[Federal Register Volume 62, Number 12 (Friday, January 17, 1997)]
[Rules and Regulations]
[Pages 2587-2590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1077]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FL-68-2-9640a; FRL-5662-1]
Approval and Promulgation of Implementation Plans State: Approval
of Revisions to the State of Florida State Implementation Plan (SIP)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving revisions to the Florida State Implementation
Plan (SIP) to allow the State air pollution control agency to utilize
exclusionary rules via general permits for the purpose of limiting
potential to emit (PTE) criteria pollutants for certain source
categories to less than the title V permitting major source thresholds.
EPA is also approving under section 112(l) of the Clean Air Act (CAA)
the same source-categories of the submitted regulations for limiting
PTE of hazardous air pollutants (HAP) to less than title V permitting
major source thresholds. These exclusionary rules allow facilities to
compute potential emissions based on actual emissions or raw material
usage for the following source categories: Asphalt concrete plants,
bulk gasoline plants, emergency generators, surface coating operations,
heating units and general purpose internal combustion engines,
polyester resin plastic products, cast polymer operations; and mercury
reclamation and recovery operations. On April 15, 1996, the State of
Florida through the Department of Environmental Protection (DEP)
submitted a SIP revision fulfilling the requirements necessary to
utilize exclusionary rules to limit PTE of air pollutants in a
federally enforceable manner. On August 6, 1996, the State of Florida
submitted updates to the earlier submittal which also fulfill the
requirements necessary to utilize exclusionary rules to limit PTE in a
federally enforceable manner.
DATES: This final rule is effective March 18, 1997 unless adverse or
critical comments are received by February 18, 1997. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments on this action should be addressed to Scott
Miller at the Environmental Protection Agency, Region 4 Air Planning
Branch, 100 Alabama Street, SW, Atlanta, Georgia 30303. Copies of
documents relative to this action are available for public inspection
during normal business hours at the following locations. The interested
persons wanting to examine these documents should make an appointment
with the appropriate office at least 24 hours before the visiting day.
Reference file FL-68-2-9640. The Region 4 office may have additional
background documents not available at the other locations.
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460.
Environmental Protection Agency, Region 4 Air Planning Branch, 100
Alabama Street, SW, Atlanta, Georgia 30303. Scott Miller, 404/562-9120.
Florida Department of Environmental Protection, Division of Air
Resources Management, 2600 Blair Stone Road, MS 5500, Tallahassee,
Florida 32399-2400.
FOR FURTHER INFORMATION CONTACT: Scott Miller at 404/562-9120.
[[Page 2588]]
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
On April 15, 1996, the State of Florida through the DEP submitted a
SIP revision designed to allow the agency to utilize exclusionary rules
for the purpose of limiting PTE for asphalt concrete plants, bulk
gasoline plants, emergency generators, surface coating operations,
heating units and general purpose internal combustion engines,
polyester resin plastic products, cast polymer operations, and mercury
reclamation and recovery operations. On August 6, 1996, the State of
Florida submitted updates to the earlier submittal which also fulfill
the requirements necessary to utilize exclusionary rules to limit PTE
in a federally enforceable manner. Exclusionary rules are designed to
create federally enforceable limits on a facility's PTE in a manner
that does not require a facility-specific evaluation of emissions and
limiting conditions. As such, exclusionary rules are appropriate for
the purpose of limiting PTE when a facility has one type of emission
source. EPA is approving all source-category rules found at Florida
Administrative Code (F.A.C.) at 62-210.300(3)(c) and 62-210.300(4),
submitted for purposes of limiting PTE for criteria pollutants into the
SIP. The DEP is implementing these exclusionary rules found at 62-
210.300(3)(c) through general permitting regulations found at 62-
210.300(4). EPA is also approving under section 112(l) of the CAA, the
regulations found in the F.A.C. 62-210.300(3)(c) and 62-210.300(4) for
purposes of limiting PTE of HAP. For a description of this and other
ways to limit PTE for a facility see the EPA guidance document entitled
``Options for Limiting the Potential to Emit (PTE) of a Stationary
Source Under Section 112 and Title V of the Clean Air Act (Act)'' dated
January 25, 1995, from John Seitz to the EPA Regional Air Division
Directors.
These rules which set out specific conditions for a facility to
limit its PTE were designed to meet criteria listed in the EPA guidance
memorandum entitled ``Guidance for State Rules for Optional Federally
Enforceable Emissions Limits Based on Volatile Organic Compound Use''
dated October 15, 1993, from D. Kent Barry to the EPA Regional Air
Division Directors, an EPA guidance document entitled ``Approaches to
Creating Federally-Enforceable Emissions Limits'' dated November 3,
1993, and the January 25, 1995, guidance memorandum referenced above.
These guidance documents set out specific guidelines for exclusionary
rule development regarding applicability, compliance determination and
certification, monitoring, reporting, record keeping, public
involvement, practical enforceability, and the requirement that a
facility cannot rely on emission limits or caps contained in a
exclusionary rule to justify violation of any rate-based emission
limits or other applicable requirements.
These regulations apply to facilities which agree to limit their
annual emissions to less than major source thresholds for criteria and/
or HAP emissions. A rule which sets out the operating parameters must
also provide that a facility owner or operator specifically apply for
coverage under the exclusionary rule. F.A.C. Regulations 62-
210.300(3)(c) and 62-210.300(4) provide that the exclusionary rules are
for certain source categories to define and limit their potential
emissions to less than major source levels for title V purposes. The
source categories covered by the exclusionary rules are asphalt
concrete plants, bulk gasoline plants, emergency generators, surface
coating operations, heating units and general purpose internal
combustion engines, polyester resin plastic products, cast polymer
operations, and mercury reclamation and recovery operations. F.A.C.
Regulation 62-210.300(3)(c) provides that even though a facility is
exempted from obtaining a title V permit by complying with these
exclusionary rules, it is still required to obtain a general permit. As
such, these regulations meet the guidelines specified in the October
15, 1993, and the January 25, 1995, guidance documents that require an
exclusionary rule to clearly identify the category of sources that
qualify for the rule's coverage.
The October 15, 1993, and the January 25, 1995, guidance documents
suggest that facilities be required to show compliance with the
exclusionary rule on a yearly basis by requiring monthly record keeping
of the relevant variable causing emissions and showing compliance using
the monthly record of the relevant variable affecting emissions. The
January 25, 1995, guidance document stipulates that where monitoring
cannot be used to determine emissions directly, limits on appropriate
operating parameters must be established for the units or source, and
monitoring must verify compliance with those limits. In the case of the
Florida exclusionary rule regulations, a facility is required to keep
records of the use of or processing of a product or substance that
produces the emissions. For instance, F.A.C. Regulation 62-
210.300(3)(c)1.g requires concrete asphalt facilities to keep monthly
and twelve-month rolling total records of asphaltic concrete produced,
gallons of fuel oil consumed and the hours of operation. The asphalt
concrete facility must then show compliance with the 500,000 ton per
any consecutive twelve-month period, fuel-oil consumption records that
show that no more than 1.2 million gallons are combusted in any
consecutive twelve-month period, and that fuel-oil sulfur content is
less than or equal to 1 percent sulfur as determined by ASTM methods
ASTM D4057-88, D129-91, D2622-94, or D4294-90. Finally, a concrete
asphalt facility must keep records of its operating hours to show that
operating hours do not exceed 4000 hours in any consecutive twelve-
month period. EPA believes that the exclusionary rules submitted by the
DEP meet the guidelines outlined in the October 15, 1993, and January
25, 1995, guidance documents for purposes of detailing specific
compliance monitoring to show compliance with the relevant exclusionary
rule limit.
The October 15, 1993, guidance document recommends that all
submittals that result from exclusionary rules be certified for truth,
accuracy, and completeness. Each facility which chooses to be covered
by an exclusionary rule submitted by the DEP must make submissions
which are certified by the appropriate official as defined under the
Air General Permit Notification Form. For instance, F.A.C. Regulation
62-210.300(3)(c)1.j requires concrete asphalt facilities to submit a
notification to DEP that certifies that the facility is operating in
compliance with the exclusionary rule to which it is subject. In
addition, the facility must also certify that it will continue to
operate in compliance with the exclusionary rule to which it is
subject. EPA believes that the DEP exclusionary rules meet the
requirements of the October 15, 1993, guidance document for purposes of
certifying compliance with the exclusionary rule to which a facility is
subject.
The October 15, 1993, guidance document recommends that reporting
requirements should vary based on how close the facility emissions are
to the relevant major source threshold. For facilities with emissions
that are close to the major source threshold, the guidance recommends
that a state or local air pollution control agency require more
frequent reporting of the variable affecting emissions (e.g., gasoline
throughput). In lieu of requiring facilities to report emissions to
DEP, DEP requires the facility to
[[Page 2589]]
maintain records for a period of five years from their origination.
These records are required to be readily available for submission or
inspection on-site. In addition, the DEP has committed to inspect ten
percent of facilities subject to an exclusionary rule every year. While
the rules submitted by the DEP do not match recommended guidelines
found in the October 15, 1993, guidance document for reporting
requirements, the EPA believes that the DEP inspections of subject
facilities, along with the above mentioned record keeping requirements,
are sufficient to ensure compliance by subject facilities.
The October 15, 1993, and the January 25, 1995, guidance documents
specify that record keeping is required by a facility to show that the
facility is eligible for the exclusionary rule and that the facility is
in compliance with the relevant exclusionary rule. The October 15,
1993, guidance document requires that record keeping shall be
maintained on site and available to the permitting authority upon
demand. The October 15, 1993, guidance document also requires that a
facility be required to retain records for a period sufficient to
support enforcement efforts. The DEP regulations require that copies of
all records required to be kept for exclusionary rule purposes be kept
on site and be available to each agency on demand. The exclusionary
rules submitted by DEP require that records be kept for a period of
five years from the date the records are originated. EPA believes that
a five year time period is an adequate time period for a facility
subject to an exclusionary rule to maintain records in order to support
enforcement efforts.
The November 3, 1993, and the January 25, 1995, guidance documents
set out requirements for public involvement in the development and
application of exclusionary rules. The November 3, 1993, guidance
document states that if exclusionary rules are sufficiently reliable
and replicable, EPA and the public need not be involved with their
application to individual sources, as long as the protocols themselves
have been subject to notice and opportunity to comment and have been
approved by EPA into the SIP. The January 25, 1995, guidance document
provides that source-category standards approved into the SIP or under
section 112(l) of the CAA, if enforceable as a practical matter, can be
used as federally enforceable limits on PTE. Once a specific source
qualifies under the applicability requirements of the source-category
rule, additional public participation is not required to make the
limits federally enforceable as a matter of legal sufficiency since the
rule itself underwent public participation and EPA review. The DEP
general permit exclusionary rules underwent public participation at the
State level when these rules were made State-effective by the DEP. EPA
has had an opportunity to review these regulations and is publishing
this document to take comment on these regulations at the national
level. Later in this Federal Register document, practical
enforceability of DEP's exclusionary rules will be addressed. EPA
believes that, with this Federal Register document and other public
process received at the State and local level, the DEP exclusionary
rules satisfy requirements for public participation outlined in the
November 3, 1993, and the January 25, 1995, guidance documents.
The January 25, 1995, guidance document sets out requirements for
exclusionary rule conditions to be practically enforceable. These
requirements stem from past precedence in what the EPA has required for
a permit to be considered enforceable as a practical matter. See 54 FR
27274 (June 28, 1989) and a June 13, 1989, EPA policy memorandum
entitled ``Limiting Potential to Emit in New Source Permitting.'' The
criteria include clear statements as to the applicability, specificity
as to the standard that must be met, explicit statements of the
compliance time frames (e.g., hourly, daily, monthly, or 12-month
averages, etc.), that the time frame and method of compliance employed
must be sufficient to protect the standard involved, record keeping
requirements must be specified, and equivalency provisions must meet
specific requirements. In general, practical enforceability means that
the provision must specify; (1) A technically accurate limitation and
the portions of the source subject to the limitation; (2) the time
period for the limitation; and (3) the method to determine compliance
including appropriate monitoring, record keeping, and reporting. All of
these elements have been discussed prior to this paragraph in this
Federal Register with the exception of (2) above. The DEP regulations
require facilities subject to the exclusionary rule to keep records on
a monthly basis and to determine compliance with a yearly limit on a
calendar monthly rolling average basis. This method for determining
compliance with the exclusionary rule limitation was addressed
specifically as one practically enforceable way to show compliance with
a permit limit in the June 13, 1989, guidance document entitled
``Limiting Potential to Emit in New Source Permitting.'' As such, EPA
believes the DEP general permit exclusionary rule regulations meet the
requirements necessary for exclusionary rules to be enforceable as a
practical matter.
Finally, the October 15, 1993, guidance document stipulates that a
facility cannot rely on emission limits or caps contained in a
exclusionary rule to justify violation of any rate-based emission
limits or other applicable requirements. This requirement is reflected
by the fact that exclusionary rules are carried out through general
permits. These general permits contain other requirements to which a
facility is subject. Since the general permit will include all
requirements to which a facility is subject, it follows that the
exclusionary rules contained in the general permit cannot be used to
override other requirements found in the permit. Therefore, EPA
believes that the DEP exclusionary rules meet the requirements listed
in the October 15, 1993, guidance document regarding the use of an
exclusionary rule cap to justify violation of any rate-based emission
limit or other applicable requirements.
Eligibility for federally enforceable exclusionary rule
certifications extends not only to certifications made after the
effective date of this rule, but also to certifications issued under
the State rule prior to the effective date of this rulemaking. If the
State agency followed its own regulation, it received exclusionary rule
certifications that established a limiting condition on a facility's
PTE. EPA will consider all such exclusionary rule certifications which
were submitted in a manner consistent with the State agency regulations
as federally enforceable upon the effective date of this action.
II. Final Action
In this action, the EPA is approving the State of Florida
exclusionary rules and general permit regulations found at FAC
Regulation 62-210.300(3)(c) and 62-210.300(4) into the Florida SIP. The
EPA is approving Florida regulations FAC Regulation 62-210.300(3)(c)
and 62-210.300(4) for purposes of limiting PTE of HAP under section
112(l) of the CAA. The EPA is publishing this document without prior
proposal because the EPA views this as a noncontroversial amendment and
anticipates no adverse comments. However, in a separate document in
this Federal Register publication, EPA is proposing to approve the SIP
revision should adverse or critical comments be filed. This action will
be effective March 18, 1997 unless, by February 18, 1997,
[[Page 2590]]
adverse or critical comments are received. If the EPA receives such
comments, this action will be withdrawn before the effective date by
publishing a subsequent document that will withdraw the final action.
All public comments received will be addressed in a subsequent final
rule based on this action serving as a proposed rule. The EPA will not
institute a second comment period on this action. Any parties
interested in commenting on this action should do so at this time. If
no such comments are received, the public is advised that this action
will be effective March 18, 1997.
EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Amendments
enacted on November 15, 1990. EPA has determined that this action
conforms with those requirements.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the SIP
shall be considered separately in light of specific technical,
economic, and environmental factors and in relation to relevant
statutory and regulatory requirements.
III. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this action from review under Executive Order 12866.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600, EPA must
prepare a regulatory flexibility analysis assessing the impact of any
proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. Section 7410(a)(2).
C. Unfunded Mandates Reform Act of 1995
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate, or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the final action promulgated today does not
include a Federal mandate that may result in estimated costs of $100
million or more to State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 18, 1997. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides.
Dated: August 29, 1996.
R. F. McGhee,
Acting, Regional Administrator.
Part 52 of chapter I, title 40, Code of Federal Regulations, is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 continues to read as follows:
Authority: 42.U.S.C. 7401-7671q.
Subpart K--Florida
2. Section 52.520, paragraph (c) is amended by adding paragraph
(97) to read as follows:
Sec. 52.520 Identification of plan.
* * * * *
(c) * * *
(97) General permit rules and exclusionary rules for the State of
Florida Department of Environmental Protection submitted by the Florida
Department of Environmental Protection as part of the Florida SIP.
(i) Incorporation by reference.
(A) Florida Administrative Code Regulation 62-210.300(3)(c) and 62-
210.300(4) of the Florida SIP as adopted by the Secretary of the
Florida Department of Environmental Protection on July 26, 1996 and
which became effective on August 15, 1996.
(ii) Other material. None.
[FR Doc. 96-1077 Filed 1-16-97; 8:45 am]
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