Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations 58027 

The basis for this determination is that 

our decision is on a State regulatory 

program and does not involve Federal 

regulations involving Indian lands. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211, which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

National Environmental Policy Act 

This rule does not require an 

environmental impact statement 

because section 702(d) of SMCRA (30 

U.S.C. 1292(d)) provides that agency 

decisions on proposed State regulatory 

program provisions do not constitute 

major Federal actions within the 

meaning of section 102(2)(C) of the 

National Environmental Policy Act (42 

U.S.C. 4332(2)(C)). 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3507 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this 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.). The State submittal, 

which is the subject of this rule, is based 

upon counterpart Federal regulations for 

which an economic analysis was 

prepared and certification made that 

such regulations would not have a 

significant economic effect upon a 

substantial number of small entities. In 

making the determination as to whether 

this rule would have a significant 

economic impact, the Department relied 

upon the data and assumptions for the 

counterpart Federal regulations. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: (a) Does not have an annual 

effect on the economy of $100 million; 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions; and (c) Does not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. This 

determination is based upon the fact 

that the State submittal, which is the 

subject of this rule, is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation was not considered a major 

rule. 

Unfunded Mandates 

This rule will not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based upon 

the fact that the State submittal, which 

is the subject of this rule, is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation did not impose an unfunded 

mandate. 

List of Subjects in 30 CFR Part 943 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: July 17, 2012. 

Ervin J. Barchenger, 

Regional Director, Mid-Continent Region. 

For the reasons set out in the 

preamble, 30 CFR part 943 is amended 

as set forth below: 

PART 943—TEXAS 

■ 1. The authority citation for Part 943 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. 

■ 2. Section 943.15 is amended in the 

table by adding a new entry in 

chronological order by ‘‘Date of final 

publication’’ to read as follows: 

§ 943.15 Approval of Texas regulatory 

program amendments. 

* * * * * 

Original amendment submission date Date of final 

publication Citation/description 

*******

February 9, 2012 ............................................................. September 19, 

2012 

16 TAC 12.108(b)(1)–(3) 

[FR Doc. 2012–23075 Filed 9–18–12; 8:45 am] 

BILLING CODE 4310–05–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0555; FRL–9728–1] 

Approval and Promulgation of 

Implementation Plans; Florida: New 

Source Review—Prevention of 

Significant Deterioration; Fine 

Particulate Matter (PM2.5) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve changes to the Florida State 

Implementation Plan (SIP), submitted 

by the Florida Department of 

Environmental Protection (FDEP) to 

EPA on March 15, 2012. The March 15, 

2012, SIP revision modifies Florida’s 

New Source Review (NSR) Prevention of 

Significant Deterioration (PSD) 

permitting regulations to adopt, into the 

Florida SIP, federal NSR PSD 

requirements for the fine particulate 

matter (PM2.5) national ambient air 

quality standards (NAAQS) as 

promulgated in EPA’s 2008 NSR PM2.5

Implementation Rule and the 2010 

PM2.5 PSD Increment, Significant Impact 


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58028 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations 

1Florida’s March 15, 2012, SIP revision only 

addresses the State’s PSD permitting program and 

does not adopt the NNSR permitting requirements 

for PM2.5 emission offsets, condensable provision or 

the discretionary interpollutant trading policy and 

ratios promulgated in the 2008 NSR PM2.5 Rule. 

Moreover Florida is in attainment of the 1997 

annual and 2006 24-hour PM2.5 NAAQS. 

2After EPA promulgated the NAAQS for PM2.5 in 

1997, the Agency issued guidance documents 

related to using PM10 as a surrogate for PM2.5

entitled: ‘‘Interim Implementation of New Source 

Review Requirements for PM2.5.’’ John S. Seitz, 

EPA, October 23, 1997 (the ‘‘Seitz Memo’’) and 

‘‘Implementation of New Source Review 

Requirements in PM–2.5 Nonattainment Areas’’ (the 

‘‘2005 PM2.5 NNSR Guidance’’). The Seitz Memo 

was designed to help states implement NSR 

requirements pertaining to the new PM2.5 NAAQS 

in light of technical difficulties posed by PM2.5 at 

that time. The 2005 PM2.5 NNSR Guidance provided 

direction regarding implementation of the NNSR 

provisions in PM2.5 nonattainment areas in the 

interim period between the effective date of the 

PM2.5 nonattainment designations (April 5, 2005) 

and EPA’s promulgation of final PM2.5 NNSR 

regulations (this included recommending that until 

EPA promulgated the PM2.5 major NSR regulations, 

‘‘States should use a PM10 nonattainment major 

NSR program as a surrogate to address the 

requirements of nonattainment major NSR for the 

PM2.5 NAAQS.’’). 

Levels (SILs) and Significant Monitoring 

Concentration (SMC) Rule. EPA is 

approving portions of Florida’s March 

15, 2012, SIP revision because they are 

consistent with the Clean Air Act (CAA 

or Act) and EPA regulations regarding 

NSR permitting. 

DATES: Effective Date: This rule will be 

effective October 19, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2012–0555. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

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 Ms. 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’s telephone number is (404) 

562–9352; email address: 

bradley.twunjala@epa.gov. For 

information regarding NSR, contact Ms. 

Yolanda Adams, Air Permits Section, at 

the same address above. Ms. Adams’ 

telephone number is (404) 562–9214; 

email address: adams.yolanda@epa.gov. 

For information regarding the PM2.5

NAAQS, contact Mr. Joel Huey, 

Regulatory Development Section, at the 

same address above. Mr. Huey’s 

telephone number is (404) 562–9104; 

email address: huey.joel@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. This Action 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

EPA is taking final action to approve 

portions of Florida’s March 15, 2012, 

SIP revision to adopt federal NSR 

permitting requirements. Florida’s 

March 15, 2012, SIP revision includes 

changes to the Florida Administrative 

Code (F.A.C.) Chapter 62–210, 

Stationary Sources—General 

Requirements, Section 200—Definitions 

(rule 62–210.200), and Chapter 62–212, 

F.A.C., Stationary Sources— 

Preconstruction Review, Section 300— 

General Preconstruction Review 

Requirements (rule 62–212.300) and 

Section 400—Prevention of Significant 

Deterioration (rule 62–212.400). These 

changes adopt federal PSD permitting 

regulations promulgated in the final 

rulemakings entitled ‘‘Implementation 

of the New Source Review (NSR) 

Program for Particulate Matter Less than 

2.5 Micrometers (PM2.5),’’ 73 FR 28321 

(May 16, 2008), hereafter referred to as 

the ‘‘NSR PM2.5 Rule’’ and ‘‘Prevention 

of Significant Deterioration (PSD) for 

Particulate Matter Less Than 2.5 

Micrometers (PM2.5)—Increments, 

Significant Impact Levels (SILs) and 

Significant Monitoring Concentration 

(SMC),’’ 75 FR 64864 (October 20, 

2010), hereafter referred to as the ‘‘PM2.5

PSD Increment-SILs-SMC Rule.’’ EPA is 

not approving in this action Florida’s 

incorporation into its SIP of the SIL 

thresholds and provisions promulgated 

in EPA’s PM2.5 PSD Increment-SILsSMC Rule. 

On July 27, 2012, EPA published a 

proposed rulemaking to approve the 

aforementioned changes to Florida’s 

NSR PSD program. See 77 FR 44198. 

Comments on the proposed rulemaking 

were due on or before August 27, 2012. 

No comments, adverse or otherwise, 

were received on EPA’s July 27, 2012 

proposed rulemaking. Pursuant to 

section 110 of the CAA, EPA is now 

taking final action to approve the 

changes to Florida’s NSR PSD program 

as provided in EPA’s July 27, 2012, 

proposed rulemaking. A summary of the 

background for today’s final action is 

provided below. EPA’s July 27, 2012, 

proposed rulemaking contains more 

detailed information regarding the 

Florida SIP revision being approved 

today and the rationale for today’s final 

action. Detailed information regarding 

the PM2.5 NAAQS and NSR Program can 

also be found in EPA’s July 27, 2012, 

proposed rulemaking as well as the 

abovementioned final rulemakings. 

A. NSR PM2.5 Rule 

EPA finalized the NSR PM2.5 Rule on 

May 16, 2008, which revised the NSR 

program requirements to establish the 

framework for implementing 

preconstruction permit review for the 

PM2.5 NAAQS in both attainment areas 

and nonattainment areas (NAA) that: (1) 

Require NSR permits to address directly 

emitted PM2.5 and precursor pollutants; 

(2) establish significant emission rates 

for direct PM2.5 and precursor pollutants 

(including sulfur dioxide (SO2) and 

nitrogen oxides (NOX)); (3) establish 

PM2.5 emission offsets; (4) provide 

exceptions to the grandfathering policy 

for permits being reviewed under the 

PM10 surrogate program; and (5) require 

states to account for gases that condense 

to form particles (condensables) in PM2.5

and PM10 emission limits in PSD or 

nonattainment NSR (NNSR) permits. 

Additionally, the NSR PM2.5 Rule 

authorized states to adopt provisions in 

their NNSR rules that would allow 

interpollutant offset trading. See 73 FR 

28321. States were required to provide 

SIP submissions to address the 

requirements for the NSR PM2.5 Rule by 

May 16, 2011. Florida’s March 15, 2012, 

SIP revision addresses only the PSD 

requirements related to EPA’s May 16, 

2008, NSR PM2.5 Rule.1

1. PM10 Surrogate and Grandfathering 

Policy 

In the NSR PM2.5 Rule, EPA required 

that major stationary sources seeking 

permits must begin directly satisfying 

the PM2.5 requirements, as of the 

effective date of the rule, rather than 

relying on PM10 as a surrogate, with two 

exceptions.2 The first exception is a 

‘‘grandfathering’’ provision in the 

federal PSD program at 40 CFR 


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Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations 58029 

3Sources that applied for a PSD permit under the 

federal PSD program on or after July 15, 2008, are 

already excluded from using the 1997 PM10

Surrogate Policy as a means of satisfying the PSD 

requirements for PM2.5. See 76 FR 28321. 

4Additional information on this issue can also be 

found in an August 12, 2009, final order on a title 

V petition describing the use of PM10 as a surrogate 

for PM2.5. In the Matter of Louisville Gas & Electric 

Company, Petition No. IV–2008–3, Order on 

Petition (August 12, 2009). 

5The term ‘‘particulate matter emissions’’ 

includes particles that are larger than PM2.5 and 

PM10 and is an indicator measured under various 

New Source Performance Standards (NSPS) at 40 

CFR part 60. In addition to the NSPS for PM, it is 

noted that states have regulated ‘‘particulate matter 

emissions’’ for many years in their SIPs for PM, and 

the same indicator has been used as a surrogate for 

determining compliance with certain standards 

contained in 40 CFR part 63, regarding National 

Emission Standards for Hazardous Air Pollutants. 

6The de minimis principle is grounded in a 

decision described by the court case Alabama 

Power Co. v. Costle, 636 F.2d 323, 360 (D.C. Cir. 

1980). In this case, reviewing EPA’s 1978 PSD 

regulations, the court recognized that ‘‘there is 

likely a basis for an implication of de minimis 

authority to provide exemption when the burdens 

of regulation yield a gain of trivial or no value.’’ 636 

F.2d at 360. See 75 FR 64864. 

7On April 6, 2012, EPA filed a brief with the D.C. 

Circuit court defending the Agency’s authority to 

implement SILs and SMC for PSD purposes. 

8Significant deterioration occurs when the 

amount of the new pollution exceeds the applicable 

PSD increment, which is the ‘‘maximum allowable 

increase’’ of an air pollutant allowed to occur above 

the applicable baseline concentration1 for that 

pollutant. Section 169(4) of the CAA provides that 

the baseline concentration of a pollutant for a 

particular baseline area is generally the air quality 

at the time of the first application for a PSD permit 

in the area. 

9EPA generally characterized the PM2.5 NAAQS 

as a NAAQS for a new indicator of PM. EPA did 

not replace the PM10 NAAQS with the NAAQS for 

PM2.5 when the PM2.5 NAAQS were promulgated in 

1997. EPA rather retained the annual and 24-hour 

NAAQS for PM2.5 as if PM2.5 was a new pollutant 

even though EPA had already developed air quality 

criteria for PM generally. See 75 FR 64864 (October 

20, 2012). 

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. 

52.21(i)(1)(xi). This grandfathering 

provision applied to sources that had 

applied for, but had not yet received, a 

final and effective PSD permit before the 

July 15, 2008, effective date of the May 

2008 final rule. The second exception 

was that states with SIP-approved PSD 

programs could continue to implement 

the Seitz Memo’s PM10 Surrogate Policy 

for up to three years (until May 2011) 

or until the individual revised state PSD 

programs for PM2.5 are approved by 

EPA, whichever comes first. On May 18, 

2011 (76 FR 28646), EPA took final 

action to repeal the grandfathering 

provision at 40 CFR 52.21(i)(1)(xi). This 

final action ended the use of the 1997 

PM10 Surrogate Policy for PSD permits 

under the federal PSD program at 40 

CFR 52.21. In effect, any PSD permit 

applicant previously covered by the 

grandfathering provision (for sources 

that completed and submitted a permit 

application before July 15, 2008) 3 that 

did not have a final and effective PSD 

permit before the effective date of the 

repeal will not be able to rely on the 

1997 PM10 Surrogate Policy to satisfy 

the PSD requirements for PM2.5 unless 

the application includes a valid 

surrogacy demonstration.4 See 76 FR 

28646. In its March 15, 2012, SIP 

revision, Florida did not adopt the 

grandfathering provision at 40 CFR 

52.21(i)(1)(xi) into its PSD regulations. 

Therefore, Florida’s SIP is consistent 

with current federal regulations 

regarding the repeal of the 

grandfathering provision. 

2. ‘‘Condensable’’ Provision 

In the NSR PM2.5 Rule, EPA revised 

the definition of ‘‘regulated NSR 

pollutant’’ for PSD to add a paragraph 

providing that ‘‘particulate matter (PM) 

emissions, PM2.5 emissions and PM10

emissions’’ shall include gaseous 

emissions from a source or activity 

which condense to form particulate 

matter at ambient temperatures and that 

on or after January 1, 2011, such 

condensable particulate matter shall be 

accounted for in applicability 

determinations and in establishing 

emissions limitations for PM, PM2.5 and 

PM10 in permits issued. See 40 CFR 

51.166(b)(49)(vi), 52.21(b)(50)(vi) and 

‘‘Emissions Offset Interpretative Ruling’’ 

(40 CFR part 51, appendix S). On March 

16, 2012, EPA proposed a rulemaking to 

amend the definition of ‘‘regulated NSR 

pollutant’’ promulgated in the NSR 

PM2.5 Rule regarding the PM 

condensable provision at 40 CFR 

51.166(b)(49)(vi), 52.21(b)(50)(i) and 

EPA’s Emissions Offset Interpretative 

Ruling. See 77 FR 15656. The 

rulemaking proposes to remove the 

inadvertent requirement in the NSR 

PM2.5 Rule that the measurement of 

condensable ‘‘particulate matter 

emissions’’ be included as part of the 

measurement and regulation of 

‘‘particulate matter emissions.’’ 5

B. PM2.5 PSD IncrementSILs-SMC Rule 

The PM2.5 PSD Increment-SILs-SMC 

Rule provided additional regulatory 

requirements under the PSD program 

regarding the implementation of the 

PM2.5 NAAQS for NSR including: (1) 

PM2.5 increments pursuant to section 

166(a) of the CAA to prevent significant 

deterioration of air quality in areas 

meeting the NAAQS; (2) SILs used as a 

screening tool (by a major source subject 

to PSD) to evaluate the impact a 

proposed major source or modification 

may have on the NAAQS or PSD 

increment; and (3) a SMC, (also a 

screening tool) used by a major source 

subject to PSD to determine the 

subsequent level of PM2.5 data gathering 

required for a PSD permit application. 

The SILs and SMC are numerical values 

that represent thresholds of 

insignificant, i.e., de minimis,6 modeled 

source impacts or monitored (ambient) 

concentrations, respectively. EPA 

established such values to be used as 

screening tools by a major source 

subject to PSD to determine the 

subsequent level of analysis and data 

gathering required for a PSD permit 

application for emissions of PM2.5. 

EPA’s authority to implement the SILs 

and SMC for PSD purposes has been 

challenged by the Sierra Club. Sierra 

Club v. EPA, Case No. 10–1413 (DC 

Circuit Court).7

1. PSD Increments 

PSD increments prevent air quality in 

clean areas from deteriorating to the 

level set by the NAAQS. Therefore, an 

increment is the mechanism used to 

estimate ‘‘significant deterioration’’ 8 of 

air quality for a pollutant in an area. 

Under section 165(a)(3) of the CAA, a 

PSD permit applicant must demonstrate 

that emissions from the proposed 

construction and operation of a facility 

‘‘will not cause, or contribute to, air 

pollution in excess of any maximum 

allowable increase or allowable 

concentration for any pollutant.’’ When 

a source applies for a permit to emit a 

regulated pollutant in an area that meets 

the NAAQS, the state and EPA must 

determine if emissions of the regulated 

pollutant from the source will cause 

significant deterioration in air quality. 

As described in the PM2.5 PSD 

Increment-SILs-SMC Rule, pursuant to 

the authority under section 166(a) of the 

CAA, EPA promulgated numerical PSD 

increments for PM2.5 as a new 

pollutant 9 for which NAAQS were 

established after August 7, 1977,10 and 

derived 24-hour and annual PM2.5

increments for the three area 

classifications (Class I, II and III) using 

the ‘‘contingent safe harbor’’ approach. 

See 75 FR 64869 and the ambient air 

increment tables at 40 CFR 51.166(c)(1) 

and 52.21(c). In addition to PSD 

increments for the PM2.5 NAAQS, the 

PM2.5 PSD Increment-SILs-SMC Rule 

amended the definition at 40 CFR 

51.166 and 52.21 for ‘‘major source 

baseline date’’ and ‘‘minor source 

baseline date’’ (including trigger date) to 

establish the PM2.5 NAAQS specific 

dates associated with the 


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58030 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations 

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 at 

www.regulations.gov using docket ID: EPA–R04– 

OAR–2012–0555. 

13Florida IBR federal rules at rule 62–204.800 

F.A.C. 

14 In 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. See 75 FR 64864 at 64899. 

implementation of PM2.5 PSD 

increments. See 75 FR 64864. 

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 PM2.5 PSD 

Increment-SILs-SMC Rule, EPA 

established a PM2.5 SMC of 4 mg/m3 to 

be used as a screening tool by a major 

source subject to PSD to determine the 

subsequent level of PM2.5 data 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 PM2.5 SILs 11 as well as 

the SMC for PSD purposes as 

promulgated in the October 20, 2012, 

rule. Sierra Club v. 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 at www.regulations.gov 

using 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 PM2.5 NAAQS including 

the NSR PM2.5 and PM2.5 IncrementSILs-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 PM2.5 Rule PSD 

provisions including: (1) The 

requirement for NSR permits to address 

directly emitted PM2.5 and precursor 

pollutants; (2) the amendment 

establishing significant emission rates 

for direct PM2.5 and precursor pollutants 

(SO2 and NOX) and recognizing PM2.5

precursors 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 PM10

and 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 PM2.5 grandfathering 

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 PM2.5 Rule. See 77 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 PM2.5 and 

PM10. Florida’s March 15, 2012, SIP 

revision added definitions for 

‘‘condensable PM10’’ at 62–210.200(94), 

‘‘condensable PM2.5’’ 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 PM2.5 PSD 

Increment-SILs SMC Rule, EPA is taking 

final action to also approve into the 

Florida SIP the PSD increments for 

PM2.5 annual and 24-hour NAAQS 

pursuant to section 166(a) of the CAA 

and SMC of 4 mg/m3 for PM2.5 NAAQS. 

The March 15, 2012, SIP revision: (1) 

Revises the definition for ‘‘maximum 

allowable increase’’ to incorporate by 

reference (IBR) the PM2.5 PSD 

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 PM2.5 increment 

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. 

Regarding the SILs and SMC, EPA’s 

authority to implement the PM2.5 SILs 

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 SILs de 

minimis thresholds. Sierra Club v. 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’s 

de minimis authority as well as the fact 

they are consistent with EPA’s 

promulgated levels in the PM2.5 PSD 

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 PM2.5 so 

that EPA can make necessary 

rulemaking revisions to that text.14 In 

light of EPA’s request for remand and 

vacatur and our acknowledgement of 


srobinson on DSK4SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations 58031 

15EPA is currently developing guidance to 

provide a provisional course of action to implement 

the PM2.5 SILs pending revision to implementing 

(k)(2) provisions and the litigation. The guidance 

will ensure that the PM2.5 SILs 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 PM2.5 NAAQS or increment. 

the 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

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 PM2.5 and the 

PM2.5 PSD Increment-SILs-SMC Rules to 

implement the PM2.5 NAAQS 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. 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 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. See section 

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: 

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 

■ 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: 

§ 52.520 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED FLORIDA REGULATIONS

State citation Title/subject State effective 

date EPA approval date Explanation 


srobinson on DSK4SPTVN1PROD with RULES
58032 Federal Register / Vol. 77, No. 182 / Wednesday, September 19, 2012 / Rules and Regulations 

EPA-APPROVED FLORIDA REGULATIONS—Continued 

State citation Title/subject State effective 

date EPA approval date Explanation 

*******

Chapter 62–210 Stationary Sources—General Requirements 

62–210.200 ... Definitions ......... 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 PM2.5 SILs 

threshold and provisions (as promulgated in the 

October 20, 2010, PM2.5 PSD Increment-SILsSMC Rule at 40 CFR 52.21(k)(2)). 

* * * * * * * 

Chapter 62–212 Stationary Sources—Preconstruction Review 

62–212.400 ... 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 PM2.5 SILs 

threshold and provisions (as promulgated in the 

October 20, 2010, PM2.5 PSD Increment-SILsSMC Rule at 40 CFR 52.21(k)(2)). 

* * * * * * * 

* * * * * 

[FR Doc. 2012–22976 Filed 9–18–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2009–0648; FRL–9728–7] 

Approval and Promulgation of 

Implementation Plans; New Mexico; 

Albuquerque/Bernalillo County: 

Infrastructure and Interstate Transport 

Requirements for the 1997 and 2008 

Ozone and the 1997 and 2006 PM2.5

NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving submittals 

from the Governor of New Mexico for 

the City of Albuquerque/Bernalillo 

County area, pursuant to the Clean Air 

Act (CAA or the Act). These submittals 

address the infrastructure elements 

specified in the CAA necessary to 

implement, maintain, and enforce the 

1997 and 2008 8-hour ozone and the 

1997 and 2006 fine particulate matter 

(PM2.5) national ambient air quality 

standards (NAAQS or standards). We 

find that the current Albuquerque/ 

Bernalillo County State Implementation 

Plan (SIP) meets the infrastructure 

elements for the 1997 and 2008 8-hour 

ozone NAAQS and the 1997 and 2006 

PM2.5 NAAQS. We also find that the 

current Albuquerque/Bernalillo County 

SIP meets the CAA requirement that 

emissions from sources in the area do 

not interfere with prevention of 

significant deterioration (PSD) measures 

required in the SIP of any other state, 

with regard to the 1997 and 2008 ozone 

and 1997 and 2006 PM2.5 NAAQS. EPA 

is also approving SIP revisions that 

modify the PSD SIP to include nitrogen 

oxides (NOX) as an ozone precursor. 

EPA is approving revisions to the 

Albuquerque/Bernalillo County PSD SIP 

that identify the PM2.5 precursors and 

establish significant emission rates for 

said precursors, consistent with the 

federal requirements. We are also 

approving other revisions to the 

Albuquerque/Bernalillo County PSD SIP 

to maintain consistency with the federal 

PSD permitting requirements. In 

addition to these revisions, EPA is 

approving other revisions to the 

Albuquerque/Bernalillo County SIP 

necessary to implement the NAAQS. 

DATES: This final rule is effective on 

October 19, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R06–OAR– 

2009–0648. All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a fee of 15 cents per page for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal is also available 

for public inspection during official 

business hours, by appointment, at the 

City of Albuquerque, Environmental 

Health Department—Air Quality 

Division, One Civic Plaza, Room 3047, 

Albuquerque, New Mexico 87103, 

telephone 505–768–1972, email address 

aqd@cabq.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

John Walser, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone 214–665–7128; fax number 

214–665–6762; email address 

walser.john@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means EPA. 

Table of Contents 

I. Background 

a. Section 110(a)(1) and (2) 


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