Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations 2587

205, EPA must select the most costeffective 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 approval

action promulgated does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either 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 Federal 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,

Nitrogen dioxide, Ozone, Reporting and

recordkeeping requirements.

Dated: November 20, 1996.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

Part 52, Chapter I, title 40 of the 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.

2. Section 52.320 is amended by

adding paragraph (73) to read as

follows:

SUBPART G—COLORADO

§ 52.320 Identification of plan.

* * * * *

(c) * * *

(77) On September 29, 1995, Roy

Romer, the Governor of Colorado,

submitted a SIP revision to the State

Implementation Plan for the Control of

Air Pollution. This revision provides a

replacement Regulation No. 11,

Inspection/Maintenance Program which

limits dealer self-testing. This material

is being incorporated by reference for

the enforcement of Colorado’s I/M

program.

(i) Incorporation by reference.

(A) Department of Health, Air Quality

Control Commission, Regulation No. 11

(Motor Vehicle Emissions Inspection

Program) as adopted by the Colorado

Air Quality Control Commission

(AQCC) on September 22, 1994,

effective November 30, 1994.

[FR Doc. 97–1075 Filed 1–16–97; 8:45 am]

BILLING CODE 6560–50–P

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.

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.
2588 Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations

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 FederallyEnforceable 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 twelvemonth 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
Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations 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,
2590 Federal Register / Vol. 62, No. 12 / Friday, January 17, 1997 / Rules and Regulations

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 costeffective 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:

§ 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]

BILLING CODE 6560–50–P