Florida Department of Environmental Protection Bob Martinez Center 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charlie Crist Governor



### Jeff Kottkamp

Lt. Governor

Michael W. Sole Secretary

April 18,2008



### Mr. James I. Palmer, Jr.

Regional Administrator United States Environmental

Protection Agency 

### - Region 4 61 Forsyth Street, SW Atlanta, Georgia 30303-8909

Re: Air Program: Adequacy of Florida's Particulate Matter State Implementation Plan (SIP) with Respect to Section 110(a)(l) and (2) of Clean Air Act

Dear Mr. Palmer:

In accordance with EPA's October 2,2007, memo, "Guidance on SIP Elements Required Under Sections 110(a)(l)and (2) for the 1997 8-hour Ozone and PM2. National Ambient Air Quality Standards," I hereby confmthat to the best of my knowledge the elements required by sections 

### 11 O(a)(l) and 

### (2) ofthe Clean Air Act for implementation of the 1997PM2.5 standard have either been approved into Florida's SIP by EPA, or are addressed in recent Florida SIP submissions currently under review by EPA.

With respect to the generally applicable SIP elements under section 110of the Clean Air Act. the state has addressed these elements in individual SIP revisions over the years, and we are not aware of any current SIP deficiencies related to any of these items. Likewise, we are not aware of any SIP deficiencies related to implementation ofthe PM2. standard that have not been addressed in previously approved or currently pending SIP revisions. Relevant actions are summarized below.

On December 17,2004,EPA designated the entire State of Florida as "unclassifiable/attainment" for the PM2. standard. On October 12,2007, EPA approved Florida's SIP for implementation of the Clean Air Interstate Rule, thereby satisfying the April 25,2005, EPA finding with respect to the ozone and PM2,j "attainment and maintenance'' requirements of section 1 1 O(a)(2)(D)(i)(I). On July 6, 2007, we submitted a proposed SIP revision intended to satisfythe remainder of that same finding with respect to the "prevention of significant deterioration (PSD) and visibility protection" requirements of section 1 1 O(a)(')(D)(i)(II).

### Mr. James 

### I. Palmer, Jr. April 18,2008 Page 2

In the July 6,2007, SIP submittal, we made the following statements with respect to PM2.5:



### Major sources and major modijkations inFlorida are currently subject to a PSD permittingprogram that is being implemented in accordance with EPA 'sOctober 23, 

### 1997, interim guidance calling for the use ofPMloas a surrogate for in the PSD program. (Thedepartment'sBureau ofAirRegulation in Tallahassee issues all PSD permits in the state and, in so doing, adheres to the aforementioned EPA guidance.) Major sources and major modijications in Florida are not currently subject to nonattainment new source review (NNSR) rules for ozone or Ph~f2,~, thestate having no designated nonattainment areas for either pollutant. In anticipation of possible nonattainment in the future, the department commits to update its

### NNSR rules in 2008 to address these pollutants.

Until EPA promulgates PSD requirements for PM2 5, and the department makes corresponding revisions to its PSD rules, Florida will continue to regulate major sources and major modifications in 

### "unclassifiable/attainment" areas in accordance with EPA's October 23, 1997, guidance.

On December 13,2007,I submitted a letter similar to this one to your office confirming that, to the best of my knowledge, Florida's SIP adequately addressesthe elements required under sections 1 1 O(a)(l) and (2) of the Clean Air Act for implementation of the 8-hour ozone standard. As part of that letter, we included, at the request of your staff, the following information regarding Florida's authority to implement the "emergency powers" provisions of section 1 1 O(a)(2)(G). This section of the Clean Air Act requires that states "provide for authority comparable to that in section 303 and adequate contingency plans to implement such authority."



### Section 303 ofthe Act provides the EPA Administrator with authority to seek injunctive relief in the case of "animminent and substantial endangerment topublic health or welfare" and, where civil action is not practicable, authority to issue emergency orders "asmay be necessary toprotect public health or welfare or the environment. " 

### We believe the following statutes give the state comparable authority: 103.131 Injunctive reliex remedies.- (1,) The department may institute 

### a civil action in a court ofcompetentjurisdiction to seek injunctive reliefto enforce compliance with this chapter or any rule, regulation, permit certzfication, or order: 

### to enjoin any violation speczfied in s. 103.161(1);

### and to seek injunctive relieftoprevent irreparable injury to the air, waters, andproperty, including animal,plant, and aquatic life, ofthe state and toprotect human health. safety, and welfare caused or threatened by any violation. And, for emergency orders
120.569 (2)jn) Ifan agency headfinds that an immediate danger to thepublic health. safety, or welfare requires an immediate final order, it shall recite with particularity

### Mr. James I. Palmer, Jr. April 18, 2008 Page 

### 3

the facts underlying such finding in theJinal order, which shall be appealable or enjoinable 

## porn the date rendered.
Section 

### I I O(a)(2)(G) also requires that states provide contingency plans to implement the
emergency powers. OnApril 15, 1996,Florida submitted a SIP revision consisting ofa large number of rule recod2Jicationsand repeals, among which was the repeal ofFlorida Adminis~ative Code Rule 62-273, "AirPollution Episodes. " 

### This rule was originally adopted to implement the requirements of40 CFRPart 51, Subpart

### H; speczJically, the contingency plan requirements at 40 CFR 51.152. In the SIP submittal, we requested exemption 

## porn the requirements of40 CFR 51.152pursuant toEPA S 

### authority at 40 CFR 51.152:d) to approve such exemption. The basis for the state S 

### request was that, while most urbanized areas ofthe state could be classified asPriority 1 for ozone, all such areas were classified 

### as attainment, and all former 

### I -hour ozone nonattainment areas had approved air quality maintenance plans. In addition, wepointed out that air pollutant concentrations at sign fieant harm levels had not been recorded inFlorida for many years, fever. The SIP submittal was approvedbyEPA June 16, 1999 (64 FR 32346).

On March 27,2008 (73 FR 16205),EPA published a finding that Florida "has failed to submit a 

### SIP addressing the emergency episode plan requirement of section 110(a)(2)(G)" with respect to the 8-hour ozone standard. We do not understand the reason for this finding, and we look forward to discussing the issue with your staffover the coming weeks. In the meantime, we continue to believe that the Florida Statutes for injunctive relief and emergency orders cited above give us authority comparable to EPA's emergency powers under Section 303 ofthe Act, not only for ozone but also for PM2.5 and all other pollutants. With respect to contingency plans, we note that EPA has not yet promulgated a significant harm level and associated provisions for PM2.5 under 40 CFR Part 51, Subpart 

### H; therefore, we do not believe it is possible to address this requirement at this time.

If you have any questions on this letter or need additional information. please contact me at (850) 488-01 14or Larry George of my staff at (850) 921-9555. Thank you for your continued support of our efforts to fully implement the Clean Air Act in Florida.

Sincerely,

~osk~6 ~ahn! Director Division of Air Resource Management

cc: Dick Schutt, Chief, Air Planning Branch, EPA Region 4 Beverly Banister, Director, Air, Pesticides and Toxics Management Division