final
conditional approval, EPA will issue a finding of disapproval. If
Florida timely revises its rules and submits the revised SIP submittal,
EPA will process that SIP revision consistent with the CAA.
Generally, with regard to the conditional approval of Florida's PSD
program, Florida must revise its PSD recordkeeping requirements and
several definitions in the rules. Section III below provides more
details regarding EPA's analysis of Florida's PSD program and the
changes that are necessary to the Florida rules in order for full
approval of Florida's SIP revision.
Applicability of Florida's SIP-approved PSD permitting program to
electric power plants. In addition to and in conjunction with the
proposed conditional approval of Florida's PSD SIP revisions, EPA is
proposing 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. Any final approval of this request
would mean that Florida's SIP-approved PSD permitting program,
including any final conditional approval of the State's PSD revisions
noted above, would apply to electric power plants in Florida in lieu of
the current federally delegated PSD program.
II. What is the background of EPA's proposed 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 CAA's PSD and Nonattainment NSR (NNSR) programs. On
November 7, 2003 (68 FR 63021), EPA published a notice of final action
on the 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 plantwide
applicability limitations (PALs). Collectively, these two EPA final
actions are referred to as the ``2002 NSR Reform Rules.'' The purpose
of this action is to propose to conditionally approve the SIP submittal
from Florida, which addresses EPA's 2002 NSR Reform Rules.
The 2002 NSR Reform Rules are part of EPA's implementation of Parts
C and D of title I of the CAA, 42 U.S.C. 7470-7515. Part C of title I
of the CAA, 42 U.S.C. 7470-7492, is the PSD program, which applies in
areas that meet the National Ambient Air Quality Standards (NAAQS)--
``attainment'' areas--as well as in areas for which there is
insufficient information to determine whether the area meets the
NAAQS--``unclassifiable'' areas. Part D of title I of the CAA, 42
U.S.C. 7501-7515, is the NNSR program, which applies in areas that are
not in attainment of the NAAQS--``nonattainment'' areas. Collectively,
the PSD and NNSR programs are referred to as the ``New Source Review''
or NSR programs. EPA regulations implementing these programs are
contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and part 51, appendix
S.
The CAA's NSR programs are preconstruction review and permitting
programs applicable to new and modified stationary sources of air
pollutants regulated under the CAA. The NSR programs of the CAA include
a combination of air quality planning and air pollution control
technology program requirements. Briefly, section 109 of the CAA, 42
U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public
health and secondary NAAQS to protect public welfare. Once EPA sets
those standards, states must develop, adopt, and submit to EPA for
approval, a SIP that contains emissions limitations and other control
measures to attain and maintain the NAAQS. Each SIP is required to
contain a preconstruction review program for the construction and
modification of any stationary source of air pollution to assure that
the NAAQS are achieved and maintained; to protect areas of clean air;
to protect air quality related values (such as visibility) in national
parks and other areas; to assure that appropriate emissions controls
are applied; to maximize opportunities for economic development
consistent with the preservation of clean air resources; and to ensure
that any decision to increase air pollution is made only after full
public consideration of the consequences of the decision.
The 2002 NSR Reform Rules made changes to five areas of the NSR
programs. In summary, the 2002 Rules: (1) Provide a new method for
determining baseline actual emissions; (2) adopt an actual-to-
projected-actual methodology for determining whether a major
modification has occurred; (3) allow major stationary sources to comply
with plant-wide applicability limits to avoid having a significant
emissions increase that triggers the requirements of the major NSR
program; (4) provide a new applicability provision for emissions units
that are designated clean units; and (5) exclude pollution control
projects (PCPs) from the definition of ``physical change or change in
the method of operation.'' On November 7, 2003, EPA published a notice
of final action on its reconsideration of the 2002 NSR Reform Rules (68
FR 63021), which added a definition for ``replacement unit'' and
clarified an issue regarding PALs. For additional information on the
2002 NSR Reform Rules, see 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr.
After the 2002 NSR Reform Rules were finalized and effective (March
3, 2003), industry, state, and environmental petitioners challenged
numerous aspects of the 2002 NSR Reform Rules, along with portions of
EPA's 1980 NSR Rules (45 FR 52676, August 7, 1980). On June 24, 2005,
the United States Court of Appeals for the District of Columbia Circuit
(DC Circuit Court) issued a decision on the challenges to the 2002 NSR
Reform Rules. New York v. United States, 413 F.3d 3 (DC Cir. 2005). In
summary, the DC Circuit Court vacated portions of the
[[Page 18468]]
rules pertaining to clean units and PCPs, remanded a portion of the
rules regarding recordkeeping, 40 CFR 52.21(r)(6) and 40 CFR
51.166(r)(6), and either upheld or did not comment on the other
provisions included as part of the 2002 NSR Reform Rules. On June 13,
2007 (72 FR 32526), EPA took direct final action to revise the 2002 NSR
Reform Rules to remove from federal law all provisions pertaining to
clean units and the PCP exemption that were vacated by the DC Circuit
Court. This proposed action on the Florida SIP is consistent with the
decision of the DC Circuit Court because Florida's submittal does not
include any portions of the 2002 NSR Reform Rules that were vacated as
part of the June 2005 decision.
With regard to the remanded portions of the 2002 NSR Reform Rules
related to recordkeeping, on December 21, 2007, EPA took final action
on the proposed revisions by establishing that ``reasonable
possibility'' applies where source emissions equal or exceed 50 percent
of the CAA NSR significance levels for any pollutant (72 FR 72607). 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. 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 (see, e.g., F.A.C. section 62-212.300).
However, another aspect of Florida's recordkeeping requirements is not
consistent with the recordkeeping provisions set forth in the federal
rules at 40 CFR 51.166(r)(6). As is explained in more detail below,
Florida will have to revise its recordkeeping requirements as part of
the proposed conditional approval.
The 2002 NSR Reform Rules require that state agencies adopt and
submit revisions to their SIP permitting programs implementing the
minimum program elements of the 2002 NSR Reform Rules no later than
January 2, 2006. (Consistent with changes to 40 CFR 51.166(a)(6)(i),
state agencies are now required to adopt and submit SIP revisions
within 3 years after new amendments are published in the Federal
Register.) State agencies may meet the requirements of 40 CFR part 51,
and the 2002 NSR Reform Rules, with different but equivalent
regulations.
On February 3, 2006, FDEP submitted a SIP revision for the purpose
of revising the State's PSD permitting provisions. These changes were
made primarily to adopt EPA's 2002 NSR Reform Rules. These revisions
became State-effective on February 2, 2006, and February 12, 2006. Even
though Florida currently has nonattainment rules approved in the SIP,
this submittal did not include revisions to the NNSR rules because
there are currently no nonattainment areas in Florida. Copies of
Florida's revised PSD rules, as well as the State's Technical Support
Document (TSD), can be obtained from the Docket, as discussed in the
ADDRESSES section above.
As is discussed in further detail below, EPA believes the revisions
contained in the Florida submittal are approvable for inclusion into
the Florida SIP so long as the specific changes described below are
made within twelve months of the date of EPA's final conditional
approval. As a result, EPA is proposing to conditionally approve the
Florida SIP revisions, consistent with section 110(k)(4) of the CAA.
III. What is EPA's Analysis of Florida's PSD program revisions and what
are the conditions for full SIP-approval?
This section summarizes EPA's analysis of the changes being
proposed for inclusion into the Florida SIP.
F.A.C. Chapter 62-204, entitled ``Air Pollution Control--General
Provisions'' contains general air pollution control requirements that
apply regardless of the type or size of the emissions source. F.A.C.
section 62-204.260 sets forth PSD increments for pollutants for which
EPA has established such increments. Definitions at section 62-204.200
describe those emissions which affect (i.e. expand or consume) PSD
increment. Under previous FDEP rules, some provisions related to
increment consumption and expansion were located at section 62-212.400.
The current rule revisions consolidate all such provisions in the
definitions at section 62-204.200 for greater clarity. In addition,
rule language has been amended to more closely reflect the federal
rules.
F.A.C. Chapter 62-210, entitled ``Stationary Sources--General
Requirements,'' contains definitions of terms used in Chapter 62-212,
as well as other stationary source rules. Chapter 62-210 also
establishes general permitting, public notice, reporting, and permit
application requirements. Chapter 62-212, entitled ``Stationary
Sources--Preconstruction Review'' contains specific preconstruction
permitting requirements for various types of air construction permits,
including minor source permits, PSD permits, NNSR permits, and the more
recently added PAL permits. Revisions were made to these rules to
incorporate changes resulting from the 2002 NSR Reform Rules, with the
exception that F.A.C. section 62-212.500, entitled, ``Preconstruction
Review for Nonattainment Areas'' was not revised since there are no
longer any nonattainment areas in Florida. This rule will need to be
amended if nonattainment areas are designated in Florida in the future.
F.A.C. section 62-212.400 contains the State's PSD preconstruction
review program as required under Part C of title I of the CAA. The PSD
program applies to major stationary sources or modifications
constructing in areas that are designated as attainment or
unclassifiable with respect to the NAAQS. Florida's PSD program was
originally approved into the SIP by EPA on December 22, 1983, and has
been revised several times. The current changes to F.A.C. Chapters 62-
204, 62-210 and 62-212, which EPA is now proposing to conditionally
approve into the Florida SIP, were submitted to update the existing
Florida regulations to be consistent with the current federal PSD
rules, including the 2002 NSR Reform Rules. The SIP revision addresses
baseline actual emissions, actual-to-projected-actual applicability
tests, and PALs.
EPA's evaluation of the Florida SIP submittal included a line-by-
line comparison of the proposed revisions with the federal
requirements. As a general matter, state agencies may meet the
requirements of 40 CFR part 51, and the 2002 NSR Reform Rules, with
different but equivalent regulations. While some states choose to
incorporate by reference the applicable federal rules, other states
(such as Florida) choose to draft rules that track the federal language
but contain differences. As part of its February 3, 2006, SIP
submittal, Florida provided EPA with an Equivalency Determination and
Response to Comments (ED and RTC) that address differences from the
federal rules noted by EPA in its comments on Florida's prehearing
submittal. As a point of clarification, although FAC section 62-
204.800, ``Federal Regulations Adopted by Reference,'' includes 40 CFR
part 52, this Florida rule does not legally ``incorporate by
reference'' the entirety of part 52. According to Florida's ED and RTC,
the reference to part 52 does not make those
[[Page 18469]]
regulations applicable, but rather, other rules, such as the PSD rule
currently at issue, define how the elements of part 52 will apply in
Florida.
Although EPA has determined that some of the differences in
Florida's PSD program are acceptable, some differences are not
consistent with the federal rules. Therefore, EPA has determined that
Florida's PSD program does not meet all the program requirements for
the preparation, adoption and submittal of implementation plans for the
Prevention of Significant Deterioration of Air Quality, set forth at 40
CFR 51.166 and revisions are necessary for full approval.
The required changes relate to the definitions of ``new emissions
unit,'' ``PSD pollutant,'' ``significant emissions rate,'' and the
recordkeeping requirements found at 51.166(r)(6). Consistent with
section 110(k)(4) of the CAA, EPA may conditionally approve Florida's
SIP revision based on the State's commitment to adopt specific,
enforceable measures by a date certain, not to exceed one year after
the date of the final conditional approval.
A discussion of the specific changes to Florida's rules comprising
the SIP revision, as well as the additional changes that must be made
by Florida as part of the conditional approval, follows. The discussion
addresses both acceptable deviations from the federal rules, as well as
the differences that are subject to the conditional approval.
1. New Emissions Unit
Florida's definition for ``new emissions unit'' for PSD purposes is
found in F.A.C. section 62-210.200(184). \1\ This definition is not
consistent with the federal definition found at 40 CFR 51.166(b)(7)(i).
Pursuant to federal law, a ``new emissions unit'' is ``any emissions
unit that is (or will be) newly constructed and that has existed for
less than 2 years from the date such emissions unit first operated.''
40 CFR 51.166(b)(7)(i). Under Florida law, however, a ``new emissions
unit'' is ``any emissions unit that is or will be newly constructed and
that has enlisted for less than 2 years from the date of beginning
normal operation.'' See, F.A.C. section 62-210.200(184) (emphasis
added). Florida's ED and RTC indicate that the use of the term
``beginning normal operation'' takes into account that most new units
undergo a ``shakedown'' period during which the unit is operating but
may not have normal, representative emissions. FDEP therefore believes
that this term clarifies the intent of the federal requirement. EPA
disagrees that this language is equivalent to the federal rule. Florida
must revise its regulations to better define what is meant by
``beginning normal operation,'' to ensure that the ``shakedown'' period
does not continue for an unbounded period of time. EPA recommends that
Florida adopt the language of the federal rule. However, if Florida
chooses otherwise, FDEP will need to provide EPA with an equivalency
demonstration supporting the new, more specific, regulation. In
addition, EPA also identified a typographical error in this provision
that should be addressed. The language ``* * * that has enlisted for
less than * * *'' should read ``* * * that has existed for less than *
* *.'' F.A.C. section 62-210.200(184) (emphasis added).
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\1\ The references to the Florida regulations in this notice
correspond to the numbering in the SIP submittal. Since Chapter 62-
210 contains definitions for other stationary source rules and these
definitions are maintained in alphabetical order, the references
given in this notice do not correspond to the current Florida
regulations due to subsequent amendments to Florida stationary
rules. This is the case for all definitions being discussed in this
notice.
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2. Pollution Control Project (PCP)
As mentioned previously, the PCP exemption provisions of the
federal rules, including the definition of ``pollution control
project,'' were vacated by the DC Circuit Court. Florida's regulations
still include a definition for ``pollution control project'' (found at
F.A.C. section 62-210.200(209)). In its ED and RTC, Florida explains
that this term is no longer used anywhere within the Florida
regulations and the intent is to exclude clean coal technology
demonstration projects from triggering a major modification. However,
such projects are excluded at 51.166(b)(2)(iii)(j), and F.A.C. section
62-210.200(161)(c)9. Even though Florida's definition of ``pollution
control project'' is not the same as the vacated federal definition,
EPA believes that the use of the term ``PCP'' in the Florida
regulations may be confusing to both the public and the regulated
community, and could be misconstrued as the vacated portion of the
federal rules. Because the clean coal technology demonstration project
exemption is already independently defined and included in F.A.C.
section 62-210.200(190)(c)9, EPA recommends that the term ``pollution
control project'' be removed from the rules to be included in the
Florida SIP.
3. Regulated NSR Pollutant
Florida's definition of ``PSD Pollutant'' found at F.A.C. section
62-210.200(219) is intended to be equivalent to the federal definition
of ``Regulated NSR pollutant'' at 51.166(b)(49). Florida defines ``PSD
Pollutant'' as ``any pollutant listed as having a significant emissions
rate as defined in F.A.C. section 62-210.200.'' The definition of
``significant emissions rate,'' found at F.A.C. section 62-
210.200(243), includes ``a rate listed at 40 CFR 52.21(b)(23)(i) * * *
specifically the following rates,'' and proceeds to list rates for
carbon monoxide, nitrogen oxides, sulfur dioxide, particulate matter,
ozone, lead, fluorides, sulfuric acid mist, hydrogen sulfide, total
reduced sulfur, reduced sulfur compounds, municipal waste combustor
organics, metals, and acid gases, municipal solid waste landfills
emissions, and mercury. The federal definition of ``Regulated NSR
Pollutant'' includes: (1) Any pollutant for which a NAAQS has been
promulgated and any constituents or precursors for such pollutants
identified by the Administrator; (2) any pollutant that is subject to
any standard promulgated under section 111 of the Act; (3) any Class I
or II substance subject to a standard promulgated under or established
by title VI of the Act; and (4) any pollutant that otherwise is subject
to regulation under the Act.
In its ED and RTC, Florida explains that its definition of
significant emissions rate includes all pollutants for which a NAAQS
has been promulgated thus far, all precursors for such pollutants which
have thus far been identified by the Administrator, all pollutants
subject to standards promulgated under section 111 of the Act, and all
pollutants thus far regulated under the Act. Florida acknowledges that
its rules do not include ozone depleting substances (i.e., Class I and
Class II substances subject to a standard under title VI of the CAA) in
the definition of PSD pollutant. Because ozone depleting substances are
regulated NSR pollutants pursuant to federal law, Florida must also
regulate such pollutants in order for its PSD program to meet the
requirements of the federal program. Therefore, as part of the
conditional approval, Florida must revise its rules to include Class I
and Class II substances in its list of PSD pollutants.
4. Significant Emissions Rate
The definition of ``significant emissions rate,'' found at F.A.C.
section 62-210.200(243), includes ``a rate listed at 40 CFR
52.21(b)(23)(i) * * * specifically the following rates,'' and proceeds
to list rates for specific pollutants. Federal regulations define
``significant'' as a rate of emissions that
[[Page 18470]]
would equal or exceed a pollutant specific list of emissions rates.
See, 40 CFR Part 51.166(b)(23)(i). In addition, federal law defines
significant as ``any emissions rate'' of a regulated NSR pollutant that
is not listed in Sec. 51.166(b)(23)(i), and ``any emissions rate'' at
a major stationary source constructing within 10 kilometers of a Class
I area, which would have an impact on such area equal to or greater
than 1 microgram per cubic meter ([mu]g/m\3\) over a 24-hour average.
Florida's PSD rules do not include ``any emissions rate'' for a
pollutant that is not listed in the significant emissions rate list,
but that could otherwise be considered a regulated NSR pollutant (i.e.
``any pollutant that is otherwise subject to regulation under the
Act''). In addition, Florida's PSD rules limit the Class I area impact
provision to only those pollutants that are listed in the significant
emissions rates list. See, F.A.C. section 62-210.200(243)(b). In its ED
and RTC, Florida explains that its PSD rules include all pollutants
that are currently regulated under the federal rules, and which fall
within FDEP's existing statutory authority. For those pollutants which
may become regulated NSR pollutants in the future, FDEP commits to
adopting those pollutants into the State's PSD rules as soon as
possible after EPA's promulgation. EPA agrees that Florida's PSD rules
include significant emissions rates for all currently regulated NSR
pollutants, except ozone depleting substances (discussed above), and
that Florida's approach to adopting any other pollutants as part of its
definition of PSD pollutant in an expeditious manner after promulgation
by EPA, is an acceptable approach to ensuring that Florida's PSD
program is consistent with the federal PSD program.
5. Mercury
As a general matter, hazardous air pollutants (HAPs) are not
regulated NSR pollutants unless they are also regulated as a
constituent or precursor of a general pollutant listed under Section
108 of the Act. Pursuant to Section 112(b)(6) of the CAA, the PSD
provisions of the CAA ``shall not apply to pollutants listed in''
Section 112. Mercury is specifically listed as a HAP in Section
112(b)(1). As a result, the CAA's PSD program does not apply to
mercury. Section 110 of the CAA, governing SIP review and approval,
describes what types of regulations should be included in the SIP;
specifically, regulations supporting attainment and maintenance of the
NAAQS. Mercury is not identified as a criteria pollutant for which a
NAAQS is established, nor is it identified as a constituent of such a
pollutant or a precursor of such a pollutant. As a result, regulations
governing mercury should not be included in SIPs. As previously
mentioned, Florida's definition of ``significant emissions rate,''
found at F.A.C. section 62-210.200(243), includes ``a rate listed at 40
CFR 52.21(b)(23)(i) * * * specifically the following rates,'' and it
proceeds to list rates for among other pollutants, mercury.
In its ED and RTC, Florida explains that its PSD program has
included a significant emission rate for mercury since the 1980s.
However, following the enactment of the 1990 amendments to the CAA, EPA
advised states to remove HAPs from PSD rules included in the SIP.
Florida did remove some HAPs, but retained mercury. Because the 1990
CAA Amendments (and the addition of Section 112(b)(6)) has altered
EPA's approach with regard to mercury, EPA is now seeking to remedy the
inclusion of mercury in the Florida SIP as a PSD pollutant. Notably,
Florida may retain mercury as a regulated pollutant pursuant to State
authority and State law. However, mercury cannot be included as a
regulated pollutant in the SIP. As part of the conditional approval,
Florida must withdraw its request that EPA include a significant
emissions rate for mercury in the Florida SIP, specifically section
200.243(a)2 of F.A.C. Chapter 62-210.
6. Recordkeeping Requirements
Federal rules at 40 CFR 51.166(r)(6)(i)(c) require that the owner
or operator document and maintain a record of the description of the
applicability test used to determine that the project is not a major
modification for any regulated NSR pollutant, including the baseline
actual emissions, the projected actual emissions, the amount of
emissions excluded under the definition of ``projected actual
emissions'' (i.e. that portion of the unit's emissions following the
project that an existing unit could have accommodated during the
consecutive 24-month period used to establish the baseline actual
emissions and that are also unrelated to the particular project,
including any increased utilization due to product demand growth) and
an explanation as to why this amount was excluded, and any netting
calculations if applicable. F.A.C. section 62-212.300(3)(a) requires
each applicant to provide at a minimum, the nature and amounts of
emissions from the emissions unit, including baseline actual emissions
and projected actual emissions when used to determine PSD
applicability, and when used to establish a PAL. However, Florida rules
do not specifically 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. As part of the conditional approval,
Florida must revise its rules to make the recordkeeping requirements
consistent with the federal recordkeeping requirements at 40 CFR
51.166(r)(6).
7. Replacement Unit
As previously mentioned, on November 7, 2003 (68 FR 63021), EPA
added a definition of ``replacement unit'' to federal NSR rules. See,
40 CFR 51.166(32). EPA also revised the definition of ``emissions
unit'' to clarify that a replacement unit is considered an existing
emissions unit and therefore is eligible for the actual-to-projected-
actual test for major NSR applicability determinations. Florida rules
do not include a definition of replacement unit, and do not specify in
the definition of existing emissions unit that a replacement unit is
considered an existing emissions unit. As stated in the preamble to the
November 7, 2003 (68 FR 63021) rule amendments, the December 2002
rules, ``* * * as supplemented by the discussion in the December 2002
preamble, are self-implementing for replacement units.'' Florida
intends to implement these provisions consistent with federal
regulations. In other words, in Florida a replacement unit is
considered an existing emissions unit and therefore is eligible for the
actual-to-projected-actual test for major NSR applicability test
determinations. Therefore, based on Florida's intent to implement these
provisions consistent with federal regulations, EPA does not believe
that this difference from the federal regulations makes Florida's PSD
program less stringent than the federal program.
8. Malfunction Emissions
Federal regulations require the inclusion of emissions associated
with malfunctions in the calculation of ``projected actual emissions''
and ``baseline actual emissions.'' Florida's definitions of ``projected
actual emissions'' and ``baseline actual emissions'' at F.A.C. sections
62-210.200(34) and (215) respectively, do not require the inclusion of
emissions associated with malfunctions. Florida will be relying only on
quantifiable emissions that can be verified. Given that Florida will be
consistently applying this approach for both ``projected actual
emissions'' and
[[Page 18471]]
``baseline actual emissions'' and that this approach will not prevent
malfunctions from being exceedances of applicable standards, EPA has
determined that this difference does not make Florida's PSD program
less stringent than the federal program. These changes do not affect
source obligations regarding excess emissions related notifications
that may be required by State or federal law.
9. Major Stationary Source
One of the changes proposed in the Florida submittal is to replace
the State definition of ``major stationary source'' with the federal
definition contained at 40 CFR 52.21(b). For the most part, the effect
of this change is simply to reword the State definition so that it
reads the same as the federal definition. EPA notes, however, that in
replacing the Florida definition with the federal definition, the State
has adopted the phrase ``except the activities of any vessel.'' This
phrase was remanded and vacated by the DC Circuit Court, and Florida
had explicitly excluded this language from the State rule when it
initially adopted the State PSD regulations. See, Natural Resources
Defense Council v. EPA, 725 F.2d 761 (DC Cir. 1984). This change may
have the effect of excluding activities that were previously covered by
the state rule. Hence, EPA requests clarification as to whether it is
the state's intention to amend the SIP to include this language, or
whether it was an unintended consequence of adopting the federal
definition verbatim.
In summary, EPA is proposing to conditionally approve, into
Florida's SIP, revisions to Florida's PSD permitting program. As part
of the conditional approval mechanism, within twelve months of EPA's
final action on the conditional approval, the State 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 section 200.243(a)2 of
F.A.C. Chapter 62-210; and (4) revise the recordkeeping requirements at
F.A.C. section 62-212.300 to be consistent with federal requirements.
If Florida fails to comply with these four requirements in the
specified period of time, EPA will issue a finding of disapproval.
IV. What is the background of prior EPA action on Florida's PSD program
for electric power plants?
For reasons described further below, 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. With the
reasons for the necessity of such delegation of federal authority
removed, Florida requests that electric power plants within the State
now be permitted under the State's SIP-approved PSD permitting program.
Because EPA agrees with Florida that the necessity for such federal
delegation no longer exists, EPA is proposing to approve Florida's
request to make the State's PSD permitting program (rather than the
federal PSD permitting program) applicable to electric power plants in
the State.
As noted earlier, Part C of the CAA establishes the PSD permitting
program--a preconstruction review program that applies to areas of the
country that have attained the NAAQS. CAA 160-169, 42 U.S.C. 7470-7479.
In such areas, a major stationary source may not begin construction or
undertake certain modifications without first obtaining a PSD permit.
In broad overview, the program (1) limits the impact of new or modified
major stationary sources on ambient air quality and (2) requires the
application of state-of-the-art pollution control technology, known as
best available control technology. CAA 165, 42 U.S.C. 7475.
EPA has promulgated two largely identical sets of regulations to
implement the PSD program. One set, at 40 CFR 52.21, contains EPA's own
federal PSD program under which EPA is the permitting authority in
states operating without an EPA-approved state program. The other set
of regulations contains minimum requirements that state PSD programs
must meet to be approved by EPA as part of a SIP. 40 CFR 51.166. Over
time, most states have received EPA approval for their PSD programs.
In order to comply with the established minimum requirements of the
CAA, Florida adopted its own PSD regulations on June 10 and October 28,
1981. The Florida PSD program was proposed for approval on December 14,
1982 (47 FR 55964) and 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 Electrical Power
Plant Siting Act (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, on November 5, 1985, EPA delegated partial
authority to FDEP to conduct the technical and administrative portion
of the federal PSD program for power plants subject to the Florida PPSA
(with EPA retaining final permitting authority). Letter from Jack E.
Ravan, EPA Region 4, to Victoria J. Tschinkel, Florida Department of
Environmental Regulation (November 5, 1985).
On July 1, 1986, the Florida Legislature amended the PPSA in an
effort to extricate the implementation of PSD regulations from the
State's non-SIP power plant siting regulations and thereby allow FDEP
to issue PSD permits to those sources subject to the PPSA. On its face,
the 1986 Florida legislative amendment appeared to provide FDEP with
authority to fully implement (i.e., issue and enforce) federal PSD
regulations for sources subject to the PPSA. Thus, on September 25,
1986, EPA restored full delegation of federal authority to Florida for
these sources. Public notice of this restoration of full federal
delegation was published on October 27, 1986 (51 FR 37972).
Although full federal delegation was restored to FDEP in October
1986, Florida did not subsequently submit to EPA a SIP revision
requesting approval to apply its SIP-approved State PSD program to
electrical power plants subject to the PPSA (in lieu of the fully
delegated federal PSD program). Thus, FDEP continued to issue permits
to sources subject to the PPSA under its federally-delegated authority
until 1992. However, in February 1992, EPA became aware of an issued
Florida court opinion wherein the state court expressly declared that
Florida's 1986 legislative amendments to the PPSA did not confer on
FDEP the authority to issue federally-enforceable PSD permits
[[Page 18472]]
containing conditions which differed from those imposed by the PPSA
Siting Board during the source's site certification. Letter from Greer
C. Tidwell, EPA Region 4, to Carol M. Browner, Florida Department of
Environmental Regulation (February 5, 1992); TECO Power Services Corp.
v. Florida Department of Environmental Regulation, First District Court
of Appeal, Case No, 91-300 (December 20, 1991). In response to EPA's
inquiries concerning this state court opinion, FDEP responded that
``the practical effect of the decision is to render ineffective the
1986 amendments and return the law to the same essential configuration
as it appeared in 1985. Therefore, in the absence of further amendment
to the PPSA, it would appear necessary for EPA to resume final
permitting authority over PSD for new PPSA sources.'' Letter from Carol
M. Browner, Florida Department of Environmental Regulation, to Greer C.
Tidwell, EPA Region 4 (April 27, 1992). EPA agreed with FDEP, and
consequently, on August 7, 1992, we revoked Florida's full federal
delegation of PSD authority for PPSA sources. FDEP, however, retained
partial federal delegation to conduct the technical and administrative
portion of the federal PSD program for power plants subject to the
Florida PPSA (with EPA again retaining final permitting authority).
Letter from Greer C. Tidwell, EPA Region 4, to Carol M. Browner,
Florida Department of Environmental Regulation (August 7, 1992).
In 1993, the Florida Legislature again amended the PPSA to address
concerns over the inappropriate influence of the Florida Power Plant
Siting Board's certification decisions on the PSD permitting process.
The amendments, which took effect on April 22, 1993, expressly provided
that the ``Department's action on a federally required new source
review or prevention of significant deterioration permit shall differ
from the actions taken by the siting board regarding the certification
if the federally approved state implementation plan requires such a
different action to be taken by the department. Nothing in this part
the PPSA shall be construed to displace the federally approved permit
program.'' In light of this 1993 amendment to the PPSA, FDEP requested
that EPA grant it full federal delegation of PSD permitting authority
for sources subject to both the federal PSD regulations and the PPSA.
Letter from Virginia B. Wetherell, Florida Department of Environmental
Protection, to Patrick Tobin, EPA Region 4 (September 27, 1993) .
Because 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 a different action, EPA once
again granted full federal delegation to FDEP on October 26, 1993.
Letter from Patrick Tobin, EPA Region 4, to Virginia Wetherell, Florida
Department of Environmental Protection. (October 26, 1993).
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. Specifically, language requiring that a PPSA application
for certification include ``documents necessary for the department to
render a decision on any permit required pursuant to any federally
delegated or approved permit program'' was deleted from the PPSA;
language requiring that FDEP's action on a PSD permit be based on the
recommended order of the PPSA certification hearing was removed; and
requirements that administrative procedures used in the issuance of PSD
and operating permits follow the administrative procedures of the PPSA
were also removed.
Following our 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, we withdrew the rule on June 28, 2007
(72 FR 35355) and indicated that the rule would not take effect.
V. What is the basis for EPA's proposed SIP-approval of the inclusion
of electric power plants in Florida's PSD program?
EPA continues to believe, for the reasons detailed above, that 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. We
also believe that by proposing this SIP-approval through this
rulemaking (rather than by direct final rulemaking) 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 example, a number of
environmental organizations, in jointly submitted comments, expressed
concern that a direct final rulemaking was not the proper process for
this particular SIP action because of public interest in providing
comments, that any SIP-approval to make the State's PSD program, rather
than the federal PSD program, applicable to electric power plants in
Florida required a full review of the State's PSD regulations to ensure
compliance with federal law, and that any such SIP-approval should be
done in conjunction with a review of the State's PSD regulatory
revisions made for purposes of addressing EPA's 2002 NSR Reform Rules.
While EPA disagrees that our previous direct final rulemaking for
this matter was not procedurally appropriate and that a wholesale
revisiting of all Florida PSD regulations is required in order to make
the State's PSD program applicable to sources covered by the PPSA, we
believe that there is value-added to the public's review of this matter
by including it with our proposed action on the State's current PSD
revisions. In addition, we have, in response to other comments made on
our May 2007 direct final rule, added more detail and Docket material
in this proposed rulemaking action in support of the various
delegations of federal authority made to FDEP since 1985 in response to
the PPSA problem. Finally, with regard to several remaining comments on
the May 2007 direct final rule, EPA notes that SIP approval actions,
whether done through a direct final rulemaking process or a proposed/
final rulemaking process are not Section 307(d) rulemakings under the
CAA and do not require the inclusion of elements listed in Section
307(d)(3). Rather, EPA chooses to use the Administrative Procedure
Act's notice and comment rulemaking process to ensure public notice of
EPA action. In any event, we believe that today's proposed rulemaking
includes all information
[[Page 18473]]
necessary for informed public comment on the proposed approval.
VI. Proposed Action
EPA is proposing to conditionally approve revisions to the Florida
SIP (F.A.C. Chapters 62-204, 62-210 and 62-212) submitted by FDEP on
February 3, 2006. As part of the conditional approval, 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 section
200.243(a) 2 of F.A.C. Chapter 62-210; and (4) revise the recordkeeping
requirements at 62-212.300 to be consistent with federal requirements.
In addition to and in conjunction with the proposed conditional
approval of Florida's PSD SIP revisions, EPA is proposing 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. Any final approval of this request would mean that
Florida's SIP-approved PSD permitting program, including any final
conditional approval of the State's PSD revisions noted above, would
apply to electric power plants in Florida in lieu of the current
federally delegated PSD program.
VII. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), these
proposed actions are not ``significant regulatory actions'' and
therefore are not subject to review by the Office of Management and
Budget. For this reason, these actions are also not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001). These proposed actions merely propose to approve
State law as meeting Federal requirements and impose no additional
requirements beyond those imposed by State law. Accordingly, the
Administrator certifies that the proposed approvals in this proposed
rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). Because this rule proposes to approve pre-existing
requirements under State law and does not impose any additional
enforceable duty beyond that required by State law, it 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).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (59 FR 22951, November 9, 2000). These proposed actions
also do not have Federalism implications because they do not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
These proposed actions merely propose to approve State rules
implementing a Federal standard, and do not alter the relationship or
the distribution of power and responsibilities established in the CAA.
This proposed rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it approves State rules
implementing a Federal standard.
In reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This proposed rule does not impose
an information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 27, 2008.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.
[FR Doc. E8-7073 Filed 4-3-08; 8:45 am]
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