81 FR 67179 - Air Plan Approval; Florida; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 190 (September 30, 2016)
Federal Register Volume 81, Issue 190 (September 30, 2016)
| Page Range | 67179-67185 | |
| FR Document | 2016-23292 |
[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)] [Rules and Regulations] [Pages 67179-67185] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-23292] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0423; FRL-9953-18-Region 4] Air Plan Approval; Florida; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard AGENCY: Environmental Protection Agency. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is taking final action to approve the State Implementation Plan (SIP) submissions, submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP), on June 3, 2013, and supplemented on January 8, 2014, for inclusion into the Florida SIP. This final action pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO2 ) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an ``infrastructure SIP submission.'' FDEP certified that the Florida SIP contains provisions that ensure the 2010 1-hour SO2 NAAQS is implemented, enforced, and maintained in Florida. EPA has determined that the Florida's infrastructure SIP submissions, provided to EPA on June 3, 2013, and supplemented on January 8, 2014, satisfy the required infrastructure elements for the 2010 1-hour SO2 NAAQS. DATES: This rule is effective October 31, 2016. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2014-0423. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the 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. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Michele Notarianni, 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. Ms. Notarianni can be reached via electronic mail at [email protected] or via telephone at (404) 562-9031. SUPPLEMENTARY INFORMATION: I. Background and Overview On June 2, 2010 (75 FR 35520, June 22, 2010), EPA promulgated a revised primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. 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 2010 1-hour SO2 NAAQS to EPA no later than June 2, 2013.\1\ --------------------------------------------------------------------------- \1\ In the proposed action, EPA incorrectly cited a date of June 22, 2013, for the due date of infrastructure SIPs for the 2010 1- hour SO2 NAAQS. 80 FR 51158 (August 24, 2015). --------------------------------------------------------------------------- EPA is acting upon the SIP submissions from Florida that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO2 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. In a proposed rulemaking published on August 24, 2015, EPA proposed to approve Florida's June 3, 2013, and January 8, 2014, 2010 1-hour SO2 NAAQS infrastructure SIP submissions.\2\ See 80 FR 51157. The details of Florida's submissions and the rationale for EPA's actions are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before September 23, 2015. EPA received adverse comments on the proposed action. --------------------------------------------------------------------------- \2\ Florida's 2010 1-hour SO2 NAAQS infrastructure SIP submission dated June 3, 2013, and supplemented on January 8, 2014, are also collectively referred to as ``Florida's SO2 infrastructure SIP'' in this action. --------------------------------------------------------------------------- II. Response to Comments EPA received one set of comments on the August 24, 2015, proposed rulemaking to approve Florida's 2010 1-hour SO2 NAAQS infrastructure SIP submissions intended to meet the CAA requirements for the 2010 1-hour SO2 NAAQS. A summary of the comments and EPA's responses are provided below.\3\ A full set of these comments is provided in the docket for today's final rulemaking action. --------------------------------------------------------------------------- \3\ EPA's responses to these comments are consistent with actions taken on 2010 1-hour SO2 NAAQS infrastructure SIP submissions for Virginia (80 FR 11557, March 4, 2015) at https://www.thefederalregister.org/fdsys/pkg/FR-2015-03-04/pdf/2015-04377.pdf and West Virginia (79 FR 62022, October 16, 2014) at https://www.thefederalregister.org/fdsys/pkg/FR-2014-0-16/pdf/2014-24658.pdf. --------------------------------------------------------------------------- A. Comments on Infrastructure SIP Requirements for Enforceable Emission Limits 1. The Plain Language of the CAA Comment 1: The Commenter contends that the plain language of section 110(a)(2)(A) of the CAA requires the inclusion of enforceable emission limits in an infrastructure SIP to prevent NAAQS exceedances in areas not designated nonattainment. In support, the Commenter quotes the language in section 110(a)(1) that requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) that requires SIPs to include enforceable emissions limitations as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA. [[Page 67180]] The Commenter then states that applicable requirements of the CAA include requirements for the attainment and maintenance of the NAAQS, and that CAA section 110(a)(2)(A) requires infrastructure SIPs to include enforceable emission limits to prevent exceedances of the NAAQS. The Commenter claims that Florida's SIP submission does not meet this asserted requirement. Thus, the Commenter asserts that EPA must disapprove Florida's proposed SO2 infrastructure SIP submission because it fails to include enforceable emission limitations necessary to ensure attainment and maintenance of the NAAQS as required by CAA section 110(a)(2)(A). The Commenter then contends that the Florida 2010 1-hour SO2 infrastructure SIP submission fails to comport with CAA requirements for SIPs to establish enforceable emission limits that are adequate to prohibit NAAQS exceedances in areas not designated nonattainment. Response 1: EPA disagrees that section 110 must be interpreted in the manner suggested by the Commenter in the context of infrastructure SIP submissions. Section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific SIP planning requirements of the CAA, EPA interprets the requirement in section 110(a)(1) that the plan provide for ``implementation, maintenance and enforcement'' in conjunction with the requirements in section 110(a)(2)(A) to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations in section 110(a)(2)(A), EPA has interpreted this to mean, for purposes of infrastructure SIP submissions, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may elect to impose as part of such SIP submission. As EPA stated in ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' dated September 13, 2013, (Infrastructure SIP Guidance), ``[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.'' Infrastructure SIP Guidance at pp. 1-2. Florida appropriately demonstrated that its SIP has SO2 emissions limitations and the ``structural requirements'' to implement the 2010 1-hour SO2 NAAQS in its infrastructure SIP submission. The Commenter makes general allegations that Florida does not have sufficient protective measures to prevent SO2 NAAQS exceedances. EPA addressed the adequacy of Florida's infrastructure SIP for 110(a)(2)(A) purposes in the proposed rule and explained why the SIP includes enforceable emission limitations and other control measures that aid in maintaining the 2010 1-hour SO2 NAAQS throughout the State. These include State regulations which collectively establish enforceable emissions limitations and other control measures, means or techniques for activities that contribute to SO2 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. See 80 FR 51161. EPA finds these provisions adequately address section 110(a)(2)(A) to aid in attaining and/or maintaining the 2010 1-hour SO2 NAAQS and finds Florida demonstrated that it has the necessary tools to implement and enforce the 2010 1-hour SO2 NAAQS. 2. The Legislative History of the CAA Comment 2: The Commenter cites two excerpts from the legislative history of the 1970 CAA and claims that the ``legislative history of infrastructure SIPs provides that states must include enforceable emission limits in their infrastructure SIPs sufficient to ensure the implementation, maintenance, and attainment of each NAAQS in all areas of the State.'' Response 2: As provided in the previous response, the CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning attainment. In any event, the two excerpts of legislative history the Commenter cites merely provide that states should include enforceable emission limits in their SIPs and they do not mention or otherwise address whether states are required to impose additional emission limitations or control measures as part of the infrastructure SIP submission, as opposed to requirements for other types of SIP submissions such as attainment plans required under section 110(a)(2)(I). As provided in Response 1, the proposed rule explains why the SIP includes sufficient enforceable emissions limitations for purposes of the infrastructure SIP submission. 3. Case Law Comment 3: The Commenter also discusses several court decisions concerning the CAA, which the Commenter claims support its contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIP submissions to prevent violations of the NAAQS. The Commenter first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for ``emission limitations'' and stating that emission limitations ``are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards.'' The Commenter also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS, and to Mission Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The Commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that ``SIPs must include certain measures Congress specified'' to ensure attainment of the NAAQS. The Commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (``[t]he Clean Air Act directs states to develop implementation plans--SIPs--that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations''); Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) (``EPA's deference to a state is conditioned on the state's submission [[Page 67181]] of a plan `which satisfies the standards of Sec. 110(a)(2)' and which includes emission limitations that result in compliance with the NAAQS''; and Hall v. EPA 273 F.3d 1146 (9th Cir. 2001) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS. Response 3: None of the cases the Commenter cites support the Commenter's contention that it is clear that section 110(a)(2)(A) requires infrastructure SIP submissions to include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how EPA may reasonably interpret section 110(a)(2)(A). With the exception of Train, none of the cases the Commenter cites specifically concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the other courts referenced section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of decisions in the context of a challenge to an EPA action on revisions to a SIP that was required and approved as meeting other provisions of the CAA or in the context of an enforcement action. In Train, 421 U.S. 60, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the primary statutory provision at that time addressing such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were ``postponements'' that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The Court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS, so long as the state met other applicable requirements of the CAA, and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue was not whether the specific SIP at issue needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on a pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved SIP where the inventories relied on by the state for the updated submission had gaps. The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. This decision did not address the question at issue in this action, i.e., what a state must include in an infrastructure SIP submission for purposes of section 110(a)(2)(A). Yet, even if the Court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here. At issue in Mision Industrial, 547 F.2d 123, was the definition of ``emissions limitation'' not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the Commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The Commenter does not cite to this case to assert that the measures relied on by the state in the infrastructure SIP are not ``emissions limitations'' and the decision in this case has no bearing here. In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was reviewing a Federal implementation plan (FIP) that EPA promulgated after a long history of the State failing to submit an adequate SIP in response to EPA's finding under section 110(k)(5) that the previously approved SIP was substantially inadequate to attain or maintain the NAAQS, which triggered the State's duty to submit a new SIP to show how it would remedy that deficiency and attain the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations, but this language was not part of the Court's holding in the case, which focused instead on whether EPA's finding of SIP inadequacy and adoption of a remedial FIP were lawful. The Commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, the Commenter also quotes the Court's statement that ``SIPs must include certain measures Congress specified,'' but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the State's ``new source'' permitting program, not what is required for purposes of an infrastructure SIP submission for purposes of section 110(a)(2)(A). Two of the cases the Commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 185, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing ``revisions'' to plans. Neither case, however, addressed the question at issue here, i.e, what states are required to address for purposes of an infrastructure SIP submission for purposes of section 110(a)(2)(A). In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA. EPA does not believe any of these court decisions addressed required measures for infrastructure SIPs and believes nothing in the opinions addressed whether infrastructure SIP submissions must contain emission limitations or measures to ensure attainment and maintenance of the NAAQS. 4. EPA Regulations, Such as 40 CFR 51.112(a) Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that ``Each plan must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.'' The Commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that ``[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . .'' 51 FR 40656. Thus, the Commenter contends that ``the provisions of 40 CFR 51.112 are not limited to nonattainment SIPs; the regulation instead applies to Infrastructure SIPs, which are required to attain and maintain the NAAQS in all areas of a state, including those not designated nonattainment.'' Response 4: The Commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits which ensure [[Page 67182]] attainment and maintenance of the NAAQS is incorrect. It is clear on its face that 40 CFR 51.112 directly applies to state SIP submissions for control strategy SIPs, i.e., plans that are specifically required to attain and/or maintain the NAAQS. These regulatory requirements apply when states are developing ``control strategy'' SIPs under other provisions of the CAA, such as attainment plans required for the various NAAQS in Part D and maintenance plans required in section 175A. The Commenter's suggestion that 40 CFR 51.112 must apply to all SIP submissions required by section 110 based on the preamble to EPA's action ``restructuring and consolidating'' provisions in part 51, is also incorrect.\4\ EPA's action in 1986 was not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated. --------------------------------------------------------------------------- \4\ EPA noted that it had already issued guidance addressing the new ``Part D'' attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. See 51 FR 40657. --------------------------------------------------------------------------- Although EPA was explicit that it was not establishing requirements interpreting the provisions of new ``Part D'' of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: SOX and PM (portion)''), 51.14 (``Control strategy: CO, HC, OX and NO2 (portion)''), 51.80 (``Demonstration of attainment: Pb (portion)''), and 51.82 (``Air quality data (portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan. 5. EPA Interpretations in Other Rulemakings Comment 5: The Commenter also references a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the SO2 NAAQS and claims it was an action in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject an infrastructure SIP. Specifically, the Commenter asserts that in that action, EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the State plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure attainment and maintenance of the SO2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the SO2 NAAQS. Response 5: EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 specifically addressed Missouri's attainment SIP submission--not Missouri's infrastructure SIP submission. It is clear from the final Missouri rule that EPA was not reviewing an initial infrastructure SIP submission, but rather reviewing proposed SIP revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. Therefore, EPA does not agree that the 2006 Missouri action referenced by the Commenter establishes how EPA reviews infrastructure SIP submissions for purpose of section 110(a)(2)(A). As discussed in the proposed rule, EPA finds that the Florida 2010 1-hour SO2 infrastructure SIP meets the appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in attaining and/or maintaining the 2010 1-hour SO2 NAAQS and that the State demonstrated that it has the necessary tools to implement and enforce the 2010 1-hour SO2 NAAQS.\5\ --------------------------------------------------------------------------- \5\ EPA's final action does not address CAA section 110(a)(2)(D)(i)(I) because Florida has not made a submission for these elements. --------------------------------------------------------------------------- B. Comments on Florida SIP SO2 Emission Limits Comment 6: The Commenter asserts that EPA may not approve the Florida proposed SO2 infrastructure SIP because it fails to include enforceable emission limitations with a 1-hour averaging time that applies at all times. The Commenter cites to CAA section 302(k) which requires that emission limits must limit the quantity, rate or concentration of emissions and must apply on a continuous basis. The Commenter states that ``[e]nforceable emission limitations contained in the I-SIP must, therefore, be accompanied by proper averaging times; otherwise an appropriate numerical emission limit could allow for peaks that exceed the NAAQS and yet still be permitted since they would be averaged with lower emissions at other times.'' The Commenter also cites to recommended averaging times in EPA guidance providing that SIP emissions limits, ``should not exceed the averaging time of the applicable NAAQS that the limit is intended to help attain.'' EPA Memorandum of Apr. 23, 2014, to Regional Air Division Directors, Regions 1-10, Guidance for 1-Hour SO2 NAAQS Nonattainment Area SIP Submissions, at 22, available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf. The Commenter also notes that this EPA guidance provides that `` `any emissions limits based on averaging periods longer than 1 hour should be designed to have comparable stringency to a 1-hour average limit at the critical emission value.' '' The Commenter also cites to a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding the need for 1-hour SO2 emission limits in a prevention of significant deterioration (PSD) permit, an EPA Environmental Hearing Board decision rejecting use of a 3-hour averaging time for a SO2 limit in a PSD permit, and EPA's disapproval of a Missouri SIP which relied on annual averaging for SO2 emission rates and claims EPA has stated that 1-hour averaging times are necessary for the 2010 1-hour SO2 NAAQS.\6\ The Commenter states, ``Therefore, in order to ensure that Florida's Infrastructure SIP actually implements the SO2 NAAQS in every area of the state, the I-SIP must contain enforceable emission limits with one-hour averaging times, monitored continuously, for large sources of SO2 .'' The Commenter asserts that EPA must disapprove Florida's infrastructure SIP because it fails to require emission limits with adequate averaging times. --------------------------------------------------------------------------- \6\ The Commenter cited to In re: Mississippi Lime Co., PSDAPLPEAL 11-01, 2011 WL 3557194, at * 26-27 (EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control strategy SO2 SIP). --------------------------------------------------------------------------- Response 6: As explained in detail in previous responses, the purpose of the infrastructure SIP is to ensure that a state has the structural capability to implement and enforce the NAAQS and thus, additional SO2 emission limitations to ensure attainment and maintenance of the NAAQS are not required for such infrastructure SIPs.\7\ [[Page 67183]] EPA disagrees that it must disapprove the proposed Florida infrastructure SIP submission merely because the SIP does not contain enforceable SO2 emission limitations with 1-hour averaging periods that apply at all times, as this issue is not appropriate for resolution in this action in advance of EPA action on the State's submissions of other required SIP submissions including an attainment plan for two areas which are designated nonattainment pursuant to section 107 of the CAA.\8\ Therefore, because EPA finds Florida's SO2 infrastructure SIP approvable without the additional SO2 emission limitations showing attainment of the NAAQS, EPA finds the issue of appropriate averaging periods for such future limitations not relevant at this time. --------------------------------------------------------------------------- \7\ For a discussion on emission averaging times for emissions limitations for SO2 attainment SIPs, see the April 23, 2014, Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions. As noted by the commenter, EPA explained that it is possible, in specific cases, for states to develop control strategies that account for variability in 1-hour emissions rates through emission limits with averaging times that are longer than 1-hour, using averaging times as long as 30-days, but still provide for attainment of the 2010 SO2 NAAQS as long as the limits are of at least comparable stringency to a 1-hour limit at the critical emission value. EPA has not taken final action to approve any specific submission of such a limit that a state has relied upon to demonstrate NAAQS attainment, and Florida has not submitted such a limit for that purpose here, so it is premature at this time to evaluate whether any emission limit in Florida's SIP is in accordance with the April 23, 2014, guidance. If and when Florida submits an emission limitation that relies upon such a longer averaging time to demonstrate NAAQS attainment, EPA will evaluate it then. \8\ There are two designated nonattainment areas pursuant to CAA section 107 for the 2010 1-hour SO2 NAAQS in Florida and the State has submitted attainment plans for the 2010 1-hour SO2 NAAQS for sections 172, 191 and 192. EPA believes the appropriate time for examining the necessity of 1-hour SO2 emission limits on specific sources is within the attainment planning process. --------------------------------------------------------------------------- Further, Commenter's citation to a prior EPA discussion on emission limitations required in PSD permits (from EPA's Environmental Appeals Board decision and EPA's letter to Kansas' permitting authority) pursuant to part C of the CAA is neither relevant nor applicable to infrastructure SIP submissions under CAA section 110. In addition, and as previously discussed, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to an attainment plan SIP submission required pursuant to part D attainment planning and is likewise not relevant to the analysis of infrastructure SIP requirements. Comment 7: Citing to section 110(a)(1) and (a)(2)(A) of the CAA, the Commenter contends that EPA may not approve Florida's infrastructure SIP because it does not include enforceable 1-hour emission limits for sources that the Commenter claims are currently contributing to NAAQS exceedances. The Commenter asserts that emission limits are especially important for meeting the 1-hour SO2 NAAQS because SO2 impacts are strongly source oriented. The Commenter states that ``[d]espite the large contribution from coal- fired EGUs [electricity generating units] to the State's SO2 pollution, Florida's I-SIP lacks enforceable emissions limitations applicable to its coal-fired EGUs sufficient to ensure the implementation, attainment, and maintenance of the 2010 SO2 NAAQS.'' The Commenter refers to air dispersion modeling it conducted for two power plants in Florida, the C.D. McIntosh, Jr. Power Plant and the Crist Electric Generating Plant, which are located outside of the State's two nonattainment areas, and claims that ``. . . the emission limitations relied on for implementation of the NAAQS in the I-SIP are insufficient to prevent exceedances of the NAAQS.'' Further, the Commenter cites two court cases to support its statement that ``. . . an agency may not ignore information put in front of it'' and that thus, the Commenter contends that EPA must consider its expert air dispersion modeling submitted over the years which demonstrate the inadequacy of Florida's rules and regulations for SO2 emissions.'' The Commenter summarizes its modeling results for the C.D. McIntosh, Jr. Power Plant and the Crist Electric Generating Plant, stating that the data predict exceedances of the standard ``over wide areas of the state.'' Thus, the Commenter contends that Florida's infrastructure submissions are ``substantially inadequate to attain and maintain the NAAQS which it implements as evidenced by expert air dispersion modeling demonstrating that the emission limits under the laws and regulations cited to in the SO2 I-SIP Certification allow for exceedances of the NAAQS.'' Thus, the Commenter asserts that EPA must disapprove Florida's SIP submissions, and must establish a FIP ``which incorporates necessary and appropriate source-specific enforceable emission limitations (preferably informed by modeling) on C.D. McIntosh, Jr. Power Plant and Crist Electric Generating Plant, as well as any other major sources of SO2 pollution in the State which are not presently located in nonattainment areas and have modeled exceedances of the NAAQS.'' Further, the Commenter states that ``For C.D. McIntosh and Crist, enforceable emission limitations must be at least as stringent as the modeling-based limits [provided by the Commenter] in order to protect the one-hour SO2 NAAQS and implement, maintain, and enforce the standard in Florida.'' Response 7: As stated previously, EPA believes that the proper inquiry is whether Florida has met the basic, structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submissions. Emissions limitations and other control measures, whether on coal-fired EGUs or other SO2 sources, that may be needed to attain and maintain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure SIP submission. A state, like Florida, may reference pre-existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission for purposes of section 110(a)(2)(A). For example, Florida submitted a list of existing emission reduction measures in the SIP that control emissions of SO2 as discussed above in response to a prior comment and discussed in the proposed rulemaking on Florida's SO2 infrastructure SIP. These provisions have the ability to reduce SO2 overall. Although the Florida SIP relies on measures and programs used to implement previous SO2 NAAQS, these provisions are not limited to reducing SO2 levels to meet one specific NAAQS and will continue to provide benefits for the 2010 1-hour SO2 NAAQS. Regarding the air dispersion modeling conducted by the Commenter pursuant to AERMOD for the C.D. McIntosh, Jr. Power Plant and the Crist Electric Generating Plant, EPA is not in this action making a determination regarding the air quality status in the area where these EGUs are located, and is not evaluating whether emissions applicable to these EGUs are adequate to attain and maintain the NAAQS. Consequently, the EPA does not find the modeling information relevant for review of an infrastructure SIP for purposes of section 110(a)(2)(A). When additional areas in Florida are designated under the 2010 1-hour SO2 NAAQS, and if any additional areas in Florida are designated nonattainment in the future, any potential future modeling submitted by the State with designations or attainment demonstrations would need to account for any new emissions limitations Florida develops to support such designation or demonstration, which at this point is unknown. While EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations,\9\ EPA has recommended that such modeling was not needed for the SO2 infrastructure SIPs for the 2010 1-hour SO2 NAAQS for purposes of section 110(a)(2)(A), which are not actions in which EPA makes determinations regarding current air quality status. See April 12, 2012, [[Page 67184]] letters to states and 2012 Draft White Paper.\10\ --------------------------------------------------------------------------- \9\ See for example, EPA's discussion of modeling for characterizing air quality in the Agency's August 21, 2015, final rule at 80 FR 51052 and for nonattainment planning in the April 23, 2014, Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions. \10\ Implementation of the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper for Discussion, May 2012 (2012 Draft White Paper) and a sample April 12, 2012, letter from EPA to states are available in the docket for this action. --------------------------------------------------------------------------- In conclusion, EPA disagrees with the Commenter's statements that EPA must disapprove Florida's infrastructure SIP submissions because it does not establish specific enforceable SO2 emission limits, either on coal-fired EGUs or other large SO2 sources, in order to demonstrate attainment and maintenance with the 2010 1-hour SO2 NAAQS at this time. Comment 8: The Commenter alleges that the SO2 infrastructure SIP submittal does not address sources significantly contributing to nonattainment or interfering with maintenance of the 2010 1-hour SO2 NAAQS in other states as required by section 110(a)(2)(D)(i)(I) of the CAA, and asserts EPA must therefore disapprove the infrastructure SIP and impose a FIP. The Commenter states that ``Florida's reliance on a 2012 EPA memorandum in which EPA stated that it did `not intend to make findings that states failed to submit SIPs to comply with section 110(a)(2)(D)(i)(I)' is improper'', and that such guidance contradicts the CAA. The Commenter notes that the Supreme Court disapproved the view that states cannot address section 110(a)(2)(D)(i) until EPA resolves issues related to CSAPR and that compliance with this provision is a ``mandatory duty'', citing to Homer City, 696 F.3d 7, 37 (D.C. Cir. 2012), rev'd, No. 12-1182, slip op. at 27-28 (U.S. Apr. 29, 2014). The Commenter also highlights from Order on Petition No. VI-2014-04 at 10 (citing EPA v. EME Homer City Generation, 134 S. Ct. 1584, 1601 (2014) that, ``[T]he Supreme Court has affirmed that the EPA is not required to provide any implementation guidance before states' interstate transport obligation can be addressed.'' Response 8: This action does not address whether sources in Florida are significantly contributing to nonattainment or interfering with maintenance of the 2010 1-hour SO2 NAAQS in another state as required by section 110(a)(2)(D)(i)(I) of the CAA (the good neighbor provision). Thus, EPA disagrees with the Commenter's statement that EPA must disapprove the submitted 2010 1-hour SO2 infrastructure SIP due to Florida's failure to address section 110(a)(2)(D)(i)(I). In EPA's proposed rulemaking to approve Florida's infrastructure SIP for the 2010 1-hour SO2 NAAQS, EPA clearly stated that it was not taking any action with respect to the good neighbor provision in section 110(a)(2)(D)(i)(I). Florida did not make a submission to address the requirements of section 110(a)(2)(D)(i)(I) for the 2010 1- hour SO2 NAAQS, and thus there is no such submission upon which EPA proposed to take action on under section 110(k) of the CAA. Similarly, EPA disagrees with the Commenter's assertion that EPA cannot approve other elements of an infrastructure SIP submission without the good neighbor provision. There is no basis for the contention that EPA has triggered its obligation to issue a FIP to address the good neighbor obligation under section 110(c), as EPA has neither found that Florida failed to timely submit a required 110(a)(2)(D)(i)(I) SIP submission for the 2010 1-hour SO2 NAAQS or found that such a submission was incomplete, nor has EPA disapproved a SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2010 1-hour SO2 NAAQS. EPA acknowledges the Commenter's concern for the interstate transport of air pollutants and agrees in general with the Commenter that sections 110(a)(1) and (a)(2) of the CAA generally require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses cross-state air pollution under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the Commenter's argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)). EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve, or conditionally approve, individual elements of Florida's infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA believes that even if Florida had made a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2010 1-hour SO2 NAAQS, which to date it has not, EPA would still have discretion under section 110(k) of the CAA to act upon the various individual elements of the State's infrastructure SIP submission, separately or together, as appropriate. The Commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court's April 2014 decision in EME Homer City alters EPA's interpretation that EPA may act on individual severable measures, including the requirements of section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) independent of EPA's action finding significant contribution or interference with maintenance). In sum, the concerns raised by the Commenter do not establish that it is inappropriate or unreasonable for EPA to approve the portions of Florida's infrastructure SIP submission for the 2010 1-hour SO2 NAAQS. EPA has no obligation at this time to issue a FIP pursuant to 110(c)(1) to address Florida's obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds Florida failed to make a required submission addressing the element or the State has made such a submission but it is incomplete, or EPA disapproves a SIP submission addressing that element. Until either occurs, EPA does not have the obligation to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the Commenter's contention that it must issue a FIP for Florida to address 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS at this time. III. Final Action EPA is taking final action to approve Florida's infrastructure submissions submitted on June 3, 2013, and supplemented on January 8, 2014, for the 2010 1-hour SO2 NAAQS for the above described infrastructure SIP requirements. EPA is taking final action to approve Florida's infrastructure SIP submissions for the 2010 1-hour SO2 [[Page 67185]] NAAQS because the submissions are consistent with section 110 of the CAA. IV. 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 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 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. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 29, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: September 14, 2016. V. Anne Heard, Acting Regional Administrator, Region 4. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart K--Florida 0 2. Section 52.520(e), is amended by adding the entry ``110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO 2 National Ambient Air Quality Standards'' at the end of the table to read as follows: Sec. 52.520 Identification of plan. * * * * * (e) * * * EPA-Approved Florida Non-Regulatory Provisions ---------------------------------------------------------------------------------------------------------------- State effective EPA approval Federal Register Provision date date notice Explanation ---------------------------------------------------------------------------------------------------------------- * * * * * * * 110(a)(1) and (2) Infrastructure 6/3/2013 9/30/2016 [Insert Federal With the exception of Requirements for the 2010 1- Register citation]. section for provisions hour Primary SO2 National relating to Ambient Air Quality Standards. 110(a)(2)(D)(i)(I) (prongs 1 and 2) concerning interstate transport requirements. ---------------------------------------------------------------------------------------------------------------- [FR Doc. 2016-23292 Filed 9-29-16; 8:45 am] BILLING CODE 6560-50-P
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respecting significant portion of income available only in hard copy form. submissions ‘‘within 3 years (or such
for the 2010 1-hour SO2 NAAQS. Publicly available docket materials are shorter period as the Administrator may
[FR Doc. 2016–23598 Filed 9–29–16; 8:45 am] available either electronically through prescribe) after the promulgation of a
BILLING CODE 6560–50–P
www.regulations.gov or in hard copy at national primary ambient air quality
the Air Regulatory Management Section, standard (or any revision thereof),’’ and
Air Planning and Implementation these SIP submissions are to provide for
ENVIRONMENTAL PROTECTION Branch, Air, Pesticides and Toxics the ‘‘implementation, maintenance, and
AGENCY Management Division, U.S. enforcement’’ of such NAAQS.
Environmental Protection Agency, In a proposed rulemaking published
40 CFR Part 52 Region 4, 61 Forsyth Street SW., on August 24, 2015, EPA proposed to
Atlanta, Georgia 30303–8960. EPA approve Florida’s June 3, 2013, and
[EPA–R04–OAR–2014–0423; FRL–9953–18–
requests that if at all possible, you January 8, 2014, 2010 1-hour SO2
Region 4]
contact the person listed in the FOR NAAQS infrastructure SIP
Air Plan Approval; Florida; FURTHER INFORMATION CONTACT section to submissions.2 See 80 FR 51157. The
Infrastructure Requirements for the schedule your inspection. The Regional details of Florida’s submissions and the
2010 Sulfur Dioxide National Ambient Office’s official hours of business are rationale for EPA’s actions are explained
Air Quality Standard Monday through Friday, 8:30 a.m. to in the proposed rulemaking. Comments
4:30 p.m., excluding Federal holidays. on the proposed rulemaking were due
AGENCY: Environmental Protection FOR FURTHER INFORMATION CONTACT: on or before September 23, 2015. EPA
Agency. Michele Notarianni, Air Regulatory received adverse comments on the
ACTION: Final rule. Management Section, Air Planning and proposed action.
Implementation Branch, Air, Pesticides II. Response to Comments
SUMMARY: The Environmental Protection and Toxics Management Division, U.S.
Agency (EPA) is taking final action to EPA received one set of comments on
Environmental Protection Agency,
approve the State Implementation Plan the August 24, 2015, proposed
Region 4, 61 Forsyth Street SW.,
(SIP) submissions, submitted by the rulemaking to approve Florida’s 2010 1-
Atlanta, Georgia 30303–8960. Ms.
State of Florida, through the Florida hour SO2 NAAQS infrastructure SIP
Notarianni can be reached via electronic
Department of Environmental Protection submissions intended to meet the CAA
mail at notarianni.michele@epa.gov or
(FDEP), on June 3, 2013, and requirements for the 2010 1-hour SO2
via telephone at (404) 562–9031.
supplemented on January 8, 2014, for NAAQS. A summary of the comments
SUPPLEMENTARY INFORMATION: and EPA’s responses are provided
inclusion into the Florida SIP. This final
action pertains to the infrastructure I. Background and Overview below.3 A full set of these comments is
requirements of the Clean Air Act (CAA provided in the docket for today’s final
On June 2, 2010 (75 FR 35520, June
or Act) for the 2010 1-hour sulfur rulemaking action.
22, 2010), EPA promulgated a revised
dioxide (SO2) national ambient air primary SO2 NAAQS to an hourly A. Comments on Infrastructure SIP
quality standard (NAAQS). The CAA standard of 75 parts per billion (ppb) Requirements for Enforceable Emission
requires that each state adopt and based on a 3-year average of the annual Limits
submit a SIP for the implementation, 99th percentile of 1-hour daily
maintenance and enforcement of each 1. The Plain Language of the CAA
maximum concentrations. Pursuant to
NAAQS promulgated by EPA, which is section 110(a)(1) of the CAA, states are Comment 1: The Commenter contends
commonly referred to as an required to submit SIPs meeting the that the plain language of section
‘‘infrastructure SIP submission.’’ FDEP applicable requirements of section 110(a)(2)(A) of the CAA requires the
certified that the Florida SIP contains 110(a)(2) within three years after inclusion of enforceable emission limits
provisions that ensure the 2010 1-hour promulgation of a new or revised in an infrastructure SIP to prevent
SO2 NAAQS is implemented, enforced, NAAQS or within such shorter period NAAQS exceedances in areas not
and maintained in Florida. EPA has as EPA may prescribe. Section 110(a)(2) designated nonattainment. In support,
determined that the Florida’s requires states to address basic SIP the Commenter quotes the language in
infrastructure SIP submissions, elements such as requirements for section 110(a)(1) that requires states to
provided to EPA on June 3, 2013, and monitoring, basic program requirements adopt a plan for implementation,
supplemented on January 8, 2014, and legal authority that are designed to maintenance, and enforcement of the
satisfy the required infrastructure assure attainment and maintenance of NAAQS and the language in section
elements for the 2010 1-hour SO2 the NAAQS. States were required to 110(a)(2)(A) that requires SIPs to
NAAQS. submit such SIPs for the 2010 1-hour include enforceable emissions
SO2 NAAQS to EPA no later than June limitations as well as schedules and
DATES: This rule is effective October 31,
2, 2013.1 timetables for compliance, as may be
2016.
EPA is acting upon the SIP necessary or appropriate to meet the
ADDRESSES: EPA has established a applicable requirements of the CAA.
docket for this action under Docket submissions from Florida that address
Identification No. EPA–R04–OAR– the infrastructure requirements of CAA
2 Florida’s 2010 1-hour SO NAAQS
2014–0423. All documents in the docket sections 110(a)(1) and 110(a)(2) for the 2
infrastructure SIP submission dated June 3, 2013,
are listed on the www.regulations.gov 2010 1-hour SO2 NAAQS. The and supplemented on January 8, 2014, are also
asabaliauskas on DSK3SPTVN1PROD with RULES
Web site. Although listed in the index, requirement for states to make a SIP collectively referred to as ‘‘Florida’s SO2
submission of this type arises out of infrastructure SIP’’ in this action.
some information is not publicly 3 EPA’s responses to these comments are
available, i.e., Confidential Business CAA section 110(a)(1). Pursuant to
consistent with actions taken on 2010 1-hour SO2
Information or other information whose section 110(a)(1), states must make SIP NAAQS infrastructure SIP submissions for Virginia
disclosure is restricted by statute. (80 FR 11557, March 4, 2015) at https://
1 In the proposed action, EPA incorrectly cited a www.gpo.gov/fdsys/pkg/FR-2015-03-04/pdf/2015-
Certain other material, such as date of June 22, 2013, for the due date of 04377.pdf and West Virginia (79 FR 62022, October
copyrighted material, is not placed on infrastructure SIPs for the 2010 1-hour SO2 NAAQS. 16, 2014) at https://www.gpo.gov/fdsys/pkg/FR-
the Internet and will be publicly 80 FR 51158 (August 24, 2015). 2014-0-16/pdf/2014-24658.pdf.
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The Commenter then states that Guidance), ‘‘[t]he conceptual purpose of from section 110 concerning attainment.
applicable requirements of the CAA an infrastructure SIP submission is to In any event, the two excerpts of
include requirements for the attainment assure that the air agency’s SIP contains legislative history the Commenter cites
and maintenance of the NAAQS, and the necessary structural requirements merely provide that states should
that CAA section 110(a)(2)(A) requires for the new or revised NAAQS, whether include enforceable emission limits in
infrastructure SIPs to include by establishing that the SIP already their SIPs and they do not mention or
enforceable emission limits to prevent contains the necessary provisions, by otherwise address whether states are
exceedances of the NAAQS. The making a substantive SIP revision to required to impose additional emission
Commenter claims that Florida’s SIP update the SIP, or both. Overall, the limitations or control measures as part
submission does not meet this asserted infrastructure SIP submission process of the infrastructure SIP submission, as
requirement. Thus, the Commenter provides an opportunity . . . to review opposed to requirements for other types
asserts that EPA must disapprove the basic structural requirements of the of SIP submissions such as attainment
Florida’s proposed SO2 infrastructure air agency’s air quality management plans required under section
SIP submission because it fails to program in light of each new or revised 110(a)(2)(I). As provided in Response 1,
include enforceable emission NAAQS.’’ Infrastructure SIP Guidance the proposed rule explains why the SIP
limitations necessary to ensure at pp. 1–2. Florida appropriately includes sufficient enforceable
attainment and maintenance of the demonstrated that its SIP has SO2 emissions limitations for purposes of
NAAQS as required by CAA section emissions limitations and the the infrastructure SIP submission.
110(a)(2)(A). The Commenter then ‘‘structural requirements’’ to implement
3. Case Law
contends that the Florida 2010 1-hour the 2010 1-hour SO2 NAAQS in its
SO2 infrastructure SIP submission fails infrastructure SIP submission. Comment 3: The Commenter also
to comport with CAA requirements for The Commenter makes general discusses several court decisions
SIPs to establish enforceable emission allegations that Florida does not have concerning the CAA, which the
limits that are adequate to prohibit sufficient protective measures to Commenter claims support its
NAAQS exceedances in areas not prevent SO2 NAAQS exceedances. EPA contention that courts have been clear
designated nonattainment. addressed the adequacy of Florida’s that section 110(a)(2)(A) requires
Response 1: EPA disagrees that infrastructure SIP for 110(a)(2)(A) enforceable emissions limits in
section 110 must be interpreted in the purposes in the proposed rule and infrastructure SIP submissions to
manner suggested by the Commenter in explained why the SIP includes prevent violations of the NAAQS. The
the context of infrastructure SIP enforceable emission limitations and Commenter first cites to language in
submissions. Section 110 is only one other control measures that aid in Train v. NRDC, 421 U.S. 60, 78 (1975),
provision that is part of the complicated maintaining the 2010 1-hour SO2 addressing the requirement for
structure governing implementation of NAAQS throughout the State. These ‘‘emission limitations’’ and stating that
the NAAQS program under the CAA, as include State regulations which emission limitations ‘‘are the specific
amended in 1990, and it must be collectively establish enforceable rules to which operators of pollution
interpreted in the context of not only emissions limitations and other control sources are subject, and which if
that structure, but also of the historical measures, means or techniques for enforced should result in ambient air
evolution of that structure. In light of activities that contribute to SO2 which meets the national standards.’’
the revisions to section 110 since 1970 concentrations in the ambient air, and The Commenter also cites to
and the later-promulgated and more provide authority for FDEP to establish Pennsylvania Dept. of Envtl. Resources
specific SIP planning requirements of such limits and measures as well as v. EPA, 932 F.2d 269, 272 (3d Cir. 1991)
the CAA, EPA interprets the schedules for compliance through SIP- for the proposition that the CAA directs
requirement in section 110(a)(1) that the approved permits to meet the applicable EPA to withhold approval of a SIP
plan provide for ‘‘implementation, requirements of the CAA. See 80 FR where it does not ensure maintenance of
maintenance and enforcement’’ in 51161. EPA finds these provisions the NAAQS, and to Mission Industrial,
conjunction with the requirements in adequately address section 110(a)(2)(A) Inc. v. EPA, 547 F.2d 123, 129 (1st Cir.
section 110(a)(2)(A) to mean that the to aid in attaining and/or maintaining 1976), which quoted section 110(a)(2)(B)
infrastructure SIP must contain the 2010 1-hour SO2 NAAQS and finds of the CAA of 1970. The Commenter
enforceable emission limits that will aid Florida demonstrated that it has the contends that the 1990 Amendments do
in attaining and/or maintaining the necessary tools to implement and not alter how courts have interpreted
NAAQS and that the state demonstrate enforce the 2010 1-hour SO2 NAAQS. the requirements of section 110, quoting
that it has the necessary tools to Alaska Dept. of Envtl. Conservation v.
2. The Legislative History of the CAA EPA, 540 U.S. 461, 470 (2004) which in
implement and enforce a NAAQS, such
as adequate state personnel and an Comment 2: The Commenter cites two turn quoted section 110(a)(2)(A) of the
enforcement program. excerpts from the legislative history of CAA and also stated that ‘‘SIPs must
With regard to the requirement for the 1970 CAA and claims that the include certain measures Congress
emission limitations in section ‘‘legislative history of infrastructure specified’’ to ensure attainment of the
110(a)(2)(A), EPA has interpreted this to SIPs provides that states must include NAAQS. The Commenter also quotes
mean, for purposes of infrastructure SIP enforceable emission limits in their several additional opinions in this vein.
submissions, that the state may rely on infrastructure SIPs sufficient to ensure Mont. Sulphur & Chem. Co. v. EPA, 666
measures already in place to address the the implementation, maintenance, and F.3d 1174, 1180 (9th Cir. 2012) (‘‘[t]he
asabaliauskas on DSK3SPTVN1PROD with RULES
pollutant at issue or any new control attainment of each NAAQS in all areas Clean Air Act directs states to develop
measures that the state may elect to of the State.’’ implementation plans—SIPs—that
impose as part of such SIP submission. Response 2: As provided in the ‘assure’ attainment and maintenance of
As EPA stated in ‘‘Guidance on previous response, the CAA, as enacted [NAAQS] through enforceable emissions
Infrastructure State Implementation in 1970, including its legislative history, limitations’’); Mich. Dept. of Envtl.
Plan (SIP) Elements under Clean Air Act cannot be interpreted in isolation from Quality v. Browner, 230 F.3d 181 (6th
Sections 110(a)(1) and 110(a)(2),’’ dated the later amendments that refined that Cir. 2000) (‘‘EPA’s deference to a state
September 13, 2013, (Infrastructure SIP structure and deleted relevant language is conditioned on the state’s submission
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of a plan ‘which satisfies the standards The decision in Pennsylvania Dept. of version of that provision and the court
of § 110(a)(2)’ and which includes Envtl. Resources was also decided based makes no mention of the changed
emission limitations that result in on a pre-1990 provision of the CAA. At language. Furthermore, the Commenter
compliance with the NAAQS’’; and Hall issue was whether EPA properly also quotes the Court’s statement that
v. EPA 273 F.3d 1146 (9th Cir. 2001) for rejected a revision to an approved SIP ‘‘SIPs must include certain measures
the proposition that EPA may not where the inventories relied on by the Congress specified,’’ but that statement
approve a SIP revision that does not state for the updated submission had specifically referenced the requirement
demonstrate how the rules would not gaps. The Court quoted section in section 110(a)(2)(C), which requires
interfere with attainment and 110(a)(2)(B) of the pre-1990 CAA in an enforcement program and a program
maintenance of the NAAQS. support of EPA’s disapproval, but did for the regulation of the modification
Response 3: None of the cases the not provide any interpretation of that and construction of new sources.
Commenter cites support the provision. This decision did not address Notably, at issue in that case was the
Commenter’s contention that it is clear the question at issue in this action, i.e., State’s ‘‘new source’’ permitting
that section 110(a)(2)(A) requires what a state must include in an program, not what is required for
infrastructure SIP submissions to infrastructure SIP submission for purposes of an infrastructure SIP
include detailed plans providing for purposes of section 110(a)(2)(A). Yet, submission for purposes of section
attainment and maintenance of the even if the Court had interpreted that 110(a)(2)(A).
NAAQS in all areas of the state, nor do provision, EPA notes that it was Two of the cases the Commenter cites,
they shed light on how EPA may modified by Congress in 1990; thus, this Mich. Dept. of Envtl. Quality, 230 F.3d
reasonably interpret section decision has little bearing on the issue 185, and Hall, 273 F.3d 1146, interpret
110(a)(2)(A). With the exception of here. CAA section 110(l), the provision
Train, none of the cases the Commenter governing ‘‘revisions’’ to plans. Neither
At issue in Mision Industrial, 547
cites specifically concerned the case, however, addressed the question at
F.2d 123, was the definition of
interpretation of CAA section issue here, i.e, what states are required
‘‘emissions limitation’’ not whether
110(a)(2)(A) (or section 110(a)(2)(B) of to address for purposes of an
section 110 requires the state to
the pre-1990 Act). Rather, the other infrastructure SIP submission for
demonstrate how all areas of the state
courts referenced section 110(a)(2)(A) purposes of section 110(a)(2)(A). In
will attain and maintain the NAAQS as
those cases, the courts cited to section
(or section 110(a)(2)(B) of the pre-1990 part of their infrastructure SIPs. The 110(a)(2)(A) solely for the purpose of
CAA) in the background section of language from the opinion the providing a brief background of the
decisions in the context of a challenge Commenter quotes does not interpret CAA.
to an EPA action on revisions to a SIP but rather merely describes section EPA does not believe any of these
that was required and approved as 110(a)(2)(A). The Commenter does not court decisions addressed required
meeting other provisions of the CAA or cite to this case to assert that the measures for infrastructure SIPs and
in the context of an enforcement action. measures relied on by the state in the believes nothing in the opinions
In Train, 421 U.S. 60, the Court was infrastructure SIP are not ‘‘emissions addressed whether infrastructure SIP
addressing a state revision to an limitations’’ and the decision in this submissions must contain emission
attainment plan submission made case has no bearing here. In Mont. limitations or measures to ensure
pursuant to section 110 of the CAA, the Sulphur & Chem. Co., 666 F.3d 1174, attainment and maintenance of the
primary statutory provision at that time the Court was reviewing a Federal NAAQS.
addressing such submissions. The issue implementation plan (FIP) that EPA
in that case concerned whether changes promulgated after a long history of the 4. EPA Regulations, Such as 40 CFR
to requirements that would occur before State failing to submit an adequate SIP 51.112(a)
attainment was required were variances in response to EPA’s finding under Comment 4: The Commenter cites to
that should be addressed pursuant to section 110(k)(5) that the previously 40 CFR 51.112(a), providing that ‘‘Each
the provision governing SIP revisions or approved SIP was substantially plan must demonstrate that the
were ‘‘postponements’’ that must be inadequate to attain or maintain the measures, rules, and regulations
addressed under section 110(f) of the NAAQS, which triggered the State’s contained in it are adequate to provide
CAA of 1970, which contained duty to submit a new SIP to show how for the timely attainment and
prescriptive criteria. The Court it would remedy that deficiency and maintenance of the national standard
concluded that EPA reasonably attain the NAAQS. The Court cited that it implements.’’ The Commenter
interpreted section 110(f) not to restrict generally to sections 107 and relies on a statement in the preamble to
a state’s choice of the mix of control 110(a)(2)(A) of the CAA for the the 1986 action restructuring and
measures needed to attain the NAAQS, proposition that SIPs should assure consolidating provisions in part 51, in
so long as the state met other applicable attainment and maintenance of NAAQS which EPA stated that ‘‘[i]t is beyond
requirements of the CAA, and that through emission limitations, but this the scope of th[is] rulemaking to address
revisions to SIPs that would not impact language was not part of the Court’s the provisions of Part D of the Act . . .’’
attainment of the NAAQS by the holding in the case, which focused 51 FR 40656. Thus, the Commenter
attainment date were not subject to the instead on whether EPA’s finding of SIP contends that ‘‘the provisions of 40 CFR
limits of section 110(f). Thus the issue inadequacy and adoption of a remedial 51.112 are not limited to nonattainment
was not whether the specific SIP at FIP were lawful. The Commenter SIPs; the regulation instead applies to
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issue needs to provide for attainment or suggests that Alaska Dept. of Envtl. Infrastructure SIPs, which are required
whether emissions limits are needed as Conservation, 540 U.S. 461, stands for to attain and maintain the NAAQS in all
part of the SIP; rather the issue was the proposition that the 1990 CAA areas of a state, including those not
which statutory provision governed Amendments do not alter how courts designated nonattainment.’’
when the state wanted to revise the interpret section 110. This claim is Response 4: The Commenter’s
emission limits in its SIP if such inaccurate. Rather, the Court quoted reliance on 40 CFR 51.112 to support its
revision would not impact attainment or section 110(a)(2)(A), which, as noted argument that infrastructure SIPs must
maintenance of the NAAQS. previously, differs from the pre-1990 contain emission limits which ensure
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attainment and maintenance of the 51.112 as requiring that a plan Nonattainment Area SIP Submissions, at
NAAQS is incorrect. It is clear on its demonstrates the rules in a SIP are 22, available at https://www.epa.gov/
face that 40 CFR 51.112 directly applies adequate to attain the SO2 NAAQS. sites/production/files/2016-06/
to state SIP submissions for control Response 5: EPA’s partial approval documents/20140423guidance_
strategy SIPs, i.e., plans that are and partial disapproval of revisions to nonattainment_sip.pdf. The Commenter
specifically required to attain and/or restrictions on emissions of sulfur also notes that this EPA guidance
maintain the NAAQS. These regulatory compounds for the Missouri SIP in 71 provides that ‘‘ ‘any emissions limits
requirements apply when states are FR 12623 specifically addressed based on averaging periods longer than
developing ‘‘control strategy’’ SIPs Missouri’s attainment SIP submission— 1 hour should be designed to have
under other provisions of the CAA, such not Missouri’s infrastructure SIP comparable stringency to a 1-hour
as attainment plans required for the submission. It is clear from the final average limit at the critical emission
various NAAQS in Part D and Missouri rule that EPA was not value.’ ’’
maintenance plans required in section reviewing an initial infrastructure SIP The Commenter also cites to a
175A. The Commenter’s suggestion that submission, but rather reviewing February 3, 2011, EPA Region 7 letter to
40 CFR 51.112 must apply to all SIP proposed SIP revisions that would make the Kansas Department of Health and
submissions required by section 110 an already approved SIP designed to Environment regarding the need for 1-
based on the preamble to EPA’s action demonstrate attainment of the NAAQS hour SO2 emission limits in a
‘‘restructuring and consolidating’’ less stringent. Therefore, EPA does not prevention of significant deterioration
provisions in part 51, is also incorrect.4 agree that the 2006 Missouri action (PSD) permit, an EPA Environmental
EPA’s action in 1986 was not to referenced by the Commenter Hearing Board decision rejecting use of
establish new substantive planning establishes how EPA reviews a 3-hour averaging time for a SO2 limit
requirements, but rather was meant infrastructure SIP submissions for in a PSD permit, and EPA’s disapproval
merely to consolidate and restructure purpose of section 110(a)(2)(A). of a Missouri SIP which relied on
provisions that had previously been As discussed in the proposed rule, annual averaging for SO2 emission rates
promulgated. EPA finds that the Florida 2010 1-hour and claims EPA has stated that 1-hour
Although EPA was explicit that it was SO2 infrastructure SIP meets the averaging times are necessary for the
not establishing requirements appropriate and relevant structural 2010 1-hour SO2 NAAQS.6 The
interpreting the provisions of new ‘‘Part requirements of section 110(a)(2) of the Commenter states, ‘‘Therefore, in order
D’’ of the CAA, it is clear that the CAA that will aid in attaining and/or to ensure that Florida’s Infrastructure
regulations being restructured and maintaining the 2010 1-hour SO2 SIP actually implements the SO2
consolidated were intended to address NAAQS and that the State demonstrated NAAQS in every area of the state, the
control strategy plans. In the preamble, that it has the necessary tools to I–SIP must contain enforceable emission
EPA clearly stated that 40 CFR 51.112 implement and enforce the 2010 1-hour limits with one-hour averaging times,
was replacing 40 CFR 51.13 (‘‘Control SO2 NAAQS.5 monitored continuously, for large
strategy: SOX and PM (portion)’’), 51.14 sources of SO2.’’ The Commenter asserts
(‘‘Control strategy: CO, HC, OX and NO2 B. Comments on Florida SIP SO2
Emission Limits that EPA must disapprove Florida’s
(portion)’’), 51.80 (‘‘Demonstration of infrastructure SIP because it fails to
attainment: Pb (portion)’’), and 51.82 Comment 6: The Commenter asserts require emission limits with adequate
(‘‘Air quality data (portion)’’). Id. at that EPA may not approve the Florida averaging times.
40660. Thus, the present-day 40 CFR proposed SO2 infrastructure SIP because Response 6: As explained in detail in
51.112 contains consolidated provisions it fails to include enforceable emission previous responses, the purpose of the
that are focused on control strategy SIPs, limitations with a 1-hour averaging time infrastructure SIP is to ensure that a
and the infrastructure SIP is not such a that applies at all times. The Commenter state has the structural capability to
plan. cites to CAA section 302(k) which implement and enforce the NAAQS and
5. EPA Interpretations in Other requires that emission limits must limit thus, additional SO2 emission
Rulemakings the quantity, rate or concentration of limitations to ensure attainment and
emissions and must apply on a maintenance of the NAAQS are not
Comment 5: The Commenter also continuous basis. The Commenter states required for such infrastructure SIPs.7
references a 2006 partial approval and that ‘‘[e]nforceable emission limitations
partial disapproval of revisions to contained in the I–SIP must, therefore, 6 The Commenter cited to In re: Mississippi Lime
Missouri’s existing plan addressing the be accompanied by proper averaging Co., PSDAPLPEAL 11–01, 2011 WL 3557194, at
SO2 NAAQS and claims it was an action times; otherwise an appropriate * 26–27 (EPA Aug. 9, 2011) and 71 FR 12623, 12624
in which EPA relied on section (March 13, 2006) (EPA disapproval of a control
numerical emission limit could allow strategy SO2 SIP).
110(a)(2)(A) and 40 CFR 51.112 to reject for peaks that exceed the NAAQS and 7 For a discussion on emission averaging times for
an infrastructure SIP. Specifically, the yet still be permitted since they would emissions limitations for SO2 attainment SIPs, see
Commenter asserts that in that action, be averaged with lower emissions at the April 23, 2014, Guidance for 1-Hour SO2
EPA cited section 110(a)(2)(A) as a basis other times.’’ The Commenter also cites
Nonattainment Area SIP Submissions. As noted by
for disapproving a revision to the State the commenter, EPA explained that it is possible,
to recommended averaging times in EPA in specific cases, for states to develop control
plan on the basis that the State failed to guidance providing that SIP emissions strategies that account for variability in 1-hour
demonstrate the SIP was sufficient to limits, ‘‘should not exceed the averaging emissions rates through emission limits with
ensure attainment and maintenance of time of the applicable NAAQS that the
averaging times that are longer than 1-hour, using
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the SO2 NAAQS after revision of an averaging times as long as 30-days, but still provide
limit is intended to help attain.’’ EPA for attainment of the 2010 SO2 NAAQS as long as
emission limit and cited to 40 CFR Memorandum of Apr. 23, 2014, to the limits are of at least comparable stringency to
Regional Air Division Directors, Regions a 1-hour limit at the critical emission value. EPA
4 EPA noted that it had already issued guidance has not taken final action to approve any specific
addressing the new ‘‘Part D’’ attainment planning 1–10, Guidance for 1-Hour SO2 NAAQS submission of such a limit that a state has relied
obligations. Also, as to maintenance regulations, upon to demonstrate NAAQS attainment, and
EPA expressly stated that it was not making any 5 EPA’s final action does not address CAA section Florida has not submitted such a limit for that
revisions other than to re-number those provisions. 110(a)(2)(D)(i)(I) because Florida has not made a purpose here, so it is premature at this time to
See 51 FR 40657. submission for these elements. evaluate whether any emission limit in Florida’s
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EPA disagrees that it must disapprove maintenance of the 2010 SO2 NAAQS.’’ NAAQS in areas designated
the proposed Florida infrastructure SIP The Commenter refers to air dispersion nonattainment for that NAAQS are due
submission merely because the SIP does modeling it conducted for two power on a different schedule from the section
not contain enforceable SO2 emission plants in Florida, the C.D. McIntosh, Jr. 110 infrastructure SIP submission. A
limitations with 1-hour averaging Power Plant and the Crist Electric state, like Florida, may reference pre-
periods that apply at all times, as this Generating Plant, which are located existing SIP emission limits or other
issue is not appropriate for resolution in outside of the State’s two nonattainment rules contained in part D plans for
this action in advance of EPA action on areas, and claims that ‘‘. . . the previous NAAQS in an infrastructure
the State’s submissions of other required emission limitations relied on for SIP submission for purposes of section
SIP submissions including an implementation of the NAAQS in the I– 110(a)(2)(A). For example, Florida
attainment plan for two areas which are SIP are insufficient to prevent submitted a list of existing emission
designated nonattainment pursuant to exceedances of the NAAQS.’’ Further, reduction measures in the SIP that
section 107 of the CAA.8 Therefore, the Commenter cites two court cases to control emissions of SO2 as discussed
because EPA finds Florida’s SO2 support its statement that ‘‘. . . an above in response to a prior comment
infrastructure SIP approvable without agency may not ignore information put and discussed in the proposed
the additional SO2 emission limitations in front of it’’ and that thus, the rulemaking on Florida’s SO2
showing attainment of the NAAQS, EPA Commenter contends that EPA must infrastructure SIP. These provisions
finds the issue of appropriate averaging consider its expert air dispersion have the ability to reduce SO2 overall.
periods for such future limitations not modeling submitted over the years Although the Florida SIP relies on
relevant at this time. which demonstrate the inadequacy of measures and programs used to
Further, Commenter’s citation to a Florida’s rules and regulations for SO2 implement previous SO2 NAAQS, these
prior EPA discussion on emission emissions.’’ The Commenter provisions are not limited to reducing
limitations required in PSD permits summarizes its modeling results for the SO2 levels to meet one specific NAAQS
(from EPA’s Environmental Appeals C.D. McIntosh, Jr. Power Plant and the and will continue to provide benefits for
Board decision and EPA’s letter to Crist Electric Generating Plant, stating the 2010 1-hour SO2 NAAQS.
Kansas’ permitting authority) pursuant that the data predict exceedances of the Regarding the air dispersion modeling
to part C of the CAA is neither relevant standard ‘‘over wide areas of the state.’’ conducted by the Commenter pursuant
nor applicable to infrastructure SIP Thus, the Commenter contends that to AERMOD for the C.D. McIntosh, Jr.
submissions under CAA section 110. In Florida’s infrastructure submissions are Power Plant and the Crist Electric
addition, and as previously discussed, ‘‘substantially inadequate to attain and Generating Plant, EPA is not in this
the EPA disapproval of the 2006 maintain the NAAQS which it action making a determination regarding
Missouri SIP was a disapproval relating implements as evidenced by expert air the air quality status in the area where
to an attainment plan SIP submission dispersion modeling demonstrating that these EGUs are located, and is not
required pursuant to part D attainment the emission limits under the laws and evaluating whether emissions
planning and is likewise not relevant to regulations cited to in the SO2 I–SIP applicable to these EGUs are adequate to
the analysis of infrastructure SIP Certification allow for exceedances of attain and maintain the NAAQS.
requirements. the NAAQS.’’ Thus, the Commenter Consequently, the EPA does not find the
Comment 7: Citing to section 110(a)(1)
asserts that EPA must disapprove modeling information relevant for
and (a)(2)(A) of the CAA, the
Florida’s SIP submissions, and must review of an infrastructure SIP for
Commenter contends that EPA may not
establish a FIP ‘‘which incorporates purposes of section 110(a)(2)(A). When
approve Florida’s infrastructure SIP
necessary and appropriate source- additional areas in Florida are
because it does not include enforceable
specific enforceable emission designated under the 2010 1-hour SO2
1-hour emission limits for sources that
limitations (preferably informed by NAAQS, and if any additional areas in
the Commenter claims are currently
modeling) on C.D. McIntosh, Jr. Power Florida are designated nonattainment in
contributing to NAAQS exceedances.
Plant and Crist Electric Generating the future, any potential future
The Commenter asserts that emission
Plant, as well as any other major sources modeling submitted by the State with
limits are especially important for
of SO2 pollution in the State which are designations or attainment
meeting the 1-hour SO2 NAAQS because
not presently located in nonattainment demonstrations would need to account
SO2 impacts are strongly source areas and have modeled exceedances of for any new emissions limitations
oriented. The Commenter states that the NAAQS.’’ Further, the Commenter Florida develops to support such
‘‘[d]espite the large contribution from states that ‘‘For C.D. McIntosh and Crist, designation or demonstration, which at
coal-fired EGUs [electricity generating enforceable emission limitations must this point is unknown. While EPA has
units] to the State’s SO2 pollution, be at least as stringent as the modeling- extensively discussed the use of
Florida’s I–SIP lacks enforceable based limits [provided by the modeling for attainment demonstration
emissions limitations applicable to its Commenter] in order to protect the one- purposes and for designations,9 EPA has
coal-fired EGUs sufficient to ensure the hour SO2 NAAQS and implement,
implementation, attainment, and recommended that such modeling was
maintain, and enforce the standard in not needed for the SO2 infrastructure
Florida.’’ SIPs for the 2010 1-hour SO2 NAAQS
SIP is in accordance with the April 23, 2014,
guidance. If and when Florida submits an emission Response 7: As stated previously, EPA for purposes of section 110(a)(2)(A),
limitation that relies upon such a longer averaging believes that the proper inquiry is which are not actions in which EPA
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time to demonstrate NAAQS attainment, EPA will whether Florida has met the basic, makes determinations regarding current
evaluate it then.
8 There are two designated nonattainment areas structural SIP requirements appropriate air quality status. See April 12, 2012,
pursuant to CAA section 107 for the 2010 1-hour at the point in time EPA is acting upon
SO2 NAAQS in Florida and the State has submitted the infrastructure submissions. 9 See for example, EPA’s discussion of modeling
attainment plans for the 2010 1-hour SO2 NAAQS Emissions limitations and other control for characterizing air quality in the Agency’s August
for sections 172, 191 and 192. EPA believes the 21, 2015, final rule at 80 FR 51052 and for
appropriate time for examining the necessity of 1-
measures, whether on coal-fired EGUs nonattainment planning in the April 23, 2014,
hour SO2 emission limits on specific sources is or other SO2 sources, that may be Guidance for 1-Hour SO2 Nonattainment Area SIP
within the attainment planning process. needed to attain and maintain the Submissions.
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![67184 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations
letters to states and 2012 Draft White to the good neighbor provision in such as the requirements of
Paper.10 section 110(a)(2)(D)(i)(I). Florida did not 110(a)(2)(D)(i)(I), as severable from the
In conclusion, EPA disagrees with the make a submission to address the other infrastructure elements and
Commenter’s statements that EPA must requirements of section 110(a)(2)(D)(i)(I) interprets section 110(k)(3) as allowing
disapprove Florida’s infrastructure SIP for the 2010 1-hour SO2 NAAQS, and it to act on individual severable
submissions because it does not thus there is no such submission upon measures in a plan submission. In short,
establish specific enforceable SO2 which EPA proposed to take action on EPA believes that even if Florida had
emission limits, either on coal-fired under section 110(k) of the CAA. made a SIP submission for section
EGUs or other large SO2 sources, in Similarly, EPA disagrees with the 110(a)(2)(D)(i)(I) of the CAA for the 2010
order to demonstrate attainment and Commenter’s assertion that EPA cannot 1-hour SO2 NAAQS, which to date it
maintenance with the 2010 1-hour SO2 approve other elements of an has not, EPA would still have discretion
NAAQS at this time. infrastructure SIP submission without under section 110(k) of the CAA to act
Comment 8: The Commenter alleges the good neighbor provision. There is no upon the various individual elements of
that the SO2 infrastructure SIP submittal basis for the contention that EPA has the State’s infrastructure SIP
does not address sources significantly triggered its obligation to issue a FIP to submission, separately or together, as
contributing to nonattainment or address the good neighbor obligation appropriate.
interfering with maintenance of the under section 110(c), as EPA has neither The Commenter raises no compelling
2010 1-hour SO2 NAAQS in other states found that Florida failed to timely legal or environmental rationale for an
as required by section 110(a)(2)(D)(i)(I) submit a required 110(a)(2)(D)(i)(I) SIP alternate interpretation. Nothing in the
of the CAA, and asserts EPA must submission for the 2010 1-hour SO2 Supreme Court’s April 2014 decision in
therefore disapprove the infrastructure NAAQS or found that such a EME Homer City alters EPA’s
SIP and impose a FIP. The Commenter submission was incomplete, nor has interpretation that EPA may act on
states that ‘‘Florida’s reliance on a 2012 EPA disapproved a SIP submission individual severable measures,
EPA memorandum in which EPA stated addressing 110(a)(2)(D)(i)(I) with respect including the requirements of section
that it did ‘not intend to make findings to the 2010 1-hour SO2 NAAQS. 110(a)(2)(D)(i)(I), in a SIP submission.
that states failed to submit SIPs to EPA acknowledges the Commenter’s See EPA v. EME Homer City Generation,
comply with section 110(a)(2)(D)(i)(I)’ is concern for the interstate transport of air L.P., 134 S. Ct. 1584 (affirming a state’s
improper’’, and that such guidance pollutants and agrees in general with obligation to submit a SIP revision
contradicts the CAA. The Commenter the Commenter that sections 110(a)(1) addressing section 110(a)(2)(D)(i)(I)
notes that the Supreme Court and (a)(2) of the CAA generally require
independent of EPA’s action finding
disapproved the view that states cannot states to submit, within three years of
significant contribution or interference
address section 110(a)(2)(D)(i) until EPA promulgation of a new or revised
resolves issues related to CSAPR and with maintenance). In sum, the
NAAQS, a plan which addresses cross-
that compliance with this provision is a concerns raised by the Commenter do
state air pollution under section
‘‘mandatory duty’’, citing to Homer City, not establish that it is inappropriate or
110(a)(2)(D)(i)(I). However, EPA
696 F.3d 7, 37 (D.C. Cir. 2012), rev’d, unreasonable for EPA to approve the
disagrees with the Commenter’s
No. 12–1182, slip op. at 27–28 (U.S. portions of Florida’s infrastructure SIP
argument that EPA cannot approve an
Apr. 29, 2014). The Commenter also submission for the 2010 1-hour SO2
infrastructure SIP submission without
highlights from Order on Petition No. the good neighbor provision. Section NAAQS.
VI–2014–04 at 10 (citing EPA v. EME 110(k)(3) of the CAA authorizes EPA to EPA has no obligation at this time to
Homer City Generation, 134 S. Ct. 1584, approve a plan in full, disapprove it in issue a FIP pursuant to 110(c)(1) to
1601 (2014) that, ‘‘[T]he Supreme Court full, or approve it in part and address Florida’s obligations under
has affirmed that the EPA is not disapprove it in part, depending on the section 110(a)(2)(D)(i)(I) until EPA first
required to provide any implementation extent to which such plan meets the either finds Florida failed to make a
guidance before states’ interstate requirements of the CAA. This authority required submission addressing the
transport obligation can be addressed.’’ to approve state SIP revisions in element or the State has made such a
Response 8: This action does not separable parts was included in the submission but it is incomplete, or EPA
address whether sources in Florida are 1990 Amendments to the CAA to disapproves a SIP submission
significantly contributing to overrule a decision in the Court of addressing that element. Until either
nonattainment or interfering with Appeals for the Ninth Circuit holding occurs, EPA does not have the
maintenance of the 2010 1-hour SO2 that EPA could not approve individual obligation to issue a FIP pursuant to
NAAQS in another state as required by measures in a plan submission without section 110(c) with respect to the good
section 110(a)(2)(D)(i)(I) of the CAA (the either approving or disapproving the neighbor provision. Therefore, EPA
good neighbor provision). Thus, EPA plan as a whole. See S. Rep. No. 101– disagrees with the Commenter’s
disagrees with the Commenter’s 228, at 22, 1990 U.S.C.C.A.N. 3385, contention that it must issue a FIP for
statement that EPA must disapprove the 3408 (discussing the express overruling Florida to address 110(a)(2)(D)(i)(I) for
submitted 2010 1-hour SO2 of Abramowitz v. EPA, 832 F.2d 1071 the 2010 1-hour SO2 NAAQS at this
infrastructure SIP due to Florida’s (9th Cir. 1987)). time.
failure to address section EPA interprets its authority under III. Final Action
110(a)(2)(D)(i)(I). In EPA’s proposed section 110(k)(3) of the CAA, as
rulemaking to approve Florida’s affording EPA the discretion to approve, EPA is taking final action to approve
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infrastructure SIP for the 2010 1-hour or conditionally approve, individual Florida’s infrastructure submissions
SO2 NAAQS, EPA clearly stated that it elements of Florida’s infrastructure SIP submitted on June 3, 2013, and
was not taking any action with respect submissions for the 2010 1-hour SO2 supplemented on January 8, 2014, for
NAAQS, separate and apart from any the 2010 1-hour SO2 NAAQS for the
10 Implementation of the 2010 Primary 1-Hour
action with respect to the requirements above described infrastructure SIP
SO2 NAAQS, Draft White Paper for Discussion, May
2012 (2012 Draft White Paper) and a sample April
of section 110(a)(2)(D)(i)(I) of the CAA requirements. EPA is taking final action
12, 2012, letter from EPA to states are available in with respect to that NAAQS. EPA views to approve Florida’s infrastructure SIP
the docket for this action. discrete infrastructure SIP requirements, submissions for the 2010 1-hour SO2
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NAAQS because the submissions are • is not a significant regulatory action action must be filed in the United States
consistent with section 110 of the CAA. subject to Executive Order 13211 (66 FR Court of Appeals for the appropriate
28355, May 22, 2001); circuit by November 29, 2016. Filing a
IV. Statutory and Executive Order • is not subject to requirements of petition for reconsideration by the
Reviews Section 12(d) of the National Administrator of this final rule does not
Under the CAA, the Administrator is Technology Transfer and Advancement affect the finality of this action for the
required to approve a SIP submission Act of 1995 (15 U.S.C. 272 note) because purposes of judicial review nor does it
that complies with the provisions of the application of those requirements would extend the time within which a petition
Act and applicable Federal regulations. be inconsistent with the CAA; and for judicial review may be filed, and
See 42 U.S.C. 7410(k); 40 CFR 52.02(a). • does not provide EPA with the shall not postpone the effectiveness of
Thus, in reviewing SIP submissions, discretionary authority to address, as such rule or action. This action may not
EPA’s role is to approve state choices, appropriate, disproportionate human be challenged later in proceedings to
provided that they meet the criteria of health or environmental effects, using enforce its requirements. See section
the CAA. Accordingly, this action practicable and legally permissible 307(b)(2).
merely approves state law as meeting methods, under Executive Order 12898
(59 FR 7629, February 16, 1994). List of Subjects in 40 CFR Part 52
Federal requirements and does not
In addition, the SIP is not approved
impose additional requirements beyond Environmental protection, Air
to apply on any Indian reservation land
those imposed by state law. For that pollution control, Incorporation by
or in any other area where EPA or an
reason, this action: reference, Intergovernmental relations,
Indian tribe has demonstrated that a
• Is not a significant regulatory action tribe has jurisdiction. In those areas of
Nitrogen dioxide, Ozone, Reporting and
subject to review by the Office of Indian country, the rule does not have recordkeeping requirements, Volatile
Management and Budget under tribal implications as specified by organic compounds.
Executive Orders 12866 (58 FR 51735, Executive Order 13175 (65 FR 67249, Dated: September 14, 2016.
October 4, 1993) and 13563 (76 FR 3821, November 9, 2000), nor will it impose V. Anne Heard,
January 21, 2011); substantial direct costs on tribal Acting Regional Administrator, Region 4.
• does not impose an information governments or preempt tribal law.
collection burden under the provisions The Congressional Review Act, 5 40 CFR part 52 is amended as follows:
of the Paperwork Reduction Act (44 U.S.C. 801 et seq., as added by the Small
U.S.C. 3501 et seq.); Business Regulatory Enforcement PART 52—APPROVAL AND
Fairness Act of 1996, generally provides PROMULGATION OF
• is certified as not having a IMPLEMENTATION PLANS
significant economic impact on a that before a rule may take effect, the
substantial number of small entities agency promulgating the rule must
submit a rule report, which includes a ■ 1. The authority citation for part 52
under the Regulatory Flexibility Act (5 continues to read as follows:
U.S.C. 601 et seq.); copy of the rule, to each House of the
Congress and to the Comptroller General Authority: 42 U.S.C. 7401 et seq.
• does not contain any unfunded
of the United States. EPA will submit a
mandate or significantly or uniquely Subpart K—Florida
report containing this action and other
affect small governments, as described
required information to the U.S. Senate,
in the Unfunded Mandates Reform Act ■ 2. Section 52.520(e), is amended by
the U.S. House of Representatives, and
of 1995 (Pub. L. 104–4); adding the entry ‘‘110(a)(1) and (2)
the Comptroller General of the United
• does not have Federalism States prior to publication of the rule in Infrastructure Requirements for the 2010
implications as specified in Executive the Federal Register. A major rule 1-hour SO2 National Ambient Air
Order 13132 (64 FR 43255, August 10, cannot take effect until 60 days after it Quality Standards’’ at the end of the
1999); is published in the Federal Register. table to read as follows:
• is not an economically significant This action is not a ‘‘major rule’’ as
§ 52.520 Identification of plan.
regulatory action based on health or defined by 5 U.S.C. 804(2).
safety risks subject to Executive Order Under section 307(b)(1) of the CAA, * * * * *
13045 (62 FR 19885, April 23, 1997); petitions for judicial review of this (e) * * *
EPA-APPROVED FLORIDA NON-REGULATORY PROVISIONS
State EPA Federal Register
Provision Explanation
effective date approval date notice
* * * * * * *
110(a)(1) and (2) Infrastructure Require- 6/3/2013 9/30/2016 [Insert Federal Reg- With the exception of section for provi-
ments for the 2010 1-hour Primary SO2 ister citation]. sions relating to 110(a)(2)(D)(i)(I)
National Ambient Air Quality Standards. (prongs 1 and 2) concerning interstate
transport requirements.
asabaliauskas on DSK3SPTVN1PROD with RULES
[FR Doc. 2016–23292 Filed 9–29–16; 8:45 am]
BILLING CODE 6560–50–P
VerDate Sep<11>2014 18:28 Sep 29, 2016 Jkt 238001 PO 00000 Frm 00095 Fmt 4700 Sfmt 9990 E:\FR\FM\30SER1.SGM 30SER1](https://thefederalregister.org/doc/81_FR_67369/page/7.svg)
Document Created: 2018-02-09 13:33:45
Document Modified: 2018-02-09 13:33:45
| 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 | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective October 31, 2016. | |
| Contact | Michele Notarianni, 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. Ms. Notarianni can be reached via electronic mail at [email protected] or via telephone at (404) 562-9031. | |
| FR Citation | 81 FR 67179 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Reporting and Recordkeeping Requirements and Volatile Organic Compounds |
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