Approval and Promulgation of Implementation Plans; Florida; 110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006 Fine Particulate Matter National Ambient Air Quality Standards, 34906-34915 [2012-14244]
Download as PDF
<![CDATA[
34906
Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
infrastructure SIP requirements
consistent with EPA’s October 2, 2007,
and September 25, 2009, guidance.
Mississippi’s infrastructure
submissions, which are the subject of
today’s proposed rulemaking, were
submitted on December 7, 2007, for
purposes of the 1997 annual PM2.5
NAAQS, and on October 6, 2009, for
purposes of the 2006 24-hour annual
PM2.5 NAAQS. This proposed approval,
however, does not include
infrastructure elements 110(a)(2)(E)(ii)
and 110(a)(2)(G) for either the 1997
annual or 2006 24-hour PM2.5 NAAQS.
These elements will be addressed by
EPA in a separate action. In addition,
final approval of the infrastructure
elements 110(a)(2)(C) and (J) proposed
for approval today is contingent upon
the Agency first taking final action to
approve Mississippi’s May 18, 2011,
PM2.5 NSR Update.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely approves state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive 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);
VerDate Mar<15>2010
16:28 Jun 11, 2012
Jkt 226001
• 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 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
Air pollution control, Environmental
protection, Intergovernmental relations,
Nitrogen dioxide, Particulate matter,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 1, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012–14267 Filed 6–11–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2012–0382; FRL–9686–2]
Approval and Promulgation of
Implementation Plans; Florida;
110(a)(1) and (2) Infrastructure
Requirements for the 1997 and 2006
Fine Particulate Matter National
Ambient Air Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
the State Implementation Plans (SIPs),
submitted by the State of Florida,
through the Florida Department of
Environmental Protection (FDEP), as
demonstrating that the State meets the
requirements of sections 110(a)(1) and
(2) of the Clean Air Act (CAA or the Act)
for the 1997 annual and 2006 24-hour
fine particulate matter (PM2.5) national
SUMMARY:
PO 00000
Frm 00053
Fmt 4702
Sfmt 4702
ambient air quality standards (NAAQS).
Section 110(a) of the CAA requires that
each state adopt and submit a SIP for
the implementation, maintenance, and
enforcement of each NAAQS
promulgated by the EPA, which is
commonly referred to as an
‘‘infrastructure’’ SIP. Florida certified
that the Florida SIP contains provisions
that ensure the 1997 annual and 2006
24-hour PM2.5 NAAQS are
implemented, enforced, and maintained
in Florida (hereafter referred to as
‘‘infrastructure submission’’). EPA is
proposing to determine that Florida’s
infrastructure submissions, provided to
EPA on April 18, 2008, and on
September 23, 2009, addressed all the
required infrastructure elements for the
1997 annual and 2006 24-hour PM2.5
NAAQS. As discussed further below,
final action to approve elements
110(a)(2)(C), (E)(ii), and (J) is contingent
upon the Agency first taking final action
on submitted SIP revisions associated
with these elements. Final action on
those SIP revisions will be addressed in
a separate action.
DATES: Written comments must be
received on or before July 12, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2012–0382, 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–2012–
0382,’’ 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.
Instructions: Direct your comments to
Docket ID No. EPA–R04–OAR–2012–
0382. 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
E:\FR\FM\12JNP1.SGM
12JNP1
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
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
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:
Sean Lakeman, Regulatory Development
Section, Air Planning Branch, Air,
Pesticides and Toxics Management
Division, U.S. Environmental Protection
Agency, Region 4, 61 Forsyth Street
VerDate Mar<15>2010
16:28 Jun 11, 2012
Jkt 226001
SW., Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–9043.
Mr. Lakeman can be reached via
electronic mail at
lakeman.sean@epa.gov.
34907
the 1997 PM2.5 NAAQS as of October 3,
2008.
On October 22, 2008, EPA published
a final rulemaking entitled,
‘‘Completeness Findings for Section
110(a) State Implementation Plans
SUPPLEMENTARY INFORMATION:
Pertaining to the Fine Particulate Matter
(PM2.5) NAAQS’’ making a finding that
Table of Contents
each state had submitted or failed to
I. Background
submit a complete SIP that provided the
II. What elements are required under sections basic program elements of section
110(a)(1) and (2)?
110(a)(2) necessary to implement the
III. Scope of Infrastructure SIPs
1997 PM2.5 NAAQS (See 73 FR 62902).
IV. What is EPA’s analysis of how Florida
For those states that did receive
addressed the elements of sections
findings, the findings of failure to
110(a)(1) and (2) ‘‘infrastructure’’
submit for all or a portion of a state’s
provisions?
implementation plan established a 24V. Proposed Action
VI. Statutory and Executive Order Reviews
month deadline for EPA to promulgate
a Federal Implementation Plan (FIP) to
I. Background
address the outstanding SIP elements
unless, prior to that time, the affected
On July 18, 1997 (62 FR 36852), EPA
states submitted, and EPA approved, the
established an annual PM2.5 NAAQS at
required SIPs.
15.0 micrograms per cubic meter (mg/
The findings that all or portions of a
m3) based on a 3-year average of annual
mean PM2.5 concentrations. At that time, state’s submission are complete
EPA also established a 24-hour NAAQS established a 12-month deadline for
EPA to take action upon the complete
of 65 mg/m3. See 40 CFR 50.7. On
SIP elements in accordance with section
October 17, 2006 (71 FR 61144), EPA
retained the 1997 annual PM2.5 NAAQS 110(k). Florida’s infrastructure
submissions were received by EPA on
at 15.0 mg/m3 based on a 3-year average
April 18, 2008, for the 1997 annual
of annual mean PM2.5 concentrations,
PM2.5 NAAQS and on September 23,
and promulgated a new 24-hour
2009, for the 2006 24-hour PM2.5
NAAQS of 35 mg/m3 based on a 3-year
average of the 98th percentile of 24-hour NAAQS. The submissions were
concentrations. By statute, SIPs meeting determined to be complete on October
18, 2008, and March 23, 2010,
the requirements of sections 110(a)(1)
respectively. Florida was among other
and (2) are to be submitted by states
within three years after promulgation of states that did not receive findings of
failure to submit because it had
a new or revised NAAQS. Sections
provided a complete submission to EPA
110(a)(1) and (2) require states to
to address the infrastructure elements
address basic SIP requirements,
for the 1997 PM2.5 NAAQS by October
including emissions inventories,
3, 2008.
monitoring, and modeling to assure
On July 6, 2011, WildEarth Guardians
attainment and maintenance of the
and Sierra Club filed an amended
NAAQS. States were required to submit complaint related to EPA’s failure to
such SIPs to EPA no later than July 2000 take action on the SIP submittal related
for the 1997 annual PM2.5 NAAQS, no
to the ‘‘infrastructure’’ requirements for
later than October 2009 for the 2006 24- the 2006 24-hour PM NAAQS. On
2.5
hour PM2.5 NAAQS.
October 20, 2011, EPA entered into a
On March 4, 2004, Earthjustice
consent decree with WildEarth
submitted a notice of intent to sue
Guardians and Sierra Club which
related to EPA’s failure to issue findings required EPA, among other things, to
of failure to submit related to the
complete a Federal Register notice of
‘‘infrastructure’’ requirements for the
the Agency’s final action either
1997 annual PM2.5 NAAQS. On March
approving, disapproving, or approving
10, 2005, EPA entered into a consent
in part and disapproving in part the
decree with Earthjustice which required Florida 2006 24-hour PM2.5 NAAQS
EPA, among other things, to complete a
Infrastructure SIP submittal addressing
Federal Register notice announcing
the applicable requirements of sections
EPA’s determinations pursuant to
110(a)(2)(A)–(H), (J)–(M), except for
section 110(k)(1)(B) as to whether each
section 110(a)(2)(C) the nonattainment
state had made complete submissions to area requirements and section
meet the requirements of section
110(a)(2)(D)(i) interstate transport
110(a)(2) for the 1997 PM2.5 NAAQS by
requirements, by September 30, 2012.
Today’s action is proposing to
October 5, 2008. In accordance with the
consent decree, EPA made completeness approve Florida’s infrastructure
findings for each state based upon what submission for the 1997 annual and
2006 24-hour PM2.5 NAAQS for sections
the Agency received from each state for
PO 00000
Frm 00054
Fmt 4702
Sfmt 4702
E:\FR\FM\12JNP1.SGM
12JNP1
34908
Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
110(a)(2)(A)–(H), (J)–(M), except for
section 110(a)(2)(C) nonattainment area
requirements and section 110(a)(2)(D)(i)
interstate transport requirements. EPA
notes that final action to approve
elements 110(a)(2)(C), (E)(ii), and (J) is
contingent upon the Agency first taking
final action on submitted SIP revisions
associated with each of these elements.
Final action on those SIP revisions will
be addressed in separate actions.
Today’s action is not approving any
specific rule, but rather proposing that
Florida’s already approved SIP meets
certain CAA requirements.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
II. What elements are required under
sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires
states to submit SIPs to provide for the
implementation, maintenance, and
enforcement of a new or revised
NAAQS within three years following
the promulgation of such NAAQS, or
within such shorter period as EPA may
prescribe. Section 110(a) imposes the
obligation upon states to make a SIP
submission to EPA for a new or revised
NAAQS, but the contents of that
submission may vary depending upon
the facts and circumstances. In
particular, the data and analytical tools
available at the time the state develops
and submits the SIP for a new or revised
NAAQS affects the content of the
submission. The contents of such SIP
submissions may also vary depending
upon what provisions the state’s
existing SIP already contains. In the
case of the 1997 annual and 2006 24hour PM2.5 NAAQS, some states may
need to adopt language specific to the
PM2.5 NAAQS to ensure that they have
adequate SIP provisions to implement
the PM2.5 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 this proposed rulemaking
are listed below1 and in EPA’s October
1 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
VerDate Mar<15>2010
16:28 Jun 11, 2012
Jkt 226001
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’’ and
September 25, 2009, memorandum
entitled ‘‘Guidance on SIP Elements
Required Under Section 110(a)(1) and
(2) for the 2006 24-Hour Fine Particle
(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.2
• 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.
• 110(a)(2)(K): Air quality modeling/
data.
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), but does
provide detail on how Florida’s SIP addresses
110(a)(2)(C).
2 This rulemaking only addresses requirements
for this element as they relate to attainment areas.
3 Today’s proposed rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997
and 2006 PM2.5 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 DC 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 SIP
revision, which was submitted to comply with
CAIR. See 72 FR 58016 (October 12, 2007). In so
doing, Florida CAIR SIP revision addressed the
interstate transport provisions in section
110(a)(2)(D)(i) for the 1997 and 2006 PM2.5 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 Transport Rule’’). That
rule was recently stayed by the DC Circuit Court of
Appeals. 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,’’ and the September 25, 2009,
memorandum entitled ‘‘Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the
2006 Fine Particle (PM2.5) National Ambient Air
Quality Standards,’’ but as mentioned above is not
relevant to today’s proposed rulemaking.
PO 00000
Frm 00055
Fmt 4702
Sfmt 4702
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/
participation by affected local entities.
III. Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that
address the infrastructure requirements
of CAA section 110(a)(1) and (2) for
ozone and PM2.5 NAAQS for various
states across the country. Commenters
on EPA’s recent proposals for some
states raised concerns about EPA
statements that it was not addressing
certain substantive issues in the context
of acting on those infrastructure SIP
submissions.5 Those Commenters
specifically raised concerns involving
provisions in existing SIPs and with
EPA’s statements in other proposals that
it would address two issues separately
and not as part of actions on the
infrastructure SIP submissions: (i)
Existing provisions related to excess
emissions during periods of start-up,
shutdown, or malfunction (SSM) at
sources, that may be contrary to the
CAA and EPA’s policies addressing
such excess emissions; and (ii) existing
provisions related to ‘‘director’s
variance’’ or ‘‘director’s discretion’’ that
purport to permit revisions to SIP
approved emissions limits with limited
public process or without requiring
further approval by EPA, that may be
contrary to the CAA (director’s
discretion). EPA notes that there are two
other substantive issues for which EPA
likewise stated in other proposals that it
would address separately: (i) Existing
provisions for minor source new source
review (NSR) programs that may be
inconsistent with the requirements of
the CAA and EPA’s regulations that
pertain to such programs (minor source
NSR’’\); and (ii) existing provisions for
Prevention of Significant Deterioration
(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). In light of the comments, EPA
believes that its statements in various
proposed actions on infrastructure SIPs
with respect to these four individual
issues should be explained in greater
depth. It is important to emphasize that
EPA is taking the same position with
respect to these four substantive issues
in this action on the infrastructure SIPs
5 See Comments of Midwest Environmental
Defense Center, dated May 31, 2011. Docket # EPA–
R05–OAR–2007–1179 (adverse comments on
proposals for three states in Region 5). EPA notes
that these public comments on another proposal are
not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking. EPA will
respond to these comments in the appropriate
rulemaking action to which they apply.
E:\FR\FM\12JNP1.SGM
12JNP1
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
for the 1997 and 2006 PM2.5 NAAQS
from Florida.
EPA intended the statements in the
other proposals concerning these four
issues merely to be informational and to
provide general notice of the potential
existence of provisions within the
existing SIPs of some states that might
require future corrective action. EPA did
not want states, regulated entities, or
members of the public to be under the
misconception that the Agency’s
approval of the infrastructure SIP
submission of a given state should be
interpreted as a re-approval of certain
types of provisions that might exist
buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly
noted that the Agency believes that
some states may have existing SIP
approved SSM provisions that are
contrary to the CAA and EPA policy,
but that ‘‘in this rulemaking, EPA is not
proposing to approve or disapprove any
existing state provisions with regard to
excess emissions during SSM of
operations at facilities.’’ EPA further
explained, for informational purposes,
that ‘‘EPA plans to address such State
regulations in the future.’’ EPA made
similar statements, for similar reasons,
with respect to the director’s discretion,
minor source NSR, and NSR Reform
issues. EPA’s objective was to make
clear that approval of an infrastructure
SIP for these ozone and PM2.5 NAAQS
should not be construed as explicit or
implicit re-approval of any existing
provisions that relate to these four
substantive issues. EPA is reiterating
that position in this action on the
infrastructure SIP for Florida.
Unfortunately, the Commenters and
others evidently interpreted these
statements to mean that EPA considered
action upon the SSM provisions and the
other three substantive issues to be
integral parts of acting on an
infrastructure SIP submission, and
therefore that EPA was merely
postponing taking final action on the
issues in the context of the
infrastructure SIPs. This was not EPA’s
intention. To the contrary, EPA only
meant to convey its awareness of the
potential for certain types of
deficiencies in existing SIPs and to
prevent any misunderstanding that it
was reapproving any such existing
provisions. EPA’s intention was to
convey its position that the statute does
not require that infrastructure SIPs
address these specific substantive issues
in existing SIPs and that these issues
may be dealt with separately, outside
the context of acting on the
infrastructure SIP submission of a state.
To be clear, EPA did not mean to imply
that it was not taking a full final agency
VerDate Mar<15>2010
16:28 Jun 11, 2012
Jkt 226001
action on the infrastructure SIP
submission with respect to any
substantive issue that EPA considers to
be a required part of acting on such
submissions under section 110(k) or
under section 110(c). Given the
confusion evidently resulting from
EPA’s statements in those other
proposals, however, we want to explain
more fully the Agency’s reasons for
concluding that these four potential
substantive issues in existing SIPs may
be addressed separately from actions on
infrastructure SIP submissions.
The requirement for the SIP
submissions at issue arises out of CAA
section 110(a)(1). That provision
requires that states must make a SIP
submission ‘‘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
that these SIPs are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. Section
110(a)(2) includes a list of specific
elements that ‘‘[e]ach such plan’’
submission must meet. EPA has
historically referred to these particular
submissions that states must make after
the promulgation of a new or revised
NAAQS as ‘‘infrastructure SIPs.’’ This
specific term does not appear in the
statute, but EPA uses the term to
distinguish this particular type of SIP
submission designed to address basic
structural requirements of a SIP from
other types of SIP submissions designed
to address other different requirements,
such as ‘‘nonattainment SIP’’
submissions required to address the
nonattainment planning requirements of
part D, ‘‘regional haze SIP’’ submissions
required to address the visibility
protection requirements of CAA section
169A, NSR permitting program
submissions required to address the
requirements of part D, and a host of
other specific types of SIP submissions
that address other specific matters.
Although section 110(a)(1) addresses
the timing and general requirements for
these infrastructure SIPs, and section
110(a)(2) provides more details
concerning the required contents of
these infrastructure SIPs, EPA believes
that many of the specific statutory
provisions are facially ambiguous. In
particular, 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 provisions, and
some of which pertain to requirements
for both authority and substantive
PO 00000
Frm 00056
Fmt 4702
Sfmt 4702
34909
provisions.6 Some of the elements of
section 110(a)(2) are relatively
straightforward, but others clearly
require interpretation by EPA through
rulemaking, or recommendations
through guidance, in order to give
specific meaning for a particular
NAAQS.7
Notwithstanding that section 110(a)(2)
provides that ‘‘each’’ SIP submission
must meet the list of requirements
therein, EPA has long noted that this
literal reading of the statute is internally
inconsistent, insofar as section
110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met
on the schedule provided for these SIP
submissions in section 110(a)(1).8 This
illustrates that EPA must determine
which provisions of section 110(a)(2)
may be applicable for a given
infrastructure SIP submission.
Similarly, EPA has previously decided
that it could take action on different
parts of the larger, general
‘‘infrastructure SIP’’ for a given NAAQS
without concurrent action on all
subsections, such as section
110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter
‘‘interstate transport’’ provisions within
section 110(a)(2) and worked with states
to address each of the four prongs of
section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on
different tracks with different
schedules.9 This illustrates that EPA
6 For example, section 110(a)(2)(E) 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 substantive program to
address certain sources as required by part C of the
CAA; section 110(a)(2)(G) provides that states must
have both legal authority to address emergencies
and substantive contingency plans in the event of
such an emergency.
7 For example, section 110(a)(2)(D)(i) requires
EPA to be sure that each state’s SIP contains
adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in
other states. This provision contains numerous
terms that require substantial rulemaking by EPA in
order to determine such basic points as what
constitutes significant contribution. See ‘‘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 (May 12,
2005) (defining, among other things, the phrase
‘‘contribute significantly to nonattainment’’).
8 See Id., 70 FR 25162, at 63–65 (May 12, 2005)
(explaining relationship between timing
requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
9 EPA issued separate guidance to states with
respect to SIP submissions to meet section
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5
NAAQS. See ‘‘Guidance for State Implementation
Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,’’ from
William T. Harnett, Director Air Quality Policy
E:\FR\FM\12JNP1.SGM
Continued
12JNP1
mstockstill on DSK4VPTVN1PROD with PROPOSALS
34910
Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
may conclude that subdividing the
applicable requirements of section
110(a)(2) into separate SIP actions may
sometimes be appropriate for a given
NAAQS where a specific substantive
action is necessitated, beyond a mere
submission addressing basic structural
aspects of the state’s implementation
plans. Finally, 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 and the attendant infrastructure
SIP submission for that NAAQS. For
example, the monitoring requirements
that might be necessary for purposes of
section 110(a)(2)(B) for one NAAQS
could be very different than what might
be necessary for a different pollutant.
Thus, the content of an infrastructure
SIP submission to meet this element
from a state might be very different for
an entirely new NAAQS, versus a minor
revision to an existing NAAQS.10
Similarly, EPA notes that other types
of SIP submissions required under the
statute also must meet the requirements
of section 110(a)(2), and this also
demonstrates the need to identify the
applicable elements for other SIP
submissions. For example,
nonattainment SIPs required by part D
likewise have to meet the relevant
subsections of section 110(a)(2) such as
section 110(a)(2)(A) or (E). By contrast,
it is clear that nonattainment SIPs
would not need to meet the portion of
section 110(a)(2)(C) that pertains to part
C, i.e., the PSD requirements applicable
in attainment areas. Nonattainment SIPs
required by part D also would not need
to address the requirements of section
110(a)(2)(G) with respect to emergency
episodes, as such requirements would
not be limited to nonattainment areas.
As this example illustrates, each type of
SIP submission may implicate some
subsections of section 110(a)(2) and not
others.
Given the potential for ambiguity of
the statutory language of section
110(a)(1) and (2), EPA believes that it is
appropriate for EPA to interpret that
language in the context of acting on the
infrastructure SIPs for a given NAAQS.
Because of the inherent ambiguity of the
list of requirements in section 110(a)(2),
EPA has adopted an approach in which
it reviews infrastructure SIPs against
this list of elements ‘‘as applicable.’’ In
other words, EPA assumes that Congress
could not have intended that each and
every SIP submission, regardless of the
Division OAQPS, to Regional Air Division Director,
Regions I–X, dated August 15, 2006.
10 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
VerDate Mar<15>2010
16:28 Jun 11, 2012
Jkt 226001
purpose of the submission or the
NAAQS in question, would meet each
of the requirements, or meet each of
them in the same way. EPA elected to
use guidance to make recommendations
for infrastructure SIPs for these ozone
and PM2.5 NAAQS.
On October 2, 2007, EPA issued
guidance making recommendations for
the infrastructure SIP submissions for
both the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS.11 Within this
guidance document, EPA described the
duty of states to make these submissions
to meet what the Agency characterized
as the ‘‘infrastructure’’ elements for
SIPs, which it further described as the
‘‘basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance of the standards.’’ 12 As
further identification of these basic
structural SIP requirements,
‘‘attachment A’’ to the guidance
document included a short description
of the various elements of section
110(a)(2) and additional information
about the types of issues that EPA
considered germane in the context of
such infrastructure SIPs. EPA
emphasized that the description of the
basic requirements listed on attachment
A was not intended ‘‘to constitute an
interpretation of’’ the requirements, and
was merely a ‘‘brief description of the
required elements.’’ 13 EPA also stated
its belief that with one exception, these
requirements were ‘‘relatively self
explanatory, and past experience with
SIPs for other NAAQS should enable
States to meet these requirements with
assistance from EPA Regions.’’ 14
However, for the one exception to that
general assumption (i.e., how states
should proceed with respect to the
requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS), EPA gave
much more specific recommendations.
But for other infrastructure SIP
submittals, and for certain elements of
the submittals for the 1997 PM2.5
NAAQS, EPA assumed that each state
would work with its corresponding EPA
11 See ‘‘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,’’ from William T. Harnett, Director Air
Quality Policy Division, to Air Division Directors,
Regions I–X, dated October 2, 2007 (the ‘‘2007
Guidance’’).
12 Id., at page 2.
13 Id., at attachment A, page 1.
14 Id., at page 4. In retrospect, the concerns raised
by commenters with respect to EPA’s approach to
some substantive issues indicates that the statute is
not so ‘‘self explanatory,’’ and indeed is sufficiently
ambiguous that EPA needs to interpret it in order
to explain why these substantive issues do not need
to be addressed in the context of infrastructure SIPs
and may be addressed at other times and by other
means.
PO 00000
Frm 00057
Fmt 4702
Sfmt 4702
regional office to refine the scope of a
state’s submittal based on an assessment
of how the requirements of section
110(a)(2) should reasonably apply to the
basic structure of the state’s
implementation plans for the NAAQS in
question.
On September 25, 2009, EPA issued
guidance to make recommendations to
states with respect to the infrastructure
SIPs for the 2006 PM2.5 NAAQS.15 In the
2009 Guidance, EPA addressed a
number of additional issues that were
not germane to the infrastructure SIPs
for the 1997 8-hour ozone and 1997
PM2.5 NAAQS, but were germane to
these SIP submissions for the 2006
PM2.5 NAAQS (e.g., the requirements of
section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure
elements for those specific 1997 ozone
and PM2.5 NAAQS). Significantly,
neither the 2007 Guidance nor the 2009
Guidance explicitly referred to the SSM,
director’s discretion, minor source NSR,
or NSR Reform issues as among specific
substantive issues EPA expected states
to address in the context of the
infrastructure SIPs, nor did EPA give
any more specific recommendations
with respect to how states might address
such issues even if they elected to do so.
The SSM and director’s discretion
issues implicate section 110(a)(2)(A),
and the minor source NSR and NSR
Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance and
the 2009 Guidance, however, EPA did
not indicate to states that it intended to
interpret these provisions as requiring a
substantive submission to address these
specific issues in existing SIP provisions
in the context of the infrastructure SIPs
for these NAAQS. Instead, EPA’s 2007
Guidance merely indicated its belief
that the states should make submissions
in which they established that they have
the basic SIP structure necessary to
implement, maintain, and enforce the
NAAQS. EPA believes that states can
establish that they have the basic SIP
structure, notwithstanding that there
may be potential deficiencies within the
existing SIP. Thus, EPA’s proposals for
other states mentioned these issues not
because the Agency considers them
issues that must be addressed in the
context of an infrastructure SIP as
required by section 110(a)(1) and (2),
but rather because EPA wanted to be
clear that it considers these potential
existing SIP problems as separate from
15 See ‘‘Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 2006 24–
Hour Fine Particle (PM2.5) National Ambient Air
Quality Standards (NAAQS),’’ from William T,
Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I–X, dated
September 25, 2009 (the ‘‘2009 Guidance’’).
E:\FR\FM\12JNP1.SGM
12JNP1
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
the pending infrastructure SIP actions.
The same holds true for this action on
the infrastructure SIPs for Florida.
EPA believes that this approach to the
infrastructure SIP requirement is
reasonable because it would not be
feasible to read section 110(a)(1) and (2)
to require a top to bottom, stem to stern,
review of each and every provision of an
existing SIP 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 that, 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 considers the overall
effectiveness of the SIP. To the contrary,
EPA believes that a better approach is
for EPA to determine which specific SIP
elements from section 110(a)(2) are
applicable to an infrastructure SIP for a
given NAAQS, and to focus attention on
those elements that are most likely to
need a specific SIP revision in light of
the new or revised NAAQS. Thus, for
example, EPA’s 2007 Guidance
specifically directed states to focus on
the requirements of section 110(a)(2)(G)
for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA
regulations for emergency episodes for
this NAAQS and an anticipated absence
of relevant provisions in existing SIPs.
Finally, EPA believes that its
approach is a reasonable reading of
section 110(a)(1) and (2) because the
statute provides other avenues and
mechanisms to address specific
substantive deficiencies in existing SIPs.
These other statutory tools allow the
Agency to take appropriate 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 otherwise to
comply with the CAA.16 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.17
16 EPA has recently issued a SIP call to rectify a
specific SIP deficiency related to the SSM issue.
See, ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revision,’’ 74 FR 21639 (April
18, 2011).
17 EPA has recently utilized this authority to
correct errors in past actions on SIP submissions
VerDate Mar<15>2010
16:28 Jun 11, 2012
Jkt 226001
Significantly, EPA’s determination that
an action on the infrastructure SIP is not
the appropriate time and place to
address all potential existing SIP
problems does not preclude the
Agency’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action 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 the infrastructure
SIP, EPA believes that section
110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course
of addressing the issue in a subsequent
action.18
IV. What is EPA’s analysis of how
Florida Addressed the elements of
sections 110(a)(1) and (2)
‘‘infrastructure’’ provisions?
Florida’s infrastructure submission
addresses the provisions of sections
110(a)(1) and (2) as described below.
1. 110(a)(2)(A): Emission limits and
other control measures: Florida’s
infrastructure submissions provide an
overview of the provisions of Florida’s
Air Pollution Control Requirements
relevant to air quality control
regulations. There are several
regulations within Florida’s SIP relevant
to air quality control regulations which
include enforceable emission
limitations and other control measures.
Chapters 62–204, Air Pollution Control
Provisions; 62–210, Stationary
Sources—General Requirements; and
62–296, Stationary Sources—Emissions
Standards, establish emission limits and
address the required control measures,
means and techniques for compliance
with the PM2.5 NAAQS respectively.
EPA has made the preliminary
determination that the provisions
contained in these chapters and
Florida’s practices are adequate to
related to PSD programs. See ‘‘Limitation of
Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’
75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA 110(k)(6)
to remove numerous other SIP provisions that the
Agency determined it had approved in error. See 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).
18 EPA has recently disapproved 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 75 FR 42342, 42344 (July
21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (January 26,
2011) (final disapproval of such provisions).
PO 00000
Frm 00058
Fmt 4702
Sfmt 4702
34911
protect the PM2.5 annual and 24-hour
NAAQS in the State.
In this action, EPA is not proposing to
approve or disapprove any existing state
provisions with regard to excess
emissions during SSM of operations at
a facility. EPA believes that a number of
states have SSM provisions which are
contrary to the CAA and existing EPA
guidance, ‘‘State Implementation Plans:
Policy Regarding Excess Emissions
During Malfunctions, Startup, and
Shutdown’’ (September 20, 1999), and
the Agency plans to address such state
regulations in the future. In the
meantime, EPA encourages any state
having deficient SSM provisions to take
steps to correct it as soon as possible.
Additionally, in this action, EPA is
not proposing to approve or disapprove
any existing state rules with regard to
director’s discretion or variance
provisions. EPA believes that a number
of states have such provisions which are
contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24,
1987)), and the Agency plans to take
action in the future to address such state
regulations. In the meantime, EPA
encourages any state having a director’s
discretion or variance provision which
is contrary to the CAA and EPA
guidance to take steps to correct the
deficiency as soon as possible.
2. 110(a)(2)(B) Ambient air quality
monitoring/data system: Chapters 62–
204, Air Pollution Control Provisions,
62–210, Stationary Sources—General
Requirements, 62–212, Stationary
Sources—Preconstruction Review, 62–
296, Stationary Sources—Emissions
Standards, and 62–297, Stationary
Sources—Emissions Monitoring of the
Florida SIP, along with the Florida
Network Description and Ambient Air
Monitoring Network Plan, provide for
an ambient air quality monitoring
system in the State. Annually, EPA
approves the ambient air monitoring
network plan for the state agencies. In
May 2011 Florida submitted its plan to
EPA. On October 17, 2011, EPA
approved Florida’s monitoring network
plan. Florida’s approved monitoring
network plan can be accessed at
www.regulations.gov using Docket ID
No. EPA–R04–OAR–2012–0382. EPA
has made the preliminary determination
that Florida’s SIP and practices are
adequate for the ambient air quality
monitoring and data systems related to
the 1997 annual and 2006 24-hour PM2.5
NAAQS.
3. 110(a)(2)(C) Program for
enforcement of control measures
including review of proposed new
sources: Florida’s authority to regulate
new and modified sources to assist in
the protection of air quality in
E:\FR\FM\12JNP1.SGM
12JNP1
mstockstill on DSK4VPTVN1PROD with PROPOSALS
34912
Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
nonattainment, attainment or
unclassifiable areas is established in
Chapters 62–210, Stationary Sources—
General Requirements, and 62–212,
Stationary Sources—Preconstruction
Review, Deterioration, of the Florida
SIP. Florida’s regulations describe the
permit requirements for new major
sources or major modifications of
existing sources and set the permitting
requirements in areas classified as
attainment or unclassifiable under
section 107(d)(1)(A)(ii) or (iii) of the
CAA. The regulations are designed to
prevent sources in areas attaining the
NAAQS at the time of designations from
causing any significant deterioration in
air quality. Additionally, on March 15,
2012, Florida submitted a SIP revision
to its NSR/PSD and Nonattainment New
Source Review (NNSR) programs.
Florida’s March 15, 2012, SIP revision
incorporates NSR provisions for fine
particulate matter (also known as PM2.5)
as amended in EPA’s 2008 NSR PM2.5
Implementation Rule (hereafter referred
to as the ‘‘NSR PM2.5 Rule’’) into the
Florida SIP. In the March 15, 2012, SIP
revision, Florida includes revisions to
rules that address the infrastructure
requirements (C) and (J). EPA is
proposing approval of Florida’s March
15, 2012, submission in a rulemaking
separate from today’s action.
In this action, EPA is proposing to
approve Florida’s infrastructure SIP for
the 1997 annual and 2006 24-hour PM2.5
NAAQS with respect to the general
requirement in section 110(a)(2)(C) to
include a program in the SIP that
regulates the modification and
construction of any stationary source as
necessary to assure that the NAAQS are
achieved. EPA is not proposing to
approve or disapprove the State’s
existing minor NSR program itself to the
extent that it is inconsistent with EPA’s
regulations governing this program. EPA
believes that a number of states may
have minor NSR provisions that are
contrary to the existing EPA regulations
for this program. EPA intends to work
with states to reconcile state minor NSR
programs with EPA’s regulatory
provisions for the program. The
statutory requirements of section
110(a)(2)(C) provide for considerable
flexibility in designing minor NSR
programs, and EPA believes it may be
time to revisit the regulatory
requirements for this program to give
the states an appropriate level of
flexibility to design a program that
meets their particular air quality
concerns, while assuring reasonable
consistency across the country in
protecting the NAAQS with respect to
new and modified minor sources.
VerDate Mar<15>2010
16:28 Jun 11, 2012
Jkt 226001
EPA has made the preliminary
determination that Florida’s SIP and
practices are adequate for program
enforcement of control measures
including review of proposed new
sources related to the 1997 annual and
2006 24-hour PM2.5 NAAQS. Final
action to approve this element,
however, is contingent upon the Agency
first taking final action to approve
Florida’s March 15, 2012, PM2.5 NSR
Update. As discussed above, such action
the March 15, 2012, submission will
occur in a separate rulemaking.
4. 110(a)(2)(D)(ii) Interstate and
International transport provisions:
Chapter 62–210, Stationary Sources—
General Requirements of Florida’s SIP,
outlines how Florida will notify
neighboring states of potential impacts
from new or modified sources. Florida
does not have any pending obligation
under sections 115 and 126 of the CAA.
EPA has made the preliminary
determination that Florida’s SIP and
practices are adequate for insuring
compliance with the applicable
requirements relating to interstate and
international pollution abatement for
the 1997 annual and 2006 24-hour PM2.5
NAAQS.
5. 110(a)(2)(E) Adequate resources:
Section 110(a)(2)(E) requires that each
implementation plan provide (i)
necessary assurances that the State will
have adequate personnel, funding, and
authority under state law to carry out its
implementation plan, (ii) that the State
comply with the requirements
respecting State Boards pursuant to
section 128 of the Act, and (iii)
necessary assurances that, where the
State has relied on a local or regional
government, agency, or instrumentality
for the implementation of any plan
provision, the State has responsibility
for ensuring adequate implementation
of such plan provisions. EPA is
proposing to approve Florida’s SIP as
meeting the requirements of subelements 110(a)(2)(E)(i) and (iii). EPA is
also proposing to approve sub-element
110(a)(2)(E)(ii) (regarding state boards),
however, final approval of this subelement is contingent upon the Agency
first taking final action to approve
proposed revisions the Florida’s SIP
related to this sub-element. See 77 FR
29581. EPA’s rationale for today’s
proposals respecting each sub-element
is described in turn below.
In support of EPA’s proposal to
approve sub-elements 110(a)(2)(E)(i) and
(iii), Florida’s submissions note that
FDEP is responsible for promulgating
rules and regulations for the NAAQS,
emissions standards general policies, a
system of permits, fee schedules for the
review of plans, and other planning
PO 00000
Frm 00059
Fmt 4702
Sfmt 4702
needs. As evidence of the adequacy of
FDEP’s resources with respect to subelements (i) and (iii), EPA submitted a
letter to Florida on March 13, 2012,
outlining the 105 grant commitments
and current status of these commitments
for fiscal year 2011. The letter EPA
submitted to Florida can be accessed at
www.regulations.gov using Docket ID
No. EPA–R04–OAR–2012–0382.
Annually, states update these grant
commitments based on current SIP
requirements, air quality planning, and
applicable requirements related to the
NAAQS. Florida satisfactorily met all
commitments agreed to in the Air
Planning Agreement for fiscal year 2011,
therefore Florida’s grants were finalized
and closed out. EPA has made the
preliminary determination that Florida
has adequate resources for
implementation of the 1997 annual and
2006 24-hour PM2.5 NAAQS. In
addition, the requirements of
110(a)(2)(E)(i) and (iii) are met when
EPA performs a completeness
determination for each SIP submittal.
This determination ensures that each
submittal provides evidence that
adequate personnel, funding, and legal
authority under state law has been use
to carry out the state’s implementation
plan and related issues. Florida’s
authority is included in all prehearings
and final SIP submittal packages for
approval by EPA. EPA has made the
preliminary determination that Florida
has adequate resources for
implementation of the 1997 annual and
2006 24-hour PM2.5 NAAQS.
Section 110(a)(2)(E)(ii) requires that
the state comply with section 128 of the
CAA. Section 128 requires that: (1) The
majority of members of any state board
or body which approves permits or
enforcement orders represent the public
interest and do not derive any
significant portion of their income from
persons subject to permitting or
enforcement orders under the CAA; and
(2) any potential conflicts of interest by
such board or body, or head of an
executive agency with similar powers be
adequately disclosed. For purposes of
section 128(a)(1), Florida has no boards
or bodies with authority over air
pollution permits or enforcement
actions. Such matters are instead
handled by an appointed Secretary.
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
E:\FR\FM\12JNP1.SGM
12JNP1
mstockstill on DSK4VPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
SIP pursuant to section 110(a)(2)(E)(ii)),
on April 19, 2012, Florida submitted
Florida Statutes112.3143(4) and
112.3144 for incorporation into the SIP.
In a separate action, EPA has proposed
approval of this revision to the Florida
SIP. See 77 FR 29581. EPA is today
proposing that this revision, once
finalized, will be sufficient to satisfy the
110(a)(2)(E)(ii) conflict of interest
provisions applicable to the head of
FDEP and all public officers within the
Department. Final approval of today’s
proposed rule is contingent upon the
Agency first taking final action to
approve a final SIP revision consistent
with the April 19, 2012, SIP revision.
6. 110(a)(2)(F) Stationary source
monitoring system: Florida’s
infrastructure submission describes how
the State establishes requirements for
emissions compliance testing and
utilizes emissions sampling and
analysis. It further describes how the
State ensures the quality of its data
through observing emissions and
monitoring operations. Florida DEP uses
these data to track progress towards
maintaining the NAAQS, develop
control and maintenance strategies,
identify sources and general emission
levels, and determine compliance with
emission regulations and additional
EPA requirements. These requirements
are provided in Florida SIP Chapters
62–210, Stationary Sources—General
Requirements; 62–212, Stationary
Sources—Preconstruction Review; 62–
296, Stationary Sources—Emissions
Standards; and 62–297, Stationary
Sources—Emissions Monitoring.
Additionally, Florida is required to
submit emissions data to EPA for
purposes of the National Emissions
Inventory (NEI). The NEI is EPA’s
central repository for air emissions data.
EPA published the Air Emissions
Reporting Rule (AERR) on December 5,
2008, which modified the requirements
for collecting and reporting air
emissions data (73 FR 76539). The
AERR shortened the time states had to
report emissions data from 17 to 12
months, giving states one calendar year
to submit emissions data. All states are
required to submit a comprehensive
emissions inventory every three years
and report emissions for certain larger
sources annually through EPA’s online
Emissions Inventory System (EIS).
States report emissions data for the six
criteria pollutants and the precursors
that form them—NOX, sulfur dioxide,
ammonia, lead, carbon monoxide,
particulate matter, and volatile organic
compounds (VOCs). Many states also
voluntarily report emissions of
hazardous air pollutants. Florida made
its latest update to the NEI on November
VerDate Mar<15>2010
16:28 Jun 11, 2012
Jkt 226001
22, 2011. EPA compiles the emissions
data, supplementing it where necessary,
and releases it to the general public
through the Web site https://
www.epa.gov/ttn/chief/
eiinformation.html. EPA has made the
preliminary determination that Florida’s
SIP and practices are adequate for the
stationary source monitoring systems
related to the 1997 annual and 2006 24hour PM2.5 NAAQS.
7. 110(a)(2)(G) Emergency power:
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 September
25, 2009, EPA released the guidance
entitled ‘‘Guidance on SIP Elements
Required Under Sections 110(a)(1) and
(2) for the 2006 24-Hour Fine Particulate
(PM2.5) National Ambient Air Quality
Standards (NAAQS).’’ This guidance
clarified that ‘‘to address the section
110(a)(2)(G) element, states with air
quality control regions identified as
either Priority I, IA, or Priority II by the
‘Prevention of Air Pollution Emergency
Episodes’ rule at 40 CFR 51.150, must
develop emergency episode contingency
plans.’’ EPA’s September 25, 2009,
guidance also states that ‘‘until the
Agency finalized changes to the
emergency episode regulation to
establish for PM2.5 specific levels for
classifying areas as Priority I, IA, or II
for PM2.5, and to establish a significant
harm level (SHL)* * *,’’ it recommends
that states with a 24-Hour PM2.5
concentration above 140 mg/m3 (using
the most recent three years of data)
develop an emergency episode plan. For
states where this level has not been
exceeded, the state can certify that it has
appropriate general emergency powers
to address PM2.5 related episodes, and
that no specific emergency episode
plans are needed at this time. On
September 19, 2009, FDEP submitted a
letter to EPA verifying that it is a Class
III Priority Area and is exempt from
adopting emergency episode plan for
PM2.5. On September 23, 2009, FDEP
submitted certification that its SIP
adequately addressed the section
110(a)(2)(G) requirements for the 2006
PM2.5 NAAQS. Florida had not
previously public noticed its
certification submissions with regard to
110(a)(2)(G) for the PM2.5 NAAQS, so on
May 20, 2011, Florida provided public
notice for this element.
EPA has reviewed Florida’s April 18,
2008, and September 23, 2009,
certifications and has determined that
the ambient air quality monitoring data
from 2006 to 2011 for Florida did not
PO 00000
Frm 00060
Fmt 4702
Sfmt 4702
34913
exceed 140 mg/m3. The PM2.5 levels
have consistently remained below this
level (140 mg/m3). As a result, EPA is
proposing to approve Florida’s
infrastructure submissions for the 1997
and 2006 PM2.5 NAAQS.
8. 110(a)(2)(H) Future SIP revisions:
FDEP is responsible for adopting air
quality rules and revising SIPs as
needed to attain or maintain the
NAAQS in Florida. FDEP has the ability
and authority to respond to calls for SIP
revisions, and has provided a number of
SIP revisions over the years for
implementation of the NAAQS. Florida
does not have any nonattainment areas
for the 1997 annual or 2006 24-hour
PM2.5 standard, but has made an
infrastructure submission for these
standards, which is the subject of this
rulemaking. EPA has made the
preliminary determination that Florida’s
SIP and practices adequately
demonstrate a commitment to provide
future SIP revisions related to the 1997
annual and 2006 24-hour PM2.5 NAAQS
when necessary.
9. 110(a)(2)(J) (121 consultation)
Consultation with government officials:
Chapters 62–204, Air Pollution Control
Provisions, and 62–212, Stationary
Sources—Preconstruction Review, of the
Florida SIP, as well as Florida’s
Regional Haze Implementation Plan
(which allows for consultation between
appropriate state, local, and tribal air
pollution control agencies as well as the
corresponding Federal Land Managers),
provide for consultation with
government officials whose jurisdictions
might be affected by SIP development
activities. Florida adopted state-wide
consultation procedures for the
implementation of transportation
conformity. These consultation
procedures include the development of
mobile inventories for SIPs.
Implementation of transportation
conformity, as outlined in the
consultation procedures, requires FDEP
to consult with federal, state and local
transportation and air quality agency
officials on the development of motor
vehicle emissions budgets. EPA
approved Florida’s consultation
procedures on August 11, 2003 as part
of the approval of the State’s
transportation conformity rule (See 68
FR 47468). EPA has made the
preliminary determination that Florida’s
SIP and practices adequately
demonstrate consultation with
government officials related to the 1997
annual and 2006 24-hour PM2.5 NAAQS
when necessary.
10. 110(a)(2)(J) (127 public
notification) Public notification: FDEP
has public notice mechanisms in place
to notify the public of pollutant
E:\FR\FM\12JNP1.SGM
12JNP1
mstockstill on DSK4VPTVN1PROD with PROPOSALS
34914
Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
forecasting, including an air quality
monitoring Web site providing fine
particulate alerts, https://
www.dep.state.fl.us/air/air_quality/
countyaqi.htm. Florida Statutes,
403.131, Injunctive relief, remedies and
120.569 Decisions which affect
substantial interests (subsection (2)(n)
relating to emergency orders), provide
authority for the State to seek injunctive
relief to prevent irreparable damage to
air quality. In addition Chapter 62–
256.300, Prohibitions, of the Florida SIP
includes provisions to monitor air
pollution episodes for ozone and
particulate matter. EPA has made the
preliminary determination that Florida’s
SIP and practices adequately
demonstrate the State’s ability to
provide public notification related to
the 1997 annual and 2006 24-hour PM2.5
NAAQS when necessary.
11. 110(a)(2)(J) (PSD) PSD and
visibility protection: Florida
demonstrates its authority to regulate
new and modified sources of PM to
assist in the protection of air quality in
Florida. Chapters 62–210, Stationary
Sources—General Requirements,
Section 200—Definitions, and 62–212,
Stationary Sources—Preconstruction
Review, Section 400—Prevention of
Significant Deterioration, of Florida’s
SIP provide the permitting requirements
for new major sources or major
modifications of existing sources in
areas classified as attainment or
unclassifiable under section
107(d)(1)(A)(ii) or (iii) of the CAA.
These provisions are designed to
prevent significant deterioration in air
quality in areas that are in attainment of
the NAAQS at the time of designations.
As with infrastructure element
110(a)(2)(C), infrastructure element
110(a)(2)(J) also requires compliance
with applicable provisions of the PSD
program described in part C of the Act.
Accordingly, the pending EPA action on
the March 15, 2012, SIP revision (NSR
Revisions), is a prerequisite to today’s
proposed action to approve the State’s
infrastructure element 110(a)(2)(J). See
the discussion for element 110(a)(2)(C)
above for a description of the pending
revision to the Florida SIP. The March
15, 2012, SIP revision addresses
requisite requirements of infrastructure
element 110(a)(2)(J) (PSD and visibility
protection), therefore, today’s action to
propose approval of infrastructure SIP
element 110(a)(2)(J) (PSD and visibility
protection) is contingent upon EPA
taking final action to approve the March
15, 2012, SIP revision into the Florida
SIP.
With regard to the applicable
requirements for visibility protection,
EPA recognizes that states are subject to
VerDate Mar<15>2010
16:28 Jun 11, 2012
Jkt 226001
visibility and regional haze program
requirements under part C of the Act
(which includes sections 169A and
169B). In the event of the establishment
of a new NAAQS, however, the
visibility and regional haze program
requirements under part C do not
change. Thus, EPA finds that there is no
new visibility obligation ‘‘triggered’’
under section 110(a)(2)(J) when a new
NAAQS becomes effective. This would
be the case even in the event a
secondary PM2.5 NAAQS for visibility is
established, because this NAAQS would
not affect visibility requirements under
part C. EPA has made the preliminary
determination that Florida’s SIP and
practices adequately demonstrate the
State’s ability to implement PSD
programs and to provide for visibility
protection related to the 1997 annual
and 2006 24-hour PM2.5 NAAQS when
necessary. As discussed above, final
approval of this element is contingent
upon the Agency first taking final action
to approve Florida’s March 15, 2012,
PM2.5 NSR Update.
12. 110(a)(2)(K) Air quality and
modeling/data: Chapter 62–204.800,
Federal Regulations Adopted by
Reference, of the Florida SIP
incorporates by reference 40 CFR
52.21(l), which specifies that air
modeling be conducted in accordance
with 40 CFR part 51, Appendix W
‘‘Guideline on Air Quality Models.’’
This regulation demonstrates that
Florida has the authority to provide
relevant data for the purpose of
predicting the effect on ambient air
quality of the 1997 annual and 2006 24hour PM2.5 NAAQS. Additionally,
Florida supports a regional effort to
coordinate the development of
emissions inventories and conduct
regional modeling for several NAAQS,
including the 1997 annual and 2006 24hour PM2.5 NAAQS, for the
Southeastern states. Taken as a whole,
Florida’s air quality regulations
demonstrate that FDEP has the authority
to provide relevant data for the purpose
of predicting the effect on ambient air
quality of the 1997 annual and 2006 24hour PM2.5 NAAQS. EPA has made the
preliminary determination that Florida’s
SIP and practices adequately
demonstrate the State’s ability to
provide for air quality and modeling,
along with analysis of the associated
data, related to the 1997 annual and
2006 24-hour PM2.5 NAAQS when
necessary.
13. 110(a)(2)(L) Permitting fees:
Florida addresses the review of
construction permits as previously
discussed in 110(a)(2)(C). Permitting
fees in Florida are collected through the
State’s federally-approved title V fees
PO 00000
Frm 00061
Fmt 4702
Sfmt 4702
program, according to State Statute
403.087(6)(a), Permit Fees. EPA has
made the preliminary determination
that Florida’s SIP and practices
adequately provide for permitting fees
related to the 1997 annual and 2006 24hour PM2.5 NAAQS when necessary.
14. 110(a)(2)(M) Consultation/
participation by affected local entities:
Chapter 62–204, Air Pollution Control
Provisions, of the Florida SIP requires
that SIPs be submitted in accordance
with 40 CFR part 51, subpart F, for
permitting purposes. Florida statute
403.061(21) authorizes FDEP to
‘‘[a]dvise, consult, cooperate and enter
into agreements with other agencies of
the state, the Federal Government, other
states, interstate agencies, groups,
political subdivisions, and industries
affected by the provisions of this act,
rules, or policies of the department.’’
Furthermore, FDEP has demonstrated
consultation with, and participation by,
affected local entities through its work
with local political subdivisions during
the developing of its Transportation
Conformity SIP and Regional Haze
Implementation Plan. EPA has made the
preliminary determination that Florida’s
SIP and practices adequately
demonstrate consultation with affected
local entities related to the 1997 annual
and 2006 24-hour PM2.5 NAAQS when
necessary.
V. Proposed Action
As described above, FDEP has
addressed the required elements of the
CAA 110(a)(1) and (2) SIP requirements
pursuant to EPA’s October 2, 2007, and
September 25, 2009, guidance to ensure
that the 1997 annual and 2006 24-hour
PM2.5 NAAQS are implemented,
enforced, and maintained in Florida.
EPA is proposing to approve Florida’s
infrastructure submissions, provided to
EPA on April 18, 2008, and on
September 23, 2009, with the exception
of section 110(a)(2)(E)(ii) which will be
addressed in a separate action. EPA is
proposing to determine that Florida’s
infrastructure submission, provided to
EPA on April 18, 2008, addressed all the
required infrastructure elements for the
1997 annual PM2.5 NAAQS and on
September 23, 2009, addressed all the
required infrastructure elements for the
2006 24-hour PM2.5 NAAQS. Final
approval of this rule is contingent upon
the Agency first taking final action to
approve Florida’s March 15, 2012, PM2.5
NSR Update submission 19 and May 18,
2012 proposed rule to approve Florida’s
19 As noted above, EPA has yet to propose action
on the March 15, 2012, PM2.5 NSR Update
submission. Such proposed action will occur in a
separate rulemaking.
E:\FR\FM\12JNP1.SGM
12JNP1
Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS
April 19, 2012, submission addressing
section 110(a)(2)(E)(ii).
costs on tribal governments or preempt
tribal law.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely approves state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive 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 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
List of Subjects in 40 CFR Part 52
Air pollution control, Environmental
protection, Intergovernmental relations,
Nitrogen dioxide, Particulate matter,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
VerDate Mar<15>2010
16:28 Jun 11, 2012
Jkt 226001
Authority: 42 U.S.C. 7401 et seq.
Dated: June 1, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012–14244 Filed 6–11–12; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 80
[EPA–HQ–OAR–2011–0542; FRL–9680–8]
Notice of Data Availability Concerning
Renewable Fuels Produced From Grain
Sorghum Under the RFS Program
Environmental Protection
Agency (EPA).
ACTION: Notice of data availability
(NODA).
AGENCY:
This notice of data
availability provides an opportunity to
comment on EPA’s analyses of grain
sorghum used as a feedstock to produce
ethanol under the Renewable Fuel
Standard (RFS) program. EPA’s analysis
shows that ethanol from grain sorghum
has estimated lifecycle greenhouse gas
(GHG) emission reductions of 32%
compared to the baseline petroleum fuel
it would replace. This analysis indicates
that grain sorghum ethanol qualifies as
a conventional renewable fuel under the
RFS program. Furthermore, this analysis
shows that, when produced via certain
pathways that utilize advanced process
technologies (e.g., biogas in addition to
combined heat and power), grain
sorghum ethanol has lifecycle GHG
emission reductions of over 50%
compared to the baseline petroleum fuel
it would replace, and would qualify as
an advanced biofuel under RFS.
DATES: Comments must be received on
or before July 12, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2011–0542, by one of the
following methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
• Email: asdinfo@epa.gov.
• Mail: Air and Radiation Docket and
Information Center, Environmental
SUMMARY:
PO 00000
Frm 00062
Fmt 4702
Sfmt 4702
34915
Protection Agency, Mailcode: 2822T,
1200 Pennsylvania Ave. NW.,
Washington, DC 20460.
• Hand Delivery: Air and Radiation
Docket and Information Center, EPA/
DC, EPA West, Room 3334, 1301
Constitution Ave. NW., Washington DC
20004. Such deliveries are only
accepted during the Docket’s normal
hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–OAR–2011–
0542. 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 information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or asdinfo@epa.gov. 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 docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the Air and Radiation Docket and
E:\FR\FM\12JNP1.SGM
12JNP1
]]>Agencies
[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Proposed Rules]
[Pages 34906-34915]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14244]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0382; FRL-9686-2]
Approval and Promulgation of Implementation Plans; Florida;
110(a)(1) and (2) Infrastructure Requirements for the 1997 and 2006
Fine Particulate Matter National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve the State Implementation Plans
(SIPs), submitted by the State of Florida, through the Florida
Department of Environmental Protection (FDEP), as demonstrating that
the State meets the requirements of sections 110(a)(1) and (2) of the
Clean Air Act (CAA or the Act) for the 1997 annual and 2006 24-hour
fine particulate matter (PM2.5) national ambient air quality
standards (NAAQS). Section 110(a) of the CAA requires that each state
adopt and submit a SIP for the implementation, maintenance, and
enforcement of each NAAQS promulgated by the EPA, which is commonly
referred to as an ``infrastructure'' SIP. Florida certified that the
Florida SIP contains provisions that ensure the 1997 annual and 2006
24-hour PM2.5 NAAQS are implemented, enforced, and
maintained in Florida (hereafter referred to as ``infrastructure
submission''). EPA is proposing to determine that Florida's
infrastructure submissions, provided to EPA on April 18, 2008, and on
September 23, 2009, addressed all the required infrastructure elements
for the 1997 annual and 2006 24-hour PM2.5 NAAQS. As
discussed further below, final action to approve elements 110(a)(2)(C),
(E)(ii), and (J) is contingent upon the Agency first taking final
action on submitted SIP revisions associated with these elements. Final
action on those SIP revisions will be addressed in a separate action.
DATES: Written comments must be received on or before July 12, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0382, 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-2012-0382,'' 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.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0382. 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
[[Page 34907]]
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
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: Sean Lakeman, 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)
562-9043. Mr. Lakeman can be reached via electronic mail at
lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. Scope of Infrastructure SIPs
IV. What is EPA's analysis of how Florida addressed the elements of
sections 110(a)(1) and (2) ``infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
On July 18, 1997 (62 FR 36852), EPA established an annual
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\)
based on a 3-year average of annual mean PM2.5
concentrations. At that time, EPA also established a 24-hour NAAQS of
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\
based on a 3-year average of annual mean PM2.5
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\
based on a 3-year average of the 98th percentile of 24-hour
concentrations. By statute, SIPs meeting the requirements of sections
110(a)(1) and (2) are to be submitted by states within three years
after promulgation of a new or revised NAAQS. Sections 110(a)(1) and
(2) require 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
to EPA no later than July 2000 for the 1997 annual PM2.5
NAAQS, no later than October 2009 for the 2006 24-hour PM2.5
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 annual
PM2.5 NAAQS. On March 10, 2005, 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 PM2.5 NAAQS by October 5, 2008. In accordance with
the consent decree, EPA made completeness findings for each state based
upon what the Agency received from each state for the 1997
PM2.5 NAAQS as of October 3, 2008.
On October 22, 2008, EPA published a final rulemaking entitled,
``Completeness Findings for Section 110(a) State Implementation Plans
Pertaining to the Fine Particulate Matter (PM2.5) 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 PM2.5 NAAQS (See
73 FR 62902). For those states that did receive findings, 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 Federal
Implementation Plan (FIP) to address the outstanding SIP elements
unless, prior to that time, the affected states submitted, and EPA
approved, the required SIPs.
The findings 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 submissions were received by EPA on April 18, 2008, for
the 1997 annual PM2.5 NAAQS and on September 23, 2009, for
the 2006 24-hour PM2.5 NAAQS. The submissions were
determined to be complete on October 18, 2008, and March 23, 2010,
respectively. Florida was among other states that did not receive
findings of failure to submit because it had provided a complete
submission to EPA to address the infrastructure elements for the 1997
PM2.5 NAAQS by October 3, 2008.
On July 6, 2011, WildEarth Guardians and Sierra Club filed an
amended complaint related to EPA's failure to take action on the SIP
submittal related to the ``infrastructure'' requirements for the 2006
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a
consent decree with WildEarth Guardians and Sierra Club which required
EPA, among other things, to complete a Federal Register notice of the
Agency's final action either approving, disapproving, or approving in
part and disapproving in part the Florida 2006 24-hour PM2.5
NAAQS Infrastructure SIP submittal addressing the applicable
requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for section
110(a)(2)(C) the nonattainment area requirements and section
110(a)(2)(D)(i) interstate transport requirements, by September 30,
2012.
Today's action is proposing to approve Florida's infrastructure
submission for the 1997 annual and 2006 24-hour PM2.5 NAAQS
for sections
[[Page 34908]]
110(a)(2)(A)-(H), (J)-(M), except for section 110(a)(2)(C)
nonattainment area requirements and section 110(a)(2)(D)(i) interstate
transport requirements. EPA notes that final action to approve elements
110(a)(2)(C), (E)(ii), and (J) is contingent upon the Agency first
taking final action on submitted SIP revisions associated with each of
these elements. Final action on those SIP revisions will be addressed
in separate actions.
Today's action is not approving any specific rule, but rather
proposing that Florida's already approved SIP meets certain CAA
requirements.
II. What elements are required under sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 1997 annual and 2006 24-hour
PM2.5 NAAQS, some states may need to adopt language specific
to the PM2.5 NAAQS to ensure that they have adequate SIP
provisions to implement the PM2.5 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 this proposed rulemaking are listed below\1\ 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'' and September
25, 2009, memorandum entitled ``Guidance on SIP Elements Required Under
Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards.''
---------------------------------------------------------------------------
\1\ 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), but does provide detail on how Florida's SIP
addresses 110(a)(2)(C).
---------------------------------------------------------------------------
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control
measures.\2\
---------------------------------------------------------------------------
\2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
---------------------------------------------------------------------------
110(a)(2)(D): Interstate transport.\3\
---------------------------------------------------------------------------
\3\ Today's proposed rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997 and 2006
PM2.5 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 DC 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 SIP revision, which
was submitted to comply with CAIR. See 72 FR 58016 (October 12,
2007). In so doing, Florida CAIR SIP revision addressed the
interstate transport provisions in section 110(a)(2)(D)(i) for the
1997 and 2006 PM2.5 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
Transport Rule''). That rule was recently stayed by the DC Circuit
Court of Appeals. EPA's action on element 110(a)(2)(D)(i) will be
addressed in a separate action.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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,'' and
the September 25, 2009, memorandum entitled ``Guidance on SIP
Elements Required Under Section 110(a)(1) and (2) for the 2006 Fine
Particle (PM2.5) National Ambient Air Quality
Standards,'' but as mentioned above is not relevant to today's
proposed rulemaking.
---------------------------------------------------------------------------
110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
III. Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on those infrastructure SIP
submissions.\5\ Those Commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction (SSM) at sources, that may be contrary to the
CAA and EPA's policies addressing such excess emissions; and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (director's
discretion). EPA notes that there are two other substantive issues for
which EPA likewise stated in other proposals that it would address
separately: (i) Existing provisions for minor source new source review
(NSR) programs that may be inconsistent with the requirements of the
CAA and EPA's regulations that pertain to such programs (minor source
NSR''\); and (ii) existing provisions for Prevention of Significant
Deterioration (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). In light of the comments, EPA believes that its statements in
various proposed actions on infrastructure SIPs with respect to these
four individual issues should be explained in greater depth. It is
important to emphasize that EPA is taking the same position with
respect to these four substantive issues in this action on the
infrastructure SIPs
[[Page 34909]]
for the 1997 and 2006 PM2.5 NAAQS from Florida.
---------------------------------------------------------------------------
\5\ See Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
---------------------------------------------------------------------------
EPA intended the statements in the other proposals concerning these
four issues merely to be informational and to provide general notice of
the potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a re-approval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
re-approval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
the infrastructure SIP for Florida.
Unfortunately, the Commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``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
that these SIPs are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, NSR permitting program
submissions required to address the requirements of part D, and a host
of other specific types of SIP submissions that address other specific
matters.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, 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 provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\6\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\7\
---------------------------------------------------------------------------
\6\ For example, section 110(a)(2)(E) 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 substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See ``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 (May 12,
2005) (defining, among other things, the phrase ``contribute
significantly to nonattainment'').
---------------------------------------------------------------------------
Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\8\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\9\ This illustrates that EPA
[[Page 34910]]
may conclude that subdividing the applicable requirements of section
110(a)(2) into separate SIP actions may sometimes be appropriate for a
given NAAQS where a specific substantive action is necessitated, beyond
a mere submission addressing basic structural aspects of the state's
implementation plans. Finally, 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 and the attendant
infrastructure SIP submission for that NAAQS. For example, the
monitoring requirements that might be necessary for purposes of section
110(a)(2)(B) for one NAAQS could be very different than what might be
necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\10\
---------------------------------------------------------------------------
\8\ See Id., 70 FR 25162, at 63-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\9\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See ``Guidance for State Implementation
Plan (SIP) Submissions to Meet Current Outstanding Obligations Under
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division OAQPS, to Regional Air Division
Director, Regions I-X, dated August 15, 2006.
\10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------
Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \12\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \13\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \14\ However, for the one exception to that general
assumption (i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS), EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
state would work with its corresponding EPA regional office to refine
the scope of a state's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the state's implementation plans for the NAAQS in
question.
---------------------------------------------------------------------------
\11\ See ``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,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
\12\ Id., at page 2.
\13\ Id., at attachment A, page 1.
\14\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
---------------------------------------------------------------------------
On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS). Significantly, neither the 2007
Guidance nor the 2009 Guidance explicitly referred to the SSM,
director's discretion, minor source NSR, or NSR Reform issues as among
specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the
2009 Guidance, however, EPA did not indicate to states that it intended
to interpret these provisions as requiring a substantive submission to
address these specific issues in existing SIP provisions in the context
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007
Guidance merely indicated its belief that the states should make
submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS. EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP. Thus, EPA's proposals for other states
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from
[[Page 34911]]
the pending infrastructure SIP actions. The same holds true for this
action on the infrastructure SIPs for Florida.
---------------------------------------------------------------------------
\15\ See ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
---------------------------------------------------------------------------
EPA believes that this approach to the infrastructure SIP
requirement is reasonable because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP 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 that, 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 considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
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 otherwise to comply with the CAA.\16\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\17\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action 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 the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\18\
---------------------------------------------------------------------------
\16\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
\17\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See 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).
\18\ EPA has recently disapproved 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 75 FR 42342, 42344 (July 21, 2010) (proposed
disapproval of director's discretion provisions); 76 FR 4540
(January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------
IV. What is EPA's analysis of how Florida Addressed the elements of
sections 110(a)(1) and (2) ``infrastructure'' provisions?
Florida's infrastructure submission addresses the provisions of
sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A): Emission limits and other control measures:
Florida's infrastructure submissions provide an overview of the
provisions of Florida's Air Pollution Control Requirements relevant to
air quality control regulations. There are several regulations within
Florida's SIP relevant to air quality control regulations which include
enforceable emission limitations and other control measures. Chapters
62-204, Air Pollution Control Provisions; 62-210, Stationary Sources--
General Requirements; and 62-296, Stationary Sources--Emissions
Standards, establish emission limits and address the required control
measures, means and techniques for compliance with the PM2.5
NAAQS respectively. EPA has made the preliminary determination that the
provisions contained in these chapters and Florida's practices are
adequate to protect the PM2.5 annual and 24-hour NAAQS in
the State.
In this action, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during SSM of
operations at a facility. EPA believes that a number of states have SSM
provisions which are contrary to the CAA and existing EPA guidance,
``State Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the
Agency plans to address such state regulations in the future. In the
meantime, EPA encourages any state having deficient SSM provisions to
take steps to correct it as soon as possible.
Additionally, in this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B) Ambient air quality monitoring/data system:
Chapters 62-204, Air Pollution Control Provisions, 62-210, Stationary
Sources--General Requirements, 62-212, Stationary Sources--
Preconstruction Review, 62-296, Stationary Sources--Emissions
Standards, and 62-297, Stationary Sources--Emissions Monitoring of the
Florida SIP, along with the Florida Network Description and Ambient Air
Monitoring Network Plan, provide for an ambient air quality monitoring
system in the State. Annually, EPA approves the ambient air monitoring
network plan for the state agencies. In May 2011 Florida submitted its
plan to EPA. On October 17, 2011, EPA approved Florida's monitoring
network plan. Florida's approved monitoring network plan can be
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-
0382. EPA has made the preliminary determination that Florida's SIP and
practices are adequate for the ambient air quality monitoring and data
systems related to the 1997 annual and 2006 24-hour PM2.5
NAAQS.
3. 110(a)(2)(C) Program for enforcement of control measures
including review of proposed new sources: Florida's authority to
regulate new and modified sources to assist in the protection of air
quality in
[[Page 34912]]
nonattainment, attainment or unclassifiable areas is established in
Chapters 62-210, Stationary Sources--General Requirements, and 62-212,
Stationary Sources--Preconstruction Review, Deterioration, of the
Florida SIP. Florida's regulations describe the permit requirements for
new major sources or major modifications of existing sources and set
the permitting requirements in areas classified as attainment or
unclassifiable under section 107(d)(1)(A)(ii) or (iii) of the CAA. The
regulations are designed to prevent sources in areas attaining the
NAAQS at the time of designations from causing any significant
deterioration in air quality. Additionally, on March 15, 2012, Florida
submitted a SIP revision to its NSR/PSD and Nonattainment New Source
Review (NNSR) programs. Florida's March 15, 2012, SIP revision
incorporates NSR provisions for fine particulate matter (also known as
PM2.5) as amended in EPA's 2008 NSR PM2.5
Implementation Rule (hereafter referred to as the ``NSR
PM2.5 Rule'') into the Florida SIP. In the March 15, 2012,
SIP revision, Florida includes revisions to rules that address the
infrastructure requirements (C) and (J). EPA is proposing approval of
Florida's March 15, 2012, submission in a rulemaking separate from
today's action.
In this action, EPA is proposing to approve Florida's
infrastructure SIP for the 1997 annual and 2006 24-hour
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(C) to include a program in the SIP that regulates the
modification and construction of any stationary source as necessary to
assure that the NAAQS are achieved. EPA is not proposing to approve or
disapprove the State's existing minor NSR program itself to the extent
that it is inconsistent with EPA's regulations governing this program.
EPA believes that a number of states may have minor NSR provisions that
are contrary to the existing EPA regulations for this program. EPA
intends to work with states to reconcile state minor NSR programs with
EPA's regulatory provisions for the program. The statutory requirements
of section 110(a)(2)(C) provide for considerable flexibility in
designing minor NSR programs, and EPA believes it may be time to
revisit the regulatory requirements for this program to give the states
an appropriate level of flexibility to design a program that meets
their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.
EPA has made the preliminary determination that Florida's SIP and
practices are adequate for program enforcement of control measures
including review of proposed new sources related to the 1997 annual and
2006 24-hour PM2.5 NAAQS. Final action to approve this
element, however, is contingent upon the Agency first taking final
action to approve Florida's March 15, 2012, PM2.5 NSR
Update. As discussed above, such action the March 15, 2012, submission
will occur in a separate rulemaking.
4. 110(a)(2)(D)(ii) Interstate and International transport
provisions: Chapter 62-210, Stationary Sources--General Requirements of
Florida's SIP, outlines how Florida will notify neighboring states of
potential impacts from new or modified sources. Florida does not have
any pending obligation under sections 115 and 126 of the CAA. EPA has
made the preliminary determination that Florida's SIP and practices are
adequate for insuring compliance with the applicable requirements
relating to interstate and international pollution abatement for the
1997 annual and 2006 24-hour PM2.5 NAAQS.
5. 110(a)(2)(E) Adequate resources: Section 110(a)(2)(E) requires
that each implementation plan provide (i) necessary assurances that the
State will have adequate personnel, funding, and authority under state
law to carry out its implementation plan, (ii) that the State comply
with the requirements respecting State Boards pursuant to section 128
of the Act, and (iii) necessary assurances that, where the State has
relied on a local or regional government, agency, or instrumentality
for the implementation of any plan provision, the State has
responsibility for ensuring adequate implementation of such plan
provisions. EPA is proposing to approve Florida's SIP as meeting the
requirements of sub-elements 110(a)(2)(E)(i) and (iii). EPA is also
proposing to approve sub-element 110(a)(2)(E)(ii) (regarding state
boards), however, final approval of this sub-element is contingent upon
the Agency first taking final action to approve proposed revisions the
Florida's SIP related to this sub-element. See 77 FR 29581. EPA's
rationale for today's proposals respecting each sub-element is
described in turn below.
In support of EPA's proposal to approve sub-elements
110(a)(2)(E)(i) and (iii), Florida's submissions note that FDEP is
responsible for promulgating rules and regulations for the NAAQS,
emissions standards general policies, a system of permits, fee
schedules for the review of plans, and other planning needs. As
evidence of the adequacy of FDEP's resources with respect to sub-
elements (i) and (iii), EPA submitted a letter to Florida on March 13,
2012, outlining the 105 grant commitments and current status of these
commitments for fiscal year 2011. The letter EPA submitted to Florida
can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2012-0382. Annually, states update these grant commitments based on
current SIP requirements, air quality planning, and applicable
requirements related to the NAAQS. Florida satisfactorily met all
commitments agreed to in the Air Planning Agreement for fiscal year
2011, therefore Florida's grants were finalized and closed out. EPA has
made the preliminary determination that Florida has adequate resources
for implementation of the 1997 annual and 2006 24-hour PM2.5
NAAQS. In addition, the requirements of 110(a)(2)(E)(i) and (iii) are
met when EPA performs a completeness determination for each SIP
submittal. This determination ensures that each submittal provides
evidence that adequate personnel, funding, and legal authority under
state law has been use to carry out the state's implementation plan and
related issues. Florida's authority is included in all prehearings and
final SIP submittal packages for approval by EPA. EPA has made the
preliminary determination that Florida has adequate resources for
implementation of the 1997 annual and 2006 24-hour PM2.5
NAAQS.
Section 110(a)(2)(E)(ii) requires that the state comply with
section 128 of the CAA. Section 128 requires that: (1) The majority of
members of any state board or body which approves permits or
enforcement orders represent the public interest and do not derive any
significant portion of their income from persons subject to permitting
or enforcement orders under the CAA; and (2) any potential conflicts of
interest by such board or body, or head of an executive agency with
similar powers be adequately disclosed. For purposes of section
128(a)(1), Florida has no boards or bodies with authority over air
pollution permits or enforcement actions. Such matters are instead
handled by an appointed Secretary. 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
[[Page 34913]]
SIP pursuant to section 110(a)(2)(E)(ii)), on April 19, 2012, Florida
submitted Florida Statutes112.3143(4) and 112.3144 for incorporation
into the SIP. In a separate action, EPA has proposed approval of this
revision to the Florida SIP. See 77 FR 29581. EPA is today proposing
that this revision, once finalized, will be sufficient to satisfy the
110(a)(2)(E)(ii) conflict of interest provisions applicable to the head
of FDEP and all public officers within the Department. Final approval
of today's proposed rule is contingent upon the Agency first taking
final action to approve a final SIP revision consistent with the April
19, 2012, SIP revision.
6. 110(a)(2)(F) Stationary source monitoring system: Florida's
infrastructure submission describes how the State establishes
requirements for emissions compliance testing and utilizes emissions
sampling and analysis. It further describes how the State ensures the
quality of its data through observing emissions and monitoring
operations. Florida DEP uses these data to track progress towards
maintaining the NAAQS, develop control and maintenance strategies,
identify sources and general emission levels, and determine compliance
with emission regulations and additional EPA requirements. These
requirements are provided in Florida SIP Chapters 62-210, Stationary
Sources--General Requirements; 62-212, Stationary Sources--
Preconstruction Review; 62-296, Stationary Sources--Emissions
Standards; and 62-297, Stationary Sources--Emissions Monitoring.
Additionally, Florida is required to submit emissions data to EPA
for purposes of the National Emissions Inventory (NEI). The NEI is
EPA's central repository for air emissions data. EPA published the Air
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the
requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory System
(EIS). States report emissions data for the six criteria pollutants and
the precursors that form them--NOX, sulfur dioxide, ammonia,
lead, carbon monoxide, particulate matter, and volatile organic
compounds (VOCs). Many states also voluntarily report emissions of
hazardous air pollutants. Florida made its latest update to the NEI on
November 22, 2011. EPA compiles the emissions data, supplementing it
where necessary, and releases it to the general public through the Web
site https://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the
preliminary determination that Florida's SIP and practices are adequate
for the stationary source monitoring systems related to the 1997 annual
and 2006 24-hour PM2.5 NAAQS.
7. 110(a)(2)(G) Emergency power: 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
September 25, 2009, EPA released the guidance entitled ``Guidance on
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particulate (PM2.5) National Ambient Air Quality
Standards (NAAQS).'' This guidance clarified that ``to address the
section 110(a)(2)(G) element, states with air quality control regions
identified as either Priority I, IA, or Priority II by the `Prevention
of Air Pollution Emergency Episodes' rule at 40 CFR 51.150, must
develop emergency episode contingency plans.'' EPA's September 25,
2009, guidance also states that ``until the Agency finalized changes to
the emergency episode regulation to establish for PM2.5
specific levels for classifying areas as Priority I, IA, or II for
PM2.5, and to establish a significant harm level (SHL)* *
*,'' it recommends that states with a 24-Hour PM2.5
concentration above 140 [mu]g/m\3\ (using the most recent three years
of data) develop an emergency episode plan. For states where this level
has not been exceeded, the state can certify that it has appropriate
general emergency powers to address PM2.5 related episodes,
and that no specific emergency episode plans are needed at this time.
On September 19, 2009, FDEP submitted a letter to EPA verifying that it
is a Class III Priority Area and is exempt from adopting emergency
episode plan for PM2.5. On September 23, 2009, FDEP
submitted certification that its SIP adequately addressed the section
110(a)(2)(G) requirements for the 2006 PM2.5 NAAQS. Florida
had not previously public noticed its certification submissions with
regard to 110(a)(2)(G) for the PM2.5 NAAQS, so on May 20,
2011, Florida provided public notice for this element.
EPA has reviewed Florida's April 18, 2008, and September 23, 2009,
certifications and has determined that the ambient air quality
monitoring data from 2006 to 2011 for Florida did not exceed 140 [mu]g/
m\3\. The PM2.5 levels have consistently remained below this
level (140 [mu]g/m\3\). As a result, EPA is proposing to approve
Florida's infrastructure submissions for the 1997 and 2006
PM2.5 NAAQS.
8. 110(a)(2)(H) Future SIP revisions: FDEP is responsible for
adopting air quality rules and revising SIPs as needed to attain or
maintain the NAAQS in Florida. FDEP has the ability and authority to
respond to calls for SIP revisions, and has provided a number of SIP
revisions over the years for implementation of the NAAQS. Florida does
not have any nonattainment areas for the 1997 annual or 2006 24-hour
PM2.5 standard, but has made an infrastructure submission
for these standards, which is the subject of this rulemaking. EPA has
made the preliminary determination that Florida's SIP and practices
adequately demonstrate a commitment to provide future SIP revisions
related to the 1997 annual and 2006 24-hour PM2.5 NAAQS when
necessary.
9. 110(a)(2)(J) (121 consultation) Consultation with government
officials: Chapters 62-204, Air Pollution Control Provisions, and 62-
212, Stationary Sources--Preconstruction Review, of the Florida SIP, as
well as Florida's Regional Haze Implementation Plan (which allows for
consultation between appropriate state, local, and tribal air pollution
control agencies as well as the corresponding Federal Land Managers),
provide for consultation with government officials whose jurisdictions
might be affected by SIP development activities. Florida adopted state-
wide consultation procedures for the implementation of transportation
conformity. These consultation procedures include the development of
mobile inventories for SIPs. Implementation of transportation
conformity, as outlined in the consultation procedures, requires FDEP
to consult with federal, state and local transportation and air quality
agency officials on the development of motor vehicle emissions budgets.
EPA approved Florida's consultation procedures on August 11, 2003 as
part of the approval of the State's transportation conformity rule (See
68 FR 47468). EPA has made the preliminary determination that Florida's
SIP and practices adequately demonstrate consultation with government
officials related to the 1997 annual and 2006 24-hour PM2.5
NAAQS when necessary.
10. 110(a)(2)(J) (127 public notification) Public notification:
FDEP has public notice mechanisms in place to notify the public of
pollutant
[[Page 34914]]
forecasting, including an air quality monitoring Web site providing
fine particulate alerts, https://www.dep.state.fl.us/air/air_quality/countyaqi.htm. Florida Statutes, 403.131, Injunctive relief, remedies
and 120.569 Decisions which affect substantial interests (subsection
(2)(n) relating to emergency orders), provide authority for the State
to seek injunctive relief to prevent irreparable damage to air quality.
In addition Chapter 62-256.300, Prohibitions, of the Florida SIP
includes provisions to monitor air pollution episodes for ozone and
particulate matter. EPA has made the preliminary determination that
Florida's SIP and practices adequately demonstrate the State's ability
to provide public notification related to the 1997 annual and 2006 24-
hour PM2.5 NAAQS when necessary.
11. 110(a)(2)(J) (PSD) PSD and visibility protection: Florida
demonstrates its authority to regulate new and modified sources of PM
to assist in the protection of air quality in Florida. Chapters 62-210,
Stationary Sources--General Requirements, Section 200--Definitions, and
62-212, Stationary Sources--Preconstruction Review, Section 400--
Prevention of Significant Deterioration, of Florida's SIP provide the
permitting requirements for new major sources or major modifications of
existing sources in areas classified as attainment or unclassifiable
under section 107(d)(1)(A)(ii) or (iii) of the CAA. These provisions
are designed to prevent significant deterioration in air quality in
areas that are in attainment of the NAAQS at the time of designations.
As with infrastructure element 110(a)(2)(C), infrastructure element
110(a)(2)(J) also requires compliance with applicable provisions of the
PSD program described in part C of the Act. Accordingly, the pending
EPA action on the March 15, 2012, SIP revision (NSR Revisions), is a
prerequisite to today's proposed action to approve the State's
infrastructure element 110(a)(2)(J). See the discussion for element
110(a)(2)(C) above for a description of the pending revision to the
Florida SIP. The March 15, 2012, SIP revision addresses requisite
requirements of infrastructure element 110(a)(2)(J) (PSD and visibility
protection), therefore, today's action to propose approval of
infrastructure SIP element 110(a)(2)(J) (PSD and visibility protection)
is contingent upon EPA taking final action to approve the March 15,
2012, SIP revision into the Florida SIP.
With regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under part C of the Act (which
includes sections 169A and 169B). In the event of the establishment of
a new NAAQS, however, the visibility and regional haze program
requirements under part C do not change. Thus, EPA finds that there is
no new visibility obligation ``triggered'' under section 110(a)(2)(J)
when a new NAAQS becomes effective. This would be the case even in the
event a secondary PM2.5 NAAQS for visibility is established,
because this NAAQS would not affect visibility requirements under part
C. EPA has made the preliminary determination that Florida's SIP and
practices adequately demonstrate the State's ability to implement PSD
programs and to provide for visibility protection related to the 1997
annual and 2006 24-hour PM2.5 NAAQS when necessary. As
discussed above, final approval of this element is contingent upon the
Agency first taking final action to approve Florida's March 15, 2012,
PM2.5 NSR Update.
12. 110(a)(2)(K) Air quality and modeling/data: Chapter 62-204.800,
Federal Regulations Adopted by Reference, of the Florida SIP
incorporates by reference 40 CFR 52.21(l), which specifies that air
modeling be conducted in accordance with 40 CFR part 51, Appendix W
``Guideline on Air Quality Models.'' This regulation demonstrates that
Florida has the authority to provide relevant data for the purpose of
predicting the effect on ambient air quality of the 1997 annual and
2006 24-hour PM2.5 NAAQS. Additionally, Florida supports a
regional effort to coordinate the development of emissions inventories
and conduct regional modeling for several NAAQS, including the 1997
annual and 2006 24-hour PM2.5 NAAQS, for the Southeastern
states. Taken as a whole, Florida's air quality regulations demonstrate
that FDEP has the authority to provide relevant data for the purpose of
predicting the effect on ambient air quality of the 1997 annual and
2006 24-hour PM2.5 NAAQS. EPA has made the preliminary
determination that Florida's SIP and practices adequately demonstrate
the State's ability to provide for air quality and modeling, along with
analysis of the associated data, related to the 1997 annual and 2006
24-hour PM2.5 NAAQS when necessary.
13. 110(a)(2)(L) Permitting fees: Florida addresses the review of
construction permits as previously discussed in 110(a)(2)(C).
Permitting fees in Florida are collected through the State's federally-
approved title V fees program, according to State Statute
403.087(6)(a), Permit Fees. EPA has made the preliminary determination
that Florida's SIP and practices adequately provide for permitting fees
related to the 1997 annual and 2006 24-hour PM2.5 NAAQS when
necessary.
14. 110(a)(2)(M) Consultation/participation by affected local
entities: Chapter 62-204, Air Pollution Control Provisions, of the
Florida SIP requires that SIPs be submitted in accordance with 40 CFR
part 51, subpart F, for permitting purposes. Florida statute
403.061(21) authorizes FDEP to ``[a]dvise, consult, cooperate and enter
into agreements with other agencies of the state, the Federal
Government, other states, interstate agencies, groups, political
subdivisions, and industries affected by the provisions of this act,
rules, or policies of the department.'' Furthermore, FDEP has
demonstrated consultation with, and participation by, affected local
entities through its work with local political subdivisions during the
developing of its Transportation Conformity SIP and Regional Haze
Implementation Plan. EPA has made the preliminary determination that
Florida's SIP and practices adequately demonstrate consultation with
affected local entities related to the 1997 annual and 2006 24-hour
PM2.5 NAAQS when necessary.
V. Proposed Action
As described above, FDEP has addressed the required elements of the
CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2,
2007, and September 25, 2009, guidance to ensure that the 1997 annual
and 2006 24-hour PM2.5 NAAQS are implemented, enforced, and
maintained in Florida. EPA is proposing to approve Florida's
infrastructure submissions, provided to EPA on April 18, 2008, and on
September 23, 2009, with the exception of section 110(a)(2)(E)(ii)
which will be addressed in a separate action. EPA is proposing to
determine that Florida's infrastructure submission, provided to EPA on
April 18, 2008, addressed all the required infrastructure elements for
the 1997 annual PM2.5 NAAQS and on September 23, 2009,
addressed all the required infrastructure elements for the 2006 24-hour
PM2.5 NAAQS. Final approval of this rule is contingent upon
the Agency first taking final action to approve Florida's March 15,
2012, PM2.5 NSR Update submission \19\ and May 18, 2012
proposed rule to approve Florida's
[[Page 34915]]
April 19, 2012, submission addressing section 110(a)(2)(E)(ii).
---------------------------------------------------------------------------
\19\ As noted above, EPA has yet to propose action on the March
15, 2012, PM2.5 NSR Update submission. Such proposed
action will occur in a separate rulemaking.
---------------------------------------------------------------------------
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive 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 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
Air pollution control, Environmental protection, Intergovernmental
relations, Nitrogen dioxide, Particulate matter, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 1, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-14244 Filed 6-11-12; 8:45 am]
BILLING CODE 6560-50-P
