82 FR 37384 - Air Plan Approval; Florida; Interstate Transport (Prongs 1 and 2) for the 2010 1-Hour NO2
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 82, Issue 153 (August 10, 2017)
Federal Register Volume 82, Issue 153 (August 10, 2017)
| Page Range | 37384-37389 | |
| FR Document | 2017-16819 |
[Federal Register Volume 82, Number 153 (Thursday, August 10, 2017)] [Proposed Rules] [Pages 37384-37389] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-16819] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2017-0079; FRL-9965-81-Region 4] Air Plan Approval; Florida; Interstate Transport (Prongs 1 and 2) for the 2010 1-Hour NO2 Standard AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve a revision to the Florida State Implementation Plan (SIP), submitted by the Florida Department of Environmental Protection (FDEP), on February 3, 2017, addressing the Clean Air Act (CAA or Act) interstate transport (prongs 1 and 2) infrastructure SIP requirements for the 2010 1-hour Nitrogen Dioxide (NO2 ) National Ambient Air Quality Standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, commonly referred to as an ``infrastructure SIP.'' Specifically, EPA is proposing to approve Florida's February 3, 2017, SIP submission addressing prongs 1 and 2, to ensure that air emissions in the State do not significantly contribute to nonattainment or interfere with maintenance of the 2010 1-hour NO2 NAAQS in any other state. DATES: Comments must be received on or before September 11, 2017. ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04- OAR-2017-0079 at https://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 https://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 by telephone at (404) 562-8966 or via electronic mail at [email protected]. SUPPLEMENTARY INFORMATION: I. 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. 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 contents 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. Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as ``prongs,'' that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) and from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. Through this proposed action, EPA is proposing to approve Florida's February 3, 2017, SIP submission addressing prong 1 and prong 2 requirements for the 2010 1-hour NO2 NAAQS. The other applicable infrastructure SIP requirements for Florida for the 2010 1- hour NO2 NAAQS have been addressed in a separate rulemaking or will be addressed separately. On March 18, 2015, EPA approved the portions of Florida's infrastructure SIP regarding the prevention of significant deterioration (PSD) permitting requirements of sections 110(a)(2)(C), prong 3 of D(i), and (J) for the 2010 1-hour NO2 NAAQS. See 80 FR 14019. On November 23, 2016, EPA approved the portions of Florida's infrastructure SIP regarding sections 110(a)(2)(A), prong 4 of section 110(a)(2)(D)(i), section 110(a)(2)(D)(ii), sections 110(a)(2)(E)-(H), and sections 110(a)(2)(K)- (M). See 81 FR 84479. The portion of Florida's infrastructure SIP related to the ambient air quality monitoring and data system requirements of section 110(a)(2)(B) will be acted on in a separate action. A brief background regarding the 2010 1-hour NO2 NAAQS is provided later in this preamble. On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO2 [[Page 37385]] 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. For comprehensive information on 2010 1-hour NO2 NAAQS, please refer to the Federal Register at 75 FR 6474, February 9, 2010. II. 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 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. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of section 110(a)(1) and (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. 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.\1\ 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. --------------------------------------------------------------------------- \1\ 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.\2\ 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.\3\ 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. --------------------------------------------------------------------------- \2\ 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)). \3\ 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.\4\ 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.\5\ --------------------------------------------------------------------------- \4\ 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). \5\ 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. --------------------------------------------------------------------------- [[Page 37386]] 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.\6\ --------------------------------------------------------------------------- \6\ 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 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.\7\ EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).\8\ 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.\9\ 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. --------------------------------------------------------------------------- \7\ 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. \8\ ``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. \9\ 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 fine [[Page 37387]] particulate matter (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; \10\ (ii) existing provisions related to ``director's variance'' or ``director's discretion'' that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR Reform). Thus, EPA believes 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.\11\ 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. --------------------------------------------------------------------------- \10\ 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. \11\ 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.\12\ Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.\13\ 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.\14\ --------------------------------------------------------------------------- \12\ 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). \13\ 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). \14\ 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). --------------------------------------------------------------------------- [[Page 37388]] III. What are the Prong 1 and Prong 2 requirements? For each new NAAQS, section 110(a)(2)(D)(i)(I) of the CAA requires each state to submit a SIP revision that contains adequate provisions prohibiting emissions activity in the state from contributing significantly to nonattainment, or interfering with maintenance, of the NAAQS in any downwind state. EPA sometimes refers to these requirements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance), or conjointly as the ``good neighbor'' provision of the CAA. IV. What is EPA's analysis of how Florida addressed Prongs 1 and 2? In Florida's February 3, 2017, SIP revision, the State concluded that its SIP adequately addresses Prongs 1 and 2 with respect to the 2010 1-hour NO2 NAAQS. Florida provides the following reasons for its determination: (1) The SIP contains state regulations that directly or indirectly control NOX emissions; (2) all areas in the United States are designated as unclassifiable/attainment for the 2010 1-hour NO2 NAAQS; (3) maximum 1-hour NO2 concentrations in states near Florida (Alabama, Georgia, Louisiana, Mississippi, and South Carolina) are below the 2010 standard; (4) monitored design values for NO2 in the State are well below the 2010 1-hour NO2 NAAQS and are trending downward; and (5) total NOX emissions in the State are also trending downward. EPA preliminarily agrees with the State's conclusion based on the rationale discussed later in this preamble. First, Florida notes that SIP-approved portions of the following state rules directly or indirectly control NOX emissions: Chapter 62-204, F.A.C. (Air Pollution Control--General Provisions); Chapter 62-210, F.A.C. (Stationary Sources--General Requirements); Chapter 62-212, F.A.C. (Stationary Sources--Preconstruction Review); Chapter 62-296, F.A.C. (Stationary Sources--Emission Standards); and Chapter 62-297, F.A.C. (Stationary Sources--Emissions Monitoring). The SIP-approved portions of Chapters 62-204, 62-210, and 62-212, F.A.C. require any new major source or major modification to go through PSD or NNSR permitting in order to demonstrate that emissions will not cause or contribute to a violation of any NAAQS or PSD increment in Florida or any other state and provide an analysis of additional impacts of the source or modification. All new or modified major sources of NOX emissions in attainment or unclassifiable areas will apply Best Available Control Technology (BACT) to control NOX emissions. Chapter 62-296 sets emission limiting standards and compliance requirements for stationary sources, including Reasonably Available Control Technology (RACT) requirements. Second, there are no designated nonattainment areas for the 2010 1- hour NO2 NAAQS. On February 17, 2012 (77 FR 9532), EPA designated the entire country as ``unclassifiable/attainment'' for the 2010 1-hour NO2 NAAQS, stating that ``available information does not indicate that the air quality in these areas exceeds the 2010 1-hour NO2 NAAQS.'' Third, maximum 1-hour NO2 concentrations in surrounding states (Alabama, Georgia, Louisiana, Mississippi, and South Carolina) are approximately one half of the 2010 standard.\15\ --------------------------------------------------------------------------- \15\ EPA verified the design values for the surrounding states for the 2013-2015 time period. This information is available at https://www.epa.gov/air-trends/air-quality-design-values. Design values are computed and published annually by EPA's Office of Air Quality Planning and Standards and reviewed in conjunction with the EPA Regional Offices. --------------------------------------------------------------------------- Fourth, according to the 1-hour NO2 monitoring data from 2000-2015 provided in the submittal,\16\ the monitored design values for NO2 in the State were all well below the 2010 1-hour NO2 NAAQS of 100 ppb during this time period and have declined by approximately 43 percent since 2000. The design values have been below 40 ppb since 2008. --------------------------------------------------------------------------- \16\ This information was obtained from Florida's ambient air quality monitoring network. On July 24, 2017, EPA approved the NO2 portion of Florida's latest monitoring network plan revision. --------------------------------------------------------------------------- Fifth, NOX emissions data provided in the submittal (including data from Industrial, Nonpoint, On-Road, and Non-Road Sources\17\) from 2000-2014 shows a 52 percent decrease in total NOX emissions from these combined sources (from approximately 1.2 million tons in 2000 to less than 600,000 tons in 2014). --------------------------------------------------------------------------- \17\ Industrial source emission data are from the Florida facility Annual Operating Report submissions; Mobile on-road source emissions are estimated from Motor Vehicle Emission Simulator (MOVES2014a) model; and Nonpoint and non-road emissions data are from the EPA's National Emissions Inventory (NEI). --------------------------------------------------------------------------- For all the reasons discussed previously, EPA has preliminarily determined that Florida does not contribute significantly to nonattainment or interfere with maintenance of the 2010 1-hour NO2 NAAQS in any other state and that Florida's SIP includes adequate provisions to prevent emissions sources within the State from significantly contributing to nonattainment or interfering with maintenance of this standard in any other state. V. Proposed Action As described earlier, EPA is proposing to approve Florida's February 3, 2017, SIP revision addressing prongs 1 and 2 of CAA section 110(a)(2)(D)(i) for the 2010 1-hour NO2 NAAQS. VI. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and does not provide EPA with the discretionary authority to address, as [[Page 37389]] appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: July 26, 2017. V. Anne Heard, Acting Regional Administrator, Region 4. [FR Doc. 2017-16819 Filed 8-9-17; 8:45 am] BILLING CODE 6560-50-P
![37384 Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Proposed Rules
2000), nor will it impose substantial Once submitted, comments cannot be depending upon the data and analytical
direct costs on tribal governments or edited or removed from Regulations.gov. tools available to the state, as well as the
preempt tribal law. EPA may publish any comment received provisions already contained in the
to its public docket. Do not submit state’s implementation plan at the time
List of Subjects in 40 CFR Part 52
electronically any information you in which the state develops and submits
Environmental protection, Air consider to be Confidential Business the submission for a new or revised
pollution control, Incorporation by Information (CBI) or other information NAAQS.
reference, Intergovernmental relations, whose disclosure is restricted by statute. Section 110(a)(2)(D) has two
Nitrogen oxides, Particulate matter, Multimedia submissions (audio, video, components: 110(a)(2)(D)(i) and
Reporting and recordkeeping etc.) must be accompanied by a written 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i)
requirements, Sulfur dioxide, Volatile comment. The written comment is includes four distinct components,
organic compounds. considered the official comment and commonly referred to as ‘‘prongs,’’ that
Authority: 42 U.S.C. 7401 et seq. should include discussion of all points must be addressed in infrastructure SIP
you wish to make. EPA will generally submissions. The first two prongs,
Dated: July 28, 2017. which are codified in section
not consider comments or comment
V. Anne Heard 110(a)(2)(D)(i)(I), are provisions that
contents located outside of the primary
Acting Regional Administrator, Region 4. submission (i.e., on the web, cloud, or prohibit any source or other type of
[FR Doc. 2017–16815 Filed 8–9–17; 8:45 am] other file sharing system). For emissions activity in one state from
BILLING CODE 6560–50–P additional submission methods, the full contributing significantly to
EPA public comment policy, nonattainment of the NAAQS in another
information about CBI or multimedia state (prong 1) and from interfering with
ENVIRONMENTAL PROTECTION submissions, and general guidance on maintenance of the NAAQS in another
AGENCY making effective comments, please visit state (prong 2). The third and fourth
https://www2.epa.gov/dockets/ prongs, which are codified in section
40 CFR Part 52 110(a)(2)(D)(i)(II), are provisions that
commenting-epa-dockets.
[EPA–R04–OAR–2017–0079; FRL–9965–81– prohibit emissions activity in one state
FOR FURTHER INFORMATION CONTACT:
Region 4] from interfering with measures required
Andres Febres of the Air Regulatory
to prevent significant deterioration of air
Air Plan Approval; Florida; Interstate Management Section, Air Planning and
quality in another state (prong 3) and
Transport (Prongs 1 and 2) for the 2010 Implementation Branch, Air, Pesticides
from interfering with measures to
1-Hour NO2 Standard and Toxics Management Division, U.S.
protect visibility in another state (prong
Environmental Protection Agency,
4). Section 110(a)(2)(D)(ii) requires SIPs
AGENCY: Environmental Protection Region 4, 61 Forsyth Street SW., to include provisions ensuring
Agency (EPA). Atlanta, Georgia 30303–8960. Mr. compliance with sections 115 and 126
ACTION: Proposed rule. Febres can be reached by telephone at of the Act, relating to interstate and
(404) 562–8966 or via electronic mail at international pollution abatement.
SUMMARY: The Environmental Protection febres-martinez.andres@epa.gov.
Agency (EPA) is proposing to approve a Through this proposed action, EPA is
SUPPLEMENTARY INFORMATION: proposing to approve Florida’s February
revision to the Florida State
Implementation Plan (SIP), submitted I. Background 3, 2017, SIP submission addressing
prong 1 and prong 2 requirements for
by the Florida Department of By statute, SIPs meeting the the 2010 1-hour NO2 NAAQS. The other
Environmental Protection (FDEP), on requirements of sections 110(a)(1) and applicable infrastructure SIP
February 3, 2017, addressing the Clean (2) of the CAA are to be submitted by requirements for Florida for the 2010 1-
Air Act (CAA or Act) interstate transport states within three years after hour NO2 NAAQS have been addressed
(prongs 1 and 2) infrastructure SIP promulgation of a new or revised in a separate rulemaking or will be
requirements for the 2010 1-hour NAAQS to provide for the addressed separately. On March 18,
Nitrogen Dioxide (NO2) National implementation, maintenance, and 2015, EPA approved the portions of
Ambient Air Quality Standard enforcement of the new or revised Florida’s infrastructure SIP regarding
(NAAQS). The CAA requires that each NAAQS. EPA has historically referred to the prevention of significant
state adopt and submit a SIP for the these SIP submissions made for the deterioration (PSD) permitting
implementation, maintenance, and purpose of satisfying the requirements requirements of sections 110(a)(2)(C),
enforcement of each NAAQS of sections 110(a)(1) and 110(a)(2) as prong 3 of D(i), and (J) for the 2010 1-
promulgated by EPA, commonly ‘‘infrastructure SIP’’ submissions. hour NO2 NAAQS. See 80 FR 14019. On
referred to as an ‘‘infrastructure SIP.’’ Sections 110(a)(1) and (2) require states November 23, 2016, EPA approved the
Specifically, EPA is proposing to to address basic SIP elements such as portions of Florida’s infrastructure SIP
approve Florida’s February 3, 2017, SIP requirements for monitoring, basic regarding sections 110(a)(2)(A), prong 4
submission addressing prongs 1 and 2, program requirements, and legal of section 110(a)(2)(D)(i), section
to ensure that air emissions in the State authority that are designed to assure 110(a)(2)(D)(ii), sections 110(a)(2)(E)–
do not significantly contribute to attainment and maintenance of the (H), and sections 110(a)(2)(K)–(M). See
nonattainment or interfere with newly established or revised NAAQS. 81 FR 84479. The portion of Florida’s
maintenance of the 2010 1-hour NO2 More specifically, section 110(a)(1) infrastructure SIP related to the ambient
mstockstill on DSK30JT082PROD with PROPOSALS
NAAQS in any other state. provides the procedural and timing air quality monitoring and data system
DATES: Comments must be received on requirements for infrastructure SIPs. requirements of section 110(a)(2)(B) will
or before September 11, 2017. Section 110(a)(2) lists specific elements be acted on in a separate action. A brief
ADDRESSES: Submit your comments, that states must meet for the background regarding the 2010 1-hour
identified by Docket ID No EPA–R04– infrastructure SIP requirements related NO2 NAAQS is provided later in this
OAR–2017–0079 at https:// to a newly established or revised preamble.
www.regulations.gov. Follow the online NAAQS. The contents of an On January 22, 2010, EPA established
instructions for submitting comments. infrastructure SIP submission may vary a new 1-hour primary NAAQS for NO2
VerDate Sep<11>2014 18:41 Aug 09, 2017 Jkt 241001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\10AUP1.SGM 10AUP1](https://thefederalregister.org/doc/82_FR_37537/page/1.svg)
![Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Proposed Rules 37389
appropriate, disproportionate human corresponding FIP requirements. These Environmental Protection Agency,
health or environmental effects, using CSAPR state trading programs are Region 4, 61 Forsyth Street SW.,
practicable and legally permissible substantively identical to the CSAPR Atlanta, Georgia 30303–8960. Ms. Bailey
methods, under Executive Order 12898 federal trading programs, with the State can be reached by telephone at (404)
(59 FR 7629, February 16, 1994). retaining EPA’s default allowance 562–9164 or via electronic mail at
The SIP is not approved to apply on allocation methodology and EPA bailey.ashten@epa.gov.
any Indian reservation land or in any remaining the implementing authority SUPPLEMENTARY INFORMATION:
other area where EPA or an Indian tribe for administration of the trading
has demonstrated that a tribe has program. EPA is proposing to approve I. Summary
jurisdiction. In those areas of Indian the portions of the draft SIP revision EPA is proposing to approve the
country, the rule does not have tribal concerning these CSAPR state trading portions of the May 26, 2017, draft
implications as specified by Executive programs because these portions of the revision to the South Carolina SIP
Order 13175 (65 FR 67249, November 9, draft SIP revision meet the requirements concerning CSAPR 1 trading programs
2000), nor will it impose substantial of the Clean Air Act (CAA or Act) and for annual emissions of NOx and SO2.
direct costs on tribal governments or EPA’s regulations for approval of a Large EGUs in South Carolina are
preempt tribal law. CSAPR full SIP revision replacing the subject to CSAPR FIPs that require the
requirements of a CSAPR FIP. Under the units to participate in the federal
List of Subjects in 40 CFR Part 52 CSAPR regulations, approval of these CSAPR NOx Annual Trading Program
Environmental protection, Air portions of the draft SIP revision would and the federal CSAPR SO2 Group 2
pollution control, Incorporation by automatically eliminate South Carolina Trading Program. CSAPR also provides
reference, Intergovernmental relations, units’ obligations to participate in a process for the submission and
Nitrogen dioxide, Ozone, Reporting and CSAPR’s federal trading programs for approval of SIP revisions to replace the
recordkeeping requirements. annual NOX and SO2 emissions under requirements of CSAPR FIPs with SIP
the corresponding CSAPR FIPs requirements under which a state’s
Authority: 42 U.S.C. 7401 et seq.
addressing interstate transport units participate in CSAPR state trading
Dated: July 26, 2017. requirements for the 1997 Annual Fine programs that are integrated with and,
V. Anne Heard, Particulate Matter (PM2.5) national with certain permissible exceptions,
Acting Regional Administrator, Region 4. ambient air quality standards (NAAQS). substantively identical to the CSAPR
[FR Doc. 2017–16819 Filed 8–9–17; 8:45 am] Approval of these portions of the SIP federal trading programs.
BILLING CODE 6560–50–P revision would satisfy South Carolina’s The portions of the draft SIP revision
good neighbor obligation for the 1997 proposed for approval would
Annual PM2.5 NAAQS. incorporate into South Carolina’s SIP
ENVIRONMENTAL PROTECTION DATES: Comments must be received on
state trading program regulations for
AGENCY or before September 11, 2017. annual NOX and SO2 emissions that
would replace EPA’s federal trading
ADDRESSES: Submit your comments,
40 CFR Part 52 program regulations for those emissions
identified by Docket ID No. EPA–R04–
[EPA–R04–OAR–2017–0364; FRL–9965–99–
for South Carolina units for control
OAR–2017–0364 at http:// periods in 2017 and later years.2 EPA is
Region 4] www.regulations.gov. Follow the online proposing to approve these portions of
instructions for submitting comments. the draft SIP revision because they meet
Air Plan Approval; South Carolina; Once submitted, comments cannot be
Cross-State Air Pollution Rule the requirements of the CAA and EPA’s
edited or removed from Regulations.gov. regulations for approval of a CSAPR full
AGENCY: Environmental Protection EPA may publish any comment received SIP revision replacing a federal trading
Agency. to its public docket. Do not submit program with a state trading program
ACTION: Proposed rule.
electronically any information you that is integrated with and substantively
consider to be Confidential Business identical to the federal trading program.
SUMMARY: The Environmental Protection Information (CBI) or other information Under the CSAPR regulations, approval
Agency (EPA) is proposing to approve whose disclosure is restricted by statute. of these portions of the draft SIP
portions of a draft revision to the South Multimedia submissions (audio, video, revision would automatically eliminate
Carolina State Implementation Plan etc.) must be accompanied by a written the obligations of large EGUs in South
(SIP) concerning the Cross-State Air comment. The written comment is Carolina (but not any units in Indian
Pollution Rule (CSAPR) that was considered the official comment and country within South Carolina’s
submitted by South Carolina for parallel should include discussion of all points borders) to participate in CSAPR’s
processing on May 26, 2017. Under you wish to make. EPA will generally federal trading programs for annual NOX
CSAPR, large electricity generating units not consider comments or comment and SO2 emissions under the
(EGUs) in South Carolina are subject to contents located outside of the primary corresponding CSAPR FIPs. EPA
Federal Implementation Plans (FIPs) submission (i.e., on the web, cloud, or proposes to find that approval of these
requiring the units to participate in other file sharing system). For portions of the draft SIP revision would
CSAPR’s federal trading program for additional submission methods, the full satisfy South Carolina’s obligation
annual emissions of nitrogen oxides EPA public comment policy,
(NOX) and one of CSAPR’s two federal information about CBI or multimedia 1 Federal Implementation Plans; Interstate
mstockstill on DSK30JT082PROD with PROPOSALS
trading programs for annual emissions submissions, and general guidance on Transport of Fine Particulate Matter and Ozone and
making effective comments, please visit Correction of SIP Approvals, 76 FR 48208 (August
of sulfur dioxide (SO2). This action 8, 2011) (codified as amended at 40 CFR 52.38 and
would approve the State’s regulations http://www2.epa.gov/dockets/ 52.39 and subparts AAAAA through EEEEE of 40
requiring large South Carolina EGUs to commenting-epa-dockets. CFR part 97).
2 Under South Carolina’s draft regulations, the
participate in new CSAPR state trading FOR FURTHER INFORMATION CONTACT:
State will retain EPA’s default allowance allocation
programs for annual NOX and SO2 Ashten Bailey, Air Regulatory methodology and EPA will remain the
emissions integrated with the CSAPR Management Section, Air, Pesticides implementing authority for administration of the
federal trading programs, replacing the and Toxics Management Division, U.S. trading program. See sections IV and V.B.2, below.
VerDate Sep<11>2014 16:24 Aug 09, 2017 Jkt 241001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\10AUP1.SGM 10AUP1](https://thefederalregister.org/doc/82_FR_37537/page/6.svg)
Document Created: 2017-08-10 01:01:07
Document Modified: 2017-08-10 01:01:07
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be received on or before September 11, 2017. | |
| 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 by telephone at (404) 562-8966 or via electronic mail at [email protected] | |
| FR Citation | 82 FR 37384 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone and Reporting and Recordkeeping Requirements |
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