Approval and Promulgation of Implementation Plans; Florida; Section 128 and 110(a)(2)(E)(ii) and (G) Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient Air Quality Standards, 29581-29586 [2012-12137]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2011–0809; FRL–9673–5]
Approval and Promulgation of
Implementation Plans; Florida; Section
128 and 110(a)(2)(E)(ii) and (G)
Infrastructure Requirements for the
1997 8-Hour Ozone National Ambient
Air Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Supplemental proposed rule.
AGENCY:
EPA is proposing to
supplement an April 18, 2012, proposed
rule related to submissions provided by
the State of Florida, through the Florida
Department of Environmental Protection
(FDEP) on December 13, 2007, and
supplemented on April 18, 2008, to
demonstrate that the Florida State
Implementation Plan (SIP) meets the
‘‘infrastructure’’ requirements of
sections 110(a)(1) and (2) of the Clean
Air Act (CAA or Act) for the 1997
8-hour ozone national ambient air
quality standards (NAAQS). First, EPA
is proposing to supplement that earlier
proposed action by proposing full
approval of the State’s section
110(a)(2)(E)(ii) infrastructure SIP in
addition to the earlier proposed
conditional approval of this subelement. Second, EPA is proposing
approval of the State’s section
110(a)(2)(G) infrastructure SIP in
addition to the earlier proposed federal
implementation plan (FIP) for this
element. In addition, EPA is proposing
to approve two related draft revisions to
the Florida SIP that were submitted for
parallel processing by FDEP on April
19, 2012, to address the requirements of
section 128 and the substantive
requirements of section 110(a)(2)(G) of
the CAA.
DATES: Written comments must be
received on or before June 18, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2011–0809, by one of the
following methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: R4-RDS@epa.gov.
3. Fax: (404) 562–9019.
4. Mail: ‘‘EPA–R04–OAR–2011–
0809,’’ Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960.
SUMMARY:
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5. Hand Delivery or Courier: Lynorae
Benjamin, Chief, Regulatory
Development Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Such
deliveries are only accepted during the
Regional Office’s normal hours of
operation. The Regional Office’s official
hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal
holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R04–OAR–2011–
0089. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit through
www.regulations.gov or email,
information that you consider to be CBI
or otherwise protected. The
www.regulations.gov Web site is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an email comment directly
to EPA without going through
www.regulations.gov, your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the
electronic docket are listed in the
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, i.e., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
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Federal Register / Vol. 77, No. 97 / Friday, May 18, 2012 / Proposed Rules
materials are available either
electronically in www.regulations.gov or
in hard copy at the Regulatory
Development Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 to 4:30,
excluding federal holidays.
FOR FURTHER INFORMATION CONTACT:
Nacosta C. Ward, Regulatory
Development Section, Air Planning
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–9140.
Ms. Ward can be reached via electronic
mail at ward.nacosta@epa.gov.
Table of Contents
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I. What is parallel processing?
II. Background
III. What elements are required under
Sections 110(a)(1) and (2)?
IV. What is EPA’s analysis of how Florida
addressed CAA Section 128?
V. What is EPA’s analysis of how Florida
addressed CAA Section 110(a)(2)(E)(ii)?
VI. What is EPA’s analysis of how Florida
addressed CAA Section 110(a)(2)(G)?
VII. Proposed Action
VIII. Statutory and Executive Order Reviews
I. What is parallel processing?
Parallel processing refers to a
concurrent state and federal proposed
rulemaking action. Generally under this
process, the state submits a copy of the
proposed regulation or other revisions
to EPA before conducting its public
hearing. See, e.g., 40 CFR part 51,
Appendix V. EPA reviews this proposed
state action and prepares a notice of
proposed rulemaking. EPA publishes
this notice of proposed rulemaking in
the Federal Register and solicits public
comment during approximately the
same time frame during which the state
is holding its public hearing. The state
and EPA thus provide for public
comment periods on both the state and
the federal actions in parallel.
On April 19, 2012, the State of
Florida, through FDEP, submitted a
request for parallel processing for draft
SIP revision related to CAA section 128
and the substantive requirements of
section 110(a)(2)(G). This revision was
noticed for public comment by the State
on April 19, 2012, but is not yet state
effective. Through today’s proposed
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rulemaking, EPA is proposing parallel
approval for this draft SIP revision.
Once the April 19, 2012 revision is
state-effective, Florida will need to
provide EPA with a formal SIP revision
request to incorporate these changes
into the Florida SIP. After Florida
submits the formal SIP revision request
(including a response to any public
comments raised during the State’s
public participation process), EPA will
prepare a final rulemaking notice for the
SIP revision. If the formal SIP revision
associated with the parallel process
submission is changed from what is
proposed in today’s action, EPA will
evaluate those changes for significance.
If any such changes are found by EPA
to be significant, then the Agency
intends to re-propose the action based
upon the revised submission. In
addition, if the changes render the SIP
revision not approvable, EPA would repropose the action as a disapproval of
the revision.
While EPA may not be able to have
a concurrent public comment process
with the State, the FDEP-requested
parallel processing allows EPA to begin
to take action on the State’s draft SIP
revision in advance of the submission of
the formal SIP revision. As stated above,
the final rulemaking action by EPA will
occur only after the SIP revision has
been: (1) Adopted by Florida, (2)
evaluated for changes, and (3) submitted
formally to EPA for incorporation into
the SIP.
II. Background
On July 18, 1997, EPA promulgated a
new NAAQS for ozone based on 8-hour
average concentrations. The 8-hour
averaging period replaced the previous
1-hour averaging period, and the level of
the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm.
See 62 FR 38856. Pursuant to section
110(a)(1) of the CAA, states are required
to submit SIPs meeting the requirements
of section 110(a)(2) within three years
after promulgation of a new or revised
NAAQS. Section 110(a)(2) requires
states to address basic SIP requirements,
including emissions inventories,
monitoring, and modeling to assure
attainment and maintenance of the
NAAQS. States were required to submit
such SIPs for the 1997 8-hour ozone
NAAQS to EPA no later than June 2000.
However, intervening litigation over the
1997 8-hour ozone NAAQS created
uncertainty about how to proceed and
many states did not provide the
required ‘‘infrastructure’’ SIP
submission for these newly promulgated
NAAQS.
On March 4, 2004, Earthjustice
submitted a notice of intent to sue
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related to EPA’s failure to issue findings
of failure to submit related to the
‘‘infrastructure’’ requirements for the
1997 8-hour ozone NAAQS. EPA
entered into a consent decree with
Earthjustice which required EPA, among
other things, to complete a Federal
Register notice announcing EPA’s
determinations pursuant to section
110(k)(1)(B) as to whether each state had
made complete submissions to meet the
requirements of section 110(a)(2) for the
1997 8-hour ozone NAAQS by
December 15, 2007. Subsequently, EPA
received an extension of the date to
complete this Federal Register notice
until March 17, 2008, based upon
agreement to make the findings with
respect to submissions made by January
7, 2008. In accordance with the consent
decree, EPA made completeness
findings for each state based upon what
the Agency received from each state as
of January 7, 2008.
On March 27, 2008, EPA published a
final rulemaking entitled,
‘‘Completeness Findings for Section
110(a) State Implementation Plans;
8-Hour Ozone NAAQS,’’ making a
finding that each state had submitted or
failed to submit a complete SIP that
provided the basic program elements of
section 110(a)(2) necessary to
implement the 1997 8-hour ozone
NAAQS. See 73 FR 16205. For those
states that did receive findings, such as
Florida, the findings of failure to submit
for all or a portion of a State’s
implementation plan established a 24month deadline for EPA to promulgate
a FIP to address the outstanding SIP
elements unless, prior to that time, the
affected states submitted, and EPA
approved, the required SIPs. However,
the findings of failure to submit did not
impose sanctions or set deadlines for
imposing sanctions as described in
section 179 of the CAA, because these
findings do not pertain to the elements
contained in the Title I part D plan for
nonattainment areas as required under
section 110(a)(2)(I). Additionally, the
findings of failure to submit for the
infrastructure submittals are not a SIP
call pursuant to section 110(k)(5).
The finding that all or portions of a
state’s submission are complete
established a 12-month deadline for
EPA to take action upon the complete
SIP elements in accordance with section
110(k). Florida’s infrastructure
submission was received by EPA on
December 13, 2007, and was determined
to be complete on March 27, 2008, for
all elements with the exception of
110(a)(2)(G). In FDEP’s December 13,
2007, submission, and in a letter dated
April 18, 2008, FDEP cited State statutes
as evidence that Florida has the
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authority to implement emergency
powers for the 1997 8-hour ozone
NAAQS as required by section
110(a)(2)(G). EPA, however, proposed a
FIP with respect to this element of the
infrastructure SIP because the statutes
cited by FDEP had not been approved
into the Florida SIP.1 See 77 FR 23181
(April 18, 2012). EPA noted that the
Agency would take action to approve
the FIP for element 110(a)(2)(G) unless
Florida submits a final SIP revision
correcting the deficiency for element
110(a)(2)(G) and EPA takes final action
to approve the revision prior to such
time that EPA is obligated to take final
action on this 1997 8-hour ozone
infrastructure SIP submission, per a
settlement agreement signed on
November 30, 2011.
On April 19, 2012, FDEP submitted,
for parallel processing, draft changes to
address the deficiencies of the Florida
SIP regarding the substantive
requirements of section 110(a)(2)(G).
Today’s action proposes approval of
these changes into the Florida SIP and
proposes approval for element
110(a)(2)(G) of the State’s infrastructure
SIP submittal. If EPA is able to take final
action on Florida’s forthcoming final
SIP revision prior to finalizing the April
18, 2012, proposed FIP, the final action
to approve a FIP for 110(a)(2)(G) will no
longer be necessary. If, EPA is not able
to take final action the SIP revision, EPA
may proceed with finalizing the FIP for
element 110(a)(2)(G).
In EPA’s April 18, 2012, proposed
infrastructure rulemaking for Florida,
the EPA also proposed to conditionally
approve FDEP’s December 13, 2007,
infrastructure submission with regard to
the 110(a)(2)(E)(ii) requirements. EPA
proposed conditional approval of this
sub-element because the State’s
implementation plan did not contain
provisions to address CAA section 128
requirements, however, FDEP submitted
a letter to EPA on March 13, 2012, that
included a commitment to submit a SIP
revision to address the CAA section 128
requirements. See 77 FR 23181. The
letter Florida submitted to EPA can be
accessed at www.regulations.gov using
Docket ID No. EPA–R04–OAR–2011–
0809. On April 19, 2012, FDEP
submitted, for parallel processing, a
draft SIP revision to address the
deficiencies within the Florida SIP to
address CAA section 128 requirements.
In today’s action, EPA is proposing to
approve this SIP revision into the
1 In a letter dated March 23, 2012, FDEP notified
EPA of FDEP’s intent to submit a SIP revision to
address the SIP deficiency for 110(a)(2)(G) in the
very near future. The letter Florida submitted to
EPA can be accessed at www.regulations.gov using
Docket ID No. EPA–R04–OAR–2011–0809.
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III. What elements are required under
Sections 110(a)(1) and (2)?
Florida are listed below 2 and in EPA’s
October 2, 2007, memorandum entitled
‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the
1997 8-Hour Ozone and PM2.5 National
Ambient Air Quality Standards.’’
• 110(a)(2)(A): Emission limits and
other control measures.
• 110(a)(2)(B): Ambient air quality
monitoring/data system.
• 110(a)(2)(C): Program for
enforcement of control measures.
• 110(a)(2)(D): Interstate transport.3
• 110(a)(2)(E): Adequate resources.
• 110(a)(2)(F): Stationary source
monitoring system.
• 110(a)(2)(G): Emergency power.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(I): Areas designated
nonattainment and meet the applicable
requirements of part D.4
• 110(a)(2)(J): Consultation with
government officials; public
notification; and PSD and visibility
protection.
Section 110(a) of the CAA requires
states to submit SIPs to provide for the
implementation, maintenance, and
enforcement of a new or revised
NAAQS within three years following
the promulgation of such NAAQS, or
within such shorter period as EPA may
prescribe. Section 110(a) imposes the
obligation upon states to make a SIP
submission to EPA for a new or revised
NAAQS, but the contents of that
submission may vary depending upon
the facts and circumstances. In
particular, the data and analytical tools
available at the time the state develops
and submits the SIP for a new or revised
NAAQS affects the content of the
submission. The contents of such SIP
submissions may also vary depending
upon what provisions the state’s
existing SIP already contains. In the
case of the 1997 8-hour ozone NAAQS,
states typically have met the basic
program elements required in section
110(a)(2) through earlier SIP
submissions in connection with
previous ozone NAAQS.
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for SIPs. Section 110(a)(2)
lists specific elements that states must
meet for ‘‘infrastructure’’ SIP
requirements related to a newly
established or revised NAAQS. As
mentioned above, these requirements
include SIP infrastructure elements
such as modeling, monitoring, and
emissions inventories that are designed
to assure attainment and maintenance of
the NAAQS. The requirements that are
the subject of EPA’s proposed
infrastructure SIP rulemaking for
2 Two elements identified in section 110(a)(2) are
not governed by the three year submission deadline
of section 110(a)(1) because SIPs incorporating
necessary local nonattainment area controls are not
due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the
nonattainment area plan requirements are due
pursuant to section 172. These requirements are: (1)
Submissions required by section 110(a)(2)(C) to the
extent that subsection refers to a permit program as
required in part D Title I of the CAA; and (2)
submissions required by section 110(a)(2)(I) which
pertain to the nonattainment planning requirements
of part D, Title I of the CAA. Today’s proposed
rulemaking does not address infrastructure
elements related to section 110(a)(2)(I) or the
nonattainment planning requirements of
110(a)(2)(C). Additionally, EPA has taken action on
all other infrastructure elements with the exception
of 110(a)(2)(D)(i) for Florida in a separate
rulemaking from today’s action. Today’s action is
limited to infrastructure elements 110(a)(2)(E)(ii)
and 110(a)(2)(G) only.
3 EPA’s April 18, 2012, proposed rule does not
address element 110(a)(2)(D)(i) (Interstate
Transport) for the 1997 8-hour ozone NAAQS.
Interstate transport requirements were formerly
addressed by Florida consistent with the Clean Air
Interstate Rule (CAIR). On December 23, 2008, CAIR
was remanded by the D.C. Circuit Court of Appeals,
without vacatur, back to EPA. See North Carolina
v. EPA, 531 F.3d 896 (D.C. Cir. 2008). Prior to this
remand, EPA took final action to approve Florida’s
SIP revision, which was submitted to comply with
CAIR. See 72 FR 58016 (October 12, 2007). In so
doing, Florida’s CAIR SIP revision addressed the
interstate transport provisions in section
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS.
In response to the remand of CAIR, EPA has
recently finalized a new rule to address the
interstate transport of nitrogen oxides and sulfur
oxides in the eastern United States. See 76 FR
48208 (August 8, 2011) (‘‘the Cross-State Air
Pollution Rule’’). EPA’s action on element
110(a)(2)(D)(i) will be addressed in a separate
action.
4 This requirement was inadvertently omitted
from EPA’s October 2, 2007, memorandum entitled
‘‘Guidance on SIP Elements Required Under
Section 110(a)(1) and (2) for the 1997 8-Hour Ozone
and PM2.5 National Ambient Air Quality
Standards,’’ but as mentioned above is not relevant
to today’s proposed rulemaking.
Florida SIP and supplement the
Agency’s earlier proposed conditional
approval of Florida’s infrastructure SIP
with respect to sub-element
110(a)(2)(E)(ii) with a proposed
approval of this sub-element contingent
upon final action to approve the section
128 provisions into the Florida SIP.
If EPA is able to take final action to
approve Florida’s forthcoming final SIP
revision pertaining to the section 128
requirements prior to taking final
rulemaking action on the April 18, 2012,
proposed conditional approval and FIP,
finalizing the conditional approval for
110(a)(2)(E)(ii) will no longer be
necessary. If, EPA is not able to take
final action on the SIP revision, EPA
may proceed with finalizing the
conditional approval for element
110(a)(2)(E)(ii).
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• 110(a)(2)(K): Air quality modeling/
data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/
participation by affected local entities.
As discussed above, on April 18, 2012
(77 FR 23181), EPA proposed action on
Florida’s December 13, 2007,
infrastructure submission for the 1997
8-hour ozone NAAQS. Today’s
proposed action supplements EPA’s
April 18, 2012, proposed rulemaking
with regard to the conditional approval
for section 110(a)(2)(E)(ii), and a FIP for
section 110(a)(2)(G) requirements for
Florida for the 1997 8-hour ozone
NAAQS. Today’s action proposes full
SIP approval for both elements based
upon pending changes to the Florida
SIP regarding section 128 (State Boards
as applicable to the State’s
infrastructure SIP pursuant to section
110(a)(2)(E)(ii)) and the substantive
requirements of section 110(a)(2)(G)
(emergency power authority comparable
to that in section 303 of the CAA).
IV. What is EPA’s analysis of how
Florida addressed CAA Section 128?
Section 128 of the CAA requires that
states include provisions in their SIP to
address conflict interest for state boards
that oversee CAA permits and
enforcement orders. Specifically, CAA
section 128 reads as follows:
(a) Not later than the date one year
after August 7, 1977, each applicable
implementation plan shall contain
requirements that—
(1) any board or body which approves
permits or enforcement orders under
this chapter shall have at least a
majority of members who represent the
public interest and do not derive any
significant portion of their income from
persons subject to permits or
enforcement orders under this chapter,
and
(2) any potential conflicts of interest
by members of such board or body or
the head of an executive agency with
similar powers be adequately disclosed.
A State may adopt any requirements
respecting conflicts of interest for such
boards or bodies or heads of executive
agencies, or any other entities which are
more stringent than the requirements
submitted as part of an implementation
plan.
During the evaluation of Florida’s SIP
in regards to EPA’s proposed
rulemaking of the State’s December 13,
2007, and supplemented on April 18,
2008, infrastructure submission related
to section 110(a)(2)(E)(ii) for the 1997 8hour ozone NAAQS, EPA noted that
Florida’s SIP did not include provisions
to address CAA section 128
requirements. As such, EPA alerted the
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State to this missing component of their
implementation plan and as a result,
FDEP submitted a letter to EPA dated
March 13, 2012, which contained the
State’s commitment to correct this
deficiency and requested that EPA take
action to conditionally approve
110(a)(2)(E)(ii) as a result of this
commitment. Based upon this
commitment, EPA proposed conditional
approval of this sub-element in its April
18, 2012, rulemaking. See 77 FR 23181.
On April 19, 2012, FDEP submitted a
draft SIP revision for parallel processing
to address the section 128 requirements.
Florida’s April 19, 2012, draft SIP
revision, proposes to include existing
state statues to meet the applicable
requirements of section 128.
For purposes of section 128(a)(1),
Florida has no boards or bodies with
authority over air pollution permits or
enforcement actions. Such matters are
instead handled by an appointed
Secretary. Appeals of final
administrative orders and permits are
available only through the judicial
appellate process described at Florida
Statute 120.68. As such, a ‘‘board or
body’’ is not responsible for approving
permits or enforcement orders in
Florida, and the requirements of section
128(a)(1) are not applicable.
Regarding section 128(a)(2) (also
made applicable to the infrastructure
SIP pursuant to section 110(a)(2)(E)(ii)),
Florida has submitted for incorporation
into the SIP relevant provisions of
Florida Statutes 112.3143(4)—Voting
Conflict and 112.3144—Full and Public
Disclosure of Financial Interests.
Because Florida does not rely upon a
‘‘board or body’’ to approve permits or
enforcement orders, the conflict of
interest disclosure requirements of
section 128(a)(2) only apply to the head
of the State’s executive agency (i.e.,
FDEP) tasked with these powers. The
above cited Florida Statutes are
applicable to the Secretary of FDEP and
EPA has preliminarily determined them
to be sufficient to satisfy the applicable
conflict of interest provisions of section
128.
Today, EPA is proposing to approve
Florida Statutes 112.3143(4) and
112.3144 into the Florida’s SIP as
meeting the requirements of section 128
of the CAA. This proposed approval is
contingent upon Florida submitting a
final SIP revision consistent with the
April 19, 2012, draft SIP revision.
V. What is EPA’s analysis of how
Florida addressed CAA Section
110(a)(2)(E)(ii)?
Section 110(a)(2)(E)(ii) requires that
each implementation plan provide that
the State comply with the requirements
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respecting state boards pursuant to
section 128 of the Act.5 As a result of
Florida’s April 19, 2012, draft SIP
revision to address 128 requirements
(discussed above), EPA is now
proposing a full approval of Florida’s
December 13, 2007, infrastructure
submission with regard to section
110(a)(2)(E)(ii) for the 1997 8-hour
ozone NAAQS. This proposed full
approval (contingent on EPA’s final
approval of Florida’s SIP revision to
meet the CAA section 128 requirements)
is an alternative to the conditional
approval that EPA proposed for this
element on April 18, 2012. See 77 FR
23181. If EPA is able to take final action
to approve Florida’s forthcoming final
SIP revision pertaining to these
requirements prior to taking final action
on the April 18, 2012, proposed
conditional approval, finalizing the
conditional approval for 110(a)(2)(E)(ii)
will no longer be necessary. If, EPA is
not able to take final action on the SIP
revision, EPA may proceed with
finalizing the conditional approval for
element 110(a)(2)(E)(ii).
VI. What is EPA’s analysis of how
Florida addressed CAA Section
110(a)(2)(G)?
Section 110(a)(2)(G) requires states to
provide for authority to address
activities causing imminent and
substantial endangerment to public
health, including contingency plans to
implement the emergency episode
provisions in their SIPs. On March 27,
2008, EPA published a final rulemaking
entitled, ‘‘Completeness Findings for
Section 110(a) State Implementation
Plans; 8-Hour Ozone NAAQS,’’ making
a finding as to whether each state had
submitted or failed to submit a complete
SIP that provided the basic program
elements of section 110(a)(2) necessary
to implement the 1997 8-hour ozone
NAAQS. See 73 FR 16205. Florida was
among the states that received a finding
of failure to submit because its
infrastructure submission was deemed
incomplete for element 110(a)(2)(G) for
the 1997 8-hour ozone NAAQS by
March 1, 2008. The finding of failure to
submit action triggered a 24-month
clock for EPA to either issue a FIP or
take final action on a SIP revision which
corrects the deficiency for which the
5 Today’s action is related specifically to the
110(a)(2)(E)(ii) sub-element of Florida’s December
13, 2007, infrastructure submission for the 1997
8-hour ozone NAAQS. As noted earlier in this
proposed rulemaking, EPA has already proposed
action for the majority of Florida’s December 13,
2007, infrastructure submission for the 1997 8-hour
ozone NAAQS, and is not re-proposing for many of
those elements, including sub-elements
110(a)(2)(E)(i) and 110(a)(2)(E)(iii), in this today’s
action.
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Federal Register / Vol. 77, No. 97 / Friday, May 18, 2012 / Proposed Rules
finding of failure to submit was
received. See 42 U.S.C. 7410(c)(1).
In FDEP’s December 13, 2007,
submission and a letter dated April 18,
2008, FDEP cited State statutes as
evidence that Florida has the authority
to implement emergency powers for the
8-hour ozone standard. The April 18,
2008, letter FDEP sent to EPA, which
included the specific State statutes cited
by FDEP, can be accessed at
www.regulations.gov using Docket ID
No. EPA–R04–OAR–2011–0809.
Because these statutes had not been
adopted into the federally-approved SIP,
in an April 18, 2012, rulemaking, EPA
proposed a FIP to correct this deficiency
and preliminarily determined that the
cited statutes were sufficient to meet the
requirements of section 303 of the CAA
thus meet the requirements of element
110(a)(2)(G). See 77 FR 23181. In the
April 18, 2012, rulemaking, EPA noted
the Agency’s intentions to approve a FIP
for element 110(a)(2)(G) unless Florida
submitted a final SIP revision correcting
the deficiency for element 110(a)(2)(G)
and the Agency acted on such
submission prior to the finalization of
the FIP.
Due to EPA’s obligations pursuant to
the infrastructure SIP settlement
agreement described above, EPA would
need to take final action to approve such
a SIP revision prior to the date on which
EPA is obligated to take final action on
the FIP for this element. Should final
approval of a SIP revision related to
emergency powers (the subject of this
action) occur after EPA finalizes a FIP
for element 110(a)(2)(G), EPA would act
to rescind the FIP at that time. If EPA
is able to take final action to approve
Florida’s forthcoming final SIP revision
pertaining to these requirements
(section 110(a)(2)(G)) prior to taking
final rulemaking action on the April 18,
2012 proposed FIP, finalizing the FIP for
110(a)(2)(G) will no longer be necessary.
On April 19, 2012, FDEP submitted a
draft SIP revision, for parallel
processing, to address the 110(a)(2)(G)
requirements for the 1997 8-hour ozone
NAAQS. In FDEP’s proposed SIP
revision, Florida Statutes 403.131 and
120.569(2)(n) were submitted for
inclusion to the SIP to address the
requirements of section 110(a)(2)(G) of
the CAA. EPA has reviewed Florida’s
April 19, 2012, draft SIP revision, and
has made the preliminary
determination, that the draft revision is
adequate for emergency powers and
meets the requirements of 110(a)(2)(G)
for the 1997 8-hour ozone NAAQS.
Therefore, through today’s action, EPA
is proposing to approve this revision
into the Florida SIP and is proposing
approval in alternative to the Agency’s
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April 18, 2012, proposed FIP for this
infrastructure element. This proposed
approval is contingent upon Florida
submitting a final SIP revision
consistent with the April 19, 2012, draft
SIP revision.
VII. Proposed Action
As described above, EPA is proposing
to approve Florida’s April 19, 2012,
draft SIP revision to incorporate
provisions into the Florida SIP to
address section 128 requirements of the
CAA. As a result of EPA’s proposed
approval of Florida’s April 19, 2012,
draft SIP revision to address 128
requirements, EPA is also proposing to
approve the 110(a)(2)(E)(ii) sub-element
of Florida’s December 13, 2007,
infrastructure submission for the 1997
8-hour ozone NAAQS. Further, EPA is
proposing to approval Florida’s April
19, 2012, draft SIP revision to
incorporate provisions into the Florida
SIP to address section 110(a)(2)(G)
requirements for the 1997 8-hour ozone
NAAQS. As a result of EPA’s proposed
approval of Florida’s April 19, 2012,
draft SIP revision to address the
substantive requirements 110(a)(2)(G),
EPA is also proposing to approve the
110(a)(2)(G) element of Florida
December 13, 2007, infrastructure
submission for the 1997 8-hour ozone
NAAQS.
EPA’s proposed approval is
contingent on Florida’s submission of a
final SIP revision to address CAA
section 128, and the substantive
requirements of CAA section
110(a)(2)(G) for the 1997 8-hour ozone
NAAQS. Should Florida not submit a
final SIP revision to EPA addressing
CAA section 128, and CAA section
110(a)(2)(G) requirements for the 1997
8-hour ozone NAAQS and/or EPA is not
able to finalize a full approval action
prior to such time that EPA is obligated
to take final action on the 1997 8-hour
ozone infrastructure SIP submission for
Florida, EPA will be obligated to take
final action on the proposed conditional
approval of section 110(a)(2)(E)(ii) and
the proposed FIP for 110(a)(2)(G). The
Agency has made the preliminary
determination that these proposed
actions are consistent with the CAA and
EPA guidance related to 128
requirements and infrastructure
submissions.
VIII. 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,
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29585
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely approves state law as
meeting federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rule does not
have tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
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29586
Federal Register / Vol. 77, No. 97 / Friday, May 18, 2012 / Proposed Rules
Dated: May 7, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012–12137 Filed 5–17–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2008–0177(a); FRL–9673–
8]
Approval and Promulgation of
Implementation Plans; Portion of York
County, South Carolina Within
Charlotte-Gastonia-Rock Hill, North
Carolina-South Carolina 1997 8-Hour
Ozone Nonattainment Area; Ozone
2002 Base Year Emissions Inventory
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
the ozone 2002 base year emissions
inventory portion of the state
implementation plan (SIP) revision
submitted by the South Carolina
Department of Health and
Environmental Control (SC DHEC) on
April 29, 2010. The emissions inventory
is included in the ozone attainment
demonstration that was submitted for
the 1997 8-hour ozone national ambient
air quality standards (NAAQS) for the
portion of York County, South Carolina
that is within the bi-state CharlotteGastonia-Rock Hill 1997 8-hour ozone
nonattainment area. The CharlotteGastonia-Rock Hill, North CarolinaSouth Carolina 1997 8-hour ozone
nonattainment area (hereafter referred to
as the ‘‘bi-state Charlotte Area’’) is
comprised of Cabarrus, Gaston, Lincoln,
Mecklenburg, Rowan, Union and a
portion of Iredell (Davidson and Coddle
Creek Townships) Counties in North
Carolina; and a portion of York County
in South Carolina. This action is being
taken pursuant to section 110 of the
Clean Air Act. EPA will take action on
the North Carolina submission for the
ozone 2002 base year emissions
inventory, for its portion of the bi-state
Charlotte Area, in a separate action. In
the Final Rules Section of this Federal
Register, EPA is approving the State’s
SIP revision as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments.
DATES: Written comments must be
received on or before June 18, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
srobinson on DSK4SPTVN1PROD with PROPOSALS
SUMMARY:
VerDate Mar<15>2010
16:18 May 17, 2012
Jkt 226001
OAR–2008–0177 by one of the following
methods:
1. www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. Email: R4-RDS@epa.gov.
3. Fax: (404) 562–9019.
4. Mail: ‘‘EPA–R04–OAR–2008–
0177,’’ Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960.
5. Hand Delivery or Courier: Lynorae
Benjamin, Regulatory Development
Section, Air Planning Branch, Air,
Pesticides and Toxics Management
Division, U.S. Environmental Protection
Agency, Region 4, 61 Forsyth Street
SW., Atlanta, Georgia 30303–8960. Such
deliveries are only accepted during the
Regional Office’s normal hours of
operation. The Regional Office’s official
hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal
holidays.
Please see the direct final rule which
is located in the Rules section of this
Federal Register for detailed
instructions on how to submit
comments.
Sara
Waterson, Regulatory Development
Section, Air Planning Branch, Air,
Pesticides and Toxics Management
Division, U.S. Environmental Protection
Agency, Region 4, 61 Forsyth Street
SW., Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–9061.
Ms. Waterson can be reached via
electronic mail at waterson.sara@epa.
gov.
FOR FURTHER INFORMATION CONTACT:
On March
12, 2008, EPA issued a revised ozone
NAAQS. See 73 FR 16436. The current
action, however, is being taken to
address requirements under the 1997 8hour ozone NAAQS. Requirements for
the South Carolina portion of the bistate Charlotte Area under the 2008
ozone NAAQS will be addressed in the
future. For additional information see
the direct final rule which is published
in the Rules Section of this Federal
Register. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this rule, no
further activity is contemplated. If EPA
receives adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period
on this document. Any parties
SUPPLEMENTARY INFORMATION:
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Sfmt 4702
interested in commenting on this
document should do so at this time.
Dated: May 8, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012–12006 Filed 5–17–12; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 223
RIN 0648–BC10
Sea Turtle Conservation; Shrimp
Trawling Requirements; Correction
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Correction to a proposed rule;
request for comments; notice of public
hearings.
AGENCY:
On May 10, 2012, we
published a proposed rule to withdraw
the alternative tow time restriction and
require all skimmer trawls, pusher-head
trawls, and wing nets (butterfly trawls)
rigged for fishing to use turtle excluder
devices (TEDs) in their nets, and
announced five public hearings to be
held in Morehead City, NC, Larose, LA,
Belle Chasse, LA, D’Iberville, MS, and
Bayou La Batre, AL. In this document,
we are correcting the time for the public
hearing to be held in Larose, LA.
DATES: A public hearing will be held on
June 4, 2012, from 6 to 8 p.m. in Larose,
LA. Written comments (see ADDRESSES)
will be accepted through July 9, 2012.
See SUPPLEMENTARY INFORMATION for
further details.
ADDRESSES: As published on May 10,
2012 (77 FR 27411), you may submit
comments on this proposed rule,
identified by 0648–BC10, by any of the
following methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal e-Rulemaking Portal: https://
www.regulations.gov.
• Mail: Michael Barnette, Southeast
Regional Office, NMFS, 263 13th
Avenue South, St. Petersburg, FL 33701.
• Fax: 727–824–5309; Attention:
Michael Barnette.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
SUMMARY:
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]]>Agencies
[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
[Proposed Rules]
[Pages 29581-29586]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12137]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2011-0809; FRL-9673-5]
Approval and Promulgation of Implementation Plans; Florida;
Section 128 and 110(a)(2)(E)(ii) and (G) Infrastructure Requirements
for the 1997 8-Hour Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Supplemental proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to supplement an April 18, 2012, proposed
rule related to submissions provided by the State of Florida, through
the Florida Department of Environmental Protection (FDEP) on December
13, 2007, and supplemented on April 18, 2008, to demonstrate that the
Florida State Implementation Plan (SIP) meets the ``infrastructure''
requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA or
Act) for the 1997 8-hour ozone national ambient air quality standards
(NAAQS). First, EPA is proposing to supplement that earlier proposed
action by proposing full approval of the State's section
110(a)(2)(E)(ii) infrastructure SIP in addition to the earlier proposed
conditional approval of this sub-element. Second, EPA is proposing
approval of the State's section 110(a)(2)(G) infrastructure SIP in
addition to the earlier proposed federal implementation plan (FIP) for
this element. In addition, EPA is proposing to approve two related
draft revisions to the Florida SIP that were submitted for parallel
processing by FDEP on April 19, 2012, to address the requirements of
section 128 and the substantive requirements of section 110(a)(2)(G) of
the CAA.
DATES: Written comments must be received on or before June 18, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2011-0809, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: R4-RDS@epa.gov.
3. Fax: (404) 562-9019.
4. Mail: ``EPA-R04-OAR-2011-0809,'' Regulatory Development Section,
Air Planning Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960.
5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are
only accepted during the Regional Office's normal hours of operation.
The Regional Office's official hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2011-0089. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or
email, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov, your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
[[Page 29582]]
materials are available either electronically in www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number
is (404) 562-9140. Ms. Ward can be reached via electronic mail at
ward.nacosta@epa.gov.
Table of Contents
I. What is parallel processing?
II. Background
III. What elements are required under Sections 110(a)(1) and (2)?
IV. What is EPA's analysis of how Florida addressed CAA Section 128?
V. What is EPA's analysis of how Florida addressed CAA Section
110(a)(2)(E)(ii)?
VI. What is EPA's analysis of how Florida addressed CAA Section
110(a)(2)(G)?
VII. Proposed Action
VIII. Statutory and Executive Order Reviews
I. What is parallel processing?
Parallel processing refers to a concurrent state and federal
proposed rulemaking action. Generally under this process, the state
submits a copy of the proposed regulation or other revisions to EPA
before conducting its public hearing. See, e.g., 40 CFR part 51,
Appendix V. EPA reviews this proposed state action and prepares a
notice of proposed rulemaking. EPA publishes this notice of proposed
rulemaking in the Federal Register and solicits public comment during
approximately the same time frame during which the state is holding its
public hearing. The state and EPA thus provide for public comment
periods on both the state and the federal actions in parallel.
On April 19, 2012, the State of Florida, through FDEP, submitted a
request for parallel processing for draft SIP revision related to CAA
section 128 and the substantive requirements of section 110(a)(2)(G).
This revision was noticed for public comment by the State on April 19,
2012, but is not yet state effective. Through today's proposed
rulemaking, EPA is proposing parallel approval for this draft SIP
revision.
Once the April 19, 2012 revision is state-effective, Florida will
need to provide EPA with a formal SIP revision request to incorporate
these changes into the Florida SIP. After Florida submits the formal
SIP revision request (including a response to any public comments
raised during the State's public participation process), EPA will
prepare a final rulemaking notice for the SIP revision. If the formal
SIP revision associated with the parallel process submission is changed
from what is proposed in today's action, EPA will evaluate those
changes for significance. If any such changes are found by EPA to be
significant, then the Agency intends to re-propose the action based
upon the revised submission. In addition, if the changes render the SIP
revision not approvable, EPA would re-propose the action as a
disapproval of the revision.
While EPA may not be able to have a concurrent public comment
process with the State, the FDEP-requested parallel processing allows
EPA to begin to take action on the State's draft SIP revision in
advance of the submission of the formal SIP revision. As stated above,
the final rulemaking action by EPA will occur only after the SIP
revision has been: (1) Adopted by Florida, (2) evaluated for changes,
and (3) submitted formally to EPA for incorporation into the SIP.
II. Background
On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm. See 62 FR 38856.
Pursuant to section 110(a)(1) of the CAA, states are required to submit
SIPs meeting the requirements of section 110(a)(2) within three years
after promulgation of a new or revised NAAQS. Section 110(a)(2)
requires states to address basic SIP requirements, including emissions
inventories, monitoring, and modeling to assure attainment and
maintenance of the NAAQS. States were required to submit such SIPs for
the 1997 8-hour ozone NAAQS to EPA no later than June 2000. However,
intervening litigation over the 1997 8-hour ozone NAAQS created
uncertainty about how to proceed and many states did not provide the
required ``infrastructure'' SIP submission for these newly promulgated
NAAQS.
On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the ``infrastructure'' requirements for the 1997 8-hour ozone NAAQS.
EPA entered into a consent decree with Earthjustice which required EPA,
among other things, to complete a Federal Register notice announcing
EPA's determinations pursuant to section 110(k)(1)(B) as to whether
each state had made complete submissions to meet the requirements of
section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007.
Subsequently, EPA received an extension of the date to complete this
Federal Register notice until March 17, 2008, based upon agreement to
make the findings with respect to submissions made by January 7, 2008.
In accordance with the consent decree, EPA made completeness findings
for each state based upon what the Agency received from each state as
of January 7, 2008.
On March 27, 2008, EPA published a final rulemaking entitled,
``Completeness Findings for Section 110(a) State Implementation Plans;
8-Hour Ozone NAAQS,'' making a finding that each state had submitted or
failed to submit a complete SIP that provided the basic program
elements of section 110(a)(2) necessary to implement the 1997 8-hour
ozone NAAQS. See 73 FR 16205. For those states that did receive
findings, such as Florida, the findings of failure to submit for all or
a portion of a State's implementation plan established a 24-month
deadline for EPA to promulgate a FIP to address the outstanding SIP
elements unless, prior to that time, the affected states submitted, and
EPA approved, the required SIPs. However, the findings of failure to
submit did not impose sanctions or set deadlines for imposing sanctions
as described in section 179 of the CAA, because these findings do not
pertain to the elements contained in the Title I part D plan for
nonattainment areas as required under section 110(a)(2)(I).
Additionally, the findings of failure to submit for the infrastructure
submittals are not a SIP call pursuant to section 110(k)(5).
The finding that all or portions of a state's submission are
complete established a 12-month deadline for EPA to take action upon
the complete SIP elements in accordance with section 110(k). Florida's
infrastructure submission was received by EPA on December 13, 2007, and
was determined to be complete on March 27, 2008, for all elements with
the exception of 110(a)(2)(G). In FDEP's December 13, 2007, submission,
and in a letter dated April 18, 2008, FDEP cited State statutes as
evidence that Florida has the
[[Page 29583]]
authority to implement emergency powers for the 1997 8-hour ozone NAAQS
as required by section 110(a)(2)(G). EPA, however, proposed a FIP with
respect to this element of the infrastructure SIP because the statutes
cited by FDEP had not been approved into the Florida SIP.\1\ See 77 FR
23181 (April 18, 2012). EPA noted that the Agency would take action to
approve the FIP for element 110(a)(2)(G) unless Florida submits a final
SIP revision correcting the deficiency for element 110(a)(2)(G) and EPA
takes final action to approve the revision prior to such time that EPA
is obligated to take final action on this 1997 8-hour ozone
infrastructure SIP submission, per a settlement agreement signed on
November 30, 2011.
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\1\ In a letter dated March 23, 2012, FDEP notified EPA of
FDEP's intent to submit a SIP revision to address the SIP deficiency
for 110(a)(2)(G) in the very near future. The letter Florida
submitted to EPA can be accessed at www.regulations.gov using Docket
ID No. EPA-R04-OAR-2011-0809.
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On April 19, 2012, FDEP submitted, for parallel processing, draft
changes to address the deficiencies of the Florida SIP regarding the
substantive requirements of section 110(a)(2)(G). Today's action
proposes approval of these changes into the Florida SIP and proposes
approval for element 110(a)(2)(G) of the State's infrastructure SIP
submittal. If EPA is able to take final action on Florida's forthcoming
final SIP revision prior to finalizing the April 18, 2012, proposed
FIP, the final action to approve a FIP for 110(a)(2)(G) will no longer
be necessary. If, EPA is not able to take final action the SIP
revision, EPA may proceed with finalizing the FIP for element
110(a)(2)(G).
In EPA's April 18, 2012, proposed infrastructure rulemaking for
Florida, the EPA also proposed to conditionally approve FDEP's December
13, 2007, infrastructure submission with regard to the 110(a)(2)(E)(ii)
requirements. EPA proposed conditional approval of this sub-element
because the State's implementation plan did not contain provisions to
address CAA section 128 requirements, however, FDEP submitted a letter
to EPA on March 13, 2012, that included a commitment to submit a SIP
revision to address the CAA section 128 requirements. See 77 FR 23181.
The letter Florida submitted to EPA can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0809. On April
19, 2012, FDEP submitted, for parallel processing, a draft SIP revision
to address the deficiencies within the Florida SIP to address CAA
section 128 requirements. In today's action, EPA is proposing to
approve this SIP revision into the Florida SIP and supplement the
Agency's earlier proposed conditional approval of Florida's
infrastructure SIP with respect to sub-element 110(a)(2)(E)(ii) with a
proposed approval of this sub-element contingent upon final action to
approve the section 128 provisions into the Florida SIP.
If EPA is able to take final action to approve Florida's
forthcoming final SIP revision pertaining to the section 128
requirements prior to taking final rulemaking action on the April 18,
2012, proposed conditional approval and FIP, finalizing the conditional
approval for 110(a)(2)(E)(ii) will no longer be necessary. If, EPA is
not able to take final action on the SIP revision, EPA may proceed with
finalizing the conditional approval for element 110(a)(2)(E)(ii).
III. What elements are required under Sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 1997 8-hour ozone NAAQS, states typically
have met the basic program elements required in section 110(a)(2)
through earlier SIP submissions in connection with previous ozone
NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned above, these
requirements include SIP infrastructure elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The requirements that are the
subject of EPA's proposed infrastructure SIP rulemaking for Florida are
listed below \2\ and in EPA's October 2, 2007, memorandum entitled
``Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for
the 1997 8-Hour Ozone and PM2.5 National Ambient Air Quality
Standards.''
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\2\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA; and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. Today's proposed
rulemaking does not address infrastructure elements related to
section 110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C). Additionally, EPA has taken action on all other
infrastructure elements with the exception of 110(a)(2)(D)(i) for
Florida in a separate rulemaking from today's action. Today's action
is limited to infrastructure elements 110(a)(2)(E)(ii) and
110(a)(2)(G) only.
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110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control measures.
110(a)(2)(D): Interstate transport.\3\
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\3\ EPA's April 18, 2012, proposed rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997 8-hour ozone
NAAQS. Interstate transport requirements were formerly addressed by
Florida consistent with the Clean Air Interstate Rule (CAIR). On
December 23, 2008, CAIR was remanded by the D.C. Circuit Court of
Appeals, without vacatur, back to EPA. See North Carolina v. EPA,
531 F.3d 896 (D.C. Cir. 2008). Prior to this remand, EPA took final
action to approve Florida's SIP revision, which was submitted to
comply with CAIR. See 72 FR 58016 (October 12, 2007). In so doing,
Florida's CAIR SIP revision addressed the interstate transport
provisions in section 110(a)(2)(D)(i) for the 1997 8-hour ozone
NAAQS. In response to the remand of CAIR, EPA has recently finalized
a new rule to address the interstate transport of nitrogen oxides
and sulfur oxides in the eastern United States. See 76 FR 48208
(August 8, 2011) (``the Cross-State Air Pollution Rule''). EPA's
action on element 110(a)(2)(D)(i) will be addressed in a separate
action.
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110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\4\
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\4\ This requirement was inadvertently omitted from EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards,'' but
as mentioned above is not relevant to today's proposed rulemaking.
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110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
[[Page 29584]]
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
As discussed above, on April 18, 2012 (77 FR 23181), EPA proposed
action on Florida's December 13, 2007, infrastructure submission for
the 1997 8-hour ozone NAAQS. Today's proposed action supplements EPA's
April 18, 2012, proposed rulemaking with regard to the conditional
approval for section 110(a)(2)(E)(ii), and a FIP for section
110(a)(2)(G) requirements for Florida for the 1997 8-hour ozone NAAQS.
Today's action proposes full SIP approval for both elements based upon
pending changes to the Florida SIP regarding section 128 (State Boards
as applicable to the State's infrastructure SIP pursuant to section
110(a)(2)(E)(ii)) and the substantive requirements of section
110(a)(2)(G) (emergency power authority comparable to that in section
303 of the CAA).
IV. What is EPA's analysis of how Florida addressed CAA Section 128?
Section 128 of the CAA requires that states include provisions in
their SIP to address conflict interest for state boards that oversee
CAA permits and enforcement orders. Specifically, CAA section 128 reads
as follows:
(a) Not later than the date one year after August 7, 1977, each
applicable implementation plan shall contain requirements that--
(1) any board or body which approves permits or enforcement orders
under this chapter shall have at least a majority of members who
represent the public interest and do not derive any significant portion
of their income from persons subject to permits or enforcement orders
under this chapter, and
(2) any potential conflicts of interest by members of such board or
body or the head of an executive agency with similar powers be
adequately disclosed. A State may adopt any requirements respecting
conflicts of interest for such boards or bodies or heads of executive
agencies, or any other entities which are more stringent than the
requirements submitted as part of an implementation plan.
During the evaluation of Florida's SIP in regards to EPA's proposed
rulemaking of the State's December 13, 2007, and supplemented on April
18, 2008, infrastructure submission related to section 110(a)(2)(E)(ii)
for the 1997 8-hour ozone NAAQS, EPA noted that Florida's SIP did not
include provisions to address CAA section 128 requirements. As such,
EPA alerted the State to this missing component of their implementation
plan and as a result, FDEP submitted a letter to EPA dated March 13,
2012, which contained the State's commitment to correct this deficiency
and requested that EPA take action to conditionally approve
110(a)(2)(E)(ii) as a result of this commitment. Based upon this
commitment, EPA proposed conditional approval of this sub-element in
its April 18, 2012, rulemaking. See 77 FR 23181. On April 19, 2012,
FDEP submitted a draft SIP revision for parallel processing to address
the section 128 requirements. Florida's April 19, 2012, draft SIP
revision, proposes to include existing state statues to meet the
applicable requirements of section 128.
For purposes of section 128(a)(1), Florida has no boards or bodies
with authority over air pollution permits or enforcement actions. Such
matters are instead handled by an appointed Secretary. Appeals of final
administrative orders and permits are available only through the
judicial appellate process described at Florida Statute 120.68. As
such, a ``board or body'' is not responsible for approving permits or
enforcement orders in Florida, and the requirements of section
128(a)(1) are not applicable.
Regarding section 128(a)(2) (also made applicable to the
infrastructure SIP pursuant to section 110(a)(2)(E)(ii)), Florida has
submitted for incorporation into the SIP relevant provisions of Florida
Statutes 112.3143(4)--Voting Conflict and 112.3144--Full and Public
Disclosure of Financial Interests. Because Florida does not rely upon a
``board or body'' to approve permits or enforcement orders, the
conflict of interest disclosure requirements of section 128(a)(2) only
apply to the head of the State's executive agency (i.e., FDEP) tasked
with these powers. The above cited Florida Statutes are applicable to
the Secretary of FDEP and EPA has preliminarily determined them to be
sufficient to satisfy the applicable conflict of interest provisions of
section 128.
Today, EPA is proposing to approve Florida Statutes 112.3143(4) and
112.3144 into the Florida's SIP as meeting the requirements of section
128 of the CAA. This proposed approval is contingent upon Florida
submitting a final SIP revision consistent with the April 19, 2012,
draft SIP revision.
V. What is EPA's analysis of how Florida addressed CAA Section
110(a)(2)(E)(ii)?
Section 110(a)(2)(E)(ii) requires that each implementation plan
provide that the State comply with the requirements respecting state
boards pursuant to section 128 of the Act.\5\ As a result of Florida's
April 19, 2012, draft SIP revision to address 128 requirements
(discussed above), EPA is now proposing a full approval of Florida's
December 13, 2007, infrastructure submission with regard to section
110(a)(2)(E)(ii) for the 1997 8-hour ozone NAAQS. This proposed full
approval (contingent on EPA's final approval of Florida's SIP revision
to meet the CAA section 128 requirements) is an alternative to the
conditional approval that EPA proposed for this element on April 18,
2012. See 77 FR 23181. If EPA is able to take final action to approve
Florida's forthcoming final SIP revision pertaining to these
requirements prior to taking final action on the April 18, 2012,
proposed conditional approval, finalizing the conditional approval for
110(a)(2)(E)(ii) will no longer be necessary. If, EPA is not able to
take final action on the SIP revision, EPA may proceed with finalizing
the conditional approval for element 110(a)(2)(E)(ii).
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\5\ Today's action is related specifically to the
110(a)(2)(E)(ii) sub-element of Florida's December 13, 2007,
infrastructure submission for the 1997 8-hour ozone NAAQS. As noted
earlier in this proposed rulemaking, EPA has already proposed action
for the majority of Florida's December 13, 2007, infrastructure
submission for the 1997 8-hour ozone NAAQS, and is not re-proposing
for many of those elements, including sub-elements 110(a)(2)(E)(i)
and 110(a)(2)(E)(iii), in this today's action.
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VI. What is EPA's analysis of how Florida addressed CAA Section
110(a)(2)(G)?
Section 110(a)(2)(G) requires states to provide for authority to
address activities causing imminent and substantial endangerment to
public health, including contingency plans to implement the emergency
episode provisions in their SIPs. On March 27, 2008, EPA published a
final rulemaking entitled, ``Completeness Findings for Section 110(a)
State Implementation Plans; 8-Hour Ozone NAAQS,'' making a finding as
to whether each state had submitted or failed to submit a complete SIP
that provided the basic program elements of section 110(a)(2) necessary
to implement the 1997 8-hour ozone NAAQS. See 73 FR 16205. Florida was
among the states that received a finding of failure to submit because
its infrastructure submission was deemed incomplete for element
110(a)(2)(G) for the 1997 8-hour ozone NAAQS by March 1, 2008. The
finding of failure to submit action triggered a 24-month clock for EPA
to either issue a FIP or take final action on a SIP revision which
corrects the deficiency for which the
[[Page 29585]]
finding of failure to submit was received. See 42 U.S.C. 7410(c)(1).
In FDEP's December 13, 2007, submission and a letter dated April
18, 2008, FDEP cited State statutes as evidence that Florida has the
authority to implement emergency powers for the 8-hour ozone standard.
The April 18, 2008, letter FDEP sent to EPA, which included the
specific State statutes cited by FDEP, can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0809. Because
these statutes had not been adopted into the federally-approved SIP, in
an April 18, 2012, rulemaking, EPA proposed a FIP to correct this
deficiency and preliminarily determined that the cited statutes were
sufficient to meet the requirements of section 303 of the CAA thus meet
the requirements of element 110(a)(2)(G). See 77 FR 23181. In the April
18, 2012, rulemaking, EPA noted the Agency's intentions to approve a
FIP for element 110(a)(2)(G) unless Florida submitted a final SIP
revision correcting the deficiency for element 110(a)(2)(G) and the
Agency acted on such submission prior to the finalization of the FIP.
Due to EPA's obligations pursuant to the infrastructure SIP
settlement agreement described above, EPA would need to take final
action to approve such a SIP revision prior to the date on which EPA is
obligated to take final action on the FIP for this element. Should
final approval of a SIP revision related to emergency powers (the
subject of this action) occur after EPA finalizes a FIP for element
110(a)(2)(G), EPA would act to rescind the FIP at that time. If EPA is
able to take final action to approve Florida's forthcoming final SIP
revision pertaining to these requirements (section 110(a)(2)(G)) prior
to taking final rulemaking action on the April 18, 2012 proposed FIP,
finalizing the FIP for 110(a)(2)(G) will no longer be necessary.
On April 19, 2012, FDEP submitted a draft SIP revision, for
parallel processing, to address the 110(a)(2)(G) requirements for the
1997 8-hour ozone NAAQS. In FDEP's proposed SIP revision, Florida
Statutes 403.131 and 120.569(2)(n) were submitted for inclusion to the
SIP to address the requirements of section 110(a)(2)(G) of the CAA. EPA
has reviewed Florida's April 19, 2012, draft SIP revision, and has made
the preliminary determination, that the draft revision is adequate for
emergency powers and meets the requirements of 110(a)(2)(G) for the
1997 8-hour ozone NAAQS. Therefore, through today's action, EPA is
proposing to approve this revision into the Florida SIP and is
proposing approval in alternative to the Agency's April 18, 2012,
proposed FIP for this infrastructure element. This proposed approval is
contingent upon Florida submitting a final SIP revision consistent with
the April 19, 2012, draft SIP revision.
VII. Proposed Action
As described above, EPA is proposing to approve Florida's April 19,
2012, draft SIP revision to incorporate provisions into the Florida SIP
to address section 128 requirements of the CAA. As a result of EPA's
proposed approval of Florida's April 19, 2012, draft SIP revision to
address 128 requirements, EPA is also proposing to approve the
110(a)(2)(E)(ii) sub-element of Florida's December 13, 2007,
infrastructure submission for the 1997 8-hour ozone NAAQS. Further, EPA
is proposing to approval Florida's April 19, 2012, draft SIP revision
to incorporate provisions into the Florida SIP to address section
110(a)(2)(G) requirements for the 1997 8-hour ozone NAAQS. As a result
of EPA's proposed approval of Florida's April 19, 2012, draft SIP
revision to address the substantive requirements 110(a)(2)(G), EPA is
also proposing to approve the 110(a)(2)(G) element of Florida December
13, 2007, infrastructure submission for the 1997 8-hour ozone NAAQS.
EPA's proposed approval is contingent on Florida's submission of a
final SIP revision to address CAA section 128, and the substantive
requirements of CAA section 110(a)(2)(G) for the 1997 8-hour ozone
NAAQS. Should Florida not submit a final SIP revision to EPA addressing
CAA section 128, and CAA section 110(a)(2)(G) requirements for the 1997
8-hour ozone NAAQS and/or EPA is not able to finalize a full approval
action prior to such time that EPA is obligated to take final action on
the 1997 8-hour ozone infrastructure SIP submission for Florida, EPA
will be obligated to take final action on the proposed conditional
approval of section 110(a)(2)(E)(ii) and the proposed FIP for
110(a)(2)(G). The Agency has made the preliminary determination that
these proposed actions are consistent with the CAA and EPA guidance
related to 128 requirements and infrastructure submissions.
VIII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
[[Page 29586]]
Dated: May 7, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-12137 Filed 5-17-12; 8:45 am]
BILLING CODE 6560-50-P
