81 FR 47094 - Air Plan Approval; Florida; Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 139 (July 20, 2016)
Federal Register Volume 81, Issue 139 (July 20, 2016)
| Page Range | 47094-47103 | |
| FR Document | 2016-17055 |
[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)] [Proposed Rules] [Pages 47094-47103] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-17055] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0507; FRL-9949-30-Region 4] Air Plan Approval; Florida; Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard AGENCY: Environmental Protection Agency. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve the State Implementation Plan (SIP) submission, submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP), on January 22, 2013, for inclusion into the Florida SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO2 ) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an ``infrastructure SIP submission.'' FDEP certified that the Florida SIP contains provisions that ensure the 2010 1-hour NO2 NAAQS is implemented, enforced, and maintained in Florida. With the exception of provisions pertaining to the ambient air quality monitoring and data system, prevention of significant deterioration (PSD) permitting and interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states, EPA is proposing to find that Florida's infrastructure SIP submission, provided to EPA on January 22, 2013, satisfies certain required infrastructure elements for the 2010 1-hour NO2 NAAQS. DATES: Written comments must be received on or before August 19, 2016. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04- OAR-2014-0507 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be [[Page 47095]] edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Wong can be reached via electronic mail at [email protected] or via telephone at (404) 562-8726. SUPPLEMENTARY INFORMATION: I. Background and Overview On February 9, 2010, EPA published a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion (ppb), based on a 3- year average of the 98th percentile of the yearly distribution of 1- hour daily maximum concentrations. See 75 FR 6474. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS. Section 110(a)(2) requires states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013.\1\ --------------------------------------------------------------------------- \1\ In these infrastructure SIP submissions States generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the federally-approved SIP. In addition, certain federally-approved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2). Throughout this rulemaking, unless otherwise indicated, the term ``Florida Administrative Code'' or ``F.A.C.'' indicates that the cited regulation has been approved into Florida's federally-approved SIP. The term ``Florida statute'' or ``F.S.'' indicates cited Florida state statutes, which are not a part of the SIP unless otherwise indicated. --------------------------------------------------------------------------- In this action, EPA is proposing to approve Florida's infrastructure SIP submission for the applicable requirements of the 2010 1-hour NO2 NAAQS, with the exception of the ambient air quality monitoring and data system requirements of section 110(a)(2)(B), the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) and the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of prongs 1 and 2 of section 110(a)(2)(D)(i). On March 18, 2015, EPA approved Florida's January 22, 2013 infrastructure SIP submission regarding the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) for the 2010 1-hour NO2 NAAQS. See 80 FR 14019. Therefore, EPA is not proposing any action today pertaining to sections 110(a)(2)(C), prong 3 of D(i), and (J). Additionally, EPA is not proposing action related to the ambient air quality monitoring and data system of section 110(a)(2)(B) and prongs 1 and 2 of section 110(a)(2)(D)(i). EPA will act on these provisions in a separate action. For the aspects of Florida's submittal proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that Florida's already approved SIP meets certain CAA requirements. II. What elements are required under sections 110(a)(1) and (2)? Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2010 1-hour NO2 NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for ``infrastructure'' SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are listed below and in EPA's September 13, 2013, memorandum entitled ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2).'' \2\ \2\ Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA; and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. Today's proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C).110(a)(2)(A): Emission Limits and Other Control Measures 110(a)(2)(B): Ambient Air Quality Monitoring/Data System 110(a)(2)(C): Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources \3\ --------------------------------------------------------------------------- \3\ This rulemaking only addresses requirements for this element as they relate to attainment areas. --------------------------------------------------------------------------- 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution 110(a)(2)(E): Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies 110(a)(2)(F): Stationary Source Monitoring and Reporting 110(a)(2)(G): Emergency Powers 110(a)(2)(H): SIP revisions 110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\ --------------------------------------------------------------------------- \4\ As mentioned above, this element is not relevant to today's proposed rulemaking. --------------------------------------------------------------------------- 110(a)(2)(J): Consultation with Government Officials, Public Notification, and PSD and Visibility Protection [[Page 47096]] 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data 110(a)(2)(L): Permitting fees 110(a)(2)(M): Consultation and Participation by Affected Local Entities III. What is EPA's approach to the review of infrastructure SIP submissions? EPA is acting upon the SIP submission from Florida that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 NO 2 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions ``within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),'' and these SIP submissions are to provide for the ``implementation, maintenance, and enforcement'' of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that ``[e]ach such plan'' submission must address. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term ``infrastructure SIP'' does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to address the nonattainment planning requirements of part D of title I of the CAA, ``regional haze SIP'' submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D. Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.\5\ EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission. --------------------------------------------------------------------------- \5\ For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies. --------------------------------------------------------------------------- The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that ``each'' SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.\6\ Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.\7\ This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission. --------------------------------------------------------------------------- \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)). \7\ EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS. --------------------------------------------------------------------------- Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit ``a plan'' to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.\8\ Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.\9\ --------------------------------------------------------------------------- \8\ See, e.g., ``Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and ``Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS). \9\ On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal. --------------------------------------------------------------------------- Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore [[Page 47097]] could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.\10\ --------------------------------------------------------------------------- \10\ For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS. --------------------------------------------------------------------------- EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the ``applicable requirements'' of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others. Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS. Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.\11\ EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).\12\ EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.\13\ The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. --------------------------------------------------------------------------- \11\ EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate. \12\ ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013. \13\ EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations. --------------------------------------------------------------------------- As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128. As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including GHGs. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action. For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review [[Page 47098]] of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs. With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (``SSM''); (ii) existing provisions related to ``director's variance'' or ``director's discretion'' that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.\14\ It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described. --------------------------------------------------------------------------- \14\ By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP. --------------------------------------------------------------------------- EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of ``implementation, maintenance, and enforcement'' of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors. For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP call'' whenever the Agency determines that a state's implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.\15\ Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.\16\ Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.\17\ --------------------------------------------------------------------------- \15\ For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See ``Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011). \16\ EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See ``Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs). \17\ See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (Jan. 26, 2011) (final disapproval of such provisions). --------------------------------------------------------------------------- IV. What is EPA's analysis of how Florida addressed the elements of the sections 110(a)(1) and (2) ``infrastructure'' provisions? Below is a discussion of the Florida submission organized by each of the sub-elements found in sections 110(a)(1) and (2). 1. 110(a)(2)(A) Emission limits and other control measures: Section 110(a)(2)(A) requires that each implementation plan include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements. There are several regulations within Florida Administrative Code (F.A.C.) relevant to air quality control regulations which include enforceable emission limitations and other control measures. Chapters 62-204, F.A.C., Air Pollution Control Provisions; 62-210, F.A.C., Stationary Sources--General Requirements; 62-212, F.A.C., Stationary Sources--Preconstruction Review; 62-296, F.A.C., Stationary Sources--Emissions Standards; and 62-297, F.A.C., Stationary Sources--Emissions Monitoring, establish emission limits for NO2 and address the [[Page 47099]] required control measures, means and techniques for compliance with the 2010 1-hour NO2 NAAQS respectively. Additionally, the following sections of the Florida Statutes provide FDEP the authority to conduct certain actions in support of this infrastructure element. Section 403.061(9), Florida Statutes, authorizes FDEP to ``[a]dopt a comprehensive program for the prevention, control, and abatement of pollution of the air . . . of the state,'' and section 403.8055, Florida Statutes, authorizes FDEP to ``[a]dopt rules substantively identical to regulations adopted in the Federal Register by the United States Environmental Protection Agency pursuant to federal law . . .'' EPA has made the preliminary determination that the provisions contained in these chapters satisfy section 110(a)(2)(A) for the 2010 1-hour NO2 NAAQS in the State. In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during start up, shut down, and malfunction (SSM) of operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, ``State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the Agency is addressing such state regulations in a separate action.\18\ --------------------------------------------------------------------------- \18\ On June 12, 2015, EPA published a final action entitled, ``State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction.'' See 80 FR 33840. --------------------------------------------------------------------------- Additionally, in this action, EPA is not proposing to approve or disapprove any existing State rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible. 2. 110(a)(2)(B) Ambient air quality monitoring/data system: With respect to Florida's infrastructure SIP submission related to the ambient air quality monitoring and data system, EPA is not proposing any action today regarding these requirements and instead will act on this portion of the submission in a separate action. 3. 110(a)(2)(C) Programs for enforcement of control measures and for construction or modification of stationary sources: This element consists of three sub-elements; enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources; and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source PSD program). As discussed further below, in this action EPA is only proposing to approve the enforcement and the regulation of minor sources and minor modifications aspects of Florida's section 110(a)(2)(C) infrastructure SIP submission. Enforcement: Florida cites to Section 403.061(6), Florida Statutes, which requires FDEP to ``[e]xercise general supervision of the administration and enforcement of the laws, rules, and regulations pertaining to air and water pollution.'' Section 403.121, Florida Statutes, authorizes FDEP to seek judicial and administrative remedies, including civil penalties, injunctive relief, and criminal prosecution for violations of any FDEP rule or permit. These provisions provide FDEP with authority for enforcement of NO2 emission limits and control measures. Preconstruction PSD Permitting for Major Sources: With respect to Florida's January 22, 2013, infrastructure SIP submission related to the preconstruction PSD permitting requirements for major sources of section 110(a)(2)(C), EPA took final action to approve these provisions for the 2010 1-hour NO2 NAAQS on March 18, 2015. See 80 FR 14019. Regulation of minor sources and modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source program that regulates emissions of the 2010 1-hour NO2 NAAQS. FDEP's SIP-approved rule Chapters 62-204, F.A.C., Air Pollution Control Provisions, 62-210, F.A.C., Stationary Sources-- General Requirements, 62-212, F.A.C., Stationary Sources-- Preconstruction Review apply to minor sources and minor modifications as well as major stationary sources and modifications. EPA has made the preliminary determination that Florida's SIP is adequate for program enforcement of control measures and regulation of minor sources and modifications related to the 2010 1-hour NO2 NAAQS. 4. 110(a)(2)(D)(i)(I) and (II) Interstate pollution transport: Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components have two subparts resulting in four distinct components, commonly referred to as ``prongs,'' that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (``prong 1''), and interfering with maintenance of the NAAQS in another state (``prong 2''). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state interfering with measures required to prevent significant deterioration of air quality in another state (``prong 3''), or to protect visibility in another state (``prong 4''). 110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) because Florida's 2010 1-hour NO2 NAAQS infrastructure submission did not address prongs 1 and 2. 110(a)(2)(D)(i)(II)--prong 3: With respect to Florida's infrastructure SIP submission related to the interstate transport requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took final action to approve Florida's January 22, 2013, infrastructure SIP submission regarding prong 3 of D(i) for the 2010 1-hour NO2 NAAQS on March 18, 2015. See 80 FR 14019. 110(a)(2)(D)(i)(II)--prong 4: Section 110(a)(2)(D)(i)(II) requires that the SIP contain adequate provisions to protect visibility in other states. In its submittal, Florida cited to EPA's proposed approval of the State's regional haze SIP, which EPA fully approved.\19\ Federal regulations require that a state's regional haze SIP contain a long- term strategy to address regional haze visibility impairment in each Class I area within the state and each Class I area outside the state that may be affected by emissions from the state.\20\ A state participating in a regional planning process, such as Florida, must include all measures needed to achieve its apportionment of emissions reduction obligations agreed upon through that [[Page 47100]] process.\21\ EPA's approval of Florida's regional haze SIP therefore ensures that emissions from Florida are not interfering with measures to protect visibility in other states, satisfying the requirements of prong 4 of section 110(a)(2)(D)(i)(II) for the 2010 1-hour NO2 NAAQS.\22\ Thus, EPA has made the preliminary determination that Florida's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS meets the requirements of prong 4 of section 110(a)(2)(D)(i)(II). --------------------------------------------------------------------------- \19\ See 77 FR 71111 (November 29, 2012); 78 FR 53250 (August 29, 2013). \20\ See 40 CFR 51.308(d). \21\ See, e.g., 40 CFR 51.308(d)(3)(ii). Florida participated in the Visibility Improvement State and Tribal Association of the Southeast regional planning organization, a collaborative effort of state governments, tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Southeastern United States. Member state and tribal governments included: Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, West Virginia, and the Eastern Band of the Cherokee Indians. \22\ See EPA's September 13, 2013, guidance document entitled ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' at pp. 32-35, available at: http://www.epa.gov/air/urbanair/sipstatus/infrastructure.html; see also memorandum from William T. Harnett, Director, Air Quality Policy Division, Office of Air Quality Planning and Standards, to Regional Air Division Directors, entitled ``Guidance on SIP Elements Required Under Sections 110(1)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5 ) National Ambient Air Quality Standards (NAAQS) (September 25, 2009) at pp. 5- 6, available at: http://www.epa.gov/ttn/caaa/t1/memoranda/20090925_harnett_pm25_sip_110a12.pdf. --------------------------------------------------------------------------- 5. 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. Chapters 62-204, F.A.C., Air Pollution Control Provisions ; 62-210, F.A.C., Stationary Sources--General Requirements, and 62-212, F.A.C., Stationary Sources--Preconstruction Review of the Florida SIP outlines how Florida will notify neighboring states of potential impacts from new or modified sources. EPA is unaware of any pending obligations for the State of Florida pursuant to sections 115 or 126 of the CAA. EPA has made the preliminary determination that Florida's SIP and practices are adequate for insuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2010 1-hour NO2 NAAQS. 6. 110(a)(2)(E) Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies: Section 110(a)(2)(E) requires that each implementation plan provide (i) necessary assurances that the State will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the State comply with the requirements respecting State Boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provisions. EPA is proposing to approve Florida's SIP as meeting the requirements of section 110(a)(2)(E). EPA's rationale for today's proposal respecting each requirement of section 110(a)(2)(E) is described in turn below. In support of EPA's proposal to approve sub-elements 110(a)(2)(E)(i) and (iii), FDEP's infrastructure submission demonstrates that FDEP is responsible for promulgating rules and regulations for the NAAQS, emissions standards, general policies, a system of permits, and fee schedules for the review of plans, and other planning needs. Section 403.061(2), Florida Statutes, authorizes FDEP to ``[h]ire only such employees as may be necessary to effectuate the responsibilities of the department.'' Section 403.061(4), Florida Statutes, authorizes FDEP to ``[s]ecure necessary scientific, technical, research, administrative, and operational services by interagency agreement, by contract, or otherwise.'' Section 403.061(35), Florida Statutes, authorizes FDEP to exercise the duties, powers, and responsibilities required of the state under the federal CAA. Section 403.182, Florida Statutes, authorizes FDEP to approve local pollution control programs, and provides for the State air pollution control program administered by FDEP to supersede a local program if FDEP determines that an approved local program is inadequate and the locality fails to take the necessary corrective actions. Section 320.03(6), Florida Statutes, authorizes FDEP to establish an Air Pollution Control Trust Fund and use a $1 fee on every motor vehicle license registration sold in the State for air pollution control purposes. As evidence of the adequacy of FDEP's resources, EPA submitted a letter to Florida on April 19, 2016, outlining section 105 grant commitments and the current status of these commitments for fiscal year 2015. The letter EPA submitted to Florida can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0507. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. Florida satisfactorily met all commitments agreed to in the Air Planning Agreement for fiscal year 2013, therefore Florida's grants were finalized. EPA has made the preliminary determination that Florida has adequate resources and authority for implementation of the 2010 1-hour NO2 NAAQS. Section 110(a)(2)(E)(ii) requires that the state comply with section 128 of the CAA. Section 128 requires that the SIP provide: (1) The majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and (2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar powers be adequately disclosed. For purposes of section 128(a)(1), Florida has no boards or bodies with authority over air pollution permits or enforcement actions. Such matters are instead handled by an appointed Secretary. Appeals of final administrative orders and permits are available only through the judicial appellate process described at Florida Statute 120.68, F.S., Judicial review. As such, a ``board or body'' is not responsible for approving permits or enforcement orders in Florida, and the requirements of section 128(a)(1) are not applicable. Regarding section 128(a)(2), on July 30, 2012, EPA approved Florida statutes into the SIP to comply with section 128 respecting state boards. See 77 FR 44485. Specifically, the following provisions of Florida Statutes, 112.3143(4), F.S., Voting conflicts and 112.3144, F.S, Full and public disclosure of financial interests were incorporated into the SIP to satisfy the conflict of interest provisions applicable to the head of FDEP and all public officers within the Department. EPA has made the preliminary determination that the State has adequately addressed the requirements of section 128(a)(2), and accordingly has met the requirements of section 110(a)(2)(E)(ii) with respect to infrastructure SIP requirements. Therefore, EPA is proposing to approve Florida's infrastructure SIP submission as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii) and (iii). 7. 110(a)(2)(F) Stationary source monitoring and reporting: Section 110(a)(2)(F) requires SIPs to meet applicable requirements addressing (i) [[Page 47101]] the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. FDEP's infrastructure SIP submission describes the establishment of requirements for compliance testing by emissions sampling and analysis, and for emissions and operation monitoring to ensure the quality of data in the State. The Florida infrastructure SIP submission also describes how the major source and minor source emission inventory programs collect emission data throughout the State and ensure the quality of such data. Florida meets these requirements through Chapters 62-204, 62-210, 62-212, 62- 296, and 62-297, F.A.C., which require emissions monitoring and reporting for activities that contribute to NO2 concentrations in the air, including requirements for the installation, calibration, maintenance, and operation of equipment for continuously monitoring or recording emissions, or provide authority for FDEP to establish such emissions monitoring and reporting requirements through SIP-approved permits and require reporting of NO2 emissions. The following sections of the Florida Statutes provide FDEP the authority to conduct certain actions in support of this infrastructure element. Section 403.061(13) authorizes FDEP to ``[r]equire persons engaged in operations which may result in pollution to file reports which may contain . . . any other such information as the department shall prescribe . . .''. Section 403.8055 authorizes FDEP to ``[a]dopt rules substantively identical to regulations adopted in the Federal Register by the United States Environmental Protection Agency pursuant to federal law. . . .'' Section 90.401, Florida Statutes, defines relevant evidence as evidence tending to prove or disprove a material fact. Section 90.402, Florida Statutes, states that all relevant evidence is admissible except as provided by law. EPA is unaware of any provision preventing the use of credible evidence in the Florida SIP.\23\ --------------------------------------------------------------------------- \23\ ``Credible Evidence'' makes allowances for owners and/or operators to utilize ``any credible evidence or information relevant'' to demonstrate compliance with applicable requirements if the appropriate performance or compliance test had been performed, for the purpose of submitting compliance certification and can be used to establish whether or not an owner or operator has violated or is in violation of any rule or standard. --------------------------------------------------------------------------- Additionally, Florida is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them--nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Florida made its latest update to the NEI on November 5, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary determination that Florida's SIP and practices are adequate for the stationary source monitoring systems related to the 2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submission with respect to section 110(a)(2)(F). 8. 110(a)(2)(G) Emergency powers: This section requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority. Florida's infrastructure SIP submission identifies air pollution emergency episodes and preplanned abatement strategies as outlined in Florida Statutes 403.131, Injunctive relief, remedies, and 120.569(2)(n), Decisions which affect substantial interests. Section 403.131 authorizes FDEP to enforce compliance with any rule, regulation or permit, order, to enjoin any violation specified in Section 403.061(1) or Florida Statutes. Section 403.061(1) authorizes injunctive relief to prevent irreparable injury to the air, waters, and property, including animal, plant, and aquatic life, of the State and to protect human health, safety, and welfare caused or threatened by any violation. Section 120.569(2)(n) authorizes FDEP to issue emergency orders to address immediate dangers to public health, safety or welfare. These statutes were submitted for inclusion into the SIP to satisfy the requirements of section 110(a)(2)(G) of the CAA and were approved by EPA on July 30, 2012. See 77 FR 44485. EPA has made the preliminary determination that Florida's SIP and practices are adequate for emergency powers related to the 2010 1-hour NO2 NAAQS. 9. 110(a)(2)(H) SIP revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan (i) as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements. FDEP is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in Florida. Florida Statutes subsection 403.061(35) grants FDEP the broad authority to implement the CAA; also, subsection 403.061(9), F.S., authorizes FDEP to adopt a comprehensive program for the prevention, control, and abatement of pollution of the air . . . of the state, and from time to time review and modify such programs as necessary. FDEP has the ability and authority to respond to calls for SIP revisions, and has provided a number of SIP revisions over the years for implementation of the NAAQS. Florida does not have any nonattainment areas for the 2010 1-hour NO2 NAAQS but has made an infrastructure submission for this standard, which is the subject of this rulemaking. EPA has made the preliminary determination that Florida's SIP and practices adequately demonstrate a commitment to provide future SIP revisions related to the 2010 1-hour NO2 NAAQS when necessary. 10. 110(a)(2)(J) Consultation with government officials, public notification, and PSD and visibility protection: EPA is proposing to approve Florida's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that provides for meeting the applicable consultation requirements of section 121, the public notification requirements of section 127; and visibility protection requirements of [[Page 47102]] part C of the Act. With respect to Florida's infrastructure SIP submission related to the preconstruction PSD permitting requirements of section 110(a)(2)(J), EPA took final action to approve Florida's January 22, 2013, 2010 1-hour NO2 NAAQS infrastructure SIP for theses requirements on March 18, 2015. See 80 FR 14019. EPA's rationale for its proposed action regarding applicable consultation requirements of section 121, the public notification requirements of section 127, and visibility protection requirements is described below. Consultation with government officials (121 consultation): Section 110(a)(2)(J) of the CAA requires states to provide a process for consultation with local governments, designated organizations and federal land managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation. Chapters 62-204, F.A.C., Air Pollution Control Provisions, 62-210, F.A.C., Stationary Sources--General Requirements and 62-212, F.A.C., Stationary Sources--Preconstruction Review, as well as Florida's Regional Haze Implementation Plan (which allows for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLMs), provide for consultation with government officials whose jurisdictions might be affected by SIP development activities. Florida adopted state-wide consultation procedures for the implementation of transportation conformity. Implementation of transportation conformity as outlined in the consultation procedures requires FDEP to consult with federal, state and local transportation and air quality agency officials on the development of motor vehicle emissions budgets for the SIP. EPA has made the preliminary determination that Florida's SIP and practices adequately demonstrate consultation with government officials related to the 2010 1-hour NO2 NAAQS when necessary. Public notification (127 public notification): Section 403.061(21), Florida Statutes authorizes FDEP to advise, consult cooperate, and enter into agreements with other entities affected by the provisions of this act, rules, or policies of the department. Section 403.061(20) Florida Statues authorizes FDEP to collect and disseminate information relating to pollution. FDEP has public notice mechanisms in place to notify the public of NO2 and other pollutant forecasting, including an air quality monitoring Web site providing alerts, http://www.dep.state.fl.us/air/air_quality/countyaqi.htm. EPA has made the preliminary determination that Florida's SIP and practices adequately demonstrate the State's ability to provide public notification related to the 2010 NO2 NAAQS when necessary. Visibility protection: EPA's 2013 Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. FDEP referenced its regional haze program as germane to the visibility component of section 110(a)(2)(J). EPA recognizes that states are subject to visibility protection and regional haze program requirements under Part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP submittals so FDEP does not need to rely on its regional haze program to fulfill its obligations under section 110(a)(2)(J). As such, EPA has made the preliminary determination that the visibility protection element of section 110(a)(2)(J) is approvable and that Florida does not need to rely on its regional haze program for this element. 11. 110(a)(2)(K) Air quality modeling and submission of modeling data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to the EPA can be made. Chapter 62-204.800, F.A.C., Federal Regulations Adopted by Reference, incorporates by reference 40 CFR 52.21(l), which specifies that air modeling be conducted in accordance with 40 CFR part 51, Appendix W ``Guideline on Air Quality Models.'' Chapters 62-210 and 62-212 require use of EPA approved modeling related to NO2 concentrations in ambient air. Florida Statute 403.061(13) authorizes FDEP to require persons to file reports which may contain information used for modeling and 403.061(18) authorizes FDEP to encourage and conduct studies related to pollution. FDEP has the technical capability to conduct or review all air quality modeling associated with the NSR program and SIP related modeling, except photo chemical grid modeling which is contracted out. Additionally, Florida supports a regional effort to coordinate the development of emissions inventories and conduct regional modeling for NOX , which includes NO2. Taken as a whole, Florida's air quality regulations and statutes demonstrate that FDEP has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of the 1-hour NO2 NAAQS. EPA has made the preliminary determination that Florida's SIP and practices adequately demonstrate the State's ability to provide for air quality modeling, along with analysis of the associated data, related to the 2010 1-hour NO2 NAAQS when necessary. 12. 110(a)(2)(L) Permitting fees: This element necessitates that the SIP require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V. Funding for review of PSD and NNSR permits comes from a processing fee, submitted by permit applicants, required by paragraph 403.087(6)(a) of the Florida Statute. These regulations demonstrate that Florida has the authority to provide FDEP ensures this is sufficient for the reasonable cost of reviewing and acting upon PSD and NNSR permits. Additionally, Florida has a fully approved title V operating permit program at Chapter 62- 213.300 F.A.C.\24\ that covers the cost of implementation and enforcement of PSD and NNSR permits after they have been issued. EPA has made the preliminary determination that Florida's SIP and practices adequately provide for permitting fees related to the 2010 NO2 NAAQS, when necessary. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submission with respect to section 110(a)(2)(L). --------------------------------------------------------------------------- \24\ Title V program regulations are federally-approved but not incorporated into the federally-approved SIP. --------------------------------------------------------------------------- 13. 110(a)(2)(M) Consultation and participation by affected local entities: This element requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. Florida statute 403.061(21) authorizes FDEP to ``[a]dvise, consult, cooperate and enter into agreements with other agencies of [[Page 47103]] the state, the Federal Government, other states, interstate agencies, groups, political subdivisions, and industries affected by the provisions of this act, rules, or policies of the department.'' Furthermore, FDEP has demonstrated consultation with, and participation by, affected local entities through its work with local political subdivisions during the developing of its Transportation Conformity SIP and Regional Haze Implementation Plan. EPA has made the preliminary determination that Florida's SIP and practices adequately demonstrate consultation with affected local entities related to the 2010 1-hour NO2 NAAQS when necessary. V. Proposed Action With the exception of the elements related to the ambient air quality monitoring and data system of section 110(a)(2)(B), the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J), and the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of prongs 1 and 2 of section 110(a)(2)(D)(i), EPA is proposing to approve Florida's January 22, 2013, SIP submission to incorporate provisions into the Florida SIP to address infrastructure requirements for the 2010 1-hour NO2 NAAQS. EPA is proposing to approve portions of Florida's infrastructure submission for the 2010 1-hour NO2 NAAQS because this submission is consistent with section 110 of the CAA. VI. 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. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); Is 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.); Does 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); Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); Is 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 Does 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). The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: July 8, 2016. Heather McTeer Toney, Regional Administrator, Region 4. [FR Doc. 2016-17055 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
![47094 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules
Unfunded Mandates § 14.627 Definitions. § 14.635 [Amended]
* * * * * ■ 5. Amend § 14.635 by adding, in the
The Unfunded Mandates Reform Act introductory paragraph, ‘‘or tribal’’
of 1995 requires, at 2 U.S.C. 1532, that (r) Tribal government means the
Federally recognized governing body of immediately following ‘‘State’’.
agencies prepare an assessment of
anticipated costs and benefits before any Indian tribe, band, nation, or other [FR Doc. 2016–17052 Filed 7–19–16; 8:45 am]
issuing any rule that may result in organized group or community, BILLING CODE 8320–01–P
expenditure by State, local, and tribal including any Alaska Native village or
governments, in the aggregate, or by the Regional or Village Corporation as
private sector, of $100 million or more defined in or established pursuant to the ENVIRONMENTAL PROTECTION
(adjusted annually for inflation) in any Alaska Native Claims Settlement Act, AGENCY
one year. This proposed rule would which is recognized as eligible for the
have no such effect on State, local, and special programs and services provided 40 CFR Part 52
tribal governments, or on the private by the United States to Indians because [EPA–R04–OAR–2014–0507; FRL–9949–30–
sector. of their status as Indians. Region 4]
* * * * *
Catalog of Federal Domestic Assistance Air Plan Approval; Florida;
■ 3. Amend § 14.628 by:
There are no Catalog of Federal Infrastructure Requirements for the
■ a. Redesignating paragraph (b) as 2010 Nitrogen Dioxide National
Domestic Assistance programs numbers paragraph (b)(1) and adding paragraph
and titles associated with this proposed Ambient Air Quality Standard
(b)(2); and
rule. AGENCY: Environmental Protection
■ b. In the parenthetical at the end of
Signing Authority Agency.
the section, removing ‘‘2900–0439’’ and
adding, in its place, 2900–XXXX’’. ACTION: Proposed rule.
The Secretary of Veterans Affairs, or
designee, approved this document and The addition reads as follows: SUMMARY: The Environmental Protection
authorized Gina S. Farrisee, Deputy Agency (EPA) is proposing to approve
§ 14.628 Recognition of organizations.
Chief of Staff, to sign and submit the the State Implementation Plan (SIP)
document to the Office of the Federal * * * * * submission, submitted by the State of
Register for publication electronically as (b)(1) State organization. * * * Florida, through the Florida Department
an official document of the Department (2) Tribal organization. For the of Environmental Protection (FDEP), on
of Veterans Affairs. Gina S. Farrisee, purposes of 38 CFR 14.626 through January 22, 2013, for inclusion into the
Deputy Chief of Staff, Department of 14.637, an organization that is a legally Florida SIP. This proposal pertains to
Veterans Affairs, approved this established organization that is the infrastructure requirements of the
document on July 14, 2016 for primarily funded and controlled, Clean Air Act (CAA or Act) for the 2010
publication. sanctioned, or chartered by one or more 1-hour nitrogen dioxide (NO2) national
tribal governments and that has a ambient air quality standard (NAAQS).
List of Subjects in 38 CFR Part 14
primary purpose of serving the needs of The CAA requires that each state adopt
Administrative practice and Native American veterans. Only one and submit a SIP for the
procedure, Claims, Courts, Foreign tribal organization may be recognized implementation, maintenance and
relations, Government employees, for each tribal government. If a tribal enforcement of each NAAQS
Lawyers, Legal services, Organization organization is created and funded by promulgated by EPA, which is
and functions (Government agencies), more than one tgovernment, the commonly referred to as an
Reporting and recordkeeping approval of each tribal government must ‘‘infrastructure SIP submission.’’ FDEP
requirements, Surety bonds, Trusts and be obtained prior to applying for VA certified that the Florida SIP contains
trustees, Veterans. recognition. If one of the supporting provisions that ensure the 2010 1-hour
Dated: July 14, 2016. tribal governments withdraws from the NO2 NAAQS is implemented, enforced,
tribal organization, the tribal and maintained in Florida. With the
Janet J. Coleman,
organization must notify VA of the exception of provisions pertaining to the
Chief, Office of Regulation Policy & ambient air quality monitoring and data
Management, Office of the Secretary, withdrawal and certify that the tribal
Department of Veterans Affairs. organization continues to meet the system, prevention of significant
recognition requirements in paragraph deterioration (PSD) permitting and
For the reasons set out in the (d) of this section. interstate transport provisions
preamble, the Department of Veterans pertaining to the contribution to
* * * * *
Affairs proposes to amend 38 CFR part nonattainment or interference with
14 as follows: § 14.629 [Amended] maintenance in other states, EPA is
proposing to find that Florida’s
PART 14—LEGAL SERVICES, ■ 4. Amend § 14.629 by:
infrastructure SIP submission, provided
GENERAL COUNSEL, AND ■ a. In paragraph (a)(2) introductory to EPA on January 22, 2013, satisfies
MISCELLANEOUS CLAIMS text, removing ‘‘county veteran’s service certain required infrastructure elements
officer’’ and adding in its place ‘‘county for the 2010 1-hour NO2 NAAQS.
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■ 1. The authority citation for part 14 veterans’ service officer’’; DATES: Written comments must be
continues to read as follows: ■ b. In paragraph (a)(2) introductory received on or before August 19, 2016.
Authority: 5 U.S.C. 301; 28 U.S.C. 2671– text, adding ‘‘or tribal veterans’ service ADDRESSES: Submit your comments,
2680; 38 U.S.C. 501(a), 512, 515, 5502, 5901– officer’’ immediately following ‘‘county identified by Docket ID No. EPA–R04–
5905; 28 CFR part 14, appendix to part 14, veterans’ service officer’’; and
unless otherwise noted. OAR–2014–0507 at http://
■ c. In paragraph (a)(2)(i), adding ‘‘or www.regulations.gov. Follow the online
■ 2. Amend § 14.627 by adding tribal government’’ immediately instructions for submitting comments.
paragraph (r) to read as follows: following ‘‘county’’. Once submitted, comments cannot be
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• 110(a)(2)(K): Air Quality Modeling provisions, and some of which pertain requirements of section 110(a)(2) in a
and Submission of Modeling Data to requirements for both authority and strict literal sense, EPA must determine
• 110(a)(2)(L): Permitting fees substantive program provisions.5 EPA which provisions of section 110(a)(2)
• 110(a)(2)(M): Consultation and therefore believes that while the timing are applicable for a particular
Participation by Affected Local requirement in section 110(a)(1) is infrastructure SIP submission.
Entities unambiguous, some of the other Another example of ambiguity within
III. What is EPA’s approach to the statutory provisions are ambiguous. In sections 110(a)(1) and 110(a)(2) with
review of infrastructure SIP particular, EPA believes that the list of respect to infrastructure SIPs pertains to
submissions? required elements for infrastructure SIP whether states must meet all of the
submissions provided in section infrastructure SIP requirements in a
EPA is acting upon the SIP 110(a)(2) contains ambiguities single SIP submission, and whether EPA
submission from Florida that addresses concerning what is required for must act upon such SIP submission in
the infrastructure requirements of CAA inclusion in an infrastructure SIP a single action. Although section
sections 110(a)(1) and 110(a)(2) for the submission. 110(a)(1) directs states to submit ‘‘a
2010 NO2 NAAQS. The requirement for The following examples of plan’’ to meet these requirements, EPA
states to make a SIP submission of this ambiguities illustrate the need for EPA interprets the CAA to allow states to
type arises out of CAA section 110(a)(1). to interpret some section 110(a)(1) and make multiple SIP submissions
Pursuant to section 110(a)(1), states section 110(a)(2) requirements with separately addressing infrastructure SIP
must make SIP submissions ‘‘within 3 respect to infrastructure SIP elements for the same NAAQS. If states
years (or such shorter period as the submissions for a given new or revised elect to make such multiple SIP
Administrator may prescribe) after the NAAQS. One example of ambiguity is submissions to meet the infrastructure
promulgation of a national primary that section 110(a)(2) requires that SIP requirements, EPA can elect to act
ambient air quality standard (or any ‘‘each’’ SIP submission must meet the on such submissions either individually
revision thereof),’’ and these SIP list of requirements therein, while EPA or in a larger combined action.8
submissions are to provide for the has long noted that this literal reading Similarly, EPA interprets the CAA to
‘‘implementation, maintenance, and of the statute is internally inconsistent allow it to take action on the individual
enforcement’’ of such NAAQS. The and would create a conflict with the parts of one larger, comprehensive
statute directly imposes on states the nonattainment provisions in part D of infrastructure SIP submission for a
duty to make these SIP submissions, title I of the Act, which specifically given NAAQS without concurrent
and the requirement to make the address nonattainment SIP action on the entire submission. For
submissions is not conditioned upon requirements.6 Section 110(a)(2)(I) example, EPA has sometimes elected to
EPA’s taking any action other than pertains to nonattainment SIP act at different times on various
promulgating a new or revised NAAQS. requirements and part D addresses elements and sub-elements of the same
Section 110(a)(2) includes a list of when attainment plan SIP submissions infrastructure SIP submission.9
specific elements that ‘‘[e]ach such to address nonattainment area Ambiguities within sections 110(a)(1)
plan’’ submission must address. requirements are due. For example, and 110(a)(2) may also arise with
EPA has historically referred to these section 172(b) requires EPA to establish respect to infrastructure SIP submission
SIP submissions made for the purpose a schedule for submission of such plans requirements for different NAAQS.
of satisfying the requirements of CAA for certain pollutants when the Thus, EPA notes that not every element
sections 110(a)(1) and 110(a)(2) as Administrator promulgates the of section 110(a)(2) would be relevant,
‘‘infrastructure SIP’’ submissions. designation of an area as nonattainment, or as relevant, or relevant in the same
Although the term ‘‘infrastructure SIP’’ and section 107(d)(1)(B) allows up to way, for each new or revised NAAQS.
does not appear in the CAA, EPA uses two years, or in some cases three years, The states’ attendant infrastructure SIP
the term to distinguish this particular for such designations to be submissions for each NAAQS therefore
type of SIP submission from promulgated.7 This ambiguity illustrates
submissions that are intended to satisfy that rather than apply all the stated 8 See, e.g., ‘‘Approval and Promulgation of
other SIP requirements under the CAA, Implementation Plans; New Mexico; Revisions to
such as ‘‘nonattainment SIP’’ or 5 For example: Section 110(a)(2)(E)(i) provides the New Source Review (NSR) State
‘‘attainment plan SIP’’ submissions to that states must provide assurances that they have Implementation Plan (SIP); Prevention of
adequate legal authority under state and local law Significant Deterioration (PSD) and Nonattainment
address the nonattainment planning New Source Review (NNSR) Permitting,’’ 78 FR
to carry out the SIP; section 110(a)(2)(C) provides
requirements of part D of title I of the that states must have a SIP-approved program to 4339 (January 22, 2013) (EPA’s final action
CAA, ‘‘regional haze SIP’’ submissions address certain sources as required by part C of title approving the structural PSD elements of the New
required by EPA rule to address the I of the CAA; and section 110(a)(2)(G) provides that Mexico SIP submitted by the State separately to
states must have legal authority to address meet the requirements of EPA’s 2008 PM2.5 NSR
visibility protection requirements of rule), and ‘‘Approval and Promulgation of Air
emergencies as well as contingency plans that are
CAA section 169A, and nonattainment triggered in the event of such emergencies. Quality Implementation Plans; New Mexico;
new source review permit program 6 See, e.g., ‘‘Rule To Reduce Interstate Transport Infrastructure and Interstate Transport
submissions to address the permit of Fine Particulate Matter and Ozone (Clean Air Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR
Interstate Rule); Revisions to Acid Rain Program; 4337) (January 22, 2013) (EPA’s final action on the
requirements of CAA, title I, part D. infrastructure SIP for the 2006 PM2.5 NAAQS).
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
Section 110(a)(1) addresses the timing 25162, at 25163–65 (May 12, 2005) (explaining 9 On December 14, 2007, the State of Tennessee,
and general requirements for relationship between timing requirement of section through the Tennessee Department of Environment
infrastructure SIP submissions, and 110(a)(2)(D) versus section 110(a)(2)(I)). and Conservation, made a SIP revision to EPA
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section 110(a)(2) provides more details 7 EPA notes that this ambiguity within section demonstrating that the State meets the requirements
110(a)(2) is heightened by the fact that various of sections 110(a)(1) and (2). EPA proposed action
concerning the required contents of subparts of part D set specific dates for submission for infrastructure SIP elements (C) and (J) on
these submissions. The list of required of certain types of SIP submissions in designated January 23, 2012 (77 FR 3213) and took final action
elements provided in section 110(a)(2) nonattainment areas for various pollutants. Note, on March 14, 2012 (77 FR 14976). On April 16,
contains a wide variety of disparate e.g., that section 182(a)(1) provides specific dates 2012 (77 FR 22533) and July 23, 2012 (77 FR
for submission of emissions inventories for the 42997), EPA took separate proposed and final
provisions, some of which pertain to ozone NAAQS. Some of these specific dates are actions on all other section 110(a)(2) infrastructure
required legal authority, some of which necessarily later than three years after promulgation SIP elements of Tennessee’s December 14, 2007
pertain to required substantive program of the new or revised NAAQS. submittal.
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required control measures, means and on this portion of the submission in a 110(a)(2)(D)(i) has two components;
techniques for compliance with the separate action. 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II).
2010 1-hour NO2 NAAQS respectively. 3. 110(a)(2)(C) Programs for Each of these components have two
Additionally, the following sections of enforcement of control measures and for subparts resulting in four distinct
the Florida Statutes provide FDEP the construction or modification of components, commonly referred to as
authority to conduct certain actions in stationary sources: This element ‘‘prongs,’’ that must be addressed in
support of this infrastructure element. consists of three sub-elements; infrastructure SIP submissions. The first
Section 403.061(9), Florida Statutes, enforcement, state-wide regulation of two prongs, which are codified in
authorizes FDEP to ‘‘[a]dopt a new and modified minor sources and section 110(a)(2)(D)(i)(I), are provisions
comprehensive program for the minor modifications of major sources; that prohibit any source or other type of
prevention, control, and abatement of and preconstruction permitting of major emissions activity in one state from
pollution of the air . . . of the state,’’ sources and major modifications in contributing significantly to
and section 403.8055, Florida Statutes, areas designated attainment or nonattainment of the NAAQS in another
authorizes FDEP to ‘‘[a]dopt rules unclassifiable for the subject NAAQS as state (‘‘prong 1’’), and interfering with
substantively identical to regulations required by CAA title I part C (i.e., the maintenance of the NAAQS in another
adopted in the Federal Register by the major source PSD program). As state (‘‘prong 2’’). The third and fourth
United States Environmental Protection discussed further below, in this action prongs, which are codified in section
Agency pursuant to federal law . . .’’ EPA is only proposing to approve the 110(a)(2)(D)(i)(II), are provisions that
EPA has made the preliminary enforcement and the regulation of minor prohibit emissions activity in one state
determination that the provisions sources and minor modifications interfering with measures required to
contained in these chapters satisfy aspects of Florida’s section 110(a)(2)(C) prevent significant deterioration of air
section 110(a)(2)(A) for the 2010 1-hour infrastructure SIP submission. quality in another state (‘‘prong 3’’), or
Enforcement: Florida cites to Section to protect visibility in another state
NO2 NAAQS in the State.
403.061(6), Florida Statutes, which (‘‘prong 4’’).
In this action, EPA is not proposing to requires FDEP to ‘‘[e]xercise general
approve or disapprove any existing 110(a)(2)(D)(i)(I)—prongs 1 and 2:
supervision of the administration and
State provisions with regard to excess EPA is not proposing any action in this
enforcement of the laws, rules, and
emissions during start up, shut down, regulations pertaining to air and water rulemaking related to the interstate
and malfunction (SSM) of operations at pollution.’’ Section 403.121, Florida transport provisions pertaining to the
a facility. EPA believes that a number of Statutes, authorizes FDEP to seek contribution to nonattainment or
states have SSM provisions which are judicial and administrative remedies, interference with maintenance in other
contrary to the CAA and existing EPA including civil penalties, injunctive states of section 110(a)(2)(D)(i)(I)
guidance, ‘‘State Implementation Plans: relief, and criminal prosecution for (prongs 1 and 2) because Florida’s 2010
Policy Regarding Excess Emissions violations of any FDEP rule or permit. 1-hour NO2 NAAQS infrastructure
During Malfunctions, Startup, and These provisions provide FDEP with submission did not address prongs 1
Shutdown’’ (September 20, 1999), and authority for enforcement of NO2 and 2.
the Agency is addressing such state emission limits and control measures. 110(a)(2)(D)(i)(II)—prong 3: With
regulations in a separate action.18 Preconstruction PSD Permitting for respect to Florida’s infrastructure SIP
Additionally, in this action, EPA is Major Sources: With respect to Florida’s submission related to the interstate
not proposing to approve or disapprove January 22, 2013, infrastructure SIP transport requirements for PSD of
any existing State rules with regard to submission related to the section 110(a)(2)(D)(i)(II) (prong 3), EPA
director’s discretion or variance preconstruction PSD permitting took final action to approve Florida’s
provisions. EPA believes that a number requirements for major sources of January 22, 2013, infrastructure SIP
of states have such provisions which are section 110(a)(2)(C), EPA took final submission regarding prong 3 of D(i) for
contrary to the CAA and existing EPA action to approve these provisions for the 2010 1-hour NO2 NAAQS on March
guidance (52 FR 45109 (November 24, the 2010 1-hour NO2 NAAQS on March 18, 2015. See 80 FR 14019.
1987)), and the Agency plans to take 18, 2015. See 80 FR 14019. 110(a)(2)(D)(i)(II)—prong 4: Section
action in the future to address such state Regulation of minor sources and 110(a)(2)(D)(i)(II) requires that the SIP
regulations. In the meantime, EPA modifications: Section 110(a)(2)(C) also contain adequate provisions to protect
encourages any state having a director’s requires the SIP to include provisions visibility in other states. In its submittal,
discretion or variance provision which that govern the minor source program Florida cited to EPA’s proposed
is contrary to the CAA and EPA that regulates emissions of the 2010 1- approval of the State’s regional haze
guidance to take steps to correct the hour NO2 NAAQS. FDEP’s SIP- SIP, which EPA fully approved.19
deficiency as soon as possible. approved rule Chapters 62–204, F.A.C., Federal regulations require that a state’s
2. 110(a)(2)(B) Ambient air quality Air Pollution Control Provisions, 62– regional haze SIP contain a long-term
monitoring/data system: With respect to 210, F.A.C., Stationary Sources— strategy to address regional haze
Florida’s infrastructure SIP submission General Requirements, 62–212, F.A.C., visibility impairment in each Class I
related to the ambient air quality Stationary Sources—Preconstruction area within the state and each Class I
monitoring and data system, EPA is not Review apply to minor sources and area outside the state that may be
proposing any action today regarding minor modifications as well as major affected by emissions from the state.20 A
stationary sources and modifications. state participating in a regional planning
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these requirements and instead will act
EPA has made the preliminary process, such as Florida, must include
18 On June 12, 2015, EPA published a final action determination that Florida’s SIP is all measures needed to achieve its
entitled, ‘‘State Implementation Plans: Response to adequate for program enforcement of apportionment of emissions reduction
Petition for Rulemaking; Restatement and Update of control measures and regulation of obligations agreed upon through that
EPA’s SSM Policy Applicable to SIPs; Findings of minor sources and modifications related
Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During to the 2010 1-hour NO2 NAAQS. 19 See 77 FR 71111 (November 29, 2012); 78 FR
Periods of Startup, Shutdown, and Malfunction.’’ 4. 110(a)(2)(D)(i)(I) and (II) Interstate 53250 (August 29, 2013).
See 80 FR 33840. pollution transport: Section 20 See 40 CFR 51.308(d).
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process.21 EPA’s approval of Florida’s provide (i) necessary assurances that the requirements, air quality planning, and
regional haze SIP therefore ensures that State will have adequate personnel, applicable requirements related to the
emissions from Florida are not funding, and authority under state law NAAQS. Florida satisfactorily met all
interfering with measures to protect to carry out its implementation plan, (ii) commitments agreed to in the Air
visibility in other states, satisfying the that the State comply with the Planning Agreement for fiscal year 2013,
requirements of prong 4 of section requirements respecting State Boards therefore Florida’s grants were finalized.
110(a)(2)(D)(i)(II) for the 2010 1-hour pursuant to section 128 of the Act, and EPA has made the preliminary
NO2 NAAQS.22 Thus, EPA has made the (iii) necessary assurances that, where determination that Florida has adequate
preliminary determination that Florida’s the State has relied on a local or resources and authority for
infrastructure SIP submission for the regional government, agency, or implementation of the 2010 1-hour NO2
2010 1-hour NO2 NAAQS meets the instrumentality for the implementation NAAQS.
requirements of prong 4 of section of any plan provision, the State has Section 110(a)(2)(E)(ii) requires that
110(a)(2)(D)(i)(II). responsibility for ensuring adequate the state comply with section 128 of the
5. 110(a)(2)(D)(ii): Interstate Pollution implementation of such plan provisions. CAA. Section 128 requires that the SIP
Abatement and International Air EPA is proposing to approve Florida’s provide: (1) The majority of members of
Pollution: Section 110(a)(2)(D)(ii) SIP as meeting the requirements of the state board or body which approves
requires SIPs to include provisions section 110(a)(2)(E). EPA’s rationale for permits or enforcement orders represent
ensuring compliance with sections 115 today’s proposal respecting each the public interest and do not derive
and 126 of the Act, relating to interstate requirement of section 110(a)(2)(E) is any significant portion of their income
and international pollution abatement. described in turn below. from persons subject to permitting or
Chapters 62–204, F.A.C., Air Pollution enforcement orders under the CAA; and
In support of EPA’s proposal to
Control Provisions ; 62–210, F.A.C., (2) any potential conflicts of interest by
approve sub-elements 110(a)(2)(E)(i) and
Stationary Sources—General such board or body, or the head of an
(iii), FDEP’s infrastructure submission
Requirements, and 62–212, F.A.C., executive agency with similar powers be
demonstrates that FDEP is responsible
Stationary Sources—Preconstruction adequately disclosed.
for promulgating rules and regulations For purposes of section 128(a)(1),
Review of the Florida SIP outlines how for the NAAQS, emissions standards,
Florida will notify neighboring states of Florida has no boards or bodies with
general policies, a system of permits, authority over air pollution permits or
potential impacts from new or modified and fee schedules for the review of
sources. EPA is unaware of any pending enforcement actions. Such matters are
plans, and other planning needs. instead handled by an appointed
obligations for the State of Florida Section 403.061(2), Florida Statutes,
pursuant to sections 115 or 126 of the Secretary. Appeals of final
authorizes FDEP to ‘‘[h]ire only such administrative orders and permits are
CAA. EPA has made the preliminary employees as may be necessary to available only through the judicial
determination that Florida’s SIP and effectuate the responsibilities of the appellate process described at Florida
practices are adequate for insuring department.’’ Section 403.061(4), Statute 120.68, F.S., Judicial review. As
compliance with the applicable Florida Statutes, authorizes FDEP to such, a ‘‘board or body’’ is not
requirements relating to interstate and ‘‘[s]ecure necessary scientific, technical, responsible for approving permits or
international pollution abatement for research, administrative, and enforcement orders in Florida, and the
the 2010 1-hour NO2 NAAQS. operational services by interagency requirements of section 128(a)(1) are not
6. 110(a)(2)(E) Adequate resources agreement, by contract, or otherwise.’’ applicable.
and authority, conflict of interest, and Section 403.061(35), Florida Statutes, Regarding section 128(a)(2), on July
oversight of local governments and authorizes FDEP to exercise the duties, 30, 2012, EPA approved Florida statutes
regional agencies: Section 110(a)(2)(E) powers, and responsibilities required of into the SIP to comply with section 128
requires that each implementation plan the state under the federal CAA. Section respecting state boards. See 77 FR
403.182, Florida Statutes, authorizes 44485. Specifically, the following
21 See, e.g., 40 CFR 51.308(d)(3)(ii). Florida
FDEP to approve local pollution control provisions of Florida Statutes,
participated in the Visibility Improvement State
and Tribal Association of the Southeast regional programs, and provides for the State air 112.3143(4), F.S., Voting conflicts and
planning organization, a collaborative effort of state pollution control program administered 112.3144, F.S, Full and public
governments, tribal governments, and various by FDEP to supersede a local program disclosure of financial interests were
Federal agencies established to initiate and if FDEP determines that an approved
coordinate activities associated with the incorporated into the SIP to satisfy the
management of regional haze, visibility, and other local program is inadequate and the conflict of interest provisions applicable
air quality issues in the Southeastern United States. locality fails to take the necessary to the head of FDEP and all public
Member state and tribal governments included: corrective actions. Section 320.03(6), officers within the Department. EPA has
Alabama, Florida, Georgia, Kentucky, Mississippi, Florida Statutes, authorizes FDEP to
North Carolina, South Carolina, Tennessee, made the preliminary determination
Virginia, West Virginia, and the Eastern Band of the establish an Air Pollution Control Trust that the State has adequately addressed
Cherokee Indians. Fund and use a $1 fee on every motor the requirements of section 128(a)(2),
22 See EPA’s September 13, 2013, guidance vehicle license registration sold in the and accordingly has met the
document entitled ‘‘Guidance on Infrastructure State for air pollution control purposes.
State Implementation Plan (SIP) Elements under
requirements of section 110(a)(2)(E)(ii)
Clean Air Act Sections 110(a)(1) and 110(a)(2)’’ at
As evidence of the adequacy of FDEP’s with respect to infrastructure SIP
pp. 32–35, available at: http://www.epa.gov/air/ resources, EPA submitted a letter to requirements.
urbanair/sipstatus/infrastructure.html; see also Florida on April 19, 2016, outlining Therefore, EPA is proposing to
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memorandum from William T. Harnett, Director, section 105 grant commitments and the approve Florida’s infrastructure SIP
Air Quality Policy Division, Office of Air Quality
Planning and Standards, to Regional Air Division
current status of these commitments for submission as meeting the requirements
Directors, entitled ‘‘Guidance on SIP Elements fiscal year 2015. The letter EPA of sub-elements 110(a)(2)(E)(i), (ii) and
Required Under Sections 110(1)(1) and (2) for the submitted to Florida can be accessed at (iii).
2006 24-Hour Fine Particle (PM2.5) National www.regulations.gov using Docket ID 7. 110(a)(2)(F) Stationary source
Ambient Air Quality Standards (NAAQS)
(September 25, 2009) at pp. 5–6, available at: http://
No. EPA–R04–OAR–2014–0507. monitoring and reporting: Section
www.epa.gov/ttn/caaa/t1/memoranda/20090925_ Annually, states update these grant 110(a)(2)(F) requires SIPs to meet
harnett_pm25_sip_110a12.pdf. commitments based on current SIP applicable requirements addressing (i)
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the installation, maintenance, and Additionally, Florida is required to to protect human health, safety, and
replacement of equipment, and the submit emissions data to EPA for welfare caused or threatened by any
implementation of other necessary purposes of the National Emissions violation. Section 120.569(2)(n)
steps, by owners or operators of Inventory (NEI). The NEI is EPA’s authorizes FDEP to issue emergency
stationary sources to monitor emissions central repository for air emissions data. orders to address immediate dangers to
from such sources, (ii) periodic reports EPA published the Air Emissions public health, safety or welfare. These
on the nature and amounts of emissions Reporting Rule (AERR) on December 5, statutes were submitted for inclusion
and emissions related data from such 2008, which modified the requirements into the SIP to satisfy the requirements
sources, and (iii) correlation of such for collecting and reporting air of section 110(a)(2)(G) of the CAA and
reports by the state agency with any emissions data (73 FR 76539). The were approved by EPA on July 30, 2012.
emission limitations or standards AERR shortened the time states had to See 77 FR 44485. EPA has made the
established pursuant to this section, report emissions data from 17 to 12 preliminary determination that Florida’s
which reports shall be available at months, giving states one calendar year SIP and practices are adequate for
reasonable times for public inspection. to submit emissions data. All states are emergency powers related to the 2010
FDEP’s infrastructure SIP submission required to submit a comprehensive 1-hour NO2 NAAQS.
describes the establishment of emissions inventory every three years 9. 110(a)(2)(H) SIP revisions: Section
requirements for compliance testing by and report emissions for certain larger 110(a)(2)(H), in summary, requires each
emissions sampling and analysis, and sources annually through EPA’s online SIP to provide for revisions of such plan
for emissions and operation monitoring Emissions Inventory System. States (i) as may be necessary to take account
to ensure the quality of data in the State. report emissions data for the six criteria of revisions of such national primary or
The Florida infrastructure SIP pollutants and the precursors that form secondary ambient air quality standard
submission also describes how the them—nitrogen oxides, sulfur dioxide, or the availability of improved or more
major source and minor source emission ammonia, lead, carbon monoxide, expeditious methods of attaining such
inventory programs collect emission particulate matter, and volatile organic standard, and (ii) whenever the
data throughout the State and ensure the compounds. Many states also Administrator finds that the plan is
quality of such data. Florida meets these voluntarily report emissions of substantially inadequate to attain the
requirements through Chapters 62–204, hazardous air pollutants. Florida made NAAQS or to otherwise comply with
62–210, 62–212, 62–296, and 62–297, its latest update to the NEI on November any additional applicable requirements.
F.A.C., which require emissions 5, 2014. EPA compiles the emissions FDEP is responsible for adopting air
monitoring and reporting for activities data, supplementing it where necessary, quality rules and revising SIPs as
that contribute to NO2 concentrations in and releases it to the general public needed to attain or maintain the
the air, including requirements for the through the Web site http:// NAAQS in Florida. Florida Statutes
installation, calibration, maintenance, www.epa.gov/ttn/chief/ subsection 403.061(35) grants FDEP the
and operation of equipment for eiinformation.html. EPA has made the broad authority to implement the CAA;
continuously monitoring or recording preliminary determination that Florida’s also, subsection 403.061(9), F.S.,
emissions, or provide authority for SIP and practices are adequate for the authorizes FDEP to adopt a
FDEP to establish such emissions stationary source monitoring systems comprehensive program for the
monitoring and reporting requirements related to the 2010 1-hour NO2 NAAQS. prevention, control, and abatement of
through SIP-approved permits and Accordingly, EPA is proposing to pollution of the air . . . of the state, and
require reporting of NO2 emissions. approve Florida’s infrastructure SIP from time to time review and modify
The following sections of the Florida submission with respect to section such programs as necessary. FDEP has
Statutes provide FDEP the authority to 110(a)(2)(F). the ability and authority to respond to
conduct certain actions in support of 8. 110(a)(2)(G) Emergency powers: calls for SIP revisions, and has provided
this infrastructure element. Section This section requires that states a number of SIP revisions over the years
403.061(13) authorizes FDEP to demonstrate authority comparable with for implementation of the NAAQS.
‘‘[r]equire persons engaged in operations section 303 of the CAA and adequate Florida does not have any
which may result in pollution to file contingency plans to implement such nonattainment areas for the 2010 1-hour
reports which may contain . . . any authority. Florida’s infrastructure SIP NO2 NAAQS but has made an
other such information as the submission identifies air pollution infrastructure submission for this
department shall prescribe . . .’’. emergency episodes and preplanned standard, which is the subject of this
Section 403.8055 authorizes FDEP to abatement strategies as outlined in rulemaking. EPA has made the
‘‘[a]dopt rules substantively identical to Florida Statutes 403.131, Injunctive preliminary determination that Florida’s
regulations adopted in the Federal relief, remedies, and 120.569(2)(n), SIP and practices adequately
Register by the United States Decisions which affect substantial demonstrate a commitment to provide
Environmental Protection Agency interests. Section 403.131 authorizes future SIP revisions related to the 2010
pursuant to federal law. . . .’’ FDEP to enforce compliance with any 1-hour NO2 NAAQS when necessary.
Section 90.401, Florida Statutes, rule, regulation or permit, order, to 10. 110(a)(2)(J) Consultation with
defines relevant evidence as evidence enjoin any violation specified in Section government officials, public
tending to prove or disprove a material 403.061(1) or Florida Statutes. Section notification, and PSD and visibility
fact. Section 90.402, Florida Statutes, 403.061(1) authorizes injunctive relief to protection: EPA is proposing to approve
prevent irreparable injury to the air, Florida’s infrastructure SIP submission
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states that all relevant evidence is
admissible except as provided by law. waters, and property, including animal, for the 2010 1-hour NO2 NAAQS with
plant, and aquatic life, of the State and respect to the general requirement in
EPA is unaware of any provision
section 110(a)(2)(J) to include a program
preventing the use of credible evidence
compliance with applicable requirements if the in the SIP that provides for meeting the
in the Florida SIP.23 appropriate performance or compliance test had applicable consultation requirements of
been performed, for the purpose of submitting
23 ‘‘Credible Evidence’’ makes allowances for compliance certification and can be used to
section 121, the public notification
owners and/or operators to utilize ‘‘any credible establish whether or not an owner or operator has requirements of section 127; and
evidence or information relevant’’ to demonstrate violated or is in violation of any rule or standard. visibility protection requirements of
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![47102 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules
part C of the Act. With respect to air_quality/countyaqi.htm. EPA has Taken as a whole, Florida’s air quality
Florida’s infrastructure SIP submission made the preliminary determination regulations and statutes demonstrate
related to the preconstruction PSD that Florida’s SIP and practices that FDEP has the authority to provide
permitting requirements of section adequately demonstrate the State’s relevant data for the purpose of
110(a)(2)(J), EPA took final action to ability to provide public notification predicting the effect on ambient air
approve Florida’s January 22, 2013, related to the 2010 NO2 NAAQS when quality of the 1-hour NO2 NAAQS. EPA
2010 1-hour NO2 NAAQS infrastructure necessary. has made the preliminary determination
SIP for theses requirements on March Visibility protection: EPA’s 2013 that Florida’s SIP and practices
18, 2015. See 80 FR 14019. EPA’s Guidance notes that it does not treat the adequately demonstrate the State’s
rationale for its proposed action visibility protection aspects of section ability to provide for air quality
regarding applicable consultation 110(a)(2)(J) as applicable for purposes of modeling, along with analysis of the
requirements of section 121, the public the infrastructure SIP approval process. associated data, related to the 2010 1-
notification requirements of section 127, FDEP referenced its regional haze hour NO2 NAAQS when necessary.
and visibility protection requirements is program as germane to the visibility 12. 110(a)(2)(L) Permitting fees: This
described below. component of section 110(a)(2)(J). EPA element necessitates that the SIP require
Consultation with government recognizes that states are subject to the owner or operator of each major
officials (121 consultation): Section visibility protection and regional haze stationary source to pay to the
110(a)(2)(J) of the CAA requires states to program requirements under Part C of permitting authority, as a condition of
provide a process for consultation with the Act (which includes sections 169A any permit required under the CAA, a
local governments, designated and 169B). However, there are no newly fee sufficient to cover (i) the reasonable
organizations and federal land managers applicable visibility protection costs of reviewing and acting upon any
(FLMs) carrying out NAAQS obligations after the promulgation of a application for such a permit, and (ii) if
implementation requirements pursuant new or revised NAAQS. Thus, EPA has the owner or operator receives a permit
to section 121 relative to consultation. determined that states do not need to for such source, the reasonable costs of
Chapters 62–204, F.A.C., Air Pollution address the visibility component of implementing and enforcing the terms
Control Provisions, 62–210, F.A.C., 110(a)(2)(J) in infrastructure SIP and conditions of any such permit (not
Stationary Sources—General submittals so FDEP does not need to including any court costs or other costs
Requirements and 62–212, F.A.C., rely on its regional haze program to associated with any enforcement
Stationary Sources—Preconstruction fulfill its obligations under section action), until such fee requirement is
Review, as well as Florida’s Regional 110(a)(2)(J). As such, EPA has made the superseded with respect to such sources
Haze Implementation Plan (which preliminary determination that the by the Administrator’s approval of a fee
allows for consultation between visibility protection element of section program under title V.
appropriate state, local, and tribal air 110(a)(2)(J) is approvable and that Funding for review of PSD and NNSR
pollution control agencies as well as the Florida does not need to rely on its permits comes from a processing fee,
corresponding FLMs), provide for regional haze program for this element. submitted by permit applicants,
consultation with government officials 11. 110(a)(2)(K) Air quality modeling required by paragraph 403.087(6)(a) of
whose jurisdictions might be affected by and submission of modeling data: the Florida Statute.
SIP development activities. Florida Section 110(a)(2)(K) of the CAA requires These regulations demonstrate that
adopted state-wide consultation that SIPs provide for performing air Florida has the authority to provide
procedures for the implementation of quality modeling so that effects on air FDEP ensures this is sufficient for the
transportation conformity. quality of emissions from NAAQS reasonable cost of reviewing and acting
Implementation of transportation pollutants can be predicted and upon PSD and NNSR permits.
conformity as outlined in the submission of such data to the EPA can Additionally, Florida has a fully
consultation procedures requires FDEP be made. Chapter 62–204.800, F.A.C., approved title V operating permit
to consult with federal, state and local Federal Regulations Adopted by program at Chapter 62–213.300 F.A.C.24
transportation and air quality agency Reference, incorporates by reference 40 that covers the cost of implementation
officials on the development of motor CFR 52.21(l), which specifies that air and enforcement of PSD and NNSR
vehicle emissions budgets for the SIP. modeling be conducted in accordance permits after they have been issued.
EPA has made the preliminary with 40 CFR part 51, Appendix W EPA has made the preliminary
determination that Florida’s SIP and ‘‘Guideline on Air Quality Models.’’ determination that Florida’s SIP and
practices adequately demonstrate Chapters 62–210 and 62–212 require use practices adequately provide for
consultation with government officials of EPA approved modeling related to permitting fees related to the 2010 NO2
related to the 2010 1-hour NO2 NAAQS NO2 concentrations in ambient air. NAAQS, when necessary. Accordingly,
when necessary. Florida Statute 403.061(13) authorizes EPA is proposing to approve Florida’s
Public notification (127 public FDEP to require persons to file reports infrastructure SIP submission with
notification): Section 403.061(21), which may contain information used for respect to section 110(a)(2)(L).
Florida Statutes authorizes FDEP to modeling and 403.061(18) authorizes 13. 110(a)(2)(M) Consultation and
advise, consult cooperate, and enter into FDEP to encourage and conduct studies participation by affected local entities:
agreements with other entities affected related to pollution. FDEP has the This element requires states to provide
by the provisions of this act, rules, or technical capability to conduct or for consultation and participation in SIP
policies of the department. Section review all air quality modeling
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development by local political
403.061(20) Florida Statues authorizes associated with the NSR program and subdivisions affected by the SIP. Florida
FDEP to collect and disseminate SIP related modeling, except photo statute 403.061(21) authorizes FDEP to
information relating to pollution. FDEP chemical grid modeling which is ‘‘[a]dvise, consult, cooperate and enter
has public notice mechanisms in place contracted out. Additionally, Florida into agreements with other agencies of
to notify the public of NO2 and other supports a regional effort to coordinate
pollutant forecasting, including an air the development of emissions 24 Title V program regulations are federally-
quality monitoring Web site providing inventories and conduct regional approved but not incorporated into the federally-
alerts, http://www.dep.state.fl.us/air/ modeling for NOX, which includes NO2. approved SIP.
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![Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules 47103
the state, the Federal Government, other • Is certified as not having a ENVIRONMENTAL PROTECTION
states, interstate agencies, groups, significant economic impact on a AGENCY
political subdivisions, and industries substantial number of small entities
affected by the provisions of this act, under the Regulatory Flexibility Act (5 40 CFR Part 52
rules, or policies of the department.’’ U.S.C. 601 et seq.); [EPA–R10–OAR–2016–0133, FRL–9949–33–
Furthermore, FDEP has demonstrated
• Does not contain any unfunded Region 10]
consultation with, and participation by,
mandate or significantly or uniquely
affected local entities through its work Approval and Promulgation of
with local political subdivisions during affect small governments, as described Implementation Plans; Alaska:
the developing of its Transportation in the Unfunded Mandates Reform Act Infrastructure Requirements for the
Conformity SIP and Regional Haze of 1995 (Pub. L. 104–4); 2010 Nitrogen Dioxide and 2010 Sulfur
Implementation Plan. EPA has made the • Does not have Federalism Dioxide Standards
preliminary determination that Florida’s implications as specified in Executive AGENCY: Environmental Protection
SIP and practices adequately Order 13132 (64 FR 43255, August 10, Agency (EPA).
demonstrate consultation with affected 1999);
ACTION: Proposed rule.
local entities related to the 2010 1-hour • Is not an economically significant
NO2 NAAQS when necessary. regulatory action based on health or SUMMARY: Whenever a new or revised
V. Proposed Action safety risks subject to Executive Order National Ambient Air Quality Standard
13045 (62 FR 19885, April 23, 1997); (NAAQS) is promulgated, states must
With the exception of the elements submit a plan for the implementation,
related to the ambient air quality • Is not a significant regulatory action maintenance and enforcement of such
monitoring and data system of section subject to Executive Order 13211 (66 FR standard, commonly referred to as
110(a)(2)(B), the PSD permitting 28355, May 22, 2001); infrastructure requirements. The
requirements for major sources of • Is not subject to requirements of Environmental Protection Agency (EPA)
sections 110(a)(2)(C), prong 3 of D(i), section 12(d) of the National is proposing to approve the May 12,
and (J), and the interstate transport Technology Transfer and Advancement 2015 Alaska State Implementation Plan
provisions pertaining to the Act of 1995 (15 U.S.C. 272 note) because (SIP) submission as meeting the
contribution to nonattainment or application of those requirements would infrastructure requirements for the 2010
interference with maintenance in other be inconsistent with the CAA; and nitrogen dioxide (NO2) and 2010 sulfur
states of prongs 1 and 2 of section dioxide (SO2) NAAQS.
110(a)(2)(D)(i), EPA is proposing to • Does not provide EPA with the DATES: Comments must be received on
approve Florida’s January 22, 2013, SIP discretionary authority to address, as or before August 19, 2016.
submission to incorporate provisions appropriate, disproportionate human ADDRESSES: Submit your comments,
into the Florida SIP to address health or environmental effects, using identified by Docket ID No. EPA–R10–
infrastructure requirements for the 2010 practicable and legally permissible OAR–2016–0133, at http://
1-hour NO2 NAAQS. EPA is proposing methods, under Executive Order 12898 www.regulations.gov. Follow the online
to approve portions of Florida’s (59 FR 7629, February 16, 1994). instructions for submitting comments.
infrastructure submission for the 2010 The SIP is not approved to apply on Once submitted, comments cannot be
1-hour NO2 NAAQS because this any Indian reservation land or in any edited or removed from http://
submission is consistent with section other area where EPA or an Indian tribe www.regulations.gov. The EPA may
110 of the CAA. has demonstrated that a tribe has publish any comment received to its
VI. Statutory and Executive Order jurisdiction. In those areas of Indian public docket. Do not submit
Reviews country, the rule does not have tribal electronically any information you
implications as specified by Executive consider to be Confidential Business
Under the CAA, the Administrator is Information (CBI) or other information
required to approve a SIP submission Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial the disclosure of which is restricted by
that complies with the provisions of the statute. Multimedia submissions (audio,
Act and applicable federal regulations. direct costs on tribal governments or
video, etc.) must be accompanied by a
See 42 U.S.C. 7410(k); 40 CFR 52.02(a). preempt tribal law.
written comment. The written comment
Thus, in reviewing SIP submissions, List of Subjects in 40 CFR Part 52 is considered the official comment and
EPA’s role is to approve state choices, should include discussion of all points
provided that they meet the criteria of Environmental protection, Air you wish to make. The EPA will
the CAA. Accordingly, this proposed pollution control, Incorporation by generally not consider comments or
action merely approves state law as reference, Intergovernmental relations, comment contents located outside of the
meeting federal requirements and does Nitrogen dioxide, Ozone, Reporting and primary submission (i.e., on the web,
not impose additional requirements recordkeeping requirements, Volatile cloud, or other file sharing system). For
beyond those imposed by state law. For organic compounds. additional submission methods, the full
that reason, this proposed action: EPA public comment policy,
Authority: 42 U.S.C. 7401 et seq.
• Is not a significant regulatory action information about CBI or multimedia
subject to review by the Office of Dated: July 8, 2016. submissions, and general guidance on
mstockstill on DSK3G9T082PROD with PROPOSALS
Management and Budget under Heather McTeer Toney, making effective comments, please visit
Executive Orders 12866 (58 FR 51735, Regional Administrator, Region 4. http://www2.epa.gov/dockets/
October 4, 1993) and 13563 (76 FR 3821, [FR Doc. 2016–17055 Filed 7–19–16; 8:45 am] commenting-epa-dockets.
January 21, 2011); Docket: All documents in the
BILLING CODE 6560–50–P
• Does not impose an information electronic docket are listed in the http://
collection burden under the provisions www.regulations.gov index. Although
of the Paperwork Reduction Act (44 listed in the index, some information is
U.S.C. 3501 et seq.); not publicly available, i.e., CBI or other
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Document Created: 2018-02-08 07:56:58
Document Modified: 2018-02-08 07:56:58
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Written comments must be received on or before August 19, 2016. | |
| Contact | Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Wong can be reached via electronic mail at [email protected] or via telephone at (404) 562-8726. | |
| FR Citation | 81 FR 47094 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Reporting and Recordkeeping Requirements and Volatile Organic Compounds |
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