82 FR 37310 - Air Plan Approval; Florida: Infrastructure Requirements for the 2010 NO2
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 82, Issue 153 (August 10, 2017)
Federal Register Volume 82, Issue 153 (August 10, 2017)
| Page Range | 37310-37316 | |
| FR Document | 2017-16809 |
[Federal Register Volume 82, Number 153 (Thursday, August 10, 2017)] [Rules and Regulations] [Pages 37310-37316] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-16809] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0507; FRL-9965-83-Region 4] Air Plan Approval; Florida: Infrastructure Requirements for the 2010 NO2 NAAQS AGENCY: Environmental Protection Agency. ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is approving a portion of the State Implementation Plan (SIP) submission, submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP), on January 22, 2013, addressing a portion of the Clean Air Act (CAA or Act) infrastructure requirements for the 2010 1- hour nitrogen dioxide (NO2 ) national ambient air quality standard (NAAQS). The CAA requires that each state adopt [[Page 37311]] 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.'' Specifically, EPA is approving the portion of Florida's January 22, 2013, SIP submission addressing element B of the infrastructure requirements, which relates to monitoring requirements. EPA finds that Florida's infrastructure SIP submission, provided to EPA on January 22, 2013, satisfies the infrastructure requirements related to monitoring for the 2010 1-hour NO2 NAAQS. DATES: This direct final rule is effective October 10, 2017 without further notice, unless EPA receives adverse comment by September 11, 2017. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04- OAR-2014-0507 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Andres Febres of 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. Mr. Febres can be reached via telephone at (404) 562-8966 or via electronic mail at [email protected]. SUPPLEMENTARY INFORMATION: I. What action is the Agency taking? On January 22, 2013, FDEP submitted a SIP revision for EPA's approval addressing the CAA's infrastructure requirements for the 2010 1-hour NO2 NAAQS. In this action, EPA is approving a portion of Florida's infrastructure SIP submission related to the ambient air quality monitoring and data system requirements of section 110(a)(2)(B). EPA approved all other portions of Florida's January 22, 2013 infrastructure SIP submission in previous actions. See 80 FR 14019, March 18, 2015, and 81 FR 84479, November 23, 2016. Additionally, on February 3, 2017, Florida submitted a SIP submission addressing the provisions related to prongs 1 and 2 of section 110(a)(2)(D)(i) and EPA will act on that submission in a separate action. For the aspects of the portion of Florida's submittal being approved, EPA notes that the Agency is not approving any specific rule, but rather taking final action to approve that Florida's already approved SIP meets this CAA requirement. II. Background By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term ``infrastructure SIP'' does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to address the nonattainment planning requirements of part D of Title I of the CAA, ``regional haze SIP'' submissions required by EPA rule to address the visibility protection requirements of section 169A of the CAA, and nonattainment new source review permit program submissions to address the permit requirements of CAA, Title I, part D. Sections 110(a)(1) and (2) require 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 newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The content of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS. On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474 (February 9, 2010). This NAAQS is designed to protect against exposure to the entire group of nitrogen oxides (NOX ). NO2 is the component of greatest concern and is used as the indicator for the larger group of NOX . Emissions that lead to the formation of NO2 generally also lead to the formation of other NOX . Therefore, control measures that reduce NO2 can generally be expected to reduce population exposures to all gaseous NOX which may have the co-benefit of reducing the formation of ozone and fine particles both of which pose significant public health threats. States were required to submit infrastructure SIP submissions for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013.\1\ Through this action, EPA is approving Florida's January 22, 2013 submission as meeting the requirements of 110(a)(2)(B) for the 2010 NO2 NAAQS. As mentioned above, EPA has already taken final action on the remainder of Florida's January 22, 2013 submission. --------------------------------------------------------------------------- \1\ In these infrastructure SIP submissions, States generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the federally-approved SIP. In addition, certain federally-approved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2). Throughout this rulemaking, unless otherwise indicated, the term ``Florida Administrative Code'' or ``F.A.C.'' indicates that the cited regulation has been approved into Florida's federally-approved SIP. The term ``Florida statute'' or ``F.S.'' indicates cited Florida state statutes, which are not a part of the SIP unless otherwise indicated. --------------------------------------------------------------------------- III. What is EPA's approach to the review of infrastructure SIP submissions? The requirement for states to make a SIP submission of this type arises out of [[Page 37312]] section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions ``within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),'' and these SIP submissions are to provide for the ``implementation, maintenance, and enforcement'' of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that ``each such plan'' submission must address. Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.\2\ EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission. --------------------------------------------------------------------------- \2\ For example: section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of Title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies. --------------------------------------------------------------------------- The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that ``each'' SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of Title I of the CAA, which specifically address nonattainment SIP requirements.\3\ Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years or in some cases three years, for such designations to be promulgated.\4\ This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission. --------------------------------------------------------------------------- \3\ See, e.g., ``Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)). \4\ EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS. --------------------------------------------------------------------------- Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit ``a plan'' to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.\5\ Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.\6\ --------------------------------------------------------------------------- \5\ See, e.g., ``Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and ``Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS). \6\ On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal. --------------------------------------------------------------------------- Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.\7\ --------------------------------------------------------------------------- \7\ For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS. --------------------------------------------------------------------------- EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires attainment plan SIP submissions required by part D to meet the ``applicable requirements'' of section 110(a)(2); thus, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the [[Page 37313]] Prevention of Significant Deterioration (PSD) program required in part C of Title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others. Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS. Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.\8\ EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).\9\ EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.\10\ The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. --------------------------------------------------------------------------- \8\ EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate. \9\ ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013. \10\ EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations. --------------------------------------------------------------------------- As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However, they are addressed by the state, the substantive requirements of Section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128. As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in section 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including Greenhouse Gases. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the Particulate Matter 2.5 (PM2.5 ) NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action. For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs. With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA's policies addressing such excess emissions; \11\ (ii) existing provisions related to ``director's variance'' or ``director's discretion'' that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) [[Page 37314]] existing provisions for PSD programs that may be inconsistent with current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR Reform). Thus, EPA believes that it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.\12\ It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described. --------------------------------------------------------------------------- \11\ Subsequent to issuing the 2013 Guidance, EPA's interpretation of the CAA with respect to the approvability of affirmative defense provisions in SIPs has changed. See ``State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,'' 80 FR 33839 (June 12, 2015). As a result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the EPA's view concerning the validity of affirmative defense provisions, in light of the requirements of section 113 and section 304. \12\ By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption or affirmative defense for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP. --------------------------------------------------------------------------- EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in section 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of ``implementation, maintenance, and enforcement'' of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors. For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of section 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP call'' whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.\13\ --------------------------------------------------------------------------- \13\ For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See ``Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011). --------------------------------------------------------------------------- Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.\14\ Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.\15\ --------------------------------------------------------------------------- \14\ EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See ``Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has previously used its authority under section 110(k)(6) of the CAA to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004 (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs). \15\ See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions). --------------------------------------------------------------------------- IV. Section 110(a)(2)(B) Ambient Air Quality Monitoring/Data System for Florida Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to: (i) Monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. In its January 22, 2013, SIP infrastructure submittal, Florida cites F.A.C. Chapters 62-204, 62-210, 62-212 as establishing requirements for the use of Federal Reference Method or equivalent monitors and provides authority for FDEP to establish monitoring requirements through SIP-approved permits. In addition, states develop and submit to EPA for approval annual statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, includes the annual ambient monitoring network design plan, and includes a certified evaluation of the agency's ambient monitors and auxiliary support equipment.\16\ On June 30, 2017, Florida submitted its most recent plan to EPA, which was approved by EPA on July 24, 2017. Florida's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA- R04-OAR-2014-0507. EPA has made the preliminary determination that Florida's SIP and practices are adequate for the ambient air quality monitoring and data system related and meet the requirements of sub- element 110(a)(2)(B) for the 2010 1-hour NO2 NAAQS. --------------------------------------------------------------------------- \16\ On occasion, proposed changes to the monitoring network are evaluated outside of the network plan approval process in accordance with 40 CFR part 58. --------------------------------------------------------------------------- V. Final Action EPA is taking a direct final action to approve a portion of Florida's January 22, 2013, SIP submission addressing the CAA infrastructure requirements for the 2010 1-hour NO2 NAAQS. Specifically, EPA is taking direct final action to approve the portions of Florida's January 22, 2013, SIP submission addressing section 110(a)(2)(B) of the [[Page 37315]] infrastructure requirements, which requires SIPs to provide for the establishment and operation of appropriate devices, methods, systems, and procedures necessary to: (i) Monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. EPA is approving this portion of Florida's infrastructure submission for the 2010 1-hour NO2 NAAQS because this submission is consistent with section 110 of the CAA. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective October 10, 2017 without further notice unless the Agency receives adverse comments by September 11, 2017. If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All adverse public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on October 10, 2017 and no further action will be taken on the proposed rule. VI. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this 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). 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 October 10, 2017. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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: July 26, 2017. 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. In Sec. 52.520, the table in paragraph (e) is amended by adding the entry ``110(a)(1) and (2) Infrastructure Requirements for the 2010 1- hour NO 2 NAAQS (Element B only)'' at the end of the table to read as follows: Sec. 52.520 Identification of plan. * * * * * (e) * * * [[Page 37316]] EPA-Approved Florida Non-Regulatory Provisions ---------------------------------------------------------------------------------------------------------------- State Provision effective EPA approval Federal Register Explanation date date notice ---------------------------------------------------------------------------------------------------------------- * * * * * * * 110(a)(1) and (2) Infrastructure 1/22/2013 8/10/2017 [insert Federal Addressing section Requirements for the 2010 1-hour Register citation]. 110(a)(2)(B) concerning NO2 NAAQS (Element B only). ambient air quality monitoring and data system only. ---------------------------------------------------------------------------------------------------------------- [FR Doc. 2017-16809 Filed 8-9-17; 8:45 am] BILLING CODE 6560-50-P
![37310 Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Rules and Regulations
Order 13132 (64 FR 43255, August 10, States Court of Appeals for the List of Subjects in 40 CFR Part 52
1999); appropriate circuit by October 10, 2017.
• Is not an economically significant Filing a petition for reconsideration by Environmental protection, Air
regulatory action based on health or the Administrator of this final rule does pollution control, Incorporation by
safety risks subject to Executive Order not affect the finality of this action for reference, Intergovernmental relations,
13045 (62 FR 19885, April 23, 1997); the purposes of judicial review nor does Nitrogen dioxide, Ozone, Reporting and
• Is not a significant regulatory action it extend the time within which a recordkeeping requirements.
subject to Executive Order 13211 (66 FR petition for judicial review may be filed, Dated: July 25, 2017.
28355, May 22, 2001); and shall not postpone the effectiveness Catherine R. McCabe,
• Is not subject to requirements of of such rule or action. This action may Acting Regional Administrator, Region 2.
section 12(d) of the National not be challenged later in proceedings to
Technology Transfer and Advancement enforce its requirements. (See section Part 52, chapter I, title 40 of the Code
Act of 1995 (15 U.S.C. 272 note) because 307(b)(2)). of Federal Regulations is amended as
application of those requirements would The Congressional Review Act, 5 follows:
be inconsistent with the Clean Air Act; U.S.C. 801 et seq., as added by the Small
and Business Regulatory Enforcement PART 52—APPROVAL AND
• Does not provide EPA with the Fairness Act of 1996, generally provides PROMULGATION OF
discretionary authority to address, as that before a rule may take effect, the IMPLEMENTATION PLANS
appropriate, disproportionate human agency promulgating the rule must
health or environmental effects, using submit a rule report, which includes a ■ 1. The authority citation for part 52
practicable and legally permissible copy of the rule, to each House of the continues to read as follows:
methods, under Executive Order 12898 Congress and to the Comptroller General Authority: 42 U.S.C. 7401 et seq.
(59 FR 7629, February 16, 1994). of the United States. Section 804,
In addition, this rule does not have however, exempts from section 801 the Subpart FF—New Jersey
tribal implications as specified by following types of rules: Rules of
Executive Order 13175 (65 FR 67249, particular applicability; rules relating to ■ 2. In § 52.1570, the table in paragraph
November 9, 2000), because the SIP is agency management or personnel; and (d) is amended by adding entries
not approved to apply in Indian country rules of agency organization, procedure, ‘‘Transcontinental Gas Pipelines Corp.,
located in the state, and EPA notes that or practice that do not substantially LNG Station 240’’ and ‘‘Joint Base
it will not impose substantial direct affect the rights or obligations of non- McGuire-Dix-Lakehurst (Lakehurst, NJ)’’
costs on tribal governments or preempt agency parties. 5 U.S.C. 804(3). Because to the end of the table to read as follows:
tribal law. this is a rule of particular applicability,
§ 52.1570 Identification of plan.
Under section 307(b)(1) of the Clean EPA is not required to submit a rule
Air Act, petitions for judicial review of report regarding this action under * * * * *
this action must be filed in the United section 801. (d) * * *
EPA-APPROVED NEW JERSEY SOURCE-SPECIFIC PROVISIONS
Name of source Identifier No. State effective date EPA approval date Comments
* * * * * * *
Transcontinental Gas Pipe- 02626 ................................ June 12, 2014 ................... August 10, 2017 [insert Alternate NOX Emission
lines Corp., LNG Station Federal Register cita- Limit and other require-
240. tion]. ments pursuant to NJAC
August 10, 2017 [insert 7:27–19.13 for four nat-
Federal Register cita- ural gas-fired water bath
tion]. heaters ((U7–U10).
Joint Base McGuire-Dix- BOP15001 ........................ August 26, 2016 ............... ........................................... Alternate NOX Emission
Lakehurst (Lakehurst, Limit and other require-
NJ). ments pursuant to NJAC
7:27–19.13 for two nat-
ural gas-fired boilers
(Nos 2 and 3).
* * * * * ENVIRONMENTAL PROTECTION ACTION: Direct final rule.
[FR Doc. 2017–16804 Filed 8–9–17; 8:45 am] AGENCY
BILLING CODE 6560–50–P SUMMARY: The Environmental Protection
40 CFR Part 52 Agency (EPA) is approving a portion of
the State Implementation Plan (SIP)
[EPA–R04–OAR–2014–0507; FRL–9965–83- submission, submitted by the State of
Region 4] Florida, through the Florida Department
mstockstill on DSK30JT082PROD with RULES
of Environmental Protection (FDEP), on
Air Plan Approval; Florida: January 22, 2013, addressing a portion
Infrastructure Requirements for the of the Clean Air Act (CAA or Act)
2010 NO2 NAAQS infrastructure requirements for the 2010
1-hour nitrogen dioxide (NO2) national
AGENCY: Environmental Protection ambient air quality standard (NAAQS).
Agency. The CAA requires that each state adopt
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![37316 Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Rules and Regulations
EPA-APPROVED FLORIDA NON-REGULATORY PROVISIONS
State EPA Federal Register
Provision effective approval Explanation
notice
date date
* * * * * * *
110(a)(1) and (2) Infrastructure Require- 1/22/2013 8/10/2017 [insert Federal Reg- Addressing section 110(a)(2)(B) con-
ments for the 2010 1-hour NO2 NAAQS ister citation]. cerning ambient air quality monitoring
(Element B only). and data system only.
[FR Doc. 2017–16809 Filed 8–9–17; 8:45 am] cannot be edited or removed from order to more effectively address
BILLING CODE 6560–50–P Regulations.gov. For either manner of emissions due to the numerous
submission, EPA may publish any pollutants, including air toxics, found in
comment received to its public docket. wood smoke. The revised ACHD
ENVIRONMENTAL PROTECTION Do not submit electronically any regulations, effective January 1, 2015,
AGENCY information you consider to be specify the following details related to
confidential business information (CBI) various aspects of open burning: (1)
40 CFR Part 52 or other information whose disclosure is Materials that may be burned; (2) the
[EPA–R03–OAR–2017–0204; FRL–9965–75– restricted by statute. Multimedia size of burn piles; (3) setback
Region 3] submissions (audio, video, etc.) must be requirements; (4) use of chimineas, fire
accompanied by a written comment. pits, and outdoor fireplaces; and (5)
Approval and Promulgation of Air The written comment is considered the burning restrictions on air quality action
Quality Implementation Plans; official comment and should include days.
Pennsylvania; Revision to Allegheny discussion of all points you wish to
County Regulations for Open Burning make. EPA will generally not consider II. Summary of SIP Revision and EPA
comments or comment contents located Analysis
AGENCY: Environmental Protection
outside of the primary submission (i.e. In the June 25, 2015 SIP submittal,
Agency (EPA).
on the Web, cloud, or other file sharing Pennsylvania included revisions to
ACTION: Direct final rule. system). For additional submission Article XXI, sections 2101.20 and
SUMMARY: The Environmental Protection methods, please contact the person 2105.50 with a state effective date of
Agency (EPA) is taking direct final identified in the FOR FURTHER January 1, 2015. The revision to section
INFORMATION CONTACT section. For the 2101.20 (Definitions) under Article XXI
action to approve revisions to the
Commonwealth of Pennsylvania state full EPA public comment policy, amends the definition of ‘‘open
implementation plan (SIP). The information about CBI or multimedia burning’’ to additionally include any
revisions update Allegheny County’s submissions, and general guidance on fire or combustion that occurs in a
portion of the Pennsylvania SIP, which making effective comments, please visit chiminea, fire pit, outdoor fireplace or
includes regulations concerning open http://www2.epa.gov/dockets/ grill. The revisions to section 2105.50
burning. Pennsylvania submitted commenting-epa-dockets. (Open Burning) under Article XXI
updated regulations, on behalf of FOR FURTHER INFORMATION CONTACT: consist of the following: (1) Limit any
Allegheny County, which clarify and Gregory A. Becoat, (215) 814–2036, or open burning to clean wood, propane,
codify existing regulations in order to by email at becoat.gregory@epa.gov. or natural gas, and establishes specific
more effectively address emissions from SUPPLEMENTARY INFORMATION: exceptions to the limits; (2) limit the
open burning and protect public health. volume of clean wood being burned and
I. Background limiting the distance permitted between
EPA is approving the SIP submittal of
Allegheny County’s regulations for open On June 25, 2015, the Commonwealth open burning locations and inhabited
burning in accordance with the of Pennsylvania through the areas; (3) establish the exceptions to
requirements of the Clean Air Act Pennsylvania Department of burning clean wood for chimineas, fire
(CAA). Environmental Protection submitted a pits, outdoor fireplaces and grills. These
formal revision to the Pennsylvania SIP. exceptions pertain to the use of
DATES: This rule is effective on The SIP revision consists of amended charcoal, propane, or natural gas when
November 8, 2017 without further versions of Allegheny County Health pertaining to cooking, the use of
notice, unless EPA receives adverse Department’s (ACHD) regulations under commercially available fire logs,
written comment by September 11, Article XXI (Air Pollution Control), paraffin logs and wood pellets, and the
2017. If EPA receives such comments, it section 2101.20, ‘‘Definitions,’’ and use of paper or commercial smokeless
will publish a timely withdrawal of the section 2105.50, ‘‘Open Burning.’’ fire starters to start an allowed fire; (4)
direct final rule in the Federal Register Allegheny County does not currently prohibit wood burning activities on air
and inform the public that the rule will meet the federal air quality standards for quality action days, with the exception
not take effect. fine particulate matter under 2.5 of commercial food preparation; (5)
ADDRESSES: Submit your comments, microns in size (PM2.5), including the allow ACHD to prohibit or reduce open
mstockstill on DSK30JT082PROD with RULES
identified by Docket ID No. EPA–R03– 2015 PM2.5 national ambient air quality burning based on severity, duration,
OAR–2017–0204 at https:// standard (NAAQS), as measured topography, and meteorological
www.regulations.gov, or via email to annually. Wood smoke contains air conditions; (6) restrict open burning
stahl.cynthia@epa.gov. For comments toxics and contributes to high levels of activities on air quality action days,
submitted at Regulations.gov, follow the PM2.5 in Allegheny County. The revised with the exception of conducting such
online instructions for submitting regulations clarify and codify existing burning for the commercial preparation
comments. Once submitted, comments regulations regarding open burning in of food; and (7) make the necessary
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Document Created: 2017-08-10 01:01:34
Document Modified: 2017-08-10 01:01:34
| 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 | Direct final rule. | |
| Dates | This direct final rule is effective October 10, 2017 without further notice, unless EPA receives adverse comment by September 11, 2017. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect. | |
| Contact | Andres Febres of 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. Mr. Febres can be reached via telephone at (404) 562-8966 or via electronic mail at [email protected] | |
| FR Citation | 82 FR 37310 | |
| 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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