
[Federal Register Volume 79, Number 4 (Tuesday, January 7, 2014)]
[Proposed Rules]
[Pages 778-784]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-00041]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2013-0760; FRL-9905-12-Region 4]


Approval and Promulgation of Implementation Plans; State of 
Florida New Source Review--Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a revision to the Florida State 
Implementation Plan (SIP), submitted by the Florida Department of 
Environmental Protection (FDEP), Division of Air Resources Management, 
to EPA on December 19, 2013. The SIP revision modifies FDEP's New 
Source

[[Page 779]]

Review (NSR) Prevention of Significant Deterioration (PSD) permitting 
regulations to provide FDEP with the authority to issue PSD permits 
governing greenhouse gas (GHG) emissions, to establish appropriate 
emission thresholds for determining which new stationary sources and 
modifications to existing stationary sources become subject to 
Florida's PSD permitting requirements for their GHG emissions, and to 
provide for the implementation of GHG Plantwide Applicability Limits 
(PALs) on a CO2e basis. EPA is proposing approval of 
Florida's December 19, 2013, SIP revision because the Agency has 
determined that the SIP revision is in accordance with the Clean Air 
Act (CAA or Act) and EPA regulations regarding the PSD permitting 
program. EPA also is proposing that upon final approval of the December 
19, 2013, SIP revision, EPA will rescind the GHG PSD Federal 
Implementation Plan (FIP) for Florida that was put in place to ensure 
the availability of a permitting authority for GHGs in Florida.

DATES: Comments must be received on or before February 6, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2013-0760 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: R4-RDS@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2013-0760, 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. Hand Delivery or Courier: Lynorae 
Benjamin, Chief, 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. Such deliveries are only accepted during the Regional 
Office's normal hours of operation. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2013-0760.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through 
www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to EPA without 
going through www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI 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 in 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 a.m. to 4:30 p.m., 
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 and GHG permitting, 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.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What action is EPA proposing?
II. What is the background for EPA's proposed action?
III. What is EPA's analysis of Florida's SIP revision?
IV. Proposed Actions
V. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    On December 19, 2013, FDEP submitted a SIP revision to EPA for 
approval into the Florida SIP to adopt rules equivalent to Federal 
requirements for NSR PSD permitting. The SIP revision consists of 
changes to the FDEP Air Quality Regulations, at Chapter 62-210, Florida 
Administrative Code (F.A.C.), Stationary Sources--General Requirements, 
Section 200--Definitions (rule 62-210.200). The December 19, 2013, SIP 
revision changes the definition of ``PSD pollutant'' to provide Florida 
with the authority to regulate GHGs \1\ under its PSD program as well 
as to establish the appropriate emission thresholds for determining 
which new stationary sources and modification projects become subject 
to the State's PSD permitting requirements for their GHG emissions as 
promulgated in the GHG Tailoring Rule, 75 FR 31514 (June 3, 2010).\2\ 
Florida's December 19, 2013, submission also incorporates by reference 
\3\ (IBR) the GHG PAL provisions that were promulgated in EPA's July 
12, 2012, Step 3 GHG Tailoring Rule.\4\ In addition, EPA is proposing 
that upon final approval of the December 19, 2013, SIP revision, EPA 
will rescind the GHG PSD FIP for

[[Page 780]]

Florida that was put in place to ensure the availability of a 
permitting authority for GHGs in Florida. See 75 FR 82246 (December 30, 
2010). For more information on Florida's FIP see section III of this 
rulemaking. EPA's proposed approval of Florida's December 19, 2013, SIP 
revision includes approval of the GHG PSD Permit Transition Plan 
described in section IV.D. of this rulemaking. Pursuant to section 110 
of the CAA, EPA is proposing to approve these changes into the Florida 
SIP.\5\
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    \1\ Throughout this document, where appropriate, EPA will use 
the acronyms ``GHG'' and ``GHGs'' to express the term greenhouse gas 
or greenhouse gases, respectively.
    \2\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010) (GHG Tailoring Rule)
    \3\ Throughout this rulemaking the acronym IBR means 
``incorporate by reference'' or ``incorporates by reference.''
    \4\ ``Prevention of Significant Deterioration and Title V 
Operating Permit Greenhouse Gas (GHG) Tailoring Rule Step 3 and GHG 
Plantwide Applicability Limits.'' 77 FR 41051 (July 12, 2012) (Step 
3 GHG Tailoring Rule).
    \5\ EPA also promulgated the GHG Tailoring Rule for the title V 
operating permit program in the rulemaking entitled ``Action To 
Ensure Authority To Implement Title V Permitting Programs Under the 
Greenhouse Gas Tailoring Rule,'' 75 FR 82254 (December 30, 2010). 
However, today's action does not affect Florida's title V program.
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II. What is the background for EPA's proposed action?

    This section briefly summarizes EPA's GHG-related actions that 
provide the background for this action. Please see the preambles for 
the identified GHG-related rulemakings for more information.

A. EPA's GHG Tailoring Rule, SIP Call, and FIP

    Beginning in 2010, EPA promulgated a series of actions pertaining 
to the regulation of GHGs that, although for the most part are distinct 
from one another, established the overall framework for today's 
proposed action on the Florida SIP. Four of these actions include, as 
they are commonly called, the ``Endangerment Finding'' and ``Cause or 
Contribute Finding,'' (which EPA issued in a single final action); \6\ 
the ``Johnson Memo Reconsideration;'' \7\ the ``Light-Duty Vehicle 
Rule;'' \8\ and the GHG Tailoring Rule. Taken together and in 
conjunction with the CAA, these actions established regulatory 
requirements for GHGs emitted from new motor vehicles and new motor 
vehicle engines; determined that such regulations, when they took 
effect on January 2, 2011, subjected GHGs emitted from stationary 
sources to PSD requirements; and limited the applicability of PSD 
requirements to GHG sources on a phased-in basis. EPA took this last 
action in the GHG Tailoring Rule, which, more specifically, established 
appropriate GHG emission thresholds for determining the applicability 
of PSD requirements to GHG-emitting sources. In the GHG Tailoring Rule, 
EPA tailored the applicability criteria that determine which GHG 
emission sources become subject to the PSD program of the CAA to 
relieve overwhelming permitting burdens that would, in the absence of 
the rule, fall on permitting authorities and sources. See 75 FR 31514 
(June 3, 2010). As EPA explained in the GHG Tailoring Rule, the 
threshold limitations are necessary because without them PSD would 
apply to all stationary sources that emit or have the potential to emit 
more than 100 or 250 tons of GHG per year as of January 2, 2011. 
January 2, 2011, was the date when EPA's Light-Duty Vehicle Rule took 
effect, imposing control requirements for the first time on carbon 
dioxide and other GHGs.
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    \6\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \7\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \8\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
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    In the GHG Tailoring Rule, EPA requested that permitting 
authorities confirm whether their SIPs provide authority to implement 
the GHG Tailoring Rule thresholds. See 75 FR at 31582. FDEP provided a 
letter (commonly referred to as the 60-day letter) to EPA on July 2, 
2010, explaining: ``[F]lorida's PSD permitting program is limited to 
those pollutants identified in our state rules as, `PSD pollutant,' a 
term that does not include GHGs. In order to incorporate GHGs into our 
PSD permitting program, we will need to amend our state rules and 
submit a SIP revision to EPA.'' See Docket ID: EPA-R04-OAR-2013-0760 
for a copy Florida's 60-day letter.
    On September 2, 2010, EPA issued proposed findings of substantial 
inadequacy \9\ and a proposed ``SIP call'' for Florida and other states 
with SIP-approved PSD programs that did not apply PSD to GHGs. See 75 
FR 53883. The purpose of the SIP call was to require these states to 
revise their SIPs by a specific deadline to ensure that their PSD 
program covered GHG-emitting sources. In the proposed SIP call, EPA 
requested that each SIP call state confirm to EPA that its SIP did not 
apply the PSD program to GHGs. Id. at 53896. EPA further requested that 
each SIP call state identify the deadline that they would accept for 
submitting their corrective SIP revision. Id. In response, FDEP 
submitted a letter (referred to as the 30-day letter) to EPA on October 
1, 2010, reiterating that Florida's SIP did not apply PSD permitting 
requirements to sources of GHG. See 75 FR 53883. Florida explained that 
PSD permitting applicability in the State was established based on the 
application of the terms ``PSD pollutant,'' ``major stationary 
source,'' ``major modification'' and ``significant emission rates'' 
(the key term being ``PSD pollutant''). The definition of ``PSD 
pollutant'' is limited by a state rule to a finite set of pollutants 
which did not include GHG. Florida also indicated it did not oppose the 
SIP call's establishment of a December 22, 2013, deadline to submit a 
corrective SIP revision. See Docket ID: EPA-R04-OAR-2013-0760 for 
Florida's 30-day letter.
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    \9\ When Federal permitting requirements change, as they did 
when EPA's GHG emissions standards for light-duty vehicles took 
effect on January 2011, states may need to modify their SIPs to meet 
the new requirements. Assuring that each state and local permitting 
agency has the authority to permit GHGs requires SIP changes in a 
number of states. In the final SIP call rule, EPA found that PSD 
permitting regulations in 15 state and local permitting agencies 
states do not meet CAA requirements because their programs at the 
time did not cover GHG emissions. In these states, at the time of 
the GHG SIP call, neither EPA nor the state had authority to issue a 
PSD permit to sources of GHG emissions.
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    In December 2010, EPA promulgated additional rulemakings to 
implement the new GHG PSD SIP program. Recognizing that some states had 
SIP-approved PSD programs that did not apply PSD to GHGs, EPA finalized 
the findings of substantial inadequacy and GHG SIP call \10\ for 
Florida and 14 other state and local permitting authorities where the 
existing SIP-approved PSD program did not provide authority to regulate 
GHGs. The SIP call required the 15 state and local permitting 
authorities to revise their SIPs by a specific deadline to ensure that 
their PSD program covered GHG emitting sources. In the SIP call, EPA 
explained that if a state identified in the SIP call failed to submit 
the required corrective SIP revision by the applicable deadline, the 
Agency would promulgate a FIP under CAA section 110(c)(1)(A) for that 
state to govern PSD permitting for GHGs.
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    \10\ ``Action to Ensure Authority to Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call,'' Final Rule.'' 75 FR 77698 (December 13, 2010) (GHG SIP 
call).
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    FDEP, along with several other state and local permitting 
authorities, did not submit a corrective SIP revision to apply its PSD 
program to sources of GHG by the specified deadline cited in the SIP 
call. Therefore on December 29, 2010,\11\ EPA published a finding of 
failure to submit the required SIP revision by the specified deadline 
and then

[[Page 781]]

promulgated the GHG PSD FIP.\12\ EPA explained in the SIP call and GHG 
PSD FIP that the purpose of the two rulemakings and their expedited 
schedules was to ensure that GHG-emitting sources in the affected 
states, including Florida, would have a permitting authority (i.e., 
EPA) to act on the GHG PSD permit applications by January 2, 2011 (date 
that GHGs became subject to PSD). EPA also emphasized that its 
``overarching goal is to assure that in every instance, it will be the 
state that will be the permitting authority,'' and that as a result, 
EPA sought to return permitting authority to the states as soon as 
possible. See 75 FR at 77717.
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    \11\ ``Action To Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Failure To Submit State 
Implementation Plan Revisions Required for Greenhouse Gases,'' 75 FR 
81874 (December 29, 2010).
    \12\ ``Action To Ensure Authority To Issue Permits Under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Federal Implementation Plan,'' 75 FR 82246 
(December 30, 2010) (GHG PSD FIP).
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B. Step 3 GHG Tailoring Rule

    In the June 3, 2010, GHG Tailoring Rule, EPA established a phased-
in approach to implementing CAA permitting requirements to regulate 
GHG-emitting sources through the PSD program (referred to as Steps 1 
and 2). See 75 FR 31514. Step 1,\13\ which took effect on January 2, 
2011; and Step 2,\14\ which took effect on July 1, 2012, and 
incorporated Step 1, established the PSD and title V applicability 
thresholds at what EPA calls the 100,000/75,000 levels, which refers to 
the number of tons per year (tpy) in carbon dioxide equivalent 
(CO2e) \15\ basis. Also in the GHG Tailoring Rule, EPA made 
regulatory commitments for a subsequent action (or Step 3) to propose 
or solicit comment on lowering the 100,000/75,000 threshold on the 
basis of three criteria that concerned whether the permitting 
authorities had the necessary time to develop greater administrative 
capacity due to an increase in resources or permitting experience, as 
well as whether the EPA and the permitting authorities had developed 
effective strategies to streamline the issuance of permits. However, 
after assessing the progress of GHG permitting, EPA determined that the 
three criteria mentioned above had not been met because neither the 
Agency nor the states have made sufficient progress developing 
sufficient capacity or streamlining mechanisms to handle a larger 
number of permits than Steps 1 and 2 require. As a result, on July 12, 
2012, EPA finalized the Step 3 GHG Tailoring Rule \16\ determining not 
to lower the current, 100,000/75,000 applicability thresholds to bring 
additional sources into the PSD and title V permitting programs (or 
apply PSD and title V permitting requirements to additional, smaller 
sources of GHG emissions).\17\ See 77 FR 41051.
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    \13\ Under Step 1 of the Tailoring Rule, PSD requirements apply 
to sources' GHG emissions if the sources were subject to PSD anyway 
due to their non-GHG regulated air pollutants (``anyway'' sources) 
and emit or have the potential to emit at least 75,000 tons per year 
(tpy) (not defined until the next page) CO2e not defined 
until the next page. For title V, existing sources with, or new 
sources obtaining, title V permits are required to address GHG 
emissions in those permits as necessary.
    \14\ Under Step 2, PSD applies to the largest GHG-emitting 
sources that are not ``anyway'' sources and that are either new 
sources that emit or have the potential to emit at least 100,000 tpy 
CO2e or existing sources that emit at that level and that 
undertake modifications that increase emissions by at least 75,000 
tpy CO2e, and also emit at least 100/250 tpy of GHGs on a 
mass basis. In addition, under Step 2, title V applies to existing 
sources that are not ``anyway'' sources that emit or have the 
potential to emit 100,000 tpy (CO2e).
    \15\ CO2e is a common metric used to evaluate the six 
constituent gases (including carbon dioxide, methane, nitrous oxide, 
hydofluorocarbons, perfluorocarbons and sulfur hexafluoride) and in 
the case of the GHG Tailoring rule to determine PSD applicability. A 
source's GHG emissions are calculated on a CO2e basis by 
multiplying the mass emissions of any of the six GHGs that the 
source emits by that gas's global warming potential and then summing 
the CO2e for each GHG emitted by the source. This sum, 
expressed in terms of tpy CO2e, is then compared to the 
applicable CO2e-based permitting threshold to determine 
whether the source is subject to PSD and title V requirements.
    \16\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule Step 3 and GHG Plant-wide 
Applicability Limits,'' 77 FR 41051, (July 12, 2012) (the Step 3 GHG 
Tailoring Rule).
    \17\ Currently, new facilities with GHG emissions of at least 
100,000 tpy CO2e and existing facilities with at least 
100,000 tpy CO2e making changes that would increase GHG 
emissions by at least 75,000 tpy CO2e, are required to 
obtain PSD permits. Facilities that must obtain a PSD permit anyway, 
to cover other regulated pollutants, must also address GHG emissions 
increases of 75,000 tpy CO2e or more. New and existing sources with 
GHG emissions above 100,000 tpy CO2e must also obtain operating 
permits.
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    In the Step 3 GHG Tailoring Rule, EPA also finalized an approach to 
assist state and local permitting authorities in streamlining the 
administration of PSD permits for GHGs through the PALs.\18\ This 
approach will improve the usefulness of PALs for GHG emissions by 
allowing GHG PALs to be established on a CO2e basis in 
addition to the already available mass-basis.\19\ EPA also revised its 
regulations at 40 CFR 52.21 to allow a source that emits or has the 
potential to emit GHGs at levels above 100,000 tpy CO2e but 
that has emissions of other regulated pollutants at minor source levels 
(or GHG-only source) to apply for a GHG PAL while still maintaining its 
minor source status.\20\ Florida's December 19, 2013, SIP revision IBR 
EPA's Step 3 Tailoring Rule related to the GHG PAL permitting 
regulations. See section IV for EPA's analysis of Florida's SIP 
submission.
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    \18\ A PAL is an emissions limit applied source-wide rather than 
to specific emissions points. With a PAL, a source can make changes 
to the facility without triggering PSD permitting requirements as 
long as emissions do not increase above the limit established by the 
PAL. This allows companies to respond rapidly to changing market 
conditions while protecting the environment.
    \19\ Under EPA's interpretation of the Federal PAL provisions, 
PALs are already available under PSD for non-GHG pollutants and for 
GHGs on a mass basis. The Step 3 Tailoring Rule revised the PALs 
regulations and subject to regulation provisions at 40 CFR 52.21 to 
provide GHG sources with the same kind of flexibility sources 
currently had for other regulated NSR pollutants by allowing sources 
the option to establish a CO2e-based PAL using the 
CO2e-based emission. See 77 FR at 41060.
    \20\ EPA did not finalize its proposed streamlining measure of 
providing regulatory authority for the EPA or a delegated agency to 
issue synthetic minor limitations for GHG in areas subject to a PSD 
FIP for GHGs or other streamlining measures.
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III. What is EPA's analysis of Florida's SIP revision?

    This section summarizes EPA's analysis of the changes being 
proposed for inclusion into the Florida SIP. Chapter 62-210, F.A.C. 
entitled ``Stationary Sources--General Requirements,'' contains 
definitions of terms (at Rule 62-210.200, F.A.C.) used in Chapter 62-
212, F.A.C., as well as other stationary source rules. Chapter 62-210, 
F.A.C., also establishes general permitting, public notice, reporting, 
and permit application requirements. Chapter 62-212, F.A.C., entitled 
``Stationary Sources--Preconstruction Review'' contains specific 
preconstruction permitting requirements for various types of air 
construction permits, including minor source permits, PSD permits, 
nonattainment new source review (NNSR) permits, and PAL permits. Rule 
62-212.400, F.A.C. contains the State's PSD preconstruction review 
program as required under part C of title I of the CAA. The PSD program 
applies to major stationary sources or modifications constructing in 
areas that are designated as attainment or unclassifiable with respect 
to the national ambient air quality standards (NAAQS). The current 
changes to Chapter 62- 210, F.A.C., which EPA is now proposing to 
approve into the Florida SIP, were submitted to update the existing 
Florida regulations to be consistent with the regulation of GHG-
emitting sources under the Federal PSD permitting program.

A. Florida's PSD Permitting Program

    Florida's NSR permitting program is based on the application of the 
term ``PSD pollutant'' at Rule 62-210.200(234), F.A.C. Florida defines 
``PSD pollutant'' \21\ as any pollutant

[[Page 782]]

listed as having a ``significant emission rate'' as defined in Rule 62-
210.200. Florida references the term ``PSD pollutant'' within many key 
NSR definitions in Rule 62-210.200, F.A.C., and its PSD rule, 62-
212.400, F.A.C., to trigger program applicability, including: 
``Baseline Actual Emissions,'' ``Major Modification,'' ``Major 
Stationary Source,'' ``Net Emissions Increase,'' and ``Projected Actual 
Emissions.'' The applicability of Florida's SIP-approved PSD program 
depends on whether a new ``major stationary source'' or ``major 
modification'' of any existing major stationary source will result in 
significant emissions of a ``PSD pollutant.'' The terms ``major 
stationary source'' and ``major modification'' defined in SIP Rule 62-
210.200, F.A.C. references the term ``PSD pollutant.'' As mentioned 
above, Florida indicated in its October 1, 2010, correspondence to EPA 
that its PSD permitting program was limited to those pollutants 
identified in the State as a ``PSD pollutant,'' a term that does not 
include GHG. Florida went on to convey that because GHGs were not 
included in the SIP definition of ``significant emissions rate,'' they 
were not deemed qualified as a ``PSD pollutant(s)'' under Florida's PSD 
program. Absent a corrective SIP revision, FDEP did not have the 
authority to apply PSD requirements to GHG emitting sources as they 
became ``subject to regulation'' under the CAA on January 2, 2011. 
Florida did not make its December 22, 2010, GHG corrective SIP revision 
deadline resulting in EPA issuing a finding of failure to submit on 
December 29, 2010, and the GHG PSD FIP on December 30, 2010, to ensure 
that GHG-emitting sources in Florida would have an available permitting 
authority (i.e., EPA).
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    \21\ Florida adopted into its SIP the term ``PSD pollutant'' 
(which references significant emissions rate) to replace the term 
``NSR Pollutant'' at Rule 62-210.200, F.A.C. as part of its February 
3, 2006, SIP submission to adopt the 2002 NSR Reform permitting 
provisions. See 73 FR 36435 (June 27, 2008). FDEP provided an 
equivalency demonstration establishing the definitions of ``PSD 
pollutant'' and ``significant emissions rate'' as being equivalent 
to the Federal definition of ``regulated NSR pollutant'' since they 
included all pollutants for which a NAAQS had been promulgated thus 
far, all precursors for such pollutants which had thus far been 
identified by the Administrator, all pollutants subject to standards 
promulgated under section 111 of the Act, and all pollutants thus 
far regulated under the Act. Florida's definitions however lacked 
the catch-all phrase ``subject to regulation,'' which is part of the 
Federal definition of ``regulated NSR pollutant.'' Florida explained 
that any pollutant or precursor that needed to be identified as a 
PSD pollutant in the future, if a new pollutant became ``subject to 
regulation,'' would be adopted into the SIP soon after it became 
regulated.
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B. Florida's Revision to PSD pollutant

    Under EPA's PSD program, ``regulated NSR pollutant'' is defined as 
several categories of pollutants (including, in general, NAAQS 
pollutants and precursors, pollutants regulated under CAA section 111 
New Source Performance Standards, Class I or II substances regulated 
under title VI of the CAA) and a catch-all category, ``[a]ny pollutant 
that otherwise is ``subject to regulation'' under the Act.'' E.g., 40 
CFR 52.21(b)(50)(iv). As part of the mechanism to implement the GHG 
tailoring approach for PSD, EPA promulgated a definition for this 
catch-all phrase ``subject to regulation'' \22\ in the GHG Tailoring 
Rule as found within ``regulated NSR pollutant'' (which in turn is part 
of EPA's definition for ``major stationary source'' and ``major 
modification,'' central to PSD applicability). Therefore, the term 
``subject to regulation'' as referenced in the definition of 
``regulated NSR pollutant'' at 40 CFR 52.21(b)(50)(iv) triggers the 
circumstances under which GHGs are a ``regulated NSR pollutant.'' In 
addition to defining ``subject to regulation'' for the PSD program, the 
GHG Tailoring Rule revised the term ``regulated NSR pollutant'' at (40 
CFR 52.21(b)(50)) to reference ``subject to regulation'' at 40 CFR. 
52.21(b)(49); and define (at 40 CFR 51.166 and 52.21) the terms 
``greenhouse gases,'' and ``tpy CO2 equivalent emissions.'' 
The 2010 rule also specified the methodology for calculating an 
emissions increase for GHG, the applicable thresholds for GHG emissions 
subject to PSD and the schedule for when the applicability thresholds 
would take effect. See 75 FR at 31606-31607.
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    \22\ EPA defined the phrase ``subject to regulation'' so that 
the GHGs emitted by sources that fall below the thresholds or scope 
established in Steps 1 and 2 are not treated as ``subject to 
regulation,'' and therefore do not trigger PSD for the sources that 
emit them.
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    Florida's December 19, 2013, SIP submission revises the definition 
of ``PSD pollutant'' at 62-210.200 to incorporate the term ``regulated 
NSR pollutant'' as defined in 40 CFR 52.21(b)(50), which in turn 
references the term ``subject to regulation'' (defined at 40 CFR 
52.21(b)(49)) at 40 CFR 52.21(b)(50)(iv). This SIP revision became 
effective on October 23, 2013. Florida's revision triggers the 
circumstances under which GHGs are a ``PSD pollutant'' under the 
State's PSD program. In relevant part, Florida's revised definition of 
``PSD pollutant'' provides:

62-210.200--PSD pollutant--(a) Any pollutant listed as having a 
significant emission rate as defined in Rule 62-210.200, F.A.C.; and 
(b) Any Regulated NSR Pollutant as defined at 40 CFR 52.21(b)(50) 
and as adopted and incorporated by reference at Rule 62-204.800, 
F.A.C.

C. Incorporation by Reference

    As Florida mentions in its December 19, 2013, SIP submission, its 
amendment to ``PSD pollutant'' to IBR the phrase ``Any Regulated NSR 
Pollutant'' as defined at 40 CFR 52.21(b)(50) does not, in and of 
itself, provide Florida the authority to regulate GHGs in its PSD 
program. Florida's State Rule 62-204.800, F.A.C., IBR the Federal Code 
of Federal Regulations (CFR) (including 40 CFR 52.21) into the Florida 
regulations.\23\ To ``activate'' the applicability of a Federal rule 
within Florida's regulations, the state references Rule 62-204.800, 
F.A.C. within the state regulations (such as 62-210.200).\24\ The 
previous IBR of Federal provisions at 40 CFR 52.21 into State Rule 62-
204.800, F.A.C. predated EPA's adoption of the GHG Tailoring Rule and 
the Step 3 GHG Tailoring Rule. In order for the IBR of EPA's updated 
definition of ``Any Regulated NSR Pollutant'' at 40 CFR 52.21(b)(50) to 
be applicable in Florida's regulations, FDEP amended State Rule 
62.204.800, F.A.C., to IBR 40 CFR 52.21, Subpart A as of July 1, 2011, 
and July 12, 2012. This amendment to Rule 62-204.800 became state 
effective on December 17, 2013.\25\ This change incorporates into the 
F.A.C. the applicable GHG regulations established in the GHG Tailoring 
Rule and the Step 3 GHG Tailoring Rule. Therefore, Florida's amendment 
to the definition of ``PSD pollutant'' at Rule 62-210.200, F.A.C., 
provides Florida the authority to

[[Page 783]]

regulate GHG under the PSD program and establishes in the Florida SIP 
the thresholds for GHG permitting. These changes also IBR the GHG PAL 
provisions established in the July 12, 2012, Step 3 GHG Tailoring Rule 
allowing GHG PALs to be established on a CO2e basis in 
addition to the already available mass-basis and allow a GHG-only 
source to apply for a GHG PAL while still maintaining its minor source 
status.\26\
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    \23\ When FDEP incorporates by reference a Federal regulation, 
any subsequent change to the Federal CFR is not automatically 
incorporated into Florida's rules. See Section 120.54(1)(i)1., F.S. 
(``A rule may incorporate material by reference but only as the 
material exists on the date the rule is adopted.'').
    \24\ The incorporation by reference of the CFR (such as 40 CFR 
52.21) at 62.204.800 does not by itself make those regulations 
applicable within Florida's SIP regulations; it's the actual 
reference to State Rule 62.204.800 within Florida regulations that 
makes the Federal regulation applicable. In other words, Rule 62-
204.800, F.A.C., is the mechanism Florida uses to make specific 
Federal requirement applicable within SIP-approved regulations.
    \25\ Florida's Rule 62-204.800, F.A.C., is a state law. 
Therefore the amendment to update the IBR date for 40 CFR 52.21 at 
62-204.800 is not part of the State's December 19, 2013, SIP 
revision. However, as noted, without it the reference to 40 C.F.R. 
52.21(b)(50) in the definition of ``PSD pollutant'' would be 
referring to an older version of 40 CFR 52.21 which did not include 
the GHG Tailoring Rule's regulatory amendments for regulated NSR 
pollutant and the inclusion of ``subject to regulation'' (nor the 
Step 3 GHG Tailoring Rule).
    \26\ EPA adopted the PAL regulations into the Florida SIP on 
June 27, 2008, at Rule 62-212.720, F.A.C., as part of the State's 
February 3, 2006, SIP submission to adopt the 2002 NSR Reform 
permitting provisions. See 73 FR 36435.
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D. GHG PSD Permit Transition

    As explained in today's proposed notice, Florida is subject to the 
FIP for PSD permitting of GHG emissions. EPA remains the sole PSD 
permitting authority for GHG-emitting sources in Florida until EPA 
finalizes its proposed approval of the December 19, 2013, SIP revision 
into the Florida SIP. EPA proposes that upon finalization of Florida's 
GHG SIP revision, EPA will rescind the GHG PSD FIP for Florida at 40 
CFR 52.37.
    As part of Florida's December 19, 2013, SIP revision, Florida 
included a GHG PSD Permit Transition Plan. See GHG Transition Plan in 
Appendix B of Florida's December 19, 2013, submission in the Docket for 
today's proposed rulemaking using Docket ID: EPA-R04-OAR-2013-0760. 
Specifically, under FDEP's Permit Transition Plan, FDEP would exercise 
its authority to administer and enforce GHG PSD permits issued by EPA 
under its FIP to sources located in the State of Florida. This would 
include authority for the general administration of these existing 
permits, authority to process and issue any and all subsequent PSD 
permit actions relating to such permits including, but not limited to, 
modifications, amendments, or revisions of any nature, and the 
authority to enforce such permits. Pursuant to the criteria under 
section 110(a)(2)(E)(i) of the CAA, we have determined that Florida has 
the authority, personnel, and funding to implement the PSD program for 
GHGs for existing EPA-issued permits. Therefore, EPA proposes that 
concurrent with EPA's approval of Florida's GHG PSD program into the 
SIP, EPA will transfer existing EPA-issued GHG permits for Florida 
sources to FDEP for administration and enforcement. To date, EPA has 
issued two final PSD permits and has five pending PSD applications in 
various stages of processing. See Appendix B, Attachment 2 of Florida's 
December 19, 2013, SIP revision.\27\ EPA will provide a list of all 
EPA-issued permits and a copy of each permit record (if requested) to 
FDEP prior to the effective date of the final SIP approval.
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    \27\ Since the date of Florida's GHG Permit Transition Plan, EPA 
Region 4 issued a second GHG permit on December 18, 2013 for a total 
of two GHG issued permits.
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    In order to promote an orderly transition of the GHG PSD program 
from the EPA to Florida, the efficient use of Florida's and EPA's 
resources, and certainty for the regulated community and the public, 
and consistent with FDEP's proposed GHG PSD permit transition plan, EPA 
proposes to retain PSD permit implementation authority (under 40 CFR 
52.21) for pending applications, draft permits, and final permits for 
which final agency action has not been taken or for which all 
administrative and judicial appeals processes pursuant to 40 CFR 124 
(including any associated remand actions) have not been completed by 
the effective date of EPA's final action to approve FDEP's SIP 
submittal. FDEP would assume full responsibility for the administration 
and implementation of such GHG PSD permits immediately upon 
notification from EPA that all administrative and judicial appeals 
processes and any associated remand actions have been completed or 
concluded for any such permit application. Applicants with pending GHG 
PSD permit applications before EPA, including those for which EPA has 
proposed draft permits or issued final permits that have not yet become 
effective or have not yet completed the appeals processes pursuant to 
40 CFR part 124, may elect to withdraw their applications from EPA and 
resubmit to FDEP for review and processing. Upon the effective date of 
EPA's final action to approve the SIP submittal, FDEP will immediately 
assume full responsibility for new GHG PSD applications for Florida 
sources. As such, new applications will be submitted to and processed 
by FDEP's Division of Air Resource Management.

IV. Proposed Actions

    Florida's December 19, 2013, SIP submission amends the State's 
definition of ``PSD pollutant'' to provide Florida with the authority 
to regulate GHG under its PSD program, to establish PSD applicability 
thresholds for GHG emissions at the same emissions thresholds and in 
the same timeframes as those specified by EPA in the GHG Tailoring 
Rule, and to provide for the implementation of GHG PALs on a 
CO2e basis. In today's action, pursuant to section 110 of 
the CAA, EPA is proposing to approve these changes into the Florida 
SIP.\28\
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    \28\ The GHG Tailoring Rule also applies to the title V program, 
which requires operating permits for existing sources. However, 
today's action does not affect Florida's title V program.
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    In addition, EPA is proposing that upon finalization of Florida's 
GHG SIP revision, EPA will rescind the Florida GHG FIP at 40 CFR 52.37. 
EPA notes that finalization of this portion of today's proposal may 
follow our finalized approval of the SIP revisions via a separate 
Administrator-signed action. EPA remains the sole PSD permitting 
authority for GHG-emitting sources in Florida until EPA finalizes its 
proposed approval of the December 19, 2013, SIP revision into the 
Florida SIP.
    EPA's approval of Florida's December 19, 2013, SIP revision 
includes approval of FDEP's GHG PSD Permit Transition Plan, under which 
EPA will transfer existing EPA-issued GHG permits for Florida sources 
to Florida for administration and enforcement. EPA proposes to retain 
PSD permit implementation authority (under 40 CFR 52.21) for pending 
GHG permit applications, draft permits, and final permits for which 
final agency action has not been taken or for which all administrative 
and judicial appeals processes pursuant to 40 CFR part 124 (including 
any associated remand actions) have not been completed by the effective 
date of EPA's final action to approve Florida's SIP submittal. Florida 
would assume full responsibility for the administration and 
implementation of such GHG PSD permits immediately upon notification 
from EPA that all administrative and judicial appeals processes and any 
associated remand actions have been completed or concluded for any such 
permit application.
    EPA has made the preliminary determination that Florida's December 
19, 2013, SIP revision is consistent with EPA's PSD regulations for 
GHG-emitting sources as promulgated in the GHG Tailoring Rule, Step 3 
GHG Tailoring Rule and section 110 of the CAA. Therefore, EPA is 
proposing to approve the GHG PSD permitting revision into the Florida 
SIP.

V. 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,

[[Page 784]]

EPA's role is to approve state choices, provided that they meet the 
criteria of the CAA. Accordingly, these proposed actions merely approve 
state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, these proposed actions:
     are 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);
     do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     are 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.);
     do 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);
     do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     are not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     are not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     are 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
     do 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Greenhouse Gas, 
Intergovernmental relations, Reporting and recordkeeping requirements.

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

    Dated: December 23, 2013.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2014-00041 Filed 1-6-14; 8:45 am]
BILLING CODE 6560-50-P


