10EPA interprets 166(a) to authorize EPA to promulgate pollutant-specific PSD regulations meeting the requirements of section 166(c) and 166(d) for any pollutant for which EPA promulgates a NAAQS after 1977.
2. Significant Monitoring Concentrations
As mentioned above, the SMC numerical value represents a threshold of insignificant (i.e.,de minimis) monitored ambient impacts on pollutant concentrations. In the PM2.5PSD Increment-SILs-SMC Rule, EPA established a PM2.5SMC of 4 µg/m3to be used as a screening tool by a major source subject to PSD to determine the subsequent level of PM2.5data gathering required for a PSD permit application. Using the SMC as a screening tool, sources may be able to demonstrate that the modeled air quality impact of emissions from the new source or modification, or the existing air quality level in the area where the source would construct, is less than the SMC (i.e.,de minimis), and as such, may be allowed to forego the preconstruction monitoring requirement for a particular pollutant at the discretion of the reviewing authority.
Recently, the Sierra Club filed suit challenging EPA's authority to implement the PM2.5SILs11
as well as the SMC for PSD purposes as promulgated in the October 20, 2012, rule.Sierra Clubv.EPA,Case No 10-1413, DC Circuit Court. Specifically, regarding the SMC, Sierra Club claims that the use of SMCs to exempt a source from submitting a year's worth of monitoring data is inconsistent with the CAA. EPA responded to Sierra Club's claims in a Brief dated April 6, 2012, which describes the Agency's authority to develop and promulgate SMC.12
A copy of EPA's April 6, 2010, Brief can be found in the docket for today's final rulemaking atwww.regulations.govusing docket ID: EPA-R04-OAR-2012-0555.
11As mentioned earlier, due to litigation by the Sierra Club, EPA is not taking final action on the SILs portion of the Florida March 15, 2012, SIP revision at this time but will take action once the court case regarding SILs implementation is resolved.
12Additional information on this issue can also be found in an April 25, 2010, comment letter from EPA Region 6 to the Louisiana Department of Environmental Quality regarding the SILs-SMC litigation. A copy of this letter can be found in the docket for today's rulemaking atwww.regulations.govusing docket ID: EPA-R04-OAR-2012-0555.
II. This Action
EPA is taking final action to approve into the Florida SIP portions of the State's March 15, 2012, SIP revision to adopt the PSD permitting regulations to implement the PM2.5NAAQS including the NSR PM2.5and PM2.5Increment-SILs-SMC Rules. FDEP's PSD program definitions and preconstruction permitting rules are found at rule 62-210.200, F.A.C., and rules 62-212.300 through 62-212.400, F.A.C., respectively and apply to major stationary sources or modifications constructed in areas designated attainment or unclassifiable/attainment as required under part C of title I of the CAA with respect to the NAAQS. These changes to Florida's rules became state effective on March 28, 2012. FDEP's SIP revision adopts the NSR PM2.5Rule PSD provisions including: (1) The requirement for NSR permits to address directly emitted PM2.5and precursor pollutants; (2) the amendment establishing significant emission rates for direct PM2.5and precursor pollutants (SO2and NOX) and recognizing PM2.5precursors for the definition of “significant emission rates” (at rule 62-21.200(282)) (as amended at 40 CFR 51.166(b)(23)(i)); and (3) the PSD requirement for states to address condensable PM in establishing enforceable emission limits for PM10and PM2.5(at 62-212.300(1)(f)) as promulgated at 40 CFR 51.166(b)(49). Additionally, Florida's March 15, 2012, SIP revision did not adopt the grandfathering provision at 40 CFR 52.21(i)(1)(xi) in accordance with the repeal of the PM2.5grandfathering provision.
Regarding the condensable provision and EPA's intent to amend the definition of “regulated NSR pollutant” as discussed in the March 16, 2012, correction rulemaking, Florida's March 15, 2012, SIP revision did not adopt the term “particulate matter emissions” regarding the requirement to consider condensables as promulgated in the NSR PM2.5Rule.See77 FR 15656. As mentioned above, EPA is taking final action to approve into the Florida SIP the remaining condensable requirement at 40 CFR 51.166(b)(49)(vi), which requires that condensable emissions be accounted for in applicability determinations and in establishing emissions limitations for PM2.5and PM10.Florida's March 15, 2012, SIP revision added definitions for “condensable
10” at 62-210.200(94), “condensable
2.5” at 62-210-200(95) and “condensable PM”at 62-210.200(93), for clarification purposes. EPA is taking final action to approve the aforementioned changes into the Florida SIP.
With respect to the PM2.5PSD Increment-SILs SMC Rule, EPA is taking final action to also approve into the Florida SIP the PSD increments for PM2.5annual and 24-hour NAAQS pursuant to section 166(a) of the CAA and SMC of 4 µg/m3for PM2.5NAAQS. The March 15, 2012, SIP revision: (1) Revises the definition for “maximum allowable increase”to incorporate by reference (IBR) the PM2.5PSD increments numerical values (established in the ambient air increment tables at 40 CFR 51.166(c)(1) and 52.21(c) at 62-204.800, F.A.C.13
); (2) amends the definitions for “major source baseline date”and “minor source baseline date”to establish relevant dates for PM2.5increment consumption and establish trigger dates (as established at 40 CFR 51.166(b)(14)(i)(c) and 51.166(b)(14)(ii)(c) respectively) and; (3) revises the definition for “baseline area”as promulgated at 40 CFR 51.166(b)(15)(i) and (ii) and adds definitions for“baseline concentration.”The March 15, 2012, SIP submission also adds definitions for “Class I Area”and “Class II
Area”at Chapter 62-210.200(77) and (78), F.A.C., respectively. The definition for Class I Area IBR 40 CFR part 81, Subpart D (the federal Class I Area list) at rule 62-204.800, F.A.C.
13Florida IBR federal rules at rule 62-204.800 F.A.C.
Regarding the SILs and SMC, EPA's authority to implement the PM2.5SILs and SMC is currently the subject of litigation by the Sierra Club. In a brief filed in the DC Circuit on April 6, 2012, EPA described the Agency's authority under the CAA to promulgate and implement the SMCs and SILsde minimisthresholds.Sierra Clubv.EPA,Case No 10-1413 DC Circuit. However, EPA is finalizing approval of the promulgated SMC thresholds into the Florida SIP (at rule 62-212.400(3)(e)1, F.A.C.) because the Agency believes the SMC is a valid exercise of the Agency'sde minimisauthority as well as the fact they are consistent with EPA's promulgated levels in the PM2.5PSD Increment-SILs-SMC Rule. The ongoing litigation may result in the court decision that may require subsequent rule revisions and SIP revisions from Florida.
In response to the litigation, EPA requested that the court remand and vacate the new regulatory text at 40 CFR 51.166(k)(2) and 52.21(k)(2) concerning the implementation of SILs for PM2.5so that EPA can make necessary rulemaking revisions to that text.14
In light of EPA's request for remand and vacatur and our acknowledgement ofthe need to revise the regulatory text presently contained at paragraph (k)(2) of sections 51.166 and 52.21, the Agency has determined at this time not to approve the SILs portion of FDEP's March 15, 2012, SIP revision that contains the affected regulatory text in Florida's PSD regulations at rule, 62-212.400(5), F.A.C., and 62-210.200(283)(c), F.A.C. EPA will take action on the SILs portion of Florida's March 15, 2012, SIP revision in a separate rulemaking once the issue regarding the court case has been resolved.15
14In the preamble to the October 20, 2010, final rule EPA indicates that the Agency does not consider the SILs to be a mandatory SIP element, but regard them as discretionary on the part of regulating authority for use in the PSD permitting process.See75 FR 64864 at 64899.
15EPA is currently developing guidance to provide a provisional course of action to implement the PM2.5SILs pending revision to implementing (k)(2) provisions and the litigation. The guidance will ensure that the PM2.5SILs are properly applied as part of a PSD compliance demonstration to show that a source's impact will not cause or contribute to a violation of the PM2.5NAAQS or increment.
III. Final Action
EPA is taking final action to approve portions of Florida's March 15, 2012, SIP revision (with the exception of the SILs threshold and provisions), that adopt federal permitting regulations amended in the NSR PM2.5and the PM2.5PSD Increment-SILs-SMC Rules to implement the PM2.5NAAQS for the NSR program because they are consistent with section 110 of the CAA and its regulations regarding NSR permitting.
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. 3501et 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. 601et 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. 801et 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 theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal 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 November 19, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.Seesection 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, and Volatile organic compounds.
Dated: September 6, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
1. The authority citation for part 52 continues to read as follows:
42. U.S.C. 7401et seq.
2. Section 52.520(c) is amended under Chapters 62-210 and 62-212 by revising the entries for “Section 62-210.200” and “Section 62-212.400” to read as follows:
Identification of plan.
(c) * * *
EPA-Approved Florida Regulations
State effective date
EPA approval date
Chapter 62-210Stationary Sources—General Requirements
March 28, 2012
September 19, 2012 [Insert citation of publication]
As of September 19, 2012, 61-210.200 does not include Florida's revision to adopt the PM2.5SILs threshold and provisions (as promulgated in the October 20, 2010, PM2.5PSD Increment-SILs-SMC Rule at 40 CFR 52.21(k)(2)).
Chapter 62-212Stationary Sources—Preconstruction Review
Prevention of Significant Deterioration
March 28, 2012
September 19, 2012 [Insert citation of publication]
As of September 19, 2012, 61-212.400 does not include Florida's revision to adopt the PM2.5SILs threshold and provisions (as promulgated in the October 20, 2010, PM2.5PSD Increment-SILs-SMC Rule at 40 CFR 52.21(k)(2)).