Technical Support Document - Sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3) and 

110(a)(2)(J) related to Prevention of Significant Deterioration (PSD) for Florida

Section 110(a)(2)(C) has three components that must be addressed in infrastructure SIP

submissions: enforcement, state-wide regulation of new and modified minor sources and minor 

modifications of major sources; and PSD permitting of major sources and major modifications in 

areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I

part C (i.e., the major source PSD program). 

Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). 

Each of these components have two subparts resulting in four distinct components, commonly

referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two 

prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source 

or other type of emissions activity in one state from contributing significantly to nonattainment 

of the NAAQS in another state (“prong 1”), and interfering with maintenance of the NAAQS in 

another state (“prong 2”). The third and fourth prongs, which are codified in section 

110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state interfering with 

measures required to prevent significant deterioration of air quality in another state (“prong 3”), 

or to protect visibility in another state (“prong 4”).

Section 110(a)(2)(J) has four components that must be addressed in infrastructure SIP 

submissions: 1) consultation with government officials, 2) public notification, 3) prevention of 

significant deterioration, and 4) visibility protection. 

With respect to the PSD Elements of 110(C) and (J), EPA interprets the CAA to require 

each state to make, for each new or revised NAAQS, an infrastructure SIP submission that 

demonstrates that the air agency has a complete PSD permitting program meeting the current 
requirements for all regulated NSR pollutants. The requirements of Element 110(D)(i)(II) may

also be satisfied by demonstrating the air agency has a complete PSD permitting program 

correctly addressing all regulated NSR pollutants.

The PSD Program Requirements for Infrastructure SIPs

In order for the PSD elements of infrastructure SIP submissions to be approvable, a

state’s submission must demonstrate that all structural PSD program elements that are currently 

due under the CAA and EPA regulations are either approved into the SIP or are submitted for 

approval, in which case EPA must take final action to approve these elements before or 

simultaneously with its action on the infrastructure SIP. There are four more recent structural 

PSD program requirements that are relevant to EPA’s review of the PSD Elements of the 

infrastructure SIP submissions. The EPA regulations that require these SIP revisions are: 1) the

Phase II Rule1; 2) the Greenhouse Gas (GHG) Tailoring Rule2as consistent with the holding in 

Utility Air Regulatory Group v. Environmental Protection Agency;

3

3) the NSR Fine Particulate 

Matter (PM2.5) Rule4; and, 4) the PM2.5 PSD Increment-Significant Impact Levels (SILs)-

Significant Monitoring Concentrations (SMC) Rule (only as it relates to PM2.5 Increments).

5

 

 

1

“Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule” 

(November 29, 2005, 70 FR 71612) (hereafter referred to as the “Phase II Rule”).

2

Prevention of Significant Deterioration and Title V Greenhouse Gas (GHG) Tailoring Rule; Final Rule” (June 3, 

2010, 75 FR 31514) (hereafter referred to as the “GHG Tailoring Rule”).

3 Utility Air Regulatory Group v. Environmental Protection Agency, 134 S. Ct. 2427 (2014).

4

Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers; Final 

Rule” (May 16, 2008, 73 FR 28321) (hereafter referred to as the “NSR PM2.5 Rule”).

5

“Final Rule on the 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); Final 

Rule” (October 20, 2010, 75 FR 64864) (hereafter referred to as the“PM2.5 PSD Increment-SILs-SMC Rule (only as 

it relates to PM2.5 Increments)”).
Specific details on these PSD requirements can be found in the respective final rules cited above, 

however, a brief summary of each rule is provided below. 

The Phase II rule established federal NSR permitting requirements for the 

implementation of the ozone NAAQS including recognizing nitrogen oxide as an ozone 

precursor. See 70 FR 71612.

The GHG Tailoring Rule established emission thresholds for determining which new 

stationary sources and modification projects become subject to PSD permitting requirements for 

their GHG emissions. See 75 FR 31514. EPA notes that on June 23, 2014, the United States 

Supreme Court issued a decision addressing the application of PSD permitting requirements to 

GHG emissions. See Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.

Ct. 2427. In that decision, the Supreme Court said that the EPA may not treat GHGs as an air 

pollutant for purposes of determining whether a source is a major source required to obtain a 

PSD permit. The Court also said that the EPA could continue to require that PSD permits, 

otherwise required based on emissions of pollutants other than GHGs, contain limitations on 

GHG emissions based on the application of Best Available Control Technology (BACT).

In accordance with the Supreme Court decision, on April 10, 2015, the Court of Appeals 

for the District of Columbia Circuit (the D.C. Circuit) issued an Amended Judgment (Coalition 

for Responsible Regulation, Inc. v. EPA, Nos. 09-1322, 10-073, 10-1092 and 10-1167), vacating 

the regulations that implemented Step 2 of the EPA’s PSD and Title V Greenhouse Gas 

Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring 

Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants 

other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds 

triggering the requirement to obtain a PSD permit. The amended judgment preserves, without 
the need for additional rulemaking by the EPA, the application of the Best Available Control 

Technology (BACT) requirement to GHG emissions from Step 1 or “anyway” sources. With 

respect to Step 2 sources, the D.C. Circuit’s amended judgment vacated the regulations at issue 

in the litigation, including 40 CFR 51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v), “to the extent 

they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant 

(i) that the source emits or has the potential to emit above the applicable major source thresholds, 

or (ii) for which there is a significant emission increase from a modification.” The D.C. Circuit 

simultaneously issued its mandate, which means that the Coalition Amended Judgment became 

final and effective upon issuance.

On August 12, 2015, EPA signed a final rule that removes from the PSD regulations 

certain regulatory provisions that require a stationary source to obtain a PSD permit solely on the 

basis of the source’s GHG emissions (Step 2) and the regulations that require the EPA to 

consider further phasing-in GHG permitting requirements into the PSD. The EPA intends to 

further revise the PSD regulations to fully implement the Coalition Amended Judgment in a 

separate rulemaking. States may submit revisions to their PSD SIP program consistent with

EPA’s amended regulations whenever feasible. At this juncture, EPA is not expecting states to 

have revised their PSD programs for purposes of infrastructure SIP submissions and is only

evaluating such submissions to assure that the state’s program correctly addresses GHGs 

consistent with the court decisions discussed above and EPA’s revised regulations.

At present, the EPA has determined that Florida’s infrastructure SIP is sufficient to 

satisfy the PSD Elements (C), (D)(i)(II), and (J) with respect to GHGs. This is because the PSD 

permitting program previously approved by the EPA into the SIP continues to require that PSD 
permits issued to “anyway sources” contain limitations on GHG emissions based on the 

application of BACT. The approved Florida PSD permitting program still contains some 

provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court 

decision and D.C. Circuit amended judgment. Nevertheless, the presence of these provisions in 

the previously-approved plan does not render the infrastructure SIP submission inadequate to 

satisfy the PSD Elements (C), (D)(i)(II), and (J). The SIP contains the PSD requirements for 

applying the BACT requirement to greenhouse gas emissions from “anyway sources” that are 

necessary at this time. The application of those requirements is not impeded by the presence of 

other previously-approved provisions regarding the permitting of Step 2 sources. Accordingly, 

the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent the EPA’s 

approval of Florida’s infrastructure SIP as to the requirements of the PSD Elements (C), 

(D)(i)(II), and (J).

The 2008 NSR PM2.5 Rule6and 2010 PM2.5 PSD Increment-SILs-SMC Rule (only as it 

relates to PM2.5 Increments) established NSR permitting requirements for the implementation of 

 

6 On January 4, 2013, the U.S. Court of Appeals, in Natural Resources Defense Council v. EPA, No. 08-1250, 2013 

WL 45653 (D.C. Cir., filed July 15, 2008) (consolidated with 09-1102, 11-1430), issued a judgment that remanded 

EPA’s 2007 and 2008 rules implementing the PM2.5 NAAQS. The court concluded that since subpart 4 of the CAA 

generally applies to PM10, EPA should have also followed the more prescriptive subpart 4 structure for the PM2.5 

implementation rules. The court ordered EPA to repromulgate the implementation rules pursuant to subpart 4.

Subpart 4 of Part D, Title 1 of the CAA establishes additional provisions for particulate matter nonattainment areas.

The 2008 implementation rule addressed by the court decision, “Implementation of New Source Review (NSR) 

Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5),” 73 FR 28321 (May 16, 2008), promulgated 

NSR requirements for implementation of PM2.5 in both nonattainment areas (nonattainment NSR) and 

attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 only pertain to nonattainment areas, EPA 

does not consider the portions of the 2008 rule that address requirements for PM2.5 attainment and unclassifiable 

areas to be affected by the court’s opinion. Moreover, EPA does not anticipate the need to revise any PSD 

requirements promulgated in the 2008 rule in order to comply with the court’s decision. Accordingly, EPA’s 

approval of state’s infrastructure SIP related to elements (C), (D)(i) (prong 3), or (J) with respect to the PSD 

requirements promulgated in the 2008 NSR PM2.5 Rule does not conflict with the court’s opinion.

The court’s decision with respect to the nonattainment NSR requirements promulgated by the 2008 implementation 

rule also does not affect EPA’s action on the present infrastructure actions. EPA interprets the Act to exclude 

nonattainment area requirements, including requirements associated with a nonattainment NSR program, from 
the PM2.5 NAAQS including increments pursuant to section 166(a) of the CAA to prevent 

significant deterioration of air quality in areas meeting the NAAQS. See 73 FR 28321 and 75 FR 

64864. On January 22, 2013, the U.S. Court of Appeals for the District of Columbia, in Sierra 

Club v. EPA, 703 F.3d 458 (D.C. Cir. 2013), issued a judgment that, among other things, vacated 

the provisions adding the PM2.5 SMC to the Federal regulations, at 40 CFR 51.166(i)(5)(i)(c) and 

52.21(i)(5)(i)(c), that were promulgated as part of the 2010 PM2.5 PSD Increment-SILs-SMC 

Rule.7 See 75 FR 64864; see also, Sierra Club v. EPA, 703 F.3d 458 (D.C. Cir. 2013). In its 

decision, the court held that EPA did not have the authority to use SMCs to exempt permit 

applicants from the statutory requirement in section 165(e)(2) of the CAA that ambient 

monitoring data for PM2.5 be included in all PSD permit applications. Thus, although the PM2.5

SMC was not a required element of a State's PSD program and thus not a structural requirement 

for purposes of infrastructure SIPs, were a SIP-approved PSD program that contains such a 

provision to use that provision to issue new permits without requiring ambient PM2.5 monitoring 

data, such application of the SIP would be inconsistent with the court’s opinion and the 

requirements of section 165(e)(2) of the CAA. Because of the vacatur of the EPA regulations, 

the SMC provisions included in states' SIP-approved PSD programs on the basis of EPA’s 

regulations are unlawful and no longer federally enforceable by law. Permits issued on the basis 

of these provisions as they appear in approved SIPs would be inconsistent with the CAA and 

difficult to defend in administrative and judicial challenges. Thus, the SIP provisions may not be 

applied even prior to their removal from the SIPs. States should instead require applicants 

 

infrastructure SIP submissions due 3 years after adoption or revision of a NAAQS. Instead, these elements are 

typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily 

prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some 

elements. 

7

“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); Final Rule, 75 FR 

64864 (October 20, 2010)”
requesting a PSD permit, including those having already been applied for but for which the 

permit has not yet been received, to submit ambient PM2.5 monitoring data in accordance with 

the CAA requirements whenever either direct PM2.5 or any PM2.5 precursor is emitted in a 

significant amount.8

On December 9, 2013, EPA issued a final rulemaking to remove the vacated and 

remanded PM2.5 SILs9and the vacated PM2.5 SMC provisions from 40 CFR 51.166 and 52.21.10 

See 79 FR 73698. Because the Court vacated the PM2.5 SMC provisions in 40 CFR 

51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), EPA revised the existing concentration for the PM2.5 

SMC listed in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero micrograms per cubic 

meter (0 mg/m3). Were EPA to completely remove PM2.5 from the list of pollutants in sections 

51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) of the PSD regulations, PM2.5 would no longer be a listed 

pollutant.

EPA did not entirely remove PM2.5 as a listed pollutant in the SMC provisions so as to 

avoid any potential that sections 51.166(i)(5)(iii) and 52.21(i)(5)(iii) could be interpreted as 

giving reviewing authorities the discretion to exempt permit applicants from the requirement to 

conduct monitoring for PM2.5. Such a conclusion would contravene the Court’s decision and 

the CAA.

 

8

 In lieu of the applicants’ need to set out PM2.5 monitors to collect ambient data, applicants may submit PM2.5

ambient data collected from existing monitoring networks when the permitting authority deems such data to be 

representative of the air quality in the area of concern for the year preceding receipt of the application. EPA 

believes that applicants will generally be able to rely on existing representative monitoring data to satisfy the 

monitoring data requirement.

9 The court’s January 22, 2013, decision also vacated and remanded back to EPA the PM2.5 SILs. EPA’s December 

9, 2013 final rule also removed the PM2.5 SILs from the CFR. The PM2.5, SILs are not a required element of a State's 

PSD program and thus not a structural requirement for purposes of infrastructure SIPs. The PM2.5 SILs are not 

approved into the SIPs that are the subject of this proposed rulemaking.

10 Final Rule entitled “Prevention of Significant Deterioration for Particulate Matter Less Than 2.5

Micrometers—Significant Impact Levels and Significant Monitoring Concentration: Removal of Vacated

Elements;” 79 FR 73698 (December 9, 2013)
By continuing to include PM2.5 as a pollutant in the list contained in sections 

51.166(i)(5)(i) and 52.21(i)(5)(i), with the numerical value replaced with 0 mg/m3, we avoid any 

concern that paragraph (iii) of the two affected sections could be applied to excuse permit 

applicants from adequately addressing the monitoring requirement for PM2.5.

EPA also advises states to begin preparations to remove the PM2.5 provisions from their 

state PSD regulations and SIPs. As the previously-approved PM2.5 SMC SIP provisions are no 

longer enforceable, EPA does not believe the existence of these provisions in state 

implementation plans precludes approval of the infrastructure SIP submissions.

EPA’s Analysis of How Florida Addressed Sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 

3) and 110(a)(2)(J) related to PSD

Described below is EPA’s analysis of how Florida infrastructure SIP submissions meet 

the requirements of the PSD Elements for the NAAQS for which they were submitted. This 

analysis includes review of the EPA’s previous approval of the four structural PSD program 

requirements which is summarized in Table 1 below. 

Table 1 - EPA approved structural PSD program requirements for Florida

Phase II Rule Greenhouse 

Gas (GHG) 

Tailoring Rule

NSR PM2.5 Rule PM2.5 PSD 

Increment-SILsSMC Rule

June 15, 2012 

(77 FR 35862)

May 19, 2014 

(79 FR 28607)

September 19, 2012 

(77 FR 58027)

September 19, 2012

(77 FR 58027)