[Federal Register Volume 62, Number 12 (Friday, January 17, 1997)]
[Rules and Regulations]
[Pages 2587-2590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1077]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[FL-68-2-9640a; FRL-5662-1]


Approval and Promulgation of Implementation Plans State: Approval 
of Revisions to the State of Florida State Implementation Plan (SIP)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the Florida State Implementation 
Plan (SIP) to allow the State air pollution control agency to utilize 
exclusionary rules via general permits for the purpose of limiting 
potential to emit (PTE) criteria pollutants for certain source 
categories to less than the title V permitting major source thresholds. 
EPA is also approving under section 112(l) of the Clean Air Act (CAA) 
the same source-categories of the submitted regulations for limiting 
PTE of hazardous air pollutants (HAP) to less than title V permitting 
major source thresholds. These exclusionary rules allow facilities to 
compute potential emissions based on actual emissions or raw material 
usage for the following source categories: Asphalt concrete plants, 
bulk gasoline plants, emergency generators, surface coating operations, 
heating units and general purpose internal combustion engines, 
polyester resin plastic products, cast polymer operations; and mercury 
reclamation and recovery operations. On April 15, 1996, the State of 
Florida through the Department of Environmental Protection (DEP) 
submitted a SIP revision fulfilling the requirements necessary to 
utilize exclusionary rules to limit PTE of air pollutants in a 
federally enforceable manner. On August 6, 1996, the State of Florida 
submitted updates to the earlier submittal which also fulfill the 
requirements necessary to utilize exclusionary rules to limit PTE in a 
federally enforceable manner.

DATES: This final rule is effective March 18, 1997 unless adverse or 
critical comments are received by February 18, 1997. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Written comments on this action should be addressed to Scott 
Miller at the Environmental Protection Agency, Region 4 Air Planning 
Branch, 100 Alabama Street, SW, Atlanta, Georgia 30303. Copies of 
documents relative to this action are available for public inspection 
during normal business hours at the following locations. The interested 
persons wanting to examine these documents should make an appointment 
with the appropriate office at least 24 hours before the visiting day. 
Reference file FL-68-2-9640. The Region 4 office may have additional 
background documents not available at the other locations.

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460.
Environmental Protection Agency, Region 4 Air Planning Branch, 100 
Alabama Street, SW, Atlanta, Georgia 30303. Scott Miller, 404/562-9120.
Florida Department of Environmental Protection, Division of Air 
Resources Management, 2600 Blair Stone Road, MS 5500, Tallahassee, 
Florida 32399-2400.

FOR FURTHER INFORMATION CONTACT: Scott Miller at 404/562-9120.

[[Page 2588]]

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    On April 15, 1996, the State of Florida through the DEP submitted a 
SIP revision designed to allow the agency to utilize exclusionary rules 
for the purpose of limiting PTE for asphalt concrete plants, bulk 
gasoline plants, emergency generators, surface coating operations, 
heating units and general purpose internal combustion engines, 
polyester resin plastic products, cast polymer operations, and mercury 
reclamation and recovery operations. On August 6, 1996, the State of 
Florida submitted updates to the earlier submittal which also fulfill 
the requirements necessary to utilize exclusionary rules to limit PTE 
in a federally enforceable manner. Exclusionary rules are designed to 
create federally enforceable limits on a facility's PTE in a manner 
that does not require a facility-specific evaluation of emissions and 
limiting conditions. As such, exclusionary rules are appropriate for 
the purpose of limiting PTE when a facility has one type of emission 
source. EPA is approving all source-category rules found at Florida 
Administrative Code (F.A.C.) at 62-210.300(3)(c) and 62-210.300(4), 
submitted for purposes of limiting PTE for criteria pollutants into the 
SIP. The DEP is implementing these exclusionary rules found at 62-
210.300(3)(c) through general permitting regulations found at 62-
210.300(4). EPA is also approving under section 112(l) of the CAA, the 
regulations found in the F.A.C. 62-210.300(3)(c) and 62-210.300(4) for 
purposes of limiting PTE of HAP. For a description of this and other 
ways to limit PTE for a facility see the EPA guidance document entitled 
``Options for Limiting the Potential to Emit (PTE) of a Stationary 
Source Under Section 112 and Title V of the Clean Air Act (Act)'' dated 
January 25, 1995, from John Seitz to the EPA Regional Air Division 
Directors.
    These rules which set out specific conditions for a facility to 
limit its PTE were designed to meet criteria listed in the EPA guidance 
memorandum entitled ``Guidance for State Rules for Optional Federally 
Enforceable Emissions Limits Based on Volatile Organic Compound Use'' 
dated October 15, 1993, from D. Kent Barry to the EPA Regional Air 
Division Directors, an EPA guidance document entitled ``Approaches to 
Creating Federally-Enforceable Emissions Limits'' dated November 3, 
1993, and the January 25, 1995, guidance memorandum referenced above. 
These guidance documents set out specific guidelines for exclusionary 
rule development regarding applicability, compliance determination and 
certification, monitoring, reporting, record keeping, public 
involvement, practical enforceability, and the requirement that a 
facility cannot rely on emission limits or caps contained in a 
exclusionary rule to justify violation of any rate-based emission 
limits or other applicable requirements.
    These regulations apply to facilities which agree to limit their 
annual emissions to less than major source thresholds for criteria and/
or HAP emissions. A rule which sets out the operating parameters must 
also provide that a facility owner or operator specifically apply for 
coverage under the exclusionary rule. F.A.C. Regulations 62-
210.300(3)(c) and 62-210.300(4) provide that the exclusionary rules are 
for certain source categories to define and limit their potential 
emissions to less than major source levels for title V purposes. The 
source categories covered by the exclusionary rules are asphalt 
concrete plants, bulk gasoline plants, emergency generators, surface 
coating operations, heating units and general purpose internal 
combustion engines, polyester resin plastic products, cast polymer 
operations, and mercury reclamation and recovery operations. F.A.C. 
Regulation 62-210.300(3)(c) provides that even though a facility is 
exempted from obtaining a title V permit by complying with these 
exclusionary rules, it is still required to obtain a general permit. As 
such, these regulations meet the guidelines specified in the October 
15, 1993, and the January 25, 1995, guidance documents that require an 
exclusionary rule to clearly identify the category of sources that 
qualify for the rule's coverage.
    The October 15, 1993, and the January 25, 1995, guidance documents 
suggest that facilities be required to show compliance with the 
exclusionary rule on a yearly basis by requiring monthly record keeping 
of the relevant variable causing emissions and showing compliance using 
the monthly record of the relevant variable affecting emissions. The 
January 25, 1995, guidance document stipulates that where monitoring 
cannot be used to determine emissions directly, limits on appropriate 
operating parameters must be established for the units or source, and 
monitoring must verify compliance with those limits. In the case of the 
Florida exclusionary rule regulations, a facility is required to keep 
records of the use of or processing of a product or substance that 
produces the emissions. For instance, F.A.C. Regulation 62-
210.300(3)(c)1.g requires concrete asphalt facilities to keep monthly 
and twelve-month rolling total records of asphaltic concrete produced, 
gallons of fuel oil consumed and the hours of operation. The asphalt 
concrete facility must then show compliance with the 500,000 ton per 
any consecutive twelve-month period, fuel-oil consumption records that 
show that no more than 1.2 million gallons are combusted in any 
consecutive twelve-month period, and that fuel-oil sulfur content is 
less than or equal to 1 percent sulfur as determined by ASTM methods 
ASTM D4057-88, D129-91, D2622-94, or D4294-90. Finally, a concrete 
asphalt facility must keep records of its operating hours to show that 
operating hours do not exceed 4000 hours in any consecutive twelve-
month period. EPA believes that the exclusionary rules submitted by the 
DEP meet the guidelines outlined in the October 15, 1993, and January 
25, 1995, guidance documents for purposes of detailing specific 
compliance monitoring to show compliance with the relevant exclusionary 
rule limit.
    The October 15, 1993, guidance document recommends that all 
submittals that result from exclusionary rules be certified for truth, 
accuracy, and completeness. Each facility which chooses to be covered 
by an exclusionary rule submitted by the DEP must make submissions 
which are certified by the appropriate official as defined under the 
Air General Permit Notification Form. For instance, F.A.C. Regulation 
62-210.300(3)(c)1.j requires concrete asphalt facilities to submit a 
notification to DEP that certifies that the facility is operating in 
compliance with the exclusionary rule to which it is subject. In 
addition, the facility must also certify that it will continue to 
operate in compliance with the exclusionary rule to which it is 
subject. EPA believes that the DEP exclusionary rules meet the 
requirements of the October 15, 1993, guidance document for purposes of 
certifying compliance with the exclusionary rule to which a facility is 
subject.
    The October 15, 1993, guidance document recommends that reporting 
requirements should vary based on how close the facility emissions are 
to the relevant major source threshold. For facilities with emissions 
that are close to the major source threshold, the guidance recommends 
that a state or local air pollution control agency require more 
frequent reporting of the variable affecting emissions (e.g., gasoline 
throughput). In lieu of requiring facilities to report emissions to 
DEP, DEP requires the facility to

[[Page 2589]]

maintain records for a period of five years from their origination. 
These records are required to be readily available for submission or 
inspection on-site. In addition, the DEP has committed to inspect ten 
percent of facilities subject to an exclusionary rule every year. While 
the rules submitted by the DEP do not match recommended guidelines 
found in the October 15, 1993, guidance document for reporting 
requirements, the EPA believes that the DEP inspections of subject 
facilities, along with the above mentioned record keeping requirements, 
are sufficient to ensure compliance by subject facilities.
    The October 15, 1993, and the January 25, 1995, guidance documents 
specify that record keeping is required by a facility to show that the 
facility is eligible for the exclusionary rule and that the facility is 
in compliance with the relevant exclusionary rule. The October 15, 
1993, guidance document requires that record keeping shall be 
maintained on site and available to the permitting authority upon 
demand. The October 15, 1993, guidance document also requires that a 
facility be required to retain records for a period sufficient to 
support enforcement efforts. The DEP regulations require that copies of 
all records required to be kept for exclusionary rule purposes be kept 
on site and be available to each agency on demand. The exclusionary 
rules submitted by DEP require that records be kept for a period of 
five years from the date the records are originated. EPA believes that 
a five year time period is an adequate time period for a facility 
subject to an exclusionary rule to maintain records in order to support 
enforcement efforts.
    The November 3, 1993, and the January 25, 1995, guidance documents 
set out requirements for public involvement in the development and 
application of exclusionary rules. The November 3, 1993, guidance 
document states that if exclusionary rules are sufficiently reliable 
and replicable, EPA and the public need not be involved with their 
application to individual sources, as long as the protocols themselves 
have been subject to notice and opportunity to comment and have been 
approved by EPA into the SIP. The January 25, 1995, guidance document 
provides that source-category standards approved into the SIP or under 
section 112(l) of the CAA, if enforceable as a practical matter, can be 
used as federally enforceable limits on PTE. Once a specific source 
qualifies under the applicability requirements of the source-category 
rule, additional public participation is not required to make the 
limits federally enforceable as a matter of legal sufficiency since the 
rule itself underwent public participation and EPA review. The DEP 
general permit exclusionary rules underwent public participation at the 
State level when these rules were made State-effective by the DEP. EPA 
has had an opportunity to review these regulations and is publishing 
this document to take comment on these regulations at the national 
level. Later in this Federal Register document, practical 
enforceability of DEP's exclusionary rules will be addressed. EPA 
believes that, with this Federal Register document and other public 
process received at the State and local level, the DEP exclusionary 
rules satisfy requirements for public participation outlined in the 
November 3, 1993, and the January 25, 1995, guidance documents.
    The January 25, 1995, guidance document sets out requirements for 
exclusionary rule conditions to be practically enforceable. These 
requirements stem from past precedence in what the EPA has required for 
a permit to be considered enforceable as a practical matter. See 54 FR 
27274 (June 28, 1989) and a June 13, 1989, EPA policy memorandum 
entitled ``Limiting Potential to Emit in New Source Permitting.'' The 
criteria include clear statements as to the applicability, specificity 
as to the standard that must be met, explicit statements of the 
compliance time frames (e.g., hourly, daily, monthly, or 12-month 
averages, etc.), that the time frame and method of compliance employed 
must be sufficient to protect the standard involved, record keeping 
requirements must be specified, and equivalency provisions must meet 
specific requirements. In general, practical enforceability means that 
the provision must specify; (1) A technically accurate limitation and 
the portions of the source subject to the limitation; (2) the time 
period for the limitation; and (3) the method to determine compliance 
including appropriate monitoring, record keeping, and reporting. All of 
these elements have been discussed prior to this paragraph in this 
Federal Register with the exception of (2) above. The DEP regulations 
require facilities subject to the exclusionary rule to keep records on 
a monthly basis and to determine compliance with a yearly limit on a 
calendar monthly rolling average basis. This method for determining 
compliance with the exclusionary rule limitation was addressed 
specifically as one practically enforceable way to show compliance with 
a permit limit in the June 13, 1989, guidance document entitled 
``Limiting Potential to Emit in New Source Permitting.'' As such, EPA 
believes the DEP general permit exclusionary rule regulations meet the 
requirements necessary for exclusionary rules to be enforceable as a 
practical matter.
    Finally, the October 15, 1993, guidance document stipulates that a 
facility cannot rely on emission limits or caps contained in a 
exclusionary rule to justify violation of any rate-based emission 
limits or other applicable requirements. This requirement is reflected 
by the fact that exclusionary rules are carried out through general 
permits. These general permits contain other requirements to which a 
facility is subject. Since the general permit will include all 
requirements to which a facility is subject, it follows that the 
exclusionary rules contained in the general permit cannot be used to 
override other requirements found in the permit. Therefore, EPA 
believes that the DEP exclusionary rules meet the requirements listed 
in the October 15, 1993, guidance document regarding the use of an 
exclusionary rule cap to justify violation of any rate-based emission 
limit or other applicable requirements.
    Eligibility for federally enforceable exclusionary rule 
certifications extends not only to certifications made after the 
effective date of this rule, but also to certifications issued under 
the State rule prior to the effective date of this rulemaking. If the 
State agency followed its own regulation, it received exclusionary rule 
certifications that established a limiting condition on a facility's 
PTE. EPA will consider all such exclusionary rule certifications which 
were submitted in a manner consistent with the State agency regulations 
as federally enforceable upon the effective date of this action.

II. Final Action

    In this action, the EPA is approving the State of Florida 
exclusionary rules and general permit regulations found at FAC 
Regulation 62-210.300(3)(c) and 62-210.300(4) into the Florida SIP. The 
EPA is approving Florida regulations FAC Regulation 62-210.300(3)(c) 
and 62-210.300(4) for purposes of limiting PTE of HAP under section 
112(l) of the CAA. The EPA is publishing this document without prior 
proposal because the EPA views this as a noncontroversial amendment and 
anticipates no adverse comments. However, in a separate document in 
this Federal Register publication, EPA is proposing to approve the SIP 
revision should adverse or critical comments be filed. This action will 
be effective March 18, 1997 unless, by February 18, 1997,

[[Page 2590]]

adverse or critical comments are received. If the EPA receives such 
comments, this action will be withdrawn before the effective date by 
publishing a subsequent document that will withdraw the final action. 
All public comments received will be addressed in a subsequent final 
rule based on this action serving as a proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting on this action should do so at this time. If 
no such comments are received, the public is advised that this action 
will be effective March 18, 1997.
    EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Amendments 
enacted on November 15, 1990. EPA has determined that this action 
conforms with those requirements.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any state implementation plan. Each request for revision to the SIP 
shall be considered separately in light of specific technical, 
economic, and environmental factors and in relation to relevant 
statutory and regulatory requirements.

III. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget has exempted 
this action from review under Executive Order 12866.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600, EPA must 
prepare a regulatory flexibility analysis assessing the impact of any 
proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-state relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 
42 U.S.C. Section 7410(a)(2).

C. Unfunded Mandates Reform Act of 1995

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the final action promulgated today does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 18, 1997. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides.

    Dated: August 29, 1996.
R. F. McGhee,
Acting, Regional Administrator.

    Part 52 of chapter I, title 40, Code of Federal Regulations, is 
amended as follows:

PART 52--[AMENDED]

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

    Authority: 42.U.S.C. 7401-7671q.

Subpart K--Florida

    2. Section 52.520, paragraph (c) is amended by adding paragraph 
(97) to read as follows:


Sec. 52.520  Identification of plan.

* * * * *
    (c) * * *
    (97) General permit rules and exclusionary rules for the State of 
Florida Department of Environmental Protection submitted by the Florida 
Department of Environmental Protection as part of the Florida SIP.
    (i) Incorporation by reference.
    (A) Florida Administrative Code Regulation 62-210.300(3)(c) and 62-
210.300(4) of the Florida SIP as adopted by the Secretary of the 
Florida Department of Environmental Protection on July 26, 1996 and 
which became effective on August 15, 1996.
    (ii) Other material. None.

[FR Doc. 96-1077 Filed 1-16-97; 8:45 am]
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