On April 3, 2013, the U.S. Environmental Protection Agency (EPA) published final approval of Florida’s state implementation plan (SIP) for “prong three” of the Clean Air Act’s interstate transport requirements for the 1997 annual and 2006 24-hour fine particulate matter (PM2.5) national ambient air quality standards (NAAQS). 78 Fed. Reg. 19,998. EPA describes the Act’s interstate transport requirements in section 110(a)(2)(D)(i) as consisting of four prongs. Prong three requires Florida’s SIP to include provisions prohibiting any source in the state from interfering with any measures required to prevent significant deterioration of air quality in another state. Prong four is related to interstate interference with measures protecting visibility in another state. Prong three and four are collectively identified in section 110(a)(2)(D)(i)(II) of the Act. Prongs one and two are collectively identified in section 110(a)(2)(D)(i)(I) of the Act and prohibit states from contributing significantly to nonattainment, or interfering with maintenance, of the NAAQS in another state. Prongs one and two constitute the basis for EPA’s efforts to regulate the interstate transport of emissions in the Clean Air Interstate Rule and its vacated successor, the Cross-State Air Pollution Rule.
EPA’s proposed action approves of Florida’s SIP as satisfying prong three, except as it relates to greenhouse gas permitting requirements. EPA notes, however, that this does not result in any further obligations for Florida because EPA has already promulgated a federal implementation plan for greenhouse gas permitting in Florida.
EPA’s final action also notes that it previously approved the Significant Monitoring Concentration (“SMC”) portion of EPA’s 2010 PM2.5 implementation rule into Florida’s SIP, but that subsequently the U.S. Court of Appeals for the District of Columbia Circuit vacated the SMC provision in the federal regulations. EPA states that it does not think the inclusion of SMC provisions in the SIP affects its April 3rd final action, but thinks Florida cannot apply these provisions, even prior to their removal from the SIP. EPA suggests that any pending applications relying on the SMC provision submit ambient PM2.5 monitoring per the Clean Air Act’s requirements if any direct or precursor PM2.5 is emitted in significant amounts. EPA further indicates it does not have a deadline for states to remove these provisions from their SIPs, but encourages Florida to go ahead and begin the process.
While EPA’s final action only addresses prong three of the Act’s interstate transport requirements, EPA already took final action approving of Florida’s SIP as satisfying all of the Act’s requirements with respect to the 1997 and 2006 PM2.5 NAAQS except section 110(a)(2)(D)(i)(I) and (II) interstate transport requirements, i.e., pongs one through four. 77 Fed. Reg. 66,927 (Nov. 8, 2012). In addition, EPA also already took final action approving of Florida’s SIP as meeting prongs one and two of the Act’s interstate transport requirements for the 2006 PM2.5 NAAQS based on EPA’s own Cross-State Air Pollution Rule modeling. 77 Fed. Reg. 61,724 (Oct. 11, 2012).
For additional information contact Joseph Brown.