Air Quality Plans; Florida; Infrastructure Requirements for the 2012 PM2.5, 50416-50426 [2016-18013]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 81, Number 147 (Monday, August 1, 2016)]
[Proposed Rules]
[Pages 50416-50426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18013]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2016-0192; FRL-9949-91-Region 4]


Air Quality Plans; Florida; Infrastructure Requirements for the 
2012 PM2.5 National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the State Implementation Plan (SIP) submission, submitted by 
the State of Florida, through the Florida Department of Environmental 
Protection (FDEP), on December 14, 2015, for inclusion into the Florida 
SIP. This proposal pertains to the infrastructure requirements of the 
Clean Air Act (CAA or Act) for the 2012 Annual Fine Particulate Matter 
(PM2.5) national ambient air quality standards (NAAQS). The 
CAA requires that each state adopt and submit a SIP for the 
implementation, maintenance and enforcement of each NAAQS promulgated 
by EPA, which is commonly referred to as an ``infrastructure SIP 
submission.'' FDEP certified that the Florida SIP contains provisions 
that ensure the 2012 Annual PM2.5 NAAQS is implemented, 
enforced, and maintained in Florida. EPA is proposing to determine that 
Florida's infrastructure SIP submission, provided to EPA on December 
14, 2015, satisfies certain required infrastructure elements for the 
2012 Annual PM2.5 NAAQS.

DATES: Written comments must be received on or before August 31, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2016-0192 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary

[[Page 50417]]

submission (i.e. on the Web, cloud, or other file sharing system). For 
additional submission methods, the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Tiereny Bell, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. The telephone number is (404) 562-9088. Ms. Bell can also 
be reached via electronic mail at bell.tiereny@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 14, 2012 (78 FR 3086, January 15, 2013), EPA 
promulgated a revised primary annual PM2.5 NAAQS. The 
standard was strengthened from 15.0 micrograms per cubic meter ([mu]g/
m\3\) to 12.0 [mu]g/m\3\. Pursuant to section 110(a)(1) of the CAA, 
states are required to submit SIPs meeting the applicable requirements 
of section 110(a)(2) within three years after promulgation of a new or 
revised NAAQS or within such shorter period as EPA may prescribe. 
Section 110(a)(2) requires states to address basic SIP elements such as 
requirements for monitoring, basic program requirements and legal 
authority that are designed to assure attainment and maintenance of the 
NAAQS. States were required to submit such SIPs for the 2012 Annual 
PM2.5 NAAQS to EPA no later than December 14, 2015.\1\
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    \1\ In these infrastructure SIP submissions states generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Florida's existing SIP consists largely of 
Florida Administrative Code (F.A.C.) rules adopted by FDEP and 
approved by EPA through the SIP revision process. However, there are 
some F.A.C. state regulations that are not part of the Florida 
federally-approved SIP. Throughout this rulemaking, unless otherwise 
indicated, the term ``F.A.C.'', ``Rule'', or ``Chapter'' indicate 
that the cited regulation has been approved into Florida's 
federally-approved SIP. The term ``Florida Statutes'' indicates 
cited Florida state statutes, which are not a part of the SIP unless 
otherwise indicated.
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    This rulemaking is proposing to approve portions of Florida's 
PM2.5 infrastructure SIP submission for the applicable 
requirements of the 2012 Annual PM2.5 NAAQS, with the 
exception of the interstate transport requirements of section 
110(a)(2)(D)(i)(I) (prongs 1 and 2), for which EPA is not proposing any 
action in this rulemaking regarding these requirements. For the aspects 
of Florida's submittal proposed for approval in this rulemaking, EPA 
notes that the Agency 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.
    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 basic SIP elements such as requirements for 
monitoring, basic program requirements and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. The 
requirements are summarized below and in EPA's September 13, 2013, 
memorandum entitled ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2).'' \2\

    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather are 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. This proposed rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).
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 110(a)(2)(A): Emission Limits and Other Control Measures
 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
 110(a)(2)(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \3\
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    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP Revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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    \4\ As mentioned above, this element is not relevant to this 
proposed rulemaking.
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 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and Prevention of Significant Deterioration (PSD) and 
Visibility Protection
 110(a)(2)(K): Air Quality Modeling and Submission of Modeling 
Data
 110(a)(2)(L): Permitting fees
 110(a)(2)(M): Consultation and Participation by Affected Local 
Entities

III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    EPA is acting upon the SIP submission from Florida that addresses 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2012 Annual PM2.5 NAAQS. The requirement for states 
to make a SIP submission of this type arises out of CAA section 
110(a)(1). Pursuant to section 110(a)(1), states must make SIP 
submissions ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of

[[Page 50418]]

specific elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NNSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\5\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \5\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\6\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\7\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \7\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\8\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\9\
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    \8\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \9\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007, submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\10\
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    \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.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section

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110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\11\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\13\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \11\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \12\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \13\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations. On 
March 17, 2016, EPA released a memorandum titled, ``Information on 
the Interstate Transport `Good Neighbor' Provision for the 2012 Fine 
Particulate Matter National Ambient Air Quality Standards under 
Clean Air Act Section 110(a)(2)(D)(i)(I)'' to provide guidance to 
states for interstate transport requirements specific to the 
PM2.5 NAAQS.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and new source review (NSR) 
pollutants, including greenhouse gases (GHG). By contrast, structural 
PSD program requirements do not include provisions that are not 
required under EPA's regulations at 40 CFR 51.166 but are merely 
available as an option for the state, such as the option to provide 
grandfathering of complete permit applications with respect to the 2012 
PM2.5 NAAQS. Accordingly, the latter optional provisions are 
types of provisions EPA considers irrelevant in the context of an 
infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, EPA evaluates whether the 
state has an EPA-approved minor NSR program and whether the program 
addresses the pollutants relevant to that NAAQS. In the context of 
acting on an infrastructure SIP submission, however, EPA does not think 
it is necessary to conduct a review of each and every provision of a 
state's existing minor source program (i.e., already in the existing 
SIP) for compliance with the requirements of the CAA and EPA's 
regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with

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current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) 
(``NSR Reform''). Thus, EPA believes it may approve an infrastructure 
SIP submission without scrutinizing the totality of the existing SIP 
for such potentially deficient provisions and may approve the 
submission even if it is aware of such existing provisions.\14\ It is 
important to note that EPA's approval of a state's infrastructure SIP 
submission should not be construed as explicit or implicit re-approval 
of any existing potentially deficient provisions that relate to the 
three specific issues just described.
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    \14\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\15\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\16\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\17\
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    \15\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \16\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \17\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Florida addressed the elements of the 
sections 110(a)(1) and (2) ``infrastructure'' provisions?

    The Florida 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: Section 
110(a)(2)(A) requires that each implementation plan include enforceable 
emission limitations and other control measures, means, or techniques 
(including economic incentives such as fees, marketable permits, and 
auctions of emissions rights), as well as schedules and timetables for 
compliance, as may be necessary or appropriate to meet the applicable 
requirements. Several regulations within Florida's SIP are relevant to 
air quality control regulations. The regulations described below 
include enforceable emission limitations and other control measures. 
Chapters 62-204, Air Pollution Control--General 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 
collectively establish enforceable emissions limitations and other 
control measures, means or techniques for activities that contribute to 
PM2.5 concentrations in the ambient air, and provide 
authority for FDEP to establish such limits and measures as well as 
schedules for compliance through SIP-approved permits to meet the 
applicable requirements of the CAA.
    Additionally, the following sections of the Florida Statutes 
provide FDEP the authority to conduct certain actions in support of 
this infrastructure element. Section 403.061(9), Florida Statutes, 
authorizes FDEP to ``[a]dopt a comprehensive program for the 
prevention, control, and abatement of pollution of the air . . . of the 
state,'' and section 403.8055, Florida Statutes, authorizes FDEP to 
``[a]dopt rules substantively identical to regulations adopted in the 
Federal Register by the United States Environmental Protection Agency 
pursuant to federal law . . .''
    EPA has made the preliminary determination that the provisions 
contained in these State regulations and sections of the Florida 
Statutes, and Florida's practices satisfy section

[[Page 50421]]

110(a)(2)(A) for the 2012 PM2.5 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 start 
up, shut down, and malfunction (SSM) 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 is addressing such 
state regulations in a separate action.\18\
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    \18\ On June 12, 2015, EPA published a final action entitled, 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; 
Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown, and Malfunction.'' See 80 FR 33840.
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    Additionally, in this action, EPA is not proposing to approve or 
disapprove that 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: Section 
110(a)(2)(B) requires SIPs to provide for establishment and operation 
of appropriate devices, methods, systems, and procedures necessary to 
(i) monitor, compile, and analyze data on ambient air quality, and (ii) 
upon request, make such data available to the Administrator. SIP-
approved rules at Chapters 62-204, 62-210, and 62-212 of the F.A.C. 
require the use of Federal Reference Method or equivalent monitors and 
also provide authority for FDEP to establish monitoring requirements 
through SIP-approved permits. Additionally, the following three 
sections of the Florida Statutes provide FDEP the authority to take 
specific actions in support of this infrastructure element: Section 
403.061(1), Florida Statutes, authorizes FDEP to ``[a]pprove and 
promulgate current and long-range plans developed to provide for air 
quality and control and pollution abatement.; Section 403.061(9), 
Florida Statues, which authorizes DEP to [a]dopt a comprehensive 
program for the prevention, control and abatement of pollution of the 
air . . . of the State; and Section 403.061(11), Florida Statutes, 
authorizes FDEP to ``[e]stablish ambient air quality . . . standards 
for the state as a whole or for any part thereof.'' Annually, states 
develop and submit to EPA for approval statewide ambient monitoring 
network plans consistent with the requirements of 40 CFR parts 50, 53, 
and 58. The annual network plan involves an evaluation of any proposed 
changes to the monitoring network, includes the annual ambient 
monitoring network design plan, and includes a certified evaluation of 
the state's ambient monitors and auxiliary support equipment.\19\ In 
May 2015, Florida submitted its plan for 2014 to EPA. On October 29, 
2015, 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-2016-0192. EPA has made the preliminary 
determination that Florida's SIP and practices are adequate for the 
ambient air quality monitoring and data system related to the 2012 
Annual PM2.5 NAAQS.
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    \19\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
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    3. 110(a)(2)(C) Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources: This element 
consists of three sub-elements: Enforcement, state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources, and preconstruction permitting of major sources and major 
modifications in areas designated attainment or unclassifiable for the 
subject NAAQS as required by CAA title I part C (i.e., the major source 
PSD program). FDEP's 2012 Annual PM2.5 NAAQS infrastructure 
SIP submission cited a number of SIP provisions to address these 
requirements. EPA's rationale for its proposed action regarding each 
sub-element is described below. Specifically, FDEP cited Chapters 62-
204, 62-210, 62-212, 62-243, 62-252, 62-256, 62-296 and 62-297 F.A.C. 
Collectively, these provisions of Florida's SIP regulate the 
construction of any new major stationary source or any modification at 
an existing major stationary source in an area designated as 
nonattainment, attainment or unclassifiable. These regulations enable 
FDEP to regulate sources contributing to the 2012 Annual 
PM2.5 NAAQS.
    Additionally, the following two sections of the Florida Statutes 
provide FDEP the authority to take specific actions in support of this 
infrastructure element. Section 403.061(6), Florida Statutes, requires 
FDEP to ``[e]xercise general supervision of the administration and 
enforcement of the laws, rules, and regulations pertaining to air and 
water pollution.'' Section 403.121, Florida Statutes, authorizes FDEP 
to seek judicial and administrative remedies, including civil 
penalties, injunctive relief, and criminal prosecution for violations 
of any FDEP rule or permit.
    Enforcement: Section 403.061(6), Florida Statutes, requires FDEP to 
``[e]xercise general supervision of the administration and enforcement 
of the laws, rules, and regulations pertaining to air and water 
pollution.'' Section 403.121, Florida Statutes, authorizes FDEP to seek 
judicial and administrative remedies, including civil penalties, 
injunctive relief, and criminal prosecution for violations of any FDEP 
rule or permit. These provisions provide FDEP with authority for 
enforcement of PM2.5 emission limits and control measures.
    PSD Permitting for Major Sources: EPA interprets the PSD sub-
element to require that a state's infrastructure SIP submission for a 
particular NAAQS demonstrate that the state has a complete PSD 
permitting program in place covering the structural PSD requirements 
for all regulated NSR pollutants. A state's PSD permitting program is 
complete for this sub-element (and prong 3 of D(i) and J related to 
PSD) if EPA has already approved or is simultaneously approving the 
state's SIP with respect to all structural PSD requirements that are 
due under the EPA regulations or the CAA on or before the date of the 
EPA's proposed action on the infrastructure SIP submission. For the 
2012 Annual PM2.5 NAAQS, Florida's authority to regulate new 
and modified sources to assist in the protection of air quality in 
attainment or unclassifiable areas is established in Florida 
Administrative Code Chapters 62-210, Stationary Sources--General 
Requirements, Section 200--Definitions, and 62-212, Stationary 
Sources--Preconstruction Review, Section 400--Prevention of Significant 
Deterioration, of the Florida SIP. Florida's infrastructure SIP 
submission demonstrates that new major sources and major modifications 
in areas of the State designated attainment or unclassifiable for the 
specified NAAQS are subject to a federally-approved PSD permitting 
program meeting all the current structural requirements of part C of 
title

[[Page 50422]]

I of the CAA to satisfy the infrastructure SIP PSD elements.\20\
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    \20\ For more information concerning how the Florida 
infrastructure SIP submission currently meets applicable 
requirements for the PSD elements (110(a)(2)(C); (D)(i)(I), prong 3; 
and (J)), see the technical support document in the docket for 
today's rulemaking.
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    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source program that regulates emissions of the 2012 Annual 
PM2.5 NAAQS. Florida's SIP-approved rules, 62-210.300, 
F.A.C., and 62-212.300, F.A.C., collectively govern the preconstruction 
permitting of modifications and construction of minor stationary 
sources, and minor modifications of major stationary sources.
    EPA has made the preliminary determination that Florida's SIP and 
practices are adequate for program enforcement of control measures, 
regulation of minor sources and modifications, and preconstruction 
permitting of major sources and major modifications related to the 2012 
Annual PM2.5 NAAQS.
    4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport: 
Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components has two subparts 
resulting in four distinct components, commonly referred to as 
``prongs,'' that must be addressed in infrastructure SIP submissions. 
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), 
are provisions that prohibit any source or other type of emissions 
activity in one state from contributing significantly to nonattainment 
of the NAAQS in another state (``prong 1''), and interfering with 
maintenance of the NAAQS in another state (``prong 2''). The third and 
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are 
provisions that prohibit emissions activity in one state from 
interfering with measures required to prevent significant deterioration 
of air quality in another state (``prong 3''), or to protect visibility 
in another state (``prong 4'').
    110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action 
in this rulemaking related to the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 
2). EPA will consider these requirements in relation to Florida's 2012 
Annual PM2.5 NAAQS infrastructure submission in a separate 
rulemaking.
    110(a)(2)(D)(i)(II)--prong 3: With regard to section 
110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, may be 
met by a state's confirmation in an infrastructure SIP submission that 
new major sources and major modifications in the state are subject to: 
A PSD program meeting all the current structural requirements of part C 
of title I of the CAA, or (if the state contains a nonattainment area 
for the relevant pollutant), a NNSR program that implements NAAQS for 
the relevant pollutant. As discussed in more detail above under section 
110(a)(2)(C), Florida's SIP contains provisions for the State's PSD 
program that reflects the required structural PSD requirements to 
satisfy prong 3 of section 110(a)(2)(D)(i)(II). Florida addresses prong 
3 through F.A.C. 62-204, 62-210, and 62-212 for the PSD and NNSR 
programs. EPA has made the preliminary determination that Florida's SIP 
and practices are adequate for interstate transport for PSD permitting 
of major sources and major modifications related to the 2012 Annual 
PM2.5 NAAQS for section 110(a)(2)(D)(i)(II) (prong 3).
    110(a)(2)(D)(i)(II)--prong 4: Section 110(a)(2)(D)(i)(II) requires 
that the SIP contain adequate provisions to protect visibility in other 
states. Florida's submission relied on EPA's approval of the State's 
regional haze SIP submission and incorporation of all relevant portions 
of Florida's visibility program into the State's implementation plan to 
address the prong 4 requirements of section 110(a)(2)(D)(i) for the 
2012 Annual PM2.5 NAAQS.\21\ Federal regulations require 
that a state's regional haze SIP contain a long-term strategy to 
address regional haze visibility impairment in each Class I area within 
the state and each Class I area outside the state that may be affected 
by emissions from the state.\22\ A state participating in a regional 
planning process, such as Florida, must include all measures needed to 
achieve its apportionment of emissions reduction obligations agreed 
upon through that process.\23\ EPA's approval of Florida's regional 
haze SIP therefore ensures that emissions from Florida are not 
interfering with measures to protect visibility in other states, 
satisfying the requirements of prong 4 of section 110(a)(2)(D)(i)(II) 
for the 2012 Annual PM2.5 NAAQS.\24\ Thus, EPA has made the 
preliminary determination that Florida's infrastructure SIP submissions 
for the 2012 Annual PM2.5 NAAQS meet the requirements of 
prong 4 of section 110(a)(2)(D)(i)(II).
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    \21\ EPA approved Florida's regional haze SIP--see 77 FR 71111 
(November 29, 2012); 78 FR 53250 (August 29, 2013).
    \22\ See 40 CFR 51.308(d).
    \23\ See, e.g., 40 CFR 51.308(d)(3)(ii). Florida participated in 
the Visibility Improvement State and Tribal Association of the 
Southeast regional planning organization, a collaborative effort of 
state governments, tribal governments, and various Federal agencies 
established to initiate and coordinate activities associated with 
the management of regional haze, visibility, and other air quality 
issues in the Southeastern United States. Member state and tribal 
governments included: Alabama, Florida, Georgia, Kentucky, 
Mississippi, North Carolina, South Carolina, Tennessee, Virginia, 
West Virginia, and the Eastern Band of the Cherokee Indians.
    \24\ See EPA's September 13, 2013, guidance document entitled 
``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' at 
pp. 32-35, available at: https://www.epa.gov/air/urbanair/sipstatus/infrastructure.html; see also memorandum from William T. Harnett, 
Director, Air Quality Policy Division, Office of Air Quality 
Planning and Standards, to Regional Air Division Directors, entitled 
``Guidance on SIP Elements Required Under Sections 110(1)(1) and (2) 
for the 2006 24-Hour Fine Particle (PM2.5) National 
Ambient Air Quality Standards (NAAQS) (September 25, 2009) at pp. 5-
6, available at: https://www.epa.gov/ttn/caaa/t1/memoranda/20090925_harnett_pm25_sip_110a12.pdf.
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    5. 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions ensuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement. 
Chapters 62-204, 62-210, and 62-212 of the F.A.C. require any new major 
source or major modification to undergo PSD or NNSR permitting and 
thereby provide notification to other potentially affected Federal, 
state, and local government agencies. Additionally, Florida does not 
have any pending obligation under sections 115 and 126 of the CAA 
relating to international or interstate pollution abatement. EPA has 
made the preliminary determination that Florida's SIP and practices are 
adequate for ensuring compliance with the applicable requirements 
relating to interstate and international pollution abatement for the 
2012 Annual PM2.5 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
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

[[Page 50423]]

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 infrastructure SIP 
submission as meeting the requirements of sub-elements 110(a)(2)(E)(i), 
(ii), and (iii).
    In support of EPA's proposal to approve sub-elements 
110(a)(2)(E)(i) and (iii), FDEP's infrastructure submissions 
demonstrate that it is responsible for promulgating rules and 
regulations for the NAAQS, emissions standards and general policies, a 
system of permits, fee schedules for the review of plans, and other 
planning needs. Section 403.061(35), Florida Statutes, authorizes FDEP 
to exercise the duties, powers, and responsibilities required of the 
state under the federal CAA. Section 403.061(2), Florida Statutes, 
authorizes FDEP to ``[h]ire only such employees as may be necessary to 
effectuate the responsibilities of the department.'' Section 
403.061(4), Florida Statutes, authorizes FDEP to ``[s]ecure necessary 
scientific, technical, research, administrative, and operational 
services by interagency agreement, by contract, or otherwise.'' Section 
403.182, Florida Statutes, authorizes FDEP to approve local pollution 
control programs, and provides for the State air pollution control 
program administered by FDEP to supersede a local program if FDEP 
determines that an approved local program is inadequate and the 
locality fails to take the necessary corrective actions. Section 
320.03(6), Florida Statutes, authorizes FDEP to establish an Air 
Pollution Control Trust Fund and use a $1 fee on every motor vehicle 
license registration sold in the State for air pollution control 
purposes. As evidence of the adequacy of FDEP's resources with respect 
to sub-elements (i) and (iii), EPA submitted a letter to FDEP on April 
19, 2016, outlining 105 grant commitments and current status of these 
commitments for fiscal year 2015. The letter EPA submitted to FDEP can 
be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2016-0192. Annually, states update these grant commitments based on 
current SIP requirements, air quality planning, and applicable 
requirements related to the NAAQS. There were no outstanding issues in 
relation to the SIP for fiscal year 2015, therefore, FDEP's grants were 
finalized and closed out. In addition, the requirements of 
110(a)(2)(E)(i) and (iii) are evaluated when EPA performs a 
completeness determination for each SIP submittal. A completeness 
determination ensures that each submittal includes information to 
address the adequacy of personnel, funding, and legal authority under 
state law has been used to carry out the state's implementation plan 
and related issues. FDEP's authority is included in all prehearings and 
final SIP submittal packages for approval by EPA. FDEP is responsible 
for submitting all revisions to the Florida SIP to EPA for approval. 
EPA has made the preliminary determination that Florida has adequate 
resources and authority for implementation of the 2012 Annual 
PM2.5 NAAQS.
    Section 110(a)(2)(E)(ii) requires that the state comply with 
section 128 of the CAA. Section 128 requires that the SIP provide: (1) 
The majority of members of the 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 the 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. 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. Florida is only subject to the 
requirements of 128(a)(2) and submitted the applicable statutes for 
incorporation into Florida SIP. Florida Statutes, specifically 
subsections 112.3143(4), F.S., Voting conflicts and 112.3144, F.S, Full 
and public disclosure of financial interests address the conflict of 
interest provisions applicable to the head of FDEP and all public 
officers within the Department. On July 30, 2012, EPA approved these 
Florida statutes into the SIP to comply with section 128 respecting 
state boards. See 77 FR 44485. EPA has made the preliminary 
determination that the State has adequately addressed the requirements 
of section 128(a)(2), and accordingly has met the requirements of 
section 110(a)(2)(E)(ii) with respect to infrastructure SIP 
requirements.
    Therefore, EPA is proposing to approve Florida's infrastructure SIP 
submissions as meeting the requirements of sub-elements 
110(a)(2)(E)(i), (ii) and (iii).
    7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 
110(a)(2)(F) requires SIPs to meet applicable requirements addressing 
(i) the installation, maintenance, and replacement of equipment, and 
the implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
periodic reports on the nature and amounts of emissions and emissions 
related data from such sources, and (iii) correlation of such reports 
by the state agency with any emission limitations or standards 
established pursuant to this section, which reports shall be available 
at reasonable times for public inspection. FDEP's infrastructure SIP 
submissions describe the establishment of requirements for compliance 
testing by emissions sampling and analysis, and for emissions and 
operation monitoring to ensure the quality of data in the State. The 
Florida infrastructure SIP submissions also describe how the major 
source and minor source emission inventory programs collect emission 
data throughout the State and ensure the quality of such data. Florida 
meets these requirements through Chapters 62-204, 62-210, 62-212, 62-
296, and 62-297, F.A.C., which require emissions monitoring and 
reporting for activities that contribute to PM2.5 
concentrations in the air, including requirements for the installation, 
calibration, maintenance, and operation of equipment for continuously 
monitoring or recording emissions, or provide authority for FDEP to 
establish such emissions monitoring and reporting requirements through 
SIP-approved permits and require reporting of PM2.5 
emissions.
    The following sections of the Florida Statutes provide FDEP the 
authority to conduct certain actions in support of this infrastructure 
element. Section 403.061(13) authorizes FDEP to ``[r]equire persons 
engaged in operations which may result in pollution to file reports 
which may contain . . . any other such information as the department 
shall prescribe . . .''. Section 403.8055 authorizes FDEP to ``[a]dopt 
rules substantively identical to regulations adopted in the Federal 
Register by the United States Environmental Protection Agency pursuant 
to federal law. . . .''
    Section 90.401, Florida Statutes, defines relevant evidence as 
evidence tending to prove or disprove a material fact. Section 90.402, 
Florida Statutes, states that all relevant evidence is admissible 
except as provided by law. EPA is unaware of any provision preventing 
the use of credible evidence in the Florida SIP.\25\
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    \25\ ``Credible Evidence'' makes allowances for owners and/or 
operators to utilize ``any credible evidence or information 
relevant'' to demonstrate compliance with applicable requirements if 
the appropriate performance or compliance test had been performed, 
for the purpose of submitting compliance certification and can be 
used to establish whether or not an owner or operator has violated 
or is in violation of any rule or standard.

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[[Page 50424]]

    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. States report emissions data for the six criteria pollutants 
and the precursors that form them--nitrogen oxides, sulfur dioxide, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. Many states also voluntarily report emissions of 
hazardous air pollutants. Florida made its latest update to the NEI on 
December 17, 2014. 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 2012 Annual 
PM2.5 NAAQS.
    8. 110(a)(2)(G) Emergency Powers: This section requires that states 
demonstrate authority comparable with section 303 of the CAA and 
adequate contingency plans to implement such authority. Florida's 
infrastructure SIP submissions identify air pollution emergency 
episodes and preplanned abatement strategies as outlined in the Florida 
Statutes Sections 403.131 and 120.569(2)(n). These sections of the 
Florida Statutes were submitted for inclusion in the SIP to address the 
requirements of section 110(a)(2)(G) of the CAA and have been approved 
by EPA into Florida's SIP. Section 403.131 authorizes FDEP to: Seek 
injunctive relief to enforce compliance with this chapter or any rule, 
regulation or permit certification, or order; to enjoin any violation 
specified in Section 403.061(1); and to seek injunctive relief to 
prevent irreparable injury to the air, waters, and property, including 
animal, plant, and aquatic life, of the State and to protect human 
health, safety, and welfare caused or threatened by any violation. 
Section 120.569(2)(n), Florida Statutes, authorizes FDEP to issue 
emergency orders to address immediate dangers to the public health, 
safety, or welfare. EPA has made the preliminary determination that 
Florida's SIP, State laws, and practices are adequate to satisfy the 
infrastructure SIP obligations for emergency powers related to the 2012 
Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve 
Florida's infrastructure SIP submissions with respect to section 
110(a)(2)(G).
    9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary, 
requires each SIP to provide for revisions of such plan (i) as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii) 
whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. As previously discussed, FDEP is 
responsible for adopting air quality rules and revising SIPs as needed 
to attain or maintain the NAAQS. Florida 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.
    The following sections of the Florida Statutes provide FDEP the 
authority to conduct certain actions in support of this element. 
Section 403.061(35) gives FDEP the broad authority to implement the 
CAA. Section 403.061(9) authorizes FDEP to ``[a]dopt a comprehensive 
program for the prevention, control, and abatement of pollution of the 
air . . . of the state, and from time to time review and modify such 
programs as necessary.'' EPA has made the preliminary determination 
that Florida adequately demonstrates a commitment to provide future SIP 
revisions related to the 2012 Annual PM2.5 NAAQS when 
necessary. Accordingly, EPA is proposing to approve Florida's 
infrastructure SIP submissions with respect to section 110(a)(2)(H).
    10. 110(a)(2)(J) Consultation with government officials, public 
notification, and PSD and visibility protection: EPA is proposing to 
approve Florida's infrastructure SIP for the 2012 Annual 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(J) to include a program in the SIP that complies with 
the applicable consultation requirements of section 121, the public 
notification requirements of section 127, PSD and visibility 
protection. EPA's rationale for each sub-element is described below.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
federal land managers (FLMs) carrying out NAAQS implementation 
requirements pursuant to section 121 relative to consultation. 
Florida's SIP-approved Chapters 62-204, 62-210, and 62-212, as well as 
its Regional Haze Implementation Plan (which allows for continued 
consultation with appropriate state, local, and tribal air pollution 
control agencies as well as the corresponding FLMs), provide for 
consultation with government officials whose jurisdictions might be 
affected by SIP development activities. Specifically, Florida adopted 
state-wide consultation procedures for the implementation of 
transportation conformity which includes the development of mobile 
inventories for SIP development. Required partners covered by Florida's 
consultation procedures include Federal, state and local transportation 
and air quality agency officials. Also, Section 403.061(21), Florida 
Statutes, 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''. EPA has made the preliminary 
determination that Florida's SIP and practices adequately demonstrate 
consultation with government officials related to the 2012 Annual 
PM2.5 NAAQS when necessary.
    Public notification (127 public notification): FDEP has public 
notice mechanisms in place to notify the public of instances or areas 
exceeding the NAAQS along with associated health effects through the 
Air Quality Index reporting system in required areas. Section 
403.061(20), Florida Statutes, authorizes FDEP to ``[c]ollect and 
disseminate information . . . relating to pollution'' and Florida 
implements an Air Quality Index reporting system to notify the public 
in impacted areas. Accordingly, EPA is proposing to approve Florida's 
infrastructure SIP submissions with respect to section 110(a)(2)(J) 
public notification.
    PSD: With regard to the PSD element of section 110(a)(2)(J), this 
requirement is met when a state demonstrates in an infrastructure SIP 
submission that its

[[Page 50425]]

PSD program meets all the current structural requirements of part C of 
title I of the CAA. As discussed in more detail above under the section 
discussing 110(a)(2)(C), Florida's SIP contains provisions for the 
State's PSD program that reflect the relevant SIP revisions pertaining 
to the required structural PSD requirements to satisfy the requirement 
of the PSD element of section 110(a)(2)(J). EPA has made the 
preliminary determination that Florida's SIP and practices are adequate 
for PSD permitting of major sources and major modifications related to 
the 2012 Annual PM2.5 NAAQS for the PSD element of section 
110(a)(2)(J).
    Visibility protection: EPA's 2013 Guidance notes that it does not 
treat the visibility protection aspects of section 110(a)(2)(J) as 
applicable for purposes of the infrastructure SIP approval process. 
FDEP referenced its regional haze program as germane to the visibility 
component of section 110(a)(2)(J). EPA recognizes that states are 
subject to visibility protection and regional haze program requirements 
under part C of the Act (which includes sections 169A and 169B). 
However, there are no newly applicable visibility protection 
obligations after the promulgation of a new or revised NAAQS. Thus, EPA 
has determined that states do not need to address the visibility 
component of 110(a)(2)(J) in infrastructure SIP submittals so FDEP does 
not need to rely on its regional haze program to fulfill its 
obligations under section 110(a)(2)(J). As such, EPA has made the 
preliminary determination that Florida's infrastructure SIP submissions 
are approvable for section 110(a)(2)(J) in related to the 2012 Annual 
PM2.5 NAAQS and that Florida does not need to rely on its 
regional haze program to address this element.
    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling 
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for 
performing air quality modeling so that effects on air quality of 
emissions from NAAQS pollutants can be predicted and submission of such 
data to the EPA can be made. SIP-approved sections of Chapter 62-204, 
62-210, and 62-212, F.A.C., require use of EPA-approved modeling of 
pollutant-emitting sources that contribute to PM2.5 
concentrations in the ambient air. Also, the following sections of the 
Florida Statutes provide FDEP the authority to conduct actions in 
support of this element. Section 403.061(13), Florida Statutes, 
authorizes FDEP to ``[r]equire persons engaged in operations which may 
result in pollution to file reports which may contain information 
relating to locations, size of outlet, height of outlet, rate and 
period of emission, and composition and concentration of effluent and 
such other information as the department shall prescribe to be filed. . 
. .'' Section 403.061(18), Florida Statutes, authorizes FDEP to 
``[e]ncourage and conduct studies, investigations, and research 
relating to pollution and its causes, effects, prevention, abatement, 
and control.'' These regulations and State statutes demonstrate that 
Florida has the authority to conduct modeling and provide relevant data 
for the purpose of predicting the effect on ambient air quality of the 
2012 Annual PM2.5 NAAQS. Additionally, Florida participates 
in a regional effort to coordinate the development of emissions 
inventories and conduct regional modeling for several NAAQS, including 
the 2012 Annual PM2.5 NAAQS, for the Southeastern states. 
Florida notes in its SIP submissions that the FDEP has the technical 
capability to conduct or review all air quality modeling associated 
with the NSR program and all SIP-related modeling, except photochemical 
grid modeling which is performed for FDEP under contract. All such 
modeling is conducted in accordance with the provisions of 40 CFR part 
51, Appendix W, ``Guideline on Air Quality Models.'' Taken as a whole, 
Florida's air quality regulations and practices demonstrate that FDEP 
has the authority to provide relevant data for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
pollutant for which a NAAQS had been promulgated, and to provide such 
information to the EPA Administrator upon request. EPA has made the 
preliminary determination that Florida's SIP and practices adequately 
demonstrate the State's ability to provide for air quality modeling, 
along with analysis of the associated data, related to the 2012 Annual 
PM2.5 NAAQS. Accordingly, EPA is proposing to approve 
Florida's infrastructure SIP submissions with respect to section 
110(a)(2)(K).
    12. 110(a)(2)(L) Permitting Fees: This section requires the owner 
or operator of each major stationary source to pay to the permitting 
authority, as a condition of any permit required under the CAA, a fee 
sufficient to cover (i) the reasonable costs of reviewing and acting 
upon any application for such a permit, and (ii) if the owner or 
operator receives a permit for such source, the reasonable costs of 
implementing and enforcing the terms and conditions of any such permit 
(not including any court costs or other costs associated with any 
enforcement action), until such fee requirement is superseded with 
respect to such sources by the Administrator's approval of a fee 
program under title V. Section 403.087(6)(a), Florida Statutes, directs 
FDEP to ``require a processing fee in an amount sufficient, to the 
greatest extent possible, to cover the costs of reviewing and acting 
upon any application for a permit. . . .''. Florida's Air Pollution 
Control Trust Fund is the depository for all funds for the operation of 
the Division of Air Resource Management. Within the fund is an account 
that contains all fees under the title V program. Additionally, Florida 
has a fully approved title V operating permit program at Chapter 62-213 
F.A.C.\26\ and Section 403.0872, Florida Statutes, that covers the cost 
of implementation and enforcement of PSD and NNSR permits after they 
have been issued. EPA has made the preliminary determination that 
Florida's State rules and practices adequately provide for permitting 
fees related to the 2012 Annual PM2.5 NAAQS, when necessary. 
Accordingly, EPA is proposing to approve Florida's infrastructure SIP 
submissions with respect to section 110(a)(2)(L).
---------------------------------------------------------------------------

    \26\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
---------------------------------------------------------------------------

    13. 110(a)(2)(M) Consultation and Participation by Affected Local 
Entities: This element requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP. Florida coordinates with local governments 
affected by the SIP. Florida's SIP submission includes a description of 
the public participation process for SIP development. Florida has 
consulted with local entities for the development of transportation 
conformity and has worked with the FLMs as a requirement of the 
regional haze rule. Section 403.061(21), Florida Statutes, 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.'' Section 403.061(21), Florida Statutes, is one way that 
the State meets the requirements of this element as described further 
below. More specifically, Florida adopted state-wide consultation 
procedures for the implementation of transportation conformity which 
includes the development of mobile inventories for SIP development and 
the requirements that link transportation planning and air

[[Page 50426]]

quality planning in nonattainment and maintenance areas. Required 
partners covered by Florida's consultation procedures include Federal, 
state and local transportation and air quality agency officials. The 
state and local transportation agency officials are most directly 
impacted by transportation conformity requirements and are required to 
provide public involvement for their activities including the analysis 
demonstrating how they meet transportation conformity requirements. 
Also, FDEP has agreements with eight county air pollution control 
agencies (Duval, Orange, Hillsborough, Pinellas, Sarasota, Palm Beach, 
Broward, and Miami-Dade) that delineate the responsibilities of each 
county in carrying out Florida's air program, including the Florida 
SIP. EPA has made the preliminary determination that Florida's SIP and 
practices adequately demonstrate consultation with affected local 
entities related to the 2012 Annual PM2.5 NAAQS when 
necessary.

V. Proposed Action

    With the exception of interstate transport provisions pertaining to 
the contribution to nonattainment or interference with maintenance in 
other states and visibility protection requirements of section 
110(a)(2)(D)(i)(I) and (II) (prongs 1 and 2). EPA is proposing to 
approve Florida's infrastructure submission submitted on December 14, 
2015, for the 2012 Annual PM2.5 NAAQS for the above 
described infrastructure SIP requirements. EPA is proposing to approve 
Florida's infrastructure SIP submission for the 2012 Annual 
PM2.5 NAAQS because the submission is consistent with 
section 110 of the CAA.

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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation 
land or in any other area where EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000), nor will it impose substantial 
direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 20, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-18013 Filed 7-29-16; 8:45 am]
BILLING CODE 6560-50-P