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[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Rules and Regulations]
[Pages 58027-58032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22976]

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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.

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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

[[Page 58028]]

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-SILs-SMC 
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\
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    \1\ Florida'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.
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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

[[Page 58029]]

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.
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    \2\ After 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.'').
    \3\ Sources 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.
    \4\ Additional 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).
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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\
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    \5\ The 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.
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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\
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    \6\ The 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.
    \7\ On 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.
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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

[[Page 58030]]

implementation of PM2.5 PSD increments. See 75 FR 64864.
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    \8\ Significant 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.
    \9\ EPA 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).
    \10\ EPA 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.
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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 [micro]g/m\3\ 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.
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    \11\ As 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.
    \12\ Additional 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.
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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 Increment-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 
PM2.5 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 [micro]g/m\3\ 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.
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    \13\ Florida IBR federal rules at rule 62-204.800 F.A.C.
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    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

[[Page 58031]]

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\
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    \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.
    \15\ EPA 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.
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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]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42. U.S.C. 7401 et seq.

Subpart K--Florida

0
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:

Sec.  52.520  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Florida Regulations
----------------------------------------------------------------------------------------------------------------
                                        State effective
  State citation      Title/subject           date          EPA approval date              Explanation
----------------------------------------------------------------------------------------------------------------
 

[[Page 58032]]

 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                             Chapter 62-210 Stationary Sources--General Requirements
----------------------------------------------------------------------------------------------------------------
62-210.200........  Definitions......  March 28, 2012...  September 19, 2012     As of September 19, 2012, 61-
                                                           [Insert citation of    210.200 does not include
                                                           publication].          Florida's revision to adopt
                                                                                  the PM2.5 SILs threshold and
                                                                                  provisions (as promulgated in
                                                                                  the October 20, 2010, PM2.5
                                                                                  PSD Increment-SILs-SMC Rule at
                                                                                  40 CFR 52.21(k)(2)).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                            Chapter 62-212 Stationary Sources--Preconstruction Review
----------------------------------------------------------------------------------------------------------------
62-212.400........  Prevention of      March 28, 2012...  September 19, 2012     As of September 19, 2012, 61-
                     Significant                           [Insert citation of    212.400 does not include
                     Deterioration.                        publication].          Florida's revision to adopt
                                                                                  the PM2.5 SILs threshold and
                                                                                  provisions (as promulgated in
                                                                                  the October 20, 2010, PM2.5
                                                                                  PSD Increment-SILs-SMC Rule at
                                                                                  40 CFR 52.21(k)(2)).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2012-22976 Filed 9-18-12; 8:45 am]
BILLING CODE 6560-50-P
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