2011-8701. Approval and Promulgation of Implementation Plans: Florida; Prevention of Significant Deterioration

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to convert a conditional approval of provisions in the Florida State Implementation Plan (SIP) to a full approval under the federal Clean Air Act (CAA or Act). On June 17, 2009, the State of Florida, through the Florida Department of Environmental Protection (FDEP), submitted a SIP revision in response to the conditional approval of its New Source Review (NSR) permitting program. The revision includes changes to certain parts of the Prevention of Significant Deterioration (PSD) construction permit program in Florida, including the definition of “new emissions unit,” “regulated air pollutant” and “significant emissions rate” as well as recordkeeping requirements. In addition, Florida provided a clarification that the significant emissions rate for mercury in the Florida regulations is intended to apply as a state-only provision. EPA has determined that this revision addresses the conditions identified in the conditional approval, and is therefore approvable. This action is being taken pursuant to section 110 of the CAA.

DATES:

This direct final rule is effective June 13, 2011 without further notice, unless EPA receives adverse comment by May 12, 2011. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R04-OAR-2006-0130, by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Fax: [phone].

4. Mail: EPA-R04-OAR-2006-0130, 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 http://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 http://www.regulations.gov or e-mail, information that you consider to be CBI or otherwise protected. The http://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 http://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 http://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 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 SIP, contact Twunjala Bradley, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms. Bradley may also be reached via telephone or electronic mail at [phone] and [e-mail]. For information regarding NSR, contact Yolanda Adams, Air Permits Section, at the same address above. Ms. Adams may also be reached via telephone or electronic mail at [phone] and [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

II. EPA's Analysis of How Florida's Revisions Satisfy the Terms of the Conditional Approval

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

On February 3, 2006, FDEP submitted a revision to its PSD regulations in response to the 2002 NSR Reform Rules for EPA approval into the Florida SIP.^[1] The February 3, 2006, SIP revision included changes to the Florida SIP, specifically in Florida Administrative Code (F.A.C.) Rules, Chapters 62-204—Air Pollution Control—General Provisions, 62-210—Stationary Sources—General Requirements, and 62-212—Stationary Source—Preconstruction Review, which became state-effective on February 2, 2006, and February 12, 2006. EPA proposed to conditionally approve these PSD SIP rules under section 110 of the CAA on April 4, 2008. See 73 FR 18466. In the April 4, 2008 rulemaking, EPA determined that portions of Florida's February 3, 2006 SIP revision were not consistent with the federal PSD regulations set forth at 40 CFR 51.166. Therefore, EPA proposed to conditionally approve Florida's PSD program which established a commitment from FDEP to adopt the necessary regulations for consistency with federal PSD provisions to obtain full approval. EPA did not receive any comments on the proposal. EPA finalized its conditional approval of F.A.C. Chapters 62-204, 62-210, and 62-212, into the Florida SIP on June 27, 2008. See 73 FR 36435.

On June 17, 2009, FDEP submitted the revision to its SIP incorporating the changes required by EPA as outlined in the conditional approval. See 73 FR 18466. Specifically, the June 17, 2009, SIP revision changes definitions in F.A.C Chapter 62-210.200 for “new emissions unit,” “regulated air pollutant,” and “significant emissions rate” as well as the recordkeeping requirements in F.A.C. Chapter 62-212.300(3)(a)1. In addition, Florida provided a clarification that the significant emissions rate for mercury in the Florida regulations is considered a state-only provision and is not intended to be incorporated into the Florida SIP. After consideration, EPA concludes that the June 17, 2009, SIP revision satisfies the conditions listed in EPA's June 27, 2008, conditional approval. Today, EPA is converting the June 27, 2008, conditional approval to a full approval.

II. EPA's Analysis of How Florida's Revisions Satisfy the Terms of the Conditional Approval

In response to EPA`s June 27, 2008, conditional approval, Florida made three changes to its PSD requirements. These changes were required to ensure that Florida's PSD program is consistent with the federal PSD regulations (at 40 CFR 51.166) to obtain full approval of the program. First, Florida changed the definition of “new emissions unit” in F.A.C. Chapter 62-210.200 to indicate that it is a unit “ * * * that has existed for less than 2 years from the date such emissions unit first operated.” This definition is consistent with the federal definition of “New Emissions Unit” found at 40 CFR 51.166(b)(7)(i). Second, Florida changed the definitions of “Regulated Air Pollutant” and “Significant Emissions Rate” in F.A.C. Chapter 62-210.200 to include ozone depleting substances. This change is consistent with the federal definition of “Significant” in 40 CFR 51.166(b)(23). Third, Florida changed its recordkeeping requirements in F.A.C. Chapter 62-212.300(3)(a)1 to clarify that the applicant must provide 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. This change is consistent with the federal recordkeeping requirements at 40 CFR 51.166(r)(6).

In addition, Florida provided a clarification that the significant emissions rate for mercury is considered a state-only provision and is not intended to be incorporated into the Florida SIP. EPA has determined that this clarification satisfies the condition listed in EPA's conditional approval.

III. Final Action

As explained above, FDEP submitted changes to the definition of “new emissions unit,” “regulated air pollutant,” and “significant emissions rate” in F.A.C. Chapter 62-210.200 and the recordkeeping requirements in F.A.C. Chapter 62-212.300(3)(a)1. In addition, FDEP provided a clarification that the significant emissions rate for mercury in the Florida regulations is intended to apply as a state-only requirement only and is not intended to be incorporated into the Florida SIP. FDEP has satisfied the conditions listed in EPA's conditional approval. Therefore, EPA is taking direct final action to convert its conditional approval of Florida's SIP revisions to a full approval of Florida's PSD program.

As a result of Florida's June 17, 2009, SIP revision satisfying the conditional approval requirements and EPA's conversion to a full approval, the conditional approval language at § 52.519 of 40 CFR part 52, included in EPA's final conditional approval published June 27, 2008 (73 FR 36435), is no longer necessary. This action removes the conditional approval language relating to Florida's PSD program from the CFR to reflect that the program has been approved. EPA is publishing this rulemaking to remove and reserve § 52.519 of 40 CFR part 52.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective June 13, 2011 without further notice unless the Agency receives adverse comments by May 12, 2011.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 13, 2011 and no further action will be taken on the proposed rule.

IV. 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);
• 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 June 13, 2011. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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
• Incorporation by reference
• Intergovernmental relations
• Ozone, and Reporting and recordkeeping requirements

Dated: March 31, 2011.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

40 CFR part 52 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 et seq.

Subpart K—Florida

§ 52.519

[Removed and Reserved]

2. Section 52.519 is removed and reserved.

3. Section 52.520(c) is amended by revising entries “62-210.200” and “62-212.300” to read as follows:

§ 52.520

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Florida Regulations

State citation (Section)	Title/subject	State effective date	EPA approval date	Explanation
*          *          *          *          *          *          *
Chapter 62-210 Stationary Sources—General Requirements
*          *          *          *          *          *          *
62-210.200	Definitions	6/29/09	4/12/11 [Insert citation of publication]
*          *          *          *          *          *          *
Chapter 62-212 Stationary Sources—Preconstruction Review
*          *          *          *          *          *          *
62-212.300	General Preconstruction Review Requirements	6/29/09	4/12/11 [Insert citation of publication]
*          *          *          *          *          *          *

* * * * *

Footnotes

1.  On December 31, 2002 (67 FR 80186), EPA published final rule changes to 40 CFR parts 51 and 52, regarding the CAA's PSD and nonattainment NSR 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. The December 31, 2002, and the November 7, 2003, final actions are collectively referred to as the “2002 NSR Reform Rules.”