81 FR 50416 - Air Quality Plans; Florida; Infrastructure Requirements for the 2012 PM2.5
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 147 (August 1, 2016)
Federal Register Volume 81, Issue 147 (August 1, 2016)
| Page Range | 50416-50426 | |
| FR Document | 2016-18013 |
[Federal Register Volume 81, Number 147 (Monday, August 1, 2016)] [Proposed Rules] [Pages 50416-50426] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-18013] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2016-0192; FRL-9949-91-Region 4] Air Quality Plans; Florida; Infrastructure Requirements for the 2012 PM2.5 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 December 14, 2015, for inclusion into the Florida SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2012 Annual Fine Particulate Matter (PM2.5 ) national ambient air quality standards (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 2012 Annual PM2.5 NAAQS is implemented, enforced, and maintained in Florida. EPA is proposing to determine that Florida's infrastructure SIP submission, provided to EPA on December 14, 2015, satisfies certain required infrastructure elements for the 2012 Annual PM2.5 NAAQS. DATES: Written comments must be received on or before August 31, 2016. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04- OAR-2016-0192 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be 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 [[Page 50417]] 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: Tiereny Bell, 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. The telephone number is (404) 562-9088. Ms. Bell can also be reached via electronic mail at [email protected]. SUPPLEMENTARY INFORMATION: I. Background On December 14, 2012 (78 FR 3086, January 15, 2013), EPA promulgated a revised primary annual PM2.5 NAAQS. The standard was strengthened from 15.0 micrograms per cubic meter ([mu]g/ m\3\) to 12.0 [mu]g/m\3\. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2012 Annual PM2.5 NAAQS to EPA no later than December 14, 2015.\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). Florida's existing SIP consists largely of Florida Administrative Code (F.A.C.) rules adopted by FDEP and approved by EPA through the SIP revision process. However, there are some F.A.C. state regulations that are not part of the Florida federally-approved SIP. Throughout this rulemaking, unless otherwise indicated, the term ``F.A.C.'', ``Rule'', or ``Chapter'' indicate that the cited regulation has been approved into Florida's federally-approved SIP. The term ``Florida Statutes'' indicates cited Florida state statutes, which are not a part of the SIP unless otherwise indicated. --------------------------------------------------------------------------- This rulemaking is proposing to approve portions of Florida's PM2.5 infrastructure SIP submission for the applicable requirements of the 2012 Annual PM2.5 NAAQS, with the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) (prongs 1 and 2), for which EPA is not proposing any action in this rulemaking regarding these requirements. For the aspects of Florida's submittal proposed for approval in this rulemaking, 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. 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 basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements are summarized 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 110(a)(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 are 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. This 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 this proposed rulemaking. --------------------------------------------------------------------------- 110(a)(2)(J): Consultation with Government Officials, Public Notification, and Prevention of Significant Deterioration (PSD) and Visibility Protection 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 2012 Annual PM 2.5 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 [[Page 50418]] 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 (NNSR) 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 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 [[Page 50419]] 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. On March 17, 2016, EPA released a memorandum titled, ``Information on the Interstate Transport `Good Neighbor' Provision for the 2012 Fine Particulate Matter National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)'' to provide guidance to states for interstate transport requirements specific to the PM2.5 NAAQS. --------------------------------------------------------------------------- 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 new source review (NSR) pollutants, including greenhouse gases (GHG). 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 SIP 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 NSR 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 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 [[Page 50420]] 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 SIP 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? The Florida infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below. 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. Several regulations within Florida's SIP are relevant to air quality control regulations. The regulations described below include enforceable emission limitations and other control measures. Chapters 62-204, Air Pollution Control--General Provisions; 62-210, Stationary Sources--General Requirements; 62-212, Stationary Sources-- Preconstruction Review; 62-296, Stationary Sources--Emissions Standards; and 62-297, Stationary Sources--Emissions Monitoring collectively establish enforceable emissions limitations and other control measures, means or techniques for activities that contribute to PM2.5 concentrations in the ambient air, and provide authority for FDEP to establish such limits and measures as well as schedules for compliance through SIP-approved permits to meet the applicable requirements of the CAA. 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 State regulations and sections of the Florida Statutes, and Florida's practices satisfy section [[Page 50421]] 110(a)(2)(A) for the 2012 PM2.5 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) 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 that 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: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. SIP- approved rules at Chapters 62-204, 62-210, and 62-212 of the F.A.C. require the use of Federal Reference Method or equivalent monitors and also provide authority for FDEP to establish monitoring requirements through SIP-approved permits. Additionally, the following three sections of the Florida Statutes provide FDEP the authority to take specific actions in support of this infrastructure element: Section 403.061(1), Florida Statutes, authorizes FDEP to ``[a]pprove and promulgate current and long-range plans developed to provide for air quality and control and pollution abatement.; Section 403.061(9), Florida Statues, which authorizes DEP to [a]dopt a comprehensive program for the prevention, control and abatement of pollution of the air . . . of the State; and Section 403.061(11), Florida Statutes, authorizes FDEP to ``[e]stablish ambient air quality . . . standards for the state as a whole or for any part thereof.'' Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, includes the annual ambient monitoring network design plan, and includes a certified evaluation of the state's ambient monitors and auxiliary support equipment.\19\ In May 2015, Florida submitted its plan for 2014 to EPA. On October 29, 2015, EPA approved Florida's monitoring network plan. Florida's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2016-0192. EPA has made the preliminary determination that Florida's SIP and practices are adequate for the ambient air quality monitoring and data system related to the 2012 Annual PM2.5 NAAQS. --------------------------------------------------------------------------- \19\ On occasion, proposed changes to the monitoring network are evaluated outside of the network plan approval process in accordance with 40 CFR part 58. --------------------------------------------------------------------------- 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). FDEP's 2012 Annual PM2.5 NAAQS infrastructure SIP submission cited a number of SIP provisions to address these requirements. EPA's rationale for its proposed action regarding each sub-element is described below. Specifically, FDEP cited Chapters 62- 204, 62-210, 62-212, 62-243, 62-252, 62-256, 62-296 and 62-297 F.A.C. Collectively, these provisions of Florida's SIP regulate the construction of any new major stationary source or any modification at an existing major stationary source in an area designated as nonattainment, attainment or unclassifiable. These regulations enable FDEP to regulate sources contributing to the 2012 Annual PM2.5 NAAQS. Additionally, the following two sections of the Florida Statutes provide FDEP the authority to take specific actions in support of this infrastructure element. Section 403.061(6), Florida Statutes, 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. Enforcement: Section 403.061(6), Florida Statutes, 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 PM2.5 emission limits and control measures. PSD Permitting for Major Sources: EPA interprets the PSD sub- element to require that a state's infrastructure SIP submission for a particular NAAQS demonstrate that the state has a complete PSD permitting program in place covering the structural PSD requirements for all regulated NSR pollutants. A state's PSD permitting program is complete for this sub-element (and prong 3 of D(i) and J related to PSD) if EPA has already approved or is simultaneously approving the state's SIP with respect to all structural PSD requirements that are due under the EPA regulations or the CAA on or before the date of the EPA's proposed action on the infrastructure SIP submission. For the 2012 Annual PM2.5 NAAQS, Florida's authority to regulate new and modified sources to assist in the protection of air quality in attainment or unclassifiable areas is established in Florida Administrative Code Chapters 62-210, Stationary Sources--General Requirements, Section 200--Definitions, and 62-212, Stationary Sources--Preconstruction Review, Section 400--Prevention of Significant Deterioration, of the Florida SIP. Florida's infrastructure SIP submission demonstrates that new major sources and major modifications in areas of the State designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title [[Page 50422]] I of the CAA to satisfy the infrastructure SIP PSD elements.\20\ --------------------------------------------------------------------------- \20\ For more information concerning how the Florida infrastructure SIP submission currently meets applicable requirements for the PSD elements (110(a)(2)(C); (D)(i)(I), prong 3; and (J)), see the technical support document in the docket for today's rulemaking. --------------------------------------------------------------------------- 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 2012 Annual PM2.5 NAAQS. Florida's SIP-approved rules, 62-210.300, F.A.C., and 62-212.300, F.A.C., collectively govern the preconstruction permitting of modifications and construction of minor stationary sources, and minor modifications of major stationary sources. EPA has made the preliminary determination that Florida's SIP and practices are adequate for program enforcement of control measures, regulation of minor sources and modifications, and preconstruction permitting of major sources and major modifications related to the 2012 Annual PM2.5 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 has 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 from 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). EPA will consider these requirements in relation to Florida's 2012 Annual PM2.5 NAAQS infrastructure submission in a separate rulemaking. 110(a)(2)(D)(i)(II)--prong 3: With regard to section 110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to: A PSD program meeting all the current structural requirements of part C of title I of the CAA, or (if the state contains a nonattainment area for the relevant pollutant), a NNSR program that implements NAAQS for the relevant pollutant. As discussed in more detail above under section 110(a)(2)(C), Florida's SIP contains provisions for the State's PSD program that reflects the required structural PSD requirements to satisfy prong 3 of section 110(a)(2)(D)(i)(II). Florida addresses prong 3 through F.A.C. 62-204, 62-210, and 62-212 for the PSD and NNSR programs. EPA has made the preliminary determination that Florida's SIP and practices are adequate for interstate transport for PSD permitting of major sources and major modifications related to the 2012 Annual PM2.5 NAAQS for section 110(a)(2)(D)(i)(II) (prong 3). 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. Florida's submission relied on EPA's approval of the State's regional haze SIP submission and incorporation of all relevant portions of Florida's visibility program into the State's implementation plan to address the prong 4 requirements of section 110(a)(2)(D)(i) for the 2012 Annual PM2.5 NAAQS.\21\ 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.\22\ 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 process.\23\ 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 2012 Annual PM2.5 NAAQS.\24\ Thus, EPA has made the preliminary determination that Florida's infrastructure SIP submissions for the 2012 Annual PM2.5 NAAQS meet the requirements of prong 4 of section 110(a)(2)(D)(i)(II). --------------------------------------------------------------------------- \21\ EPA approved Florida's regional haze SIP--see 77 FR 71111 (November 29, 2012); 78 FR 53250 (August 29, 2013). \22\ See 40 CFR 51.308(d). \23\ 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. \24\ 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, 62-210, and 62-212 of the F.A.C. require any new major source or major modification to undergo PSD or NNSR permitting and thereby provide notification to other potentially affected Federal, state, and local government agencies. Additionally, Florida does not have any pending obligation under sections 115 and 126 of the CAA relating to international or interstate pollution abatement. EPA has made the preliminary determination that Florida's SIP and practices are adequate for ensuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2012 Annual PM2.5 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 [[Page 50423]] 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 infrastructure SIP submission as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii), and (iii). In support of EPA's proposal to approve sub-elements 110(a)(2)(E)(i) and (iii), FDEP's infrastructure submissions demonstrate that it is responsible for promulgating rules and regulations for the NAAQS, emissions standards and general policies, a system of permits, fee schedules for the review of plans, and other planning needs. Section 403.061(35), Florida Statutes, authorizes FDEP to exercise the duties, powers, and responsibilities required of the state under the federal CAA. Section 403.061(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 403.182, 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 with respect to sub-elements (i) and (iii), EPA submitted a letter to FDEP on April 19, 2016, outlining 105 grant commitments and current status of these commitments for fiscal year 2015. The letter EPA submitted to FDEP can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR- 2016-0192. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. There were no outstanding issues in relation to the SIP for fiscal year 2015, therefore, FDEP's grants were finalized and closed out. In addition, the requirements of 110(a)(2)(E)(i) and (iii) are evaluated when EPA performs a completeness determination for each SIP submittal. A completeness determination ensures that each submittal includes information to address the adequacy of personnel, funding, and legal authority under state law has been used to carry out the state's implementation plan and related issues. FDEP's authority is included in all prehearings and final SIP submittal packages for approval by EPA. FDEP is responsible for submitting all revisions to the Florida SIP to EPA for approval. EPA has made the preliminary determination that Florida has adequate resources and authority for implementation of the 2012 Annual PM2.5 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. 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. Florida is only subject to the requirements of 128(a)(2) and submitted the applicable statutes for incorporation into Florida SIP. Florida Statutes, specifically subsections 112.3143(4), F.S., Voting conflicts and 112.3144, F.S, Full and public disclosure of financial interests address the conflict of interest provisions applicable to the head of FDEP and all public officers within the Department. On July 30, 2012, EPA approved these Florida statutes into the SIP to comply with section 128 respecting state boards. See 77 FR 44485. 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 submissions 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) 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 submissions describe 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 submissions also describe 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 PM2.5 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 PM2.5 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.\25\ --------------------------------------------------------------------------- \25\ ``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. --------------------------------------------------------------------------- [[Page 50424]] 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 December 17, 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 2012 Annual PM2.5 NAAQS. 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 submissions identify air pollution emergency episodes and preplanned abatement strategies as outlined in the Florida Statutes Sections 403.131 and 120.569(2)(n). These sections of the Florida Statutes were submitted for inclusion in the SIP to address the requirements of section 110(a)(2)(G) of the CAA and have been approved by EPA into Florida's SIP. Section 403.131 authorizes FDEP to: Seek injunctive relief to enforce compliance with this chapter or any rule, regulation or permit certification, or order; to enjoin any violation specified in Section 403.061(1); and to seek 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), Florida Statutes, authorizes FDEP to issue emergency orders to address immediate dangers to the public health, safety, or welfare. EPA has made the preliminary determination that Florida's SIP, State laws, and practices are adequate to satisfy the infrastructure SIP obligations for emergency powers related to the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submissions with respect to section 110(a)(2)(G). 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. As previously discussed, FDEP is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS. Florida 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. The following sections of the Florida Statutes provide FDEP the authority to conduct certain actions in support of this element. Section 403.061(35) gives FDEP the broad authority to implement the CAA. Section 403.061(9) authorizes FDEP to ``[a]dopt 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.'' EPA has made the preliminary determination that Florida adequately demonstrates a commitment to provide future SIP revisions related to the 2012 Annual PM2.5 NAAQS when necessary. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submissions with respect to section 110(a)(2)(H). 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 for the 2012 Annual PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that complies with the applicable consultation requirements of section 121, the public notification requirements of section 127, PSD and visibility protection. EPA's rationale for each sub-element 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. Florida's SIP-approved Chapters 62-204, 62-210, and 62-212, as well as its Regional Haze Implementation Plan (which allows for continued consultation with 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. Specifically, Florida adopted state-wide consultation procedures for the implementation of transportation conformity which includes the development of mobile inventories for SIP development. Required partners covered by Florida's consultation procedures include Federal, state and local transportation and air quality agency officials. Also, Section 403.061(21), Florida Statutes, authorizes FDEP to ``[a]dvise, consult, cooperate, and enter into agreements with other agencies of 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''. EPA has made the preliminary determination that Florida's SIP and practices adequately demonstrate consultation with government officials related to the 2012 Annual PM2.5 NAAQS when necessary. Public notification (127 public notification): FDEP has public notice mechanisms in place to notify the public of instances or areas exceeding the NAAQS along with associated health effects through the Air Quality Index reporting system in required areas. Section 403.061(20), Florida Statutes, authorizes FDEP to ``[c]ollect and disseminate information . . . relating to pollution'' and Florida implements an Air Quality Index reporting system to notify the public in impacted areas. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submissions with respect to section 110(a)(2)(J) public notification. PSD: With regard to the PSD element of section 110(a)(2)(J), this requirement is met when a state demonstrates in an infrastructure SIP submission that its [[Page 50425]] PSD program meets all the current structural requirements of part C of title I of the CAA. As discussed in more detail above under the section discussing 110(a)(2)(C), Florida's SIP contains provisions for the State's PSD program that reflect the relevant SIP revisions pertaining to the required structural PSD requirements to satisfy the requirement of the PSD element of section 110(a)(2)(J). EPA has made the preliminary determination that Florida's SIP and practices are adequate for PSD permitting of major sources and major modifications related to the 2012 Annual PM2.5 NAAQS for the PSD element of section 110(a)(2)(J). 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 Florida's infrastructure SIP submissions are approvable for section 110(a)(2)(J) in related to the 2012 Annual PM2.5 NAAQS and that Florida does not need to rely on its regional haze program to address 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. SIP-approved sections of Chapter 62-204, 62-210, and 62-212, F.A.C., require use of EPA-approved modeling of pollutant-emitting sources that contribute to PM2.5 concentrations in the ambient air. Also, the following sections of the Florida Statutes provide FDEP the authority to conduct actions in support of this element. Section 403.061(13), Florida Statutes, authorizes FDEP to ``[r]equire persons engaged in operations which may result in pollution to file reports which may contain information relating to locations, size of outlet, height of outlet, rate and period of emission, and composition and concentration of effluent and such other information as the department shall prescribe to be filed. . . .'' Section 403.061(18), Florida Statutes, authorizes FDEP to ``[e]ncourage and conduct studies, investigations, and research relating to pollution and its causes, effects, prevention, abatement, and control.'' These regulations and State statutes demonstrate that Florida has the authority to conduct modeling and provide relevant data for the purpose of predicting the effect on ambient air quality of the 2012 Annual PM2.5 NAAQS. Additionally, Florida participates in a regional effort to coordinate the development of emissions inventories and conduct regional modeling for several NAAQS, including the 2012 Annual PM2.5 NAAQS, for the Southeastern states. Florida notes in its SIP submissions that the FDEP has the technical capability to conduct or review all air quality modeling associated with the NSR program and all SIP-related modeling, except photochemical grid modeling which is performed for FDEP under contract. All such modeling is conducted in accordance with the provisions of 40 CFR part 51, Appendix W, ``Guideline on Air Quality Models.'' Taken as a whole, Florida's air quality regulations and practices demonstrate that FDEP has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of any emissions of any pollutant for which a NAAQS had been promulgated, and to provide such information to the EPA Administrator upon request. 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 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submissions with respect to section 110(a)(2)(K). 12. 110(a)(2)(L) Permitting Fees: This section requires 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. Section 403.087(6)(a), Florida Statutes, directs FDEP to ``require a processing fee in an amount sufficient, to the greatest extent possible, to cover the costs of reviewing and acting upon any application for a permit. . . .''. Florida's Air Pollution Control Trust Fund is the depository for all funds for the operation of the Division of Air Resource Management. Within the fund is an account that contains all fees under the title V program. Additionally, Florida has a fully approved title V operating permit program at Chapter 62-213 F.A.C.\26\ and Section 403.0872, Florida Statutes, 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 State rules and practices adequately provide for permitting fees related to the 2012 Annual PM2.5 NAAQS, when necessary. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submissions with respect to section 110(a)(2)(L). --------------------------------------------------------------------------- \26\ 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 coordinates with local governments affected by the SIP. Florida's SIP submission includes a description of the public participation process for SIP development. Florida has consulted with local entities for the development of transportation conformity and has worked with the FLMs as a requirement of the regional haze rule. Section 403.061(21), Florida Statutes, authorizes FDEP to ``[a]dvise, consult, cooperate and enter into agreements with other agencies of 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.'' Section 403.061(21), Florida Statutes, is one way that the State meets the requirements of this element as described further below. More specifically, Florida adopted state-wide consultation procedures for the implementation of transportation conformity which includes the development of mobile inventories for SIP development and the requirements that link transportation planning and air [[Page 50426]] quality planning in nonattainment and maintenance areas. Required partners covered by Florida's consultation procedures include Federal, state and local transportation and air quality agency officials. The state and local transportation agency officials are most directly impacted by transportation conformity requirements and are required to provide public involvement for their activities including the analysis demonstrating how they meet transportation conformity requirements. Also, FDEP has agreements with eight county air pollution control agencies (Duval, Orange, Hillsborough, Pinellas, Sarasota, Palm Beach, Broward, and Miami-Dade) that delineate the responsibilities of each county in carrying out Florida's air program, including the Florida SIP. EPA has made the preliminary determination that Florida's SIP and practices adequately demonstrate consultation with affected local entities related to the 2012 Annual PM2.5 NAAQS when necessary. V. Proposed Action With the exception of interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility protection requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 and 2). EPA is proposing to approve Florida's infrastructure submission submitted on December 14, 2015, for the 2012 Annual PM2.5 NAAQS for the above described infrastructure SIP requirements. EPA is proposing to approve Florida's infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS because the 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). In addition, 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, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: July 20, 2016. Heather McTeer Toney, Regional Administrator, Region 4. [FR Doc. 2016-18013 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
![50416 Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Proposed Rules
Any parties interested in commenting Confidential Business Information (CBI) ENVIRONMENTAL PROTECTION
on this action should do so at this time. or other information whose disclosure is AGENCY
Please note that if EPA receives adverse restricted by statute. Multimedia
comment on an amendment, paragraph, submissions (audio, video, etc.) must be 40 CFR Part 52
or section of this rule and if that accompanied by a written comment. [EPA–R04–OAR–2016–0192; FRL–9949–91–
provision may be severed from the The written comment is considered the Region 4]
remainder of the rule, EPA may adopt official comment and should include
as final those provisions of the rule that discussion of all points you wish to Air Quality Plans; Florida;
are not the subject of an adverse make. The EPA will generally not Infrastructure Requirements for the
comment. consider comments or comment 2012 PM2.5 National Ambient Air
For additional information, see the contents located outside of the primary Quality Standard
direct final rule which is located in the
submission (i.e. on the web, cloud, or AGENCY: Environmental Protection
Rules Section of this Federal Register.
other file sharing system). For Agency.
Dated: July 20, 2016. additional submission methods, please ACTION: Proposed rule.
H. Curtis Spalding, contact the person identified in the FOR
Regional Administrator, EPA New England. FURTHER INFORMATION CONTACT section. SUMMARY: The Environmental Protection
[FR Doc. 2016–18157 Filed 7–29–16; 8:45 am] For the full EPA public comment policy, Agency (EPA) is proposing to approve
BILLING CODE 6560–50–P information about CBI or multimedia the State Implementation Plan (SIP)
submissions, and general guidance on submission, submitted by the State of
making effective comments, please visit Florida, through the Florida Department
ENVIRONMENTAL PROTECTION http://www2.epa.gov/dockets/ of Environmental Protection (FDEP), on
AGENCY commenting-epa-dockets. December 14, 2015, for inclusion into
the Florida SIP. This proposal pertains
40 CFR Part 52 FOR FURTHER INFORMATION CONTACT: to the infrastructure requirements of the
[EPA–R09–OAR–2016–0262; FRL–9948–09– Kevin Gong, EPA Region IX, (415) 972– Clean Air Act (CAA or Act) for the 2012
Region 9] 3073, Gong.Kevin@epa.gov. Annual Fine Particulate Matter (PM2.5)
SUPPLEMENTARY INFORMATION: national ambient air quality standards
Approval of California Air Plan (NAAQS). The CAA requires that each
Revisions, Placer County Air Pollution Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to the EPA. This state adopt and submit a SIP for the
Control District and Ventura County implementation, maintenance and
Air Pollution Control District proposal addresses the following local
enforcement of each NAAQS
rules: PCAPCD Rule 250, ‘‘Stationary
AGENCY: Environmental Protection promulgated by EPA, which is
Gas Turbines,’’ and VCAPCD Rule commonly referred to as an
Agency (EPA). 74.15.1, ‘‘Boilers, Steam Generators, and ‘‘infrastructure SIP submission.’’ FDEP
ACTION: Proposed rule. Process Heaters.’’ In the Rules and certified that the Florida SIP contains
Regulations section of this Federal provisions that ensure the 2012 Annual
SUMMARY: The Environmental Protection
Register, we are approving these local PM2.5 NAAQS is implemented,
Agency (EPA) is proposing to approve
rules in a direct final action without enforced, and maintained in Florida.
revisions to the Placer County Air
prior proposal because we believe these EPA is proposing to determine that
Pollution Control District (PCAPCD) and
Ventura County Air Pollution Control SIP revisions are not controversial. If we Florida’s infrastructure SIP submission,
District (VCAPCD) portion of the receive adverse comments, however, we provided to EPA on December 14, 2015,
California State Implementation Plan will publish a timely withdrawal of the satisfies certain required infrastructure
(SIP). These revisions concern oxides of direct final rule and address the elements for the 2012 Annual PM2.5
nitrogen (NOX) and carbon monoxide comments in subsequent action based NAAQS.
emissions from stationary gas turbines, on this proposed rule. Please note that DATES: Written comments must be
boilers, steam generators, and process if we receive adverse comment on a received on or before August 31, 2016.
heaters. We are proposing to approve particular rule, we may adopt as final
ADDRESSES: Submit your comments,
local rules to regulate these emission the rule that is not the subject of an identified by Docket ID No. EPA–R04–
sources under the Clean Air Act (CAA adverse comment. OAR–2016–0192 at http://
or the Act). We do not plan to open a second www.regulations.gov. Follow the online
DATES: Any comments on this proposal comment period, so anyone interested instructions for submitting comments.
must arrive by August 31, 2016. in commenting should do so at this Once submitted, comments cannot be
ADDRESSES: Submit your comments, time. If we do not receive adverse edited or removed from Regulations.gov.
identified by Docket ID No. EPA–R09– comments, no further activity is EPA may publish any comment received
OAR–2016–0262 at http:// planned. For further information, please to its public docket. Do not submit
www.regulations.gov, or via email to see the direct final action. electronically any information you
Andrew Steckel, Rules Office Chief, at consider to be Confidential Business
Dated: June 14, 2016.
Steckel.Andrew@epa.gov. For comments Information (CBI) or other information
submitted at Regulations.gov, follow the Alexis Strauss, whose disclosure is restricted by statute.
sradovich on DSK3GMQ082PROD with PROPOSALS
online instructions for submitting Acting Regional Administrator, Region IX. Multimedia submissions (audio, video,
comments. Once submitted, comments [FR Doc. 2016–17905 Filed 7–29–16; 8:45 am] etc.) must be accompanied by a written
cannot be edited or removed from BILLING CODE 6560–50–P comment. The written comment is
Regulations.gov. For either manner of considered the official comment and
submission, the EPA may publish any should include discussion of all points
comment received to its public docket. you wish to make. EPA will generally
Do not submit electronically any not consider comments or comment
information you consider to be contents located outside of the primary
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specific elements that ‘‘[e]ach such has long noted that this literal reading Similarly, EPA interprets the CAA to
plan’’ submission must address. of the statute is internally inconsistent allow it to take action on the individual
EPA has historically referred to these and would create a conflict with the parts of one larger, comprehensive
SIP submissions made for the purpose nonattainment provisions in part D of infrastructure SIP submission for a
of satisfying the requirements of CAA title I of the Act, which specifically given NAAQS without concurrent
sections 110(a)(1) and 110(a)(2) as address nonattainment SIP action on the entire submission. For
‘‘infrastructure SIP’’ submissions. requirements.6 Section 110(a)(2)(I) example, EPA has sometimes elected to
Although the term ‘‘infrastructure SIP’’ pertains to nonattainment SIP act at different times on various
does not appear in the CAA, EPA uses requirements and part D addresses elements and sub-elements of the same
the term to distinguish this particular when attainment plan SIP submissions infrastructure SIP submission.9
type of SIP submission from to address nonattainment area Ambiguities within sections 110(a)(1)
submissions that are intended to satisfy requirements are due. For example, and 110(a)(2) may also arise with
other SIP requirements under the CAA, section 172(b) requires EPA to establish respect to infrastructure SIP submission
such as ‘‘nonattainment SIP’’ or a schedule for submission of such plans requirements for different NAAQS.
‘‘attainment plan SIP’’ submissions to for certain pollutants when the Thus, EPA notes that not every element
address the nonattainment planning Administrator promulgates the of section 110(a)(2) would be relevant,
requirements of part D of title I of the designation of an area as nonattainment, or as relevant, or relevant in the same
CAA, ‘‘regional haze SIP’’ submissions and section 107(d)(1)(B) allows up to way, for each new or revised NAAQS.
required by EPA rule to address the two years, or in some cases three years, The states’ attendant infrastructure SIP
visibility protection requirements of for such designations to be submissions for each NAAQS therefore
CAA section 169A, and nonattainment promulgated.7 This ambiguity illustrates could be different. For example, the
new source review (NNSR) permit that rather than apply all the stated monitoring requirements that a state
program submissions to address the requirements of section 110(a)(2) in a might need to meet in its infrastructure
permit requirements of CAA, title I, part strict literal sense, EPA must determine SIP submission for purposes of section
D. which provisions of section 110(a)(2) 110(a)(2)(B) could be very different for
Section 110(a)(1) addresses the timing are applicable for a particular different pollutants because the content
and general requirements for infrastructure SIP submission. and scope of a state’s infrastructure SIP
infrastructure SIP submissions, and Another example of ambiguity within submission to meet this element might
section 110(a)(2) provides more details sections 110(a)(1) and 110(a)(2) with be very different for an entirely new
concerning the required contents of respect to infrastructure SIPs pertains to NAAQS than for a minor revision to an
these submissions. The list of required whether states must meet all of the existing NAAQS.10
elements provided in section 110(a)(2) infrastructure SIP requirements in a EPA notes that interpretation of
contains a wide variety of disparate single SIP submission, and whether EPA section 110(a)(2) is also necessary when
provisions, some of which pertain to must act upon such SIP submission in EPA reviews other types of SIP
required legal authority, some of which a single action. Although section submissions required under the CAA.
pertain to required substantive program 110(a)(1) directs states to submit ‘‘a Therefore, as with infrastructure SIP
provisions, and some of which pertain plan’’ to meet these requirements, EPA submissions, EPA also has to identify
to requirements for both authority and interprets the CAA to allow states to and interpret the relevant elements of
substantive program provisions.5 EPA make multiple SIP submissions section 110(a)(2) that logically apply to
therefore believes that while the timing separately addressing infrastructure SIP these other types of SIP submissions.
requirement in section 110(a)(1) is elements for the same NAAQS. If states For example, section 172(c)(7) requires
unambiguous, some of the other elect to make such multiple SIP that attainment plan SIP submissions
statutory provisions are ambiguous. In submissions to meet the infrastructure required by part D have to meet the
particular, EPA believes that the list of SIP requirements, EPA can elect to act ‘‘applicable requirements’’ of section
required elements for infrastructure SIP on such submissions either individually 110(a)(2). Thus, for example, attainment
submissions provided in section or in a larger combined action.8 plan SIP submissions must meet the
110(a)(2) contains ambiguities requirements of section 110(a)(2)(A)
concerning what is required for 6 See, e.g., ‘‘Rule To Reduce Interstate Transport regarding enforceable emission limits
inclusion in an infrastructure SIP of Fine Particulate Matter and Ozone (Clean Air and control measures and section
Interstate Rule); Revisions to Acid Rain Program;
submission. Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
The following examples of 25162, at 25163–65 (May 12, 2005) (explaining rule), and ‘‘Approval and Promulgation of Air
ambiguities illustrate the need for EPA relationship between timing requirement of section Quality Implementation Plans; New Mexico;
to interpret some section 110(a)(1) and 110(a)(2)(D) versus section 110(a)(2)(I)). Infrastructure and Interstate Transport
7 EPA notes that this ambiguity within section Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR
section 110(a)(2) requirements with 4337) (January 22, 2013) (EPA’s final action on the
110(a)(2) is heightened by the fact that various
respect to infrastructure SIP subparts of part D set specific dates for submission infrastructure SIP for the 2006 PM2.5 NAAQS).
submissions for a given new or revised of certain types of SIP submissions in designated 9 On December 14, 2007, the State of Tennessee,
NAAQS. One example of ambiguity is nonattainment areas for various pollutants. Note, through the Tennessee Department of Environment
that section 110(a)(2) requires that e.g., that section 182(a)(1) provides specific dates and Conservation, made a SIP revision to EPA
for submission of emissions inventories for the demonstrating that the State meets the requirements
‘‘each’’ SIP submission must meet the ozone NAAQS. Some of these specific dates are of sections 110(a)(1) and (2). EPA proposed action
list of requirements therein, while EPA necessarily later than three years after promulgation for infrastructure SIP elements (C) and (J) on
of the new or revised NAAQS. January 23, 2012 (77 FR 3213) and took final action
sradovich on DSK3GMQ082PROD with PROPOSALS
5 For example: Section 110(a)(2)(E)(i) provides 8 See, e.g., ‘‘Approval and Promulgation of on March 14, 2012 (77 FR 14976). On April 16,
that states must provide assurances that they have Implementation Plans; New Mexico; Revisions to 2012 (77 FR 22533) and July 23, 2012 (77 FR
adequate legal authority under state and local law the New Source Review (NSR) State 42997), EPA took separate proposed and final
to carry out the SIP; section 110(a)(2)(C) provides Implementation Plan (SIP); Prevention of actions on all other section 110(a)(2) infrastructure
that states must have a SIP-approved program to Significant Deterioration (PSD) and Nonattainment SIP elements of Tennessee’s December 14, 2007,
address certain sources as required by part C of title New Source Review (NNSR) Permitting,’’ 78 FR submittal.
I of the CAA; and section 110(a)(2)(G) provides that 4339 (January 22, 2013) (EPA’s final action 10 For example, implementation of the 1997 PM
2.5
states must have legal authority to address approving the structural PSD elements of the New NAAQS required the deployment of a system of
emergencies as well as contingency plans that are Mexico SIP submitted by the State separately to new monitors to measure ambient levels of that new
triggered in the event of such emergencies. meet the requirements of EPA’s 2008 PM2.5 NSR indicator species for the new NAAQS.
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current requirements of EPA’s ‘‘Final a result, an infrastructure SIP IV. What is EPA’s analysis of how
NSR Improvement Rule,’’ 67 FR 80186 submission for any future new or Florida addressed the elements of the
(December 31, 2002), as amended by 72 revised NAAQS for carbon monoxide sections 110(a)(1) and (2)
FR 32526 (June 13, 2007) (‘‘NSR need only state this fact in order to ‘‘infrastructure’’ provisions?
Reform’’). Thus, EPA believes it may address the visibility prong of section
The Florida infrastructure submission
approve an infrastructure SIP 110(a)(2)(D)(i)(II).
Finally, EPA believes that its addresses the provisions of sections
submission without scrutinizing the
approach with respect to infrastructure 110(a)(1) and (2) as described below.
totality of the existing SIP for such
potentially deficient provisions and may SIP requirements is based on a 1. 110(a)(2)(A) Emission Limits and
approve the submission even if it is reasonable reading of sections 110(a)(1) Other Control Measures: Section
aware of such existing provisions.14 It is and 110(a)(2) because the CAA provides 110(a)(2)(A) requires that each
important to note that EPA’s approval of other avenues and mechanisms to implementation plan include
a state’s infrastructure SIP submission address specific substantive deficiencies enforceable emission limitations and
should not be construed as explicit or in existing SIPs. These other statutory other control measures, means, or
implicit re-approval of any existing tools allow EPA to take appropriately techniques (including economic
potentially deficient provisions that tailored action, depending upon the incentives such as fees, marketable
relate to the three specific issues just nature and severity of the alleged SIP permits, and auctions of emissions
described. deficiency. Section 110(k)(5) authorizes rights), as well as schedules and
EPA’s approach to review of EPA to issue a ‘‘SIP call’’ whenever the timetables for compliance, as may be
infrastructure SIP submissions is to Agency determines that a state’s SIP is necessary or appropriate to meet the
identify the CAA requirements that are substantially inadequate to attain or applicable requirements. Several
logically applicable to that submission. maintain the NAAQS, to mitigate regulations within Florida’s SIP are
EPA believes that this approach to the interstate transport, or to otherwise relevant to air quality control
review of a particular infrastructure SIP comply with the CAA.15 Section regulations. The regulations described
submission is appropriate, because it 110(k)(6) authorizes EPA to correct below include enforceable emission
would not be reasonable to read the errors in past actions, such as past limitations and other control measures.
general requirements of section approvals of SIP submissions.16 Chapters 62–204, Air Pollution
110(a)(1) and the list of elements in Significantly, EPA’s determination that Control—General Provisions; 62–210,
110(a)(2) as requiring review of each an action on a state’s infrastructure SIP Stationary Sources—General
and every provision of a state’s existing submission is not the appropriate time Requirements; 62–212, Stationary
SIP against all requirements in the CAA and place to address all potential Sources—Preconstruction Review; 62–
and EPA regulations merely for existing SIP deficiencies does not 296, Stationary Sources—Emissions
purposes of assuring that the state in preclude EPA’s subsequent reliance on Standards; and 62–297, Stationary
question has the basic structural provisions in section 110(a)(2) as part of Sources—Emissions Monitoring
elements for a functioning SIP for a new the basis for action to correct those collectively establish enforceable
or revised NAAQS. Because SIPs have deficiencies at a later time. For example, emissions limitations and other control
grown by accretion over the decades as although it may not be appropriate to measures, means or techniques for
statutory and regulatory requirements require a state to eliminate all existing activities that contribute to PM2.5
under the CAA have evolved, they may inappropriate director’s discretion concentrations in the ambient air, and
include some outmoded provisions and provisions in the course of acting on an provide authority for FDEP to establish
historical artifacts. These provisions, infrastructure SIP submission, EPA such limits and measures as well as
while not fully up to date, nevertheless believes that section 110(a)(2)(A) may be schedules for compliance through SIP-
may not pose a significant problem for among the statutory bases that EPA approved permits to meet the applicable
the purposes of ‘‘implementation, relies upon in the course of addressing requirements of the CAA.
maintenance, and enforcement’’ of a such deficiency in a subsequent Additionally, the following sections
new or revised NAAQS when EPA action.17 of the Florida Statutes provide FDEP the
evaluates adequacy of the infrastructure authority to conduct certain actions in
15 For example, EPA issued a SIP call to Utah to
SIP submission. EPA believes that a support of this infrastructure element.
address specific existing SIP deficiencies related to
better approach is for states and EPA to the treatment of excess emissions during SSM
Section 403.061(9), Florida Statutes,
focus attention on those elements of events. See ‘‘Finding of Substantial Inadequacy of authorizes FDEP to ‘‘[a]dopt a
section 110(a)(2) of the CAA most likely Implementation Plan; Call for Utah State comprehensive program for the
Implementation Plan Revisions,’’ 74 FR 21639 prevention, control, and abatement of
to warrant a specific SIP revision due to (April 18, 2011).
the promulgation of a new or revised 16 EPA has used this authority to correct errors in
pollution of the air . . . of the state,’’
NAAQS or other factors. past actions on SIP submissions related to PSD and section 403.8055, Florida Statutes,
For example, EPA’s 2013 Guidance programs. See ‘‘Limitation of Approval of authorizes FDEP to ‘‘[a]dopt rules
gives simpler recommendations with Prevention of Significant Deterioration Provisions substantively identical to regulations
Concerning Greenhouse Gas Emitting-Sources in
respect to carbon monoxide than other State Implementation Plans; Final Rule,’’ 75 FR
adopted in the Federal Register by the
NAAQS pollutants to meet the visibility 82536 (December 30, 2010). EPA has previously United States Environmental Protection
requirements of section used its authority under CAA section 110(k)(6) to Agency pursuant to federal law . . .’’
110(a)(2)(D)(i)(II), because carbon remove numerous other SIP provisions that the EPA has made the preliminary
Agency determined it had approved in error. See,
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monoxide does not affect visibility. As e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 determination that the provisions
(June 27, 1997) (corrections to American Samoa, contained in these State regulations and
14 By contrast, EPA notes that if a state were to Arizona, California, Hawaii, and Nevada SIPs); 69 sections of the Florida Statutes, and
include a new provision in an infrastructure SIP FR 67062 (November 16, 2004) (corrections to
California SIP); and 74 FR 57051 (November 3,
Florida’s practices satisfy section
submission that contained a legal deficiency, such
as a new exemption for excess emissions during 2009) (corrections to Arizona and Nevada SIPs).
SSM events, then EPA would need to evaluate that 17 See, e.g., EPA’s disapproval of a SIP submission section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
provision for compliance against the rubric of from Colorado on the grounds that it would have (July 21, 2010) (proposed disapproval of director’s
applicable CAA requirements in the context of the included a director’s discretion provision discretion provisions); 76 FR 4540 (Jan. 26, 2011)
action on the infrastructure SIP. inconsistent with CAA requirements, including (final disapproval of such provisions).
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110(a)(2)(A) for the 2012 PM2.5 NAAQS prevention, control and abatement of FDEP the authority to take specific
in the State. pollution of the air . . . of the State; and actions in support of this infrastructure
In this action, EPA is not proposing to Section 403.061(11), Florida Statutes, element. Section 403.061(6), Florida
approve or disapprove any existing state authorizes FDEP to ‘‘[e]stablish ambient Statutes, requires FDEP to ‘‘[e]xercise
provisions with regard to excess air quality . . . standards for the state as general supervision of the
emissions during start up, shut down, a whole or for any part thereof.’’ administration and enforcement of the
and malfunction (SSM) operations at a Annually, states develop and submit to laws, rules, and regulations pertaining
facility. EPA believes that a number of EPA for approval statewide ambient to air and water pollution.’’ Section
states have SSM provisions which are monitoring network plans consistent 403.121, Florida Statutes, authorizes
contrary to the CAA and existing EPA with the requirements of 40 CFR parts FDEP to seek judicial and
guidance, ‘‘State Implementation Plans: 50, 53, and 58. The annual network plan administrative remedies, including civil
Policy Regarding Excess Emissions involves an evaluation of any proposed penalties, injunctive relief, and criminal
During Malfunctions, Startup, and changes to the monitoring network, prosecution for violations of any FDEP
Shutdown’’ (September 20, 1999), and includes the annual ambient monitoring rule or permit.
the Agency is addressing such state network design plan, and includes a Enforcement: Section 403.061(6),
regulations in a separate action.18 certified evaluation of the state’s Florida Statutes, requires FDEP to
Additionally, in this action, EPA is ambient monitors and auxiliary support ‘‘[e]xercise general supervision of the
not proposing to approve or disapprove equipment.19 In May 2015, Florida administration and enforcement of the
that any existing state rules with regard submitted its plan for 2014 to EPA. On laws, rules, and regulations pertaining
to director’s discretion or variance October 29, 2015, EPA approved to air and water pollution.’’ Section
provisions. EPA believes that a number Florida’s monitoring network plan. 403.121, Florida Statutes, authorizes
of states have such provisions which are Florida’s approved monitoring network FDEP to seek judicial and
contrary to the CAA and existing EPA plan can be accessed at administrative remedies, including civil
guidance (52 FR 45109 (November 24, www.regulations.gov using Docket ID penalties, injunctive relief, and criminal
1987)), and the Agency plans to take No. EPA–R04–OAR–2016–0192. EPA prosecution for violations of any FDEP
action in the future to address such state has made the preliminary determination rule or permit. These provisions provide
regulations. In the meantime, EPA that Florida’s SIP and practices are FDEP with authority for enforcement of
encourages any state having a director’s adequate for the ambient air quality PM2.5 emission limits and control
discretion or variance provision which monitoring and data system related to measures.
is contrary to the CAA and EPA the 2012 Annual PM2.5 NAAQS. PSD Permitting for Major Sources:
guidance to take steps to correct the 3. 110(a)(2)(C) Programs for EPA interprets the PSD sub-element to
deficiency as soon as possible. Enforcement of Control Measures and require that a state’s infrastructure SIP
2. 110(a)(2)(B) Ambient Air Quality for Construction or Modification of submission for a particular NAAQS
Monitoring/Data System: Section Stationary Sources: This element demonstrate that the state has a
110(a)(2)(B) requires SIPs to provide for consists of three sub-elements: complete PSD permitting program in
establishment and operation of Enforcement, state-wide regulation of place covering the structural PSD
appropriate devices, methods, systems, new and modified minor sources and requirements for all regulated NSR
and procedures necessary to (i) monitor, minor modifications of major sources, pollutants. A state’s PSD permitting
compile, and analyze data on ambient and preconstruction permitting of major program is complete for this sub-
air quality, and (ii) upon request, make sources and major modifications in element (and prong 3 of D(i) and J
such data available to the areas designated attainment or related to PSD) if EPA has already
Administrator. SIP-approved rules at unclassifiable for the subject NAAQS as approved or is simultaneously
Chapters 62–204, 62–210, and 62–212 of required by CAA title I part C (i.e., the approving the state’s SIP with respect to
the F.A.C. require the use of Federal major source PSD program). FDEP’s all structural PSD requirements that are
Reference Method or equivalent 2012 Annual PM2.5 NAAQS due under the EPA regulations or the
monitors and also provide authority for infrastructure SIP submission cited a CAA on or before the date of the EPA’s
FDEP to establish monitoring number of SIP provisions to address proposed action on the infrastructure
requirements through SIP-approved these requirements. EPA’s rationale for SIP submission. For the 2012 Annual
permits. Additionally, the following its proposed action regarding each sub- PM2.5 NAAQS, Florida’s authority to
three sections of the Florida Statutes element is described below. regulate new and modified sources to
provide FDEP the authority to take Specifically, FDEP cited Chapters 62– assist in the protection of air quality in
specific actions in support of this 204, 62–210, 62–212, 62–243, 62–252, attainment or unclassifiable areas is
infrastructure element: Section 62–256, 62–296 and 62–297 F.A.C. established in Florida Administrative
403.061(1), Florida Statutes, authorizes Collectively, these provisions of Code Chapters 62–210, Stationary
FDEP to ‘‘[a]pprove and promulgate Florida’s SIP regulate the construction Sources—General Requirements,
current and long-range plans developed of any new major stationary source or Section 200—Definitions, and 62–212,
to provide for air quality and control any modification at an existing major Stationary Sources—Preconstruction
and pollution abatement.; Section stationary source in an area designated Review, Section 400—Prevention of
403.061(9), Florida Statues, which as nonattainment, attainment or Significant Deterioration, of the Florida
authorizes DEP to [a]dopt a unclassifiable. These regulations enable SIP. Florida’s infrastructure SIP
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comprehensive program for the FDEP to regulate sources contributing to submission demonstrates that new
the 2012 Annual PM2.5 NAAQS. major sources and major modifications
18 On June 12, 2015, EPA published a final action
Additionally, the following two in areas of the State designated
entitled, ‘‘State Implementation Plans: Response to
Petition for Rulemaking; Restatement and Update of sections of the Florida Statutes provide attainment or unclassifiable for the
EPA’s SSM Policy Applicable to SIPs; Findings of specified NAAQS are subject to a
Substantial Inadequacy; and SIP Calls to Amend 19 On occasion, proposed changes to the
federally-approved PSD permitting
Provisions Applying to Excess Emissions During monitoring network are evaluated outside of the
Periods of Startup, Shutdown, and Malfunction.’’ network plan approval process in accordance with
program meeting all the current
See 80 FR 33840. 40 CFR part 58. structural requirements of part C of title
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for the implementation of any plan information to address the adequacy of implementation of other necessary
provision, the state has responsibility personnel, funding, and legal authority steps, by owners or operators of
for ensuring adequate implementation under state law has been used to carry stationary sources to monitor emissions
of such plan provisions. EPA is out the state’s implementation plan and from such sources, (ii) periodic reports
proposing to approve Florida’s related issues. FDEP’s authority is on the nature and amounts of emissions
infrastructure SIP submission as included in all prehearings and final SIP and emissions related data from such
meeting the requirements of sub- submittal packages for approval by EPA. sources, and (iii) correlation of such
elements 110(a)(2)(E)(i), (ii), and (iii). FDEP is responsible for submitting all reports by the state agency with any
In support of EPA’s proposal to revisions to the Florida SIP to EPA for emission limitations or standards
approve sub-elements 110(a)(2)(E)(i) and approval. EPA has made the preliminary established pursuant to this section,
(iii), FDEP’s infrastructure submissions determination that Florida has adequate which reports shall be available at
demonstrate that it is responsible for resources and authority for reasonable times for public inspection.
promulgating rules and regulations for implementation of the 2012 Annual FDEP’s infrastructure SIP submissions
the NAAQS, emissions standards and PM2.5 NAAQS. describe the establishment of
general policies, a system of permits, fee Section 110(a)(2)(E)(ii) requires that requirements for compliance testing by
schedules for the review of plans, and the state comply with section 128 of the emissions sampling and analysis, and
other planning needs. Section CAA. Section 128 requires that the SIP for emissions and operation monitoring
403.061(35), Florida Statutes, authorizes provide: (1) The majority of members of to ensure the quality of data in the State.
FDEP to exercise the duties, powers, the state board or body which approves The Florida infrastructure SIP
permits or enforcement orders represent submissions also describe how the
and responsibilities required of the state
the public interest and do not derive major source and minor source emission
under the federal CAA. Section
any significant portion of their income inventory programs collect emission
403.061(2), Florida Statutes, authorizes
from persons subject to permitting or data throughout the State and ensure the
FDEP to ‘‘[h]ire only such employees as
enforcement orders under the CAA; and quality of such data. Florida meets these
may be necessary to effectuate the
(2) any potential conflicts of interest by requirements through Chapters 62–204,
responsibilities of the department.’’
such board or body, or the head of an 62–210, 62–212, 62–296, and 62–297,
Section 403.061(4), Florida Statutes,
executive agency with similar powers be F.A.C., which require emissions
authorizes FDEP to ‘‘[s]ecure necessary
adequately disclosed. For purposes of monitoring and reporting for activities
scientific, technical, research,
section 128(a)(1), Florida has no boards that contribute to PM2.5 concentrations
administrative, and operational services or bodies with authority over air
by interagency agreement, by contract, in the air, including requirements for
pollution permits or enforcement the installation, calibration,
or otherwise.’’ Section 403.182, Florida actions. Such matters are instead
Statutes, authorizes FDEP to approve maintenance, and operation of
handled by an appointed Secretary. As equipment for continuously monitoring
local pollution control programs, and such, a ‘‘board or body’’ is not
provides for the State air pollution or recording emissions, or provide
responsible for approving permits or authority for FDEP to establish such
control program administered by FDEP enforcement orders in Florida, and the
to supersede a local program if FDEP emissions monitoring and reporting
requirements of section 128(a)(1) are not requirements through SIP-approved
determines that an approved local applicable. Florida is only subject to the
program is inadequate and the locality permits and require reporting of PM2.5
requirements of 128(a)(2) and submitted
fails to take the necessary corrective emissions.
the applicable statutes for incorporation The following sections of the Florida
actions. Section 320.03(6), Florida into Florida SIP. Florida Statutes,
Statutes, authorizes FDEP to establish Statutes provide FDEP the authority to
specifically subsections 112.3143(4), conduct certain actions in support of
an Air Pollution Control Trust Fund and F.S., Voting conflicts and 112.3144, F.S,
use a $1 fee on every motor vehicle this infrastructure element. Section
Full and public disclosure of financial
license registration sold in the State for 403.061(13) authorizes FDEP to
interests address the conflict of interest
air pollution control purposes. As ‘‘[r]equire persons engaged in operations
provisions applicable to the head of
evidence of the adequacy of FDEP’s which may result in pollution to file
FDEP and all public officers within the
resources with respect to sub-elements reports which may contain . . . any
Department. On July 30, 2012, EPA
(i) and (iii), EPA submitted a letter to other such information as the
approved these Florida statutes into the
FDEP on April 19, 2016, outlining 105 department shall prescribe . . .’’.
SIP to comply with section 128
grant commitments and current status of Section 403.8055 authorizes FDEP to
respecting state boards. See 77 FR
these commitments for fiscal year 2015. ‘‘[a]dopt rules substantively identical to
44485. EPA has made the preliminary
The letter EPA submitted to FDEP can regulations adopted in the Federal
determination that the State has
be accessed at www.regulations.gov Register by the United States
adequately addressed the requirements
using Docket ID No. EPA–R04–OAR– of section 128(a)(2), and accordingly has Environmental Protection Agency
2016–0192. Annually, states update met the requirements of section pursuant to federal law. . . .’’
these grant commitments based on Section 90.401, Florida Statutes,
110(a)(2)(E)(ii) with respect to
current SIP requirements, air quality defines relevant evidence as evidence
infrastructure SIP requirements.
planning, and applicable requirements Therefore, EPA is proposing to tending to prove or disprove a material
related to the NAAQS. There were no approve Florida’s infrastructure SIP fact. Section 90.402, Florida Statutes,
outstanding issues in relation to the SIP submissions as meeting the states that all relevant evidence is
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for fiscal year 2015, therefore, FDEP’s requirements of sub-elements admissible except as provided by law.
grants were finalized and closed out. In 110(a)(2)(E)(i), (ii) and (iii). EPA is unaware of any provision
addition, the requirements of 7. 110(a)(2)(F) Stationary Source preventing the use of credible evidence
110(a)(2)(E)(i) and (iii) are evaluated Monitoring and Reporting: Section in the Florida SIP.25
when EPA performs a completeness 110(a)(2)(F) requires SIPs to meet 25 ‘‘Credible Evidence’’ makes allowances for
determination for each SIP submittal. A applicable requirements addressing (i) owners and/or operators to utilize ‘‘any credible
completeness determination ensures the installation, maintenance, and evidence or information relevant’’ to demonstrate
that each submittal includes replacement of equipment, and the Continued
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![50424 Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Proposed Rules
Additionally, Florida is required to plant, and aquatic life, of the State and 121, the public notification
submit emissions data to EPA for to protect human health, safety, and requirements of section 127, PSD and
purposes of the National Emissions welfare caused or threatened by any visibility protection. EPA’s rationale for
Inventory (NEI). The NEI is EPA’s violation. Section 120.569(2)(n), Florida each sub-element is described below.
central repository for air emissions data. Statutes, authorizes FDEP to issue Consultation with government
EPA published the Air Emissions emergency orders to address immediate officials (121 consultation): Section
Reporting Rule (AERR) on December 5, dangers to the public health, safety, or 110(a)(2)(J) of the CAA requires states to
2008, which modified the requirements welfare. EPA has made the preliminary provide a process for consultation with
for collecting and reporting air determination that Florida’s SIP, State local governments, designated
emissions data (73 FR 76539). The laws, and practices are adequate to organizations and federal land managers
AERR shortened the time states had to satisfy the infrastructure SIP obligations (FLMs) carrying out NAAQS
report emissions data from 17 to 12 for emergency powers related to the implementation requirements pursuant
months, giving states one calendar year 2012 Annual PM2.5 NAAQS. to section 121 relative to consultation.
to submit emissions data. All states are Accordingly, EPA is proposing to Florida’s SIP-approved Chapters 62–
required to submit a comprehensive approve Florida’s infrastructure SIP 204, 62–210, and 62–212, as well as its
emissions inventory every three years submissions with respect to section Regional Haze Implementation Plan
and report emissions for certain larger 110(a)(2)(G). (which allows for continued
sources annually through EPA’s online 9. 110(a)(2)(H) SIP Revisions: Section consultation with appropriate state,
Emissions Inventory System. States 110(a)(2)(H), in summary, requires each local, and tribal air pollution control
report emissions data for the six criteria SIP to provide for revisions of such plan agencies as well as the corresponding
pollutants and the precursors that form (i) as may be necessary to take account FLMs), provide for consultation with
them—nitrogen oxides, sulfur dioxide, of revisions of such national primary or government officials whose jurisdictions
ammonia, lead, carbon monoxide, secondary ambient air quality standard might be affected by SIP development
particulate matter, and volatile organic or the availability of improved or more activities. Specifically, Florida adopted
compounds. Many states also expeditious methods of attaining such state-wide consultation procedures for
voluntarily report emissions of standard, and (ii) whenever the the implementation of transportation
hazardous air pollutants. Florida made Administrator finds that the plan is conformity which includes the
its latest update to the NEI on December substantially inadequate to attain the development of mobile inventories for
17, 2014. EPA compiles the emissions NAAQS or to otherwise comply with SIP development. Required partners
data, supplementing it where necessary, any additional applicable requirements. covered by Florida’s consultation
and releases it to the general public As previously discussed, FDEP is procedures include Federal, state and
through the Web site http:// responsible for adopting air quality local transportation and air quality
www.epa.gov/ttn/chief/ rules and revising SIPs as needed to agency officials. Also, Section
eiinformation.html. EPA has made the attain or maintain the NAAQS. Florida 403.061(21), Florida Statutes, authorizes
preliminary determination that Florida’s has the ability and authority to respond FDEP to ‘‘[a]dvise, consult, cooperate,
SIP and practices are adequate for the to calls for SIP revisions, and has and enter into agreements with other
stationary source monitoring systems provided a number of SIP revisions over agencies of the state, the Federal
related to the 2012 Annual PM2.5 the years for implementation of the Government, other states, interstate
NAAQS. NAAQS. agencies, groups, political subdivisions,
8. 110(a)(2)(G) Emergency Powers: The following sections of the Florida and industries affected by the
This section requires that states Statutes provide FDEP the authority to provisions of this act, rules, or policies
demonstrate authority comparable with conduct certain actions in support of of the department’’. EPA has made the
section 303 of the CAA and adequate this element. Section 403.061(35) gives preliminary determination that Florida’s
contingency plans to implement such FDEP the broad authority to implement SIP and practices adequately
authority. Florida’s infrastructure SIP the CAA. Section 403.061(9) authorizes demonstrate consultation with
submissions identify air pollution FDEP to ‘‘[a]dopt a comprehensive government officials related to the 2012
emergency episodes and preplanned program for the prevention, control, and Annual PM2.5 NAAQS when necessary.
abatement strategies as outlined in the abatement of pollution of the air . . . of Public notification (127 public
Florida Statutes Sections 403.131 and the state, and from time to time review notification): FDEP has public notice
120.569(2)(n). These sections of the and modify such programs as mechanisms in place to notify the
Florida Statutes were submitted for necessary.’’ EPA has made the public of instances or areas exceeding
inclusion in the SIP to address the preliminary determination that Florida the NAAQS along with associated
requirements of section 110(a)(2)(G) of adequately demonstrates a commitment health effects through the Air Quality
the CAA and have been approved by to provide future SIP revisions related to Index reporting system in required
EPA into Florida’s SIP. Section 403.131 the 2012 Annual PM2.5 NAAQS when areas. Section 403.061(20), Florida
authorizes FDEP to: Seek injunctive necessary. Accordingly, EPA is Statutes, authorizes FDEP to ‘‘[c]ollect
relief to enforce compliance with this proposing to approve Florida’s and disseminate information . . .
chapter or any rule, regulation or permit infrastructure SIP submissions with relating to pollution’’ and Florida
certification, or order; to enjoin any respect to section 110(a)(2)(H). implements an Air Quality Index
violation specified in Section 10. 110(a)(2)(J) Consultation with reporting system to notify the public in
403.061(1); and to seek injunctive relief government officials, public impacted areas. Accordingly, EPA is
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to prevent irreparable injury to the air, notification, and PSD and visibility proposing to approve Florida’s
waters, and property, including animal, protection: EPA is proposing to approve infrastructure SIP submissions with
Florida’s infrastructure SIP for the 2012 respect to section 110(a)(2)(J) public
compliance with applicable requirements if the Annual PM2.5 NAAQS with respect to notification.
appropriate performance or compliance test had the general requirement in section PSD: With regard to the PSD element
been performed, for the purpose of submitting
compliance certification and can be used to
110(a)(2)(J) to include a program in the of section 110(a)(2)(J), this requirement
establish whether or not an owner or operator has SIP that complies with the applicable is met when a state demonstrates in an
violated or is in violation of any rule or standard. consultation requirements of section infrastructure SIP submission that its
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![Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Proposed Rules 50425
PSD program meets all the current locations, size of outlet, height of outlet, costs associated with any enforcement
structural requirements of part C of title rate and period of emission, and action), until such fee requirement is
I of the CAA. As discussed in more composition and concentration of superseded with respect to such sources
detail above under the section effluent and such other information as by the Administrator’s approval of a fee
discussing 110(a)(2)(C), Florida’s SIP the department shall prescribe to be program under title V. Section
contains provisions for the State’s PSD filed. . . .’’ Section 403.061(18), Florida 403.087(6)(a), Florida Statutes, directs
program that reflect the relevant SIP Statutes, authorizes FDEP to FDEP to ‘‘require a processing fee in an
revisions pertaining to the required ‘‘[e]ncourage and conduct studies, amount sufficient, to the greatest extent
structural PSD requirements to satisfy investigations, and research relating to possible, to cover the costs of reviewing
the requirement of the PSD element of pollution and its causes, effects, and acting upon any application for a
section 110(a)(2)(J). EPA has made the prevention, abatement, and control.’’ permit. . . .’’. Florida’s Air Pollution
preliminary determination that Florida’s These regulations and State statutes Control Trust Fund is the depository for
SIP and practices are adequate for PSD demonstrate that Florida has the all funds for the operation of the
permitting of major sources and major authority to conduct modeling and Division of Air Resource Management.
modifications related to the 2012 provide relevant data for the purpose of Within the fund is an account that
Annual PM2.5 NAAQS for the PSD predicting the effect on ambient air contains all fees under the title V
element of section 110(a)(2)(J). quality of the 2012 Annual PM2.5 program. Additionally, Florida has a
Visibility protection: EPA’s 2013 NAAQS. Additionally, Florida fully approved title V operating permit
Guidance notes that it does not treat the participates in a regional effort to program at Chapter 62–213 F.A.C.26 and
visibility protection aspects of section coordinate the development of Section 403.0872, Florida Statutes, that
110(a)(2)(J) as applicable for purposes of emissions inventories and conduct covers the cost of implementation and
the infrastructure SIP approval process. regional modeling for several NAAQS, enforcement of PSD and NNSR permits
FDEP referenced its regional haze including the 2012 Annual PM2.5 after they have been issued. EPA has
program as germane to the visibility NAAQS, for the Southeastern states. made the preliminary determination
component of section 110(a)(2)(J). EPA Florida notes in its SIP submissions that that Florida’s State rules and practices
recognizes that states are subject to the FDEP has the technical capability to adequately provide for permitting fees
visibility protection and regional haze conduct or review all air quality related to the 2012 Annual PM2.5
program requirements under part C of modeling associated with the NSR NAAQS, when necessary. Accordingly,
the Act (which includes sections 169A program and all SIP-related modeling, EPA is proposing to approve Florida’s
and 169B). However, there are no newly except photochemical grid modeling infrastructure SIP submissions with
applicable visibility protection which is performed for FDEP under respect to section 110(a)(2)(L).
obligations after the promulgation of a contract. All such modeling is 13. 110(a)(2)(M) Consultation and
new or revised NAAQS. Thus, EPA has conducted in accordance with the Participation by Affected Local Entities:
determined that states do not need to provisions of 40 CFR part 51, Appendix This element requires states to provide
address the visibility component of W, ‘‘Guideline on Air Quality Models.’’ for consultation and participation in SIP
110(a)(2)(J) in infrastructure SIP Taken as a whole, Florida’s air quality development by local political
submittals so FDEP does not need to regulations and practices demonstrate subdivisions affected by the SIP. Florida
rely on its regional haze program to that FDEP has the authority to provide coordinates with local governments
fulfill its obligations under section relevant data for the purpose of affected by the SIP. Florida’s SIP
110(a)(2)(J). As such, EPA has made the submission includes a description of the
predicting the effect on ambient air
preliminary determination that Florida’s public participation process for SIP
quality of any emissions of any
infrastructure SIP submissions are development. Florida has consulted
pollutant for which a NAAQS had been
approvable for section 110(a)(2)(J) in with local entities for the development
promulgated, and to provide such
related to the 2012 Annual PM2.5 of transportation conformity and has
information to the EPA Administrator
NAAQS and that Florida does not need worked with the FLMs as a requirement
upon request. EPA has made the
to rely on its regional haze program to of the regional haze rule. Section
preliminary determination that Florida’s
address this element. 403.061(21), Florida Statutes, authorizes
11. 110(a)(2)(K) Air Quality Modeling SIP and practices adequately
demonstrate the State’s ability to FDEP to ‘‘[a]dvise, consult, cooperate
and Submission of Modeling Data: and enter into agreements with other
Section 110(a)(2)(K) of the CAA requires provide for air quality modeling, along
with analysis of the associated data, agencies of the state, the Federal
that SIPs provide for performing air Government, other states, interstate
quality modeling so that effects on air related to the 2012 Annual PM2.5
NAAQS. Accordingly, EPA is proposing agencies, groups, political subdivisions,
quality of emissions from NAAQS and industries affected by the
pollutants can be predicted and to approve Florida’s infrastructure SIP
submissions with respect to section provisions of this act, rules, or policies
submission of such data to the EPA can of the department.’’ Section 403.061(21),
be made. SIP-approved sections of 110(a)(2)(K).
Florida Statutes, is one way that the
Chapter 62–204, 62–210, and 62–212, 12. 110(a)(2)(L) Permitting Fees: This State meets the requirements of this
F.A.C., require use of EPA-approved section requires the owner or operator of element as described further below.
modeling of pollutant-emitting sources each major stationary source to pay to More specifically, Florida adopted state-
that contribute to PM2.5 concentrations the permitting authority, as a condition wide consultation procedures for the
in the ambient air. Also, the following of any permit required under the CAA,
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implementation of transportation
sections of the Florida Statutes provide a fee sufficient to cover (i) the conformity which includes the
FDEP the authority to conduct actions reasonable costs of reviewing and acting development of mobile inventories for
in support of this element. Section upon any application for such a permit, SIP development and the requirements
403.061(13), Florida Statutes, authorizes and (ii) if the owner or operator receives that link transportation planning and air
FDEP to ‘‘[r]equire persons engaged in a permit for such source, the reasonable
operations which may result in costs of implementing and enforcing the 26 Title V program regulations are federally-
pollution to file reports which may terms and conditions of any such permit approved but not incorporated into the federally-
contain information relating to (not including any court costs or other approved SIP.
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![50426 Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Proposed Rules
quality planning in nonattainment and • does not impose an information ENVIRONMENTAL PROTECTION
maintenance areas. Required partners collection burden under the provisions AGENCY
covered by Florida’s consultation of the Paperwork Reduction Act (44
procedures include Federal, state and U.S.C. 3501 et seq.); 40 CFR Part 52
local transportation and air quality • is certified as not having a
agency officials. The state and local [EPA–R01–OAR–2014–0291, FRL–9949–57–
significant economic impact on a Region 1]
transportation agency officials are most substantial number of small entities
directly impacted by transportation under the Regulatory Flexibility Act (5 Air Plan Approval; Maine: Prevention
conformity requirements and are U.S.C. 601 et seq.); of Significant Deterioration; PM2.5
required to provide public involvement
for their activities including the analysis • does not contain any unfunded AGENCY: Environmental Protection
demonstrating how they meet mandate or significantly or uniquely Agency.
transportation conformity requirements. affect small governments, as described ACTION: Proposed rule.
Also, FDEP has agreements with eight in the Unfunded Mandates Reform Act
county air pollution control agencies of 1995 (Pub. L. 104–4); SUMMARY: The Environmental Protection
(Duval, Orange, Hillsborough, Pinellas, • does not have Federalism Agency (EPA) is proposing to approve a
Sarasota, Palm Beach, Broward, and implications as specified in Executive State Implementation Plan (SIP)
Miami-Dade) that delineate the Order 13132 (64 FR 43255, August 10, revision submitted by the State of Maine
responsibilities of each county in 1999); relating to the regulation of fine
carrying out Florida’s air program, particulate matter (that is, particles with
• is not an economically significant
including the Florida SIP. EPA has an aerodynamic diameter less than or
regulatory action based on health or
made the preliminary determination equal to a nominal 2.5 micrometer,
safety risks subject to Executive Order
that Florida’s SIP and practices generally referred to as ‘‘PM2.5’’) within
13045 (62 FR 19885, April 23, 1997);
adequately demonstrate consultation the context of Maine’s Prevention of
with affected local entities related to the • is not a significant regulatory action Significant Deterioration (PSD) program.
2012 Annual PM2.5 NAAQS when subject to Executive Order 13211 (66 FR EPA is also proposing to approve other
necessary. 28355, May 22, 2001); minor changes to Maine’s PSD program.
V. Proposed Action • is not subject to requirements of Actions related to this proposed rule are
Section 12(d) of the National being taken in accordance with the
With the exception of interstate Technology Transfer and Advancement Clean Air Act (CAA).
transport provisions pertaining to the Act of 1995 (15 U.S.C. 272 note) because DATES: Written comments must be
contribution to nonattainment or application of those requirements would received on or before August 31, 2016.
interference with maintenance in other be inconsistent with the CAA; and
states and visibility protection ADDRESSES: Submit your comments,
requirements of section 110(a)(2)(D)(i)(I) • does not provide EPA with the identified by Docket ID No. EPA–R01–
and (II) (prongs 1 and 2). EPA is discretionary authority to address, as OAR–2014–0291 at http://
proposing to approve Florida’s appropriate, disproportionate human www.regulations.gov, or via email
infrastructure submission submitted on health or environmental effects, using bird.patrick@epa.gov. For comments
December 14, 2015, for the 2012 Annual practicable and legally permissible submitted at Regulations.gov, follow the
PM2.5 NAAQS for the above described methods, under Executive Order 12898 online instructions for submitting
infrastructure SIP requirements. EPA is (59 FR 7629, February 16, 1994). comments. Once submitted, comments
proposing to approve Florida’s cannot be edited or removed from
In addition, the SIP is not approved to Regulations.gov. For either manner of
infrastructure SIP submission for the apply on any Indian reservation land or
2012 Annual PM2.5 NAAQS because the submission, the EPA may publish any
in any other area where EPA or an comment received to its public docket.
submission is consistent with section Indian tribe has demonstrated that a
110 of the CAA. Do not submit electronically any
tribe has jurisdiction. In those areas of information you consider to be
VI. Statutory and Executive Order Indian country, the rule does not have Confidential Business Information (CBI)
Reviews tribal implications as specified by or other information whose disclosure is
Executive Order 13175 (65 FR 67249, restricted by statute. Multimedia
Under the CAA, the Administrator is
November 9, 2000), nor will it impose submissions (audio, video, etc.) must be
required to approve a SIP submission
substantial direct costs on tribal accompanied by a written comment.
that complies with the provisions of the
governments or preempt tribal law. The written comment is considered the
Act and applicable federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a). List of Subjects in 40 CFR Part 52 official comment and should include
Thus, in reviewing SIP submissions, discussion of all points you wish to
EPA’s role is to approve state choices, Environmental protection, Air make. The EPA will generally not
provided that they meet the criteria of pollution control, Incorporation by consider comments or comment
the CAA. Accordingly, this proposed reference, Intergovernmental relations, contents located outside of the primary
action merely approves state law as Nitrogen dioxide, Ozone, Particulate submission (i.e. on the web, cloud, or
meeting federal requirements and does matter, Reporting and recordkeeping other file sharing system). For
not impose additional requirements requirements, Volatile organic additional submission methods, please
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beyond those imposed by state law. For compounds. contact the person identified in the FOR
that reason, this proposed action: Authority: 42 U.S.C. 7401 et seq. FURTHER INFORMATION CONTACT section.
• Is not a significant regulatory action For the full EPA public comment policy,
Dated: July 20, 2016.
subject to review by the Office of information about CBI or multimedia
Management and Budget under Heather McTeer Toney, submissions, and general guidance on
Executive Orders 12866 (58 FR 51735, Regional Administrator, Region 4. making effective comments, please visit
October 4, 1993) and 13563 (76 FR 3821, [FR Doc. 2016–18013 Filed 7–29–16; 8:45 am] http://www2.epa.gov/dockets/
January 21, 2011); BILLING CODE 6560–50–P commenting-epa-dockets.
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Document Created: 2016-07-30 06:26:12
Document Modified: 2016-07-30 06:26:12
| 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 31, 2016. | |
| Contact | Tiereny Bell, 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. The telephone number is (404) 562-9088. Ms. Bell can also be reached via electronic mail at [email protected] | |
| FR Citation | 81 FR 50416 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements and Volatile Organic Compounds |
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