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

**110(a)(2)(J) related to P revention of**  **S ignificant**  **D eterioration (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 t ype of emissions act ivity 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 anothe r state (“prong 3”), or to protect visibility

in another state (“prong 4”). Section 1 10(a)(2) (J) has four components that must be addressed in infrastructure SIP submissions: 1) c onsultation with government officials , 2) p ublic notification , 3) prevention of significant deterioration, and 4) v isibility 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 currentrequir ements for all regulated NSR pollutants. The requirements of Element 110(D)(i)(II) may

also be satisfied b y demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants.
**T he PSD P**  **rogram 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 currentl y 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 SI P. T here are four more recent structural PSD program requirements that are relevant to EPA’s r eview of the PSD Elements of the infrastructure SIP submissions

. The EPA regulations that require these SIP revisions are: 1) the Phase II Rule 1 ; 2) the Greenhouse Gas (GHG) Tailoring Rule 2 as consistent with the holding in Utility Air Regulatory Group v. Environmental Protection Agency ; 3 3) the NSR Fine Particulate Matter ( PM 2.5 ) Rule 4 ; and, 4) the PM 2.5 PSD Increment
- Significant Impact Levels ( SILs )

- Significant Monitoring Concentrations ( SMC ) Rule (only as it relates to PM 2.5 In crements)

. 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 Ru le; 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 Ne w Source Review Program for Particulate M atter Less Than 2.5 Micrometers; Final Rule” (May 16, 2008, 73 FR 28321) (hereafter referred to as the “NSR PM 2.5 Rule” ).
5 “Final Rule on the Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )

– Increments, Significant Impact Levels (SILs) and Significant monitoring Concentration (SMC); Final Rule” (October 20, 2010, 75 FR 64864) (hereafter referred to as the“PM 2.5 PSD Increment

- SILs

- SMC Rule (only as it relates to PM 2.5 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 f ederal NSR permitting requirements for the imple mentation 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 p ermitting requ irements for their GHG emissions. See 75 FR 31514

. EPA notes that o n 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. Inthat 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 Co urt 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 accord ance with the Supreme Court decision, o n 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 s ource s 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, withoutthe need for additional rulemaking b y the EPA, the application of the Best Available Control

Technology

(BACT) requirement to GHG emissions from Step 1 or “an ywa y” 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 onl y pollutant (i) that the source emits or has the potent ial 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 SI P 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 SI P submissions and is only evaluating such submissions to assure that the state’s program correctl y 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 b y the EPA into the SIP continues to require that PSDpermits issued to “an yway sources” contain limit ations on GHG emissions based on the

appli cation 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 th e 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 “any way sources” that are necessary at this time. The application of those requirements is not impeded by the presence of other previousl y - approved provisions regarding the permitting of Step 2 sources. Accordingl y, 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 PM 2.5 Rule 6 and 2010 PM 2.5 PSD Increment
- SILs

- SMC Rule (only as it relates to PM 2.5 In crem ents) established NSR permitting requirements for the implementation of

6 On J anuary 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 Ju ly 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 PM 10 , EPA should have also followed the more prescriptive subpart 4 structure for the PM 2.5 im plementation rules. The court ordered EPA to repromulgate the im plementation 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 R eview (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 ),” 73 FR 28321 (May 16, 2008), promulgated NSR requirements for implementation of PM 2.5 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 PM 2.5 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 PM 2.5 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 action s . EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, fromthe PM 2.5 NAAQS including increments pursuant to section 166(a) of the CAA to prevent

significant deterioration of air qualit y in areas meeting the NAAQS

. See 73 FR 28321 and 75 FR 64864 . O n 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 PM 2.5 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 PM 2.5 PSD Increment
- SILs

- SMC Rule. 7 See 75 FR 64864 ; s ee also , Sierra Club v. EPA , 703 F.3d 458 (D.C. Cir. 2013). Inits 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 PM 2.5 be included in all PSD permit a pplications. Thus, al though the PM 2.5 SMC was not a required element of a State's PSD program and thus not a structural requirement for purposes of infrastructure SI Ps, were a SI P
- approved PSD program that contains such a provision to use that provision to issue new permits without requiring ambient PM 2.5 monitoring data, such application of the SI P 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 s tates' SIP

- appro ved PSD programs on the basis of EPA ’ s regulations are unlawful and no longer federally enforceable b y 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 admin istrative and judicial challenges. Thus, the SI P 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 NAAQ S . Instead, these elements are ty pically referred to as nonattainment SIP or attainment plan elements, which w ould be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for s om e elements

. 7 “ Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )

— Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC); Final Rule, 75 FR 64864 (October 20, 201 0)”requesting a PSD permit, including those having already been applied for but for which the

permit has not y et been received, to submit ambient PM 2.5 monitoring data in accordance with the CAA requirements whenever either direct PM 2.5 or any PM 2.5 precursor is emitted in a significant amount. 8 On December 9, 2013, EPA issued a final rulemaking to remove the vacated and remanded PM 2.5 SILs 9 and the vacated PM 2.5 SMC provisions from 40 CFR 51.166 and 52.21. 10 See 79 FR 73698. Because the Court vacated the PM 2.5 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 PM 2.5 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/m 3 ). 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 PM 2.5 as a listed pollutant in the SMC provisions so as to avoid an y potential that sections 51.166(i)(5)(iii) and 52.21(i)(5)(iii) could be interpr eted 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 PM 2.5 mo nitors to collect ambient data, applicants may submit PM 2.5 am bient data collected from existing monitoring networks when the permitting authority deems such data to be representative of the air qua lity 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 mo nitoring data requirement.
9 The court’s January 22, 20 13, decision also vacated and remanded back to EPA the PM 2.5 SILs. EPA’s December 9, 2013 final rule also removed the PM 2.5 SILs from the CFR. The PM 2.5, SILs are not a required element of a State's PSD program and thus not a structural requirement for purposes of infrastructure SIPs . The PM 2.5 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 Elem ents;” 79 FR 73698 (December 9, 2013)By continuing to include PM 2.5 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/m 3 , we avoid an y concern that paragraph (iii) of the two affected sections could be applied to excuse permit applicants from adequately addressing the monitoring requirement for PM 2.5 . EPA also advises s tates to begin preparations to remove the PM 2.5 provisions from their state PSD regulations and SIPs. As the previously

- approved PM 2.5 SMC SIP provisions are no longer enforceable, EPA does not believe the existence of the se provisions in s tate implementation plans precludes approv al 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 analy sis of how Florida infrastructure SIP submissions meet the requirements of the PSD Elements for the NAAQS for which they were submitted. This anal ys is 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 PM 2.5**  **Rule PM**  **2.5 PSD**  **Increment -**  **SILs**   ** SMC 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)