Air Plan Approval; Florida: Infrastructure Requirements for the 2010 NO2, 37310-37316 [2017-16809]
Download as PDF
<![CDATA[
37310
Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Rules and Regulations
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 Clean Air Act;
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.
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by October 10, 2017.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2)).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. Section 804,
however, exempts from section 801 the
following types of rules: Rules of
particular applicability; rules relating to
agency management or personnel; and
rules of agency organization, procedure,
or practice that do not substantially
affect the rights or obligations of nonagency parties. 5 U.S.C. 804(3). Because
this is a rule of particular applicability,
EPA is not required to submit a rule
report regarding this action under
section 801.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements.
Dated: July 25, 2017.
Catherine R. McCabe,
Acting Regional Administrator, Region 2.
Part 52, chapter I, title 40 of the Code
of Federal Regulations is amended as
follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart FF—New Jersey
2. In § 52.1570, the table in paragraph
(d) is amended by adding entries
‘‘Transcontinental Gas Pipelines Corp.,
LNG Station 240’’ and ‘‘Joint Base
McGuire-Dix-Lakehurst (Lakehurst, NJ)’’
to the end of the table to read as follows:
■
§ 52.1570
*
Identification of plan.
*
*
(d) * * *
*
*
EPA-APPROVED NEW JERSEY SOURCE-SPECIFIC PROVISIONS
Name of source
Identifier No.
State effective date
EPA approval date
Comments
*
Transcontinental Gas Pipelines Corp., LNG Station
240.
*
*
02626 ................................
*
June 12, 2014 ...................
Joint Base McGuire-DixLakehurst (Lakehurst,
NJ).
BOP15001 ........................
August 26, 2016 ...............
*
*
August 10, 2017 [insert
Federal Register citation].
August 10, 2017 [insert
Federal Register citation].
...........................................
*
Alternate NOX Emission
Limit and other requirements pursuant to NJAC
7:27–19.13 for four natural gas-fired water bath
heaters ((U7–U10).
Alternate NOX Emission
Limit and other requirements pursuant to NJAC
7:27–19.13 for two natural gas-fired boilers
(Nos 2 and 3).
*
*
*
*
*
[FR Doc. 2017–16804 Filed 8–9–17; 8:45 am]
ENVIRONMENTAL PROTECTION
AGENCY
mstockstill on DSK30JT082PROD with RULES
40 CFR Part 52
[EPA–R04–OAR–2014–0507; FRL–9965–83Region 4]
Air Plan Approval; Florida:
Infrastructure Requirements for the
2010 NO2 NAAQS
AGENCY:
Environmental Protection
Agency.
16:09 Aug 09, 2017
Direct final rule.
The Environmental Protection
Agency (EPA) is approving a portion of
the State Implementation Plan (SIP)
submission, submitted by the State of
Florida, through the Florida Department
of Environmental Protection (FDEP), on
January 22, 2013, addressing a portion
of the Clean Air Act (CAA or Act)
infrastructure requirements for the 2010
1-hour nitrogen dioxide (NO2) national
ambient air quality standard (NAAQS).
The CAA requires that each state adopt
SUMMARY:
BILLING CODE 6560–50–P
VerDate Sep<11>2014
ACTION:
Jkt 241001
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
E:\FR\FM\10AUR1.SGM
10AUR1
Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Rules and Regulations
and submit a SIP for the
implementation, maintenance and
enforcement of each NAAQS
promulgated by EPA, which is
commonly referred to as an
‘‘infrastructure SIP submission.’’
Specifically, EPA is approving the
portion of Florida’s January 22, 2013,
SIP submission addressing element B of
the infrastructure requirements, which
relates to monitoring requirements. EPA
finds that Florida’s infrastructure SIP
submission, provided to EPA on January
22, 2013, satisfies the infrastructure
requirements related to monitoring for
the 2010 1-hour NO2 NAAQS.
This direct final rule is effective
October 10, 2017 without further notice,
unless EPA receives adverse comment
by September 11, 2017. If EPA receives
such comments, it will publish a timely
withdrawal of the direct final rule in the
Federal Register and inform the public
that the rule will not take effect.
DATES:
Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2014–0507 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
ADDRESSES:
mstockstill on DSK30JT082PROD with RULES
FOR FURTHER INFORMATION CONTACT:
Andres Febres of the Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Mr.
Febres can be reached via telephone at
(404) 562–8966 or via electronic mail at
febres-martinez.andres@epa.gov.
SUPPLEMENTARY INFORMATION:
VerDate Sep<11>2014
16:09 Aug 09, 2017
Jkt 241001
I. What action is the Agency taking?
On January 22, 2013, FDEP submitted
a SIP revision for EPA’s approval
addressing the CAA’s infrastructure
requirements for the 2010 1-hour NO2
NAAQS. In this action, EPA is
approving a portion of Florida’s
infrastructure SIP submission related to
the ambient air quality monitoring and
data system requirements of section
110(a)(2)(B). EPA approved all other
portions of Florida’s January 22, 2013
infrastructure SIP submission in
previous actions. See 80 FR 14019,
March 18, 2015, and 81 FR 84479,
November 23, 2016. Additionally, on
February 3, 2017, Florida submitted a
SIP submission addressing the
provisions related to prongs 1 and 2 of
section 110(a)(2)(D)(i) and EPA will act
on that submission in a separate action.
For the aspects of the portion of
Florida’s submittal being approved, EPA
notes that the Agency is not approving
any specific rule, but rather taking final
action to approve that Florida’s already
approved SIP meets this CAA
requirement.
II. Background
By statute, SIPs meeting the
requirements of sections 110(a)(1) and
(2) of the CAA are to be submitted by
states within three years after
promulgation of a new or revised
NAAQS to provide for the
implementation, maintenance, and
enforcement of the new or revised
NAAQS. EPA has historically referred to
these SIP submissions made for the
purpose of satisfying the requirements
of sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of Title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by EPA rule to address the
visibility protection requirements of
section 169A of the CAA, and
nonattainment new source review
permit program submissions to address
the permit requirements of CAA, Title I,
part D.
Sections 110(a)(1) and (2) require
states to address basic SIP elements
such as requirements for monitoring,
basic program requirements, and legal
authority that are designed to assure
attainment and maintenance of the
newly established or revised NAAQS.
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
37311
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for infrastructure SIPs.
Section 110(a)(2) lists specific elements
that states must meet for the
infrastructure SIP requirements related
to a newly established or revised
NAAQS. The content of an
infrastructure SIP submission may vary
depending upon the data and analytical
tools available to the state, as well as the
provisions already contained in the
state’s implementation plan at the time
in which the state develops and submits
the submission for a new or revised
NAAQS.
On January 22, 2010, EPA established
a new 1-hour primary NAAQS for NO2
at a level of 100 parts per billion, based
on a 3-year average of the 98th
percentile of the yearly distribution of 1hour daily maximum concentrations.
See 75 FR 6474 (February 9, 2010). This
NAAQS is designed to protect against
exposure to the entire group of nitrogen
oxides (NOX). NO2 is the component of
greatest concern and is used as the
indicator for the larger group of NOX.
Emissions that lead to the formation of
NO2 generally also lead to the formation
of other NOX. Therefore, control
measures that reduce NO2 can generally
be expected to reduce population
exposures to all gaseous NOX which
may have the co-benefit of reducing the
formation of ozone and fine particles
both of which pose significant public
health threats.
States were required to submit
infrastructure SIP submissions for the
2010 1-hour NO2 NAAQS to EPA no
later than January 22, 2013.1 Through
this action, EPA is approving Florida’s
January 22, 2013 submission as meeting
the requirements of 110(a)(2)(B) for the
2010 NO2 NAAQS. As mentioned
above, EPA has already taken final
action on the remainder of Florida’s
January 22, 2013 submission.
III. What is EPA’s approach to the
review of infrastructure SIP
submissions?
The requirement for states to make a
SIP submission of this type arises out of
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 federallyapproved SIP. In addition, certain federallyapproved, non-SIP regulations may also be
appropriate for demonstrating compliance with
sections 110(a)(1) and (2). Throughout this
rulemaking, unless otherwise indicated, the term
‘‘Florida Administrative Code’’ or ‘‘F.A.C.’’
indicates that the cited regulation has been
approved into Florida’s federally-approved SIP. The
term ‘‘Florida statute’’ or ‘‘F.S.’’ indicates cited
Florida state statutes, which are not a part of the
SIP unless otherwise indicated.
E:\FR\FM\10AUR1.SGM
10AUR1
37312
Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Rules and Regulations
mstockstill on DSK30JT082PROD with RULES
section 110(a)(1). Pursuant to section
110(a)(1), states must make SIP
submissions ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof),’’ and
these SIP submissions are to provide for
the ‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘each such plan’’
submission must address.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.2 EPA
therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
Title I of the CAA, which specifically
address nonattainment SIP
2 For example: section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of
Title I of the CAA; and section 110(a)(2)(G) provides
that states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
VerDate Sep<11>2014
16:09 Aug 09, 2017
Jkt 241001
requirements.3 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years or in some cases three years,
for such designations to be
promulgated.4 This ambiguity illustrates
that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
section 110(a)(1) and (2) with respect to
infrastructure SIPs pertains to whether
states must meet all of the infrastructure
SIP requirements in a single SIP
submission, and whether EPA must act
upon such SIP submission in a single
action. Although section 110(a)(1)
directs states to submit ‘‘a plan’’ to meet
these requirements, EPA interprets the
CAA to allow states to make multiple
SIP submissions separately addressing
infrastructure SIP elements for the same
NAAQS. If states elect to make such
multiple SIP submissions to meet the
infrastructure SIP requirements, EPA
can elect to act on such submissions
either individually or in a larger
combined action.5 Similarly, EPA
interprets the CAA to allow it to take
3 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65 (May 12, 2005) (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
4 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
necessarily later than three years after promulgation
of the new or revised NAAQS.
5 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ 78 FR
4337 (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
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 subelements of the same infrastructure SIP
submission.6
Ambiguities within section 110(a)(1)
and (2) may also arise with respect to
infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants, because the content
and scope of a state’s infrastructure SIP
submission to meet this element might
be very different for an entirely new
NAAQS than for a minor revision to an
existing NAAQS.7
EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
attainment plan SIP submissions
required by part D to meet the
‘‘applicable requirements’’ of section
110(a)(2); thus, attainment plan SIP
submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the
6 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007
submittal.
7 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.
E:\FR\FM\10AUR1.SGM
10AUR1
Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Rules and Regulations
Prevention of Significant Deterioration
(PSD) program required in part C of
Title I of the CAA, because PSD does
not apply to a pollutant for which an
area is designated nonattainment and
thus subject to part D planning
requirements. As this example
illustrates, each type of SIP submission
may implicate some elements of section
110(a)(2) but not others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.8 EPA most recently
issued guidance for infrastructure SIPs
on September 13, 2013 (2013
Guidance).9 EPA developed this
document to provide states with up-todate 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
mstockstill on DSK30JT082PROD with RULES
8 EPA
notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
9 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
VerDate Sep<11>2014
16:09 Aug 09, 2017
Jkt 241001
SIP submissions.10 The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2). EPA
interprets section 110(a)(1) and (2) such
that infrastructure SIP submissions need
to address certain issues and need not
address others. Accordingly, EPA
reviews each infrastructure SIP
submission for compliance with the
applicable statutory provisions of
section 110(a)(2), as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
implementation plan appropriately
addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The
2013 Guidance explains EPA’s
interpretation that there may be a
variety of ways by which states can
appropriately address these substantive
statutory requirements, depending on
the structure of an individual state’s
permitting or enforcement program (e.g.,
whether permits and enforcement
orders are approved by a multi-member
board or by a head of an executive
agency). However, they are addressed by
the state, the substantive requirements
of Section 128 are necessarily included
in EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and new
source review (NSR) pollutants,
10 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d
7 (D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
the uncertainty created by ongoing litigation, EPA
elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that
time. As the guidance is neither binding nor
required by statute, whether EPA elects to provide
guidance on a particular section has no impact on
a state’s CAA obligations.
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
37313
including Greenhouse Gases. By
contrast, structural PSD program
requirements do not include provisions
that are not required under EPA’s
regulations at 40 CFR 51.166 but are
merely available as an option for the
state, such as the option to provide
grandfathering of complete permit
applications with respect to the
Particulate Matter 2.5 (PM2.5) NAAQS.
Accordingly, the latter optional
provisions are types of provisions EPA
considers irrelevant in the context of an
infrastructure SIP action.
For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s SIP meets
basic structural requirements. For
example, section 110(a)(2)(C) includes,
inter alia, the requirement that states
have a program to regulate minor new
sources. Thus, EPA evaluates whether
the state has an EPA-approved minor
NSR program and whether the program
addresses the pollutants relevant to that
NAAQS. In the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
from sources during periods of startup,
shutdown, or malfunction (SSM) that
may be contrary to the CAA and EPA’s
policies addressing such excess
emissions; 11 (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that may be
contrary to the CAA because they
purport to allow revisions to SIPapproved emissions limits while
limiting public process or not requiring
further approval by EPA; and (iii)
11 Subsequent to issuing the 2013 Guidance,
EPA’s interpretation of the CAA with respect to the
approvability of affirmative defense provisions in
SIPs has changed. See ‘‘State Implementation Plans:
Response to Petition for Rulemaking; Restatement
and Update of EPA’s SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP
Calls To Amend Provisions Applying to Excess
Emissions During Periods of Startup, Shutdown and
Malfunction,’’ 80 FR 33839 (June 12, 2015). As a
result, EPA’s 2013 Guidance (p. 21 & n.30) no
longer represents the EPA’s view concerning the
validity of affirmative defense provisions, in light
of the requirements of section 113 and section 304.
E:\FR\FM\10AUR1.SGM
10AUR1
37314
Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Rules and Regulations
mstockstill on DSK30JT082PROD with RULES
existing provisions for PSD programs
that may be inconsistent with current
requirements of EPA’s ‘‘Final NSR
Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (NSR Reform).
Thus, EPA believes that it may approve
an infrastructure SIP submission
without scrutinizing the totality of the
existing SIP for such potentially
deficient provisions and may approve
the submission even if it is aware of
such existing provisions.12 It is
important to note that EPA’s approval of
a state’s infrastructure SIP submission
should not be construed as explicit or
implicit re-approval of any existing
potentially deficient provisions that
relate to the three specific issues just
described.
EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
section 110(a)(2) as requiring review of
each and every provision of a state’s
existing SIP against all requirements in
the CAA and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
NAAQS pollutants to meet the visibility
12 By contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption or affirmative defense for
excess emissions during SSM events, then EPA
would need to evaluate that provision for
compliance against the rubric of applicable CAA
requirements in the context of the action on the
infrastructure SIP.
VerDate Sep<11>2014
16:09 Aug 09, 2017
Jkt 241001
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II).
Finally, EPA believes that its
approach with respect to infrastructure
SIP requirements is based on a
reasonable reading of section 110(a)(1)
and (2) because the CAA provides other
avenues and mechanisms to address
specific substantive deficiencies in
existing SIPs. These other statutory tools
allow EPA to take appropriately tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a state’s SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or to otherwise
comply with the CAA.13
Section 110(k)(6) authorizes EPA to
correct errors in past actions, such as
past approvals of SIP submissions.14
Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
13 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
14 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536 (December 30, 2010). EPA has previously
used its authority under section 110(k)(6) of the
CAA to remove numerous other SIP provisions that
the Agency determined it had approved in error.
See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American
Samoa, Arizona, California, Hawaii, and Nevada
SIPs); 69 FR 67062, November 16, 2004 (corrections
to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
such deficiency in a subsequent
action.15
IV. Section 110(a)(2)(B) Ambient Air
Quality Monitoring/Data System for
Florida
Section 110(a)(2)(B) requires SIPs to
provide for establishment and operation
of appropriate devices, methods,
systems, and procedures necessary to:
(i) Monitor, compile, and analyze data
on ambient air quality, and (ii) upon
request, make such data available to the
Administrator. In its January 22, 2013,
SIP infrastructure submittal, Florida
cites F.A.C. Chapters 62–204, 62–210,
62–212 as establishing requirements for
the use of Federal Reference Method or
equivalent monitors and provides
authority for FDEP to establish
monitoring requirements through SIPapproved permits. In addition, states
develop and submit to EPA for approval
annual statewide ambient monitoring
network plans consistent with the
requirements of 40 CFR parts 50, 53,
and 58. The annual network plan
involves an evaluation of any proposed
changes to the monitoring network,
includes the annual ambient monitoring
network design plan, and includes a
certified evaluation of the agency’s
ambient monitors and auxiliary support
equipment.16 On June 30, 2017, Florida
submitted its most recent plan to EPA,
which was approved by EPA on July 24,
2017. Florida’s approved monitoring
network plan can be accessed at
www.regulations.gov using Docket ID
No. EPA–R04–OAR–2014–0507. EPA
has made the preliminary determination
that Florida’s SIP and practices are
adequate for the ambient air quality
monitoring and data system related and
meet the requirements of sub-element
110(a)(2)(B) for the 2010 1-hour NO2
NAAQS.
V. Final Action
EPA is taking a direct final action to
approve a portion of Florida’s January
22, 2013, SIP submission addressing the
CAA infrastructure requirements for the
2010 1-hour NO2 NAAQS. Specifically,
EPA is taking direct final action to
approve the portions of Florida’s
January 22, 2013, SIP submission
addressing section 110(a)(2)(B) of the
15 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (January 26,
2011) (final disapproval of such provisions).
16 On occasion, proposed changes to the
monitoring network are evaluated outside of the
network plan approval process in accordance with
40 CFR part 58.
E:\FR\FM\10AUR1.SGM
10AUR1
Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Rules and Regulations
mstockstill on DSK30JT082PROD with RULES
infrastructure requirements, which
requires SIPs to provide for the
establishment and operation of
appropriate devices, methods, systems,
and procedures necessary to: (i)
Monitor, compile, and analyze data on
ambient air quality, and (ii) upon
request, make such data available to the
Administrator. EPA is approving this
portion of Florida’s infrastructure
submission for the 2010 1-hour NO2
NAAQS because this submission is
consistent with section 110 of the CAA.
EPA is publishing this rule without
prior proposal because the Agency
views this as a noncontroversial
submittal and anticipates no adverse
comments. However, in the proposed
rules section of this Federal Register
publication, EPA is publishing a
separate document that will serve as the
proposal to approve the SIP revision
should adverse comments be filed. This
rule will be effective October 10, 2017
without further notice unless the
Agency receives adverse comments by
September 11, 2017.
If EPA receives such comments, then
EPA will publish a document
withdrawing the final rule and
informing the public that the rule will
not take effect. All adverse public
comments received will then be
addressed in a subsequent final rule
based on the proposed rule. EPA will
not institute a second comment period.
Parties interested in commenting should
do so at this time. If no such comments
are received, the public is advised that
this rule will be effective on October 10,
2017 and no further action will be taken
on the proposed rule.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
VerDate Sep<11>2014
16:09 Aug 09, 2017
Jkt 241001
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
37315
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by October 10, 2017. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. Parties with
objections to this direct final rule are
encouraged to file a comment in
response to the parallel notice of
proposed rulemaking for this action
published in the proposed rules section
of today’s Federal Register, rather than
file an immediate petition for judicial
review of this direct final rule, so that
EPA can withdraw this direct final rule
and address the comment in the
proposed rulemaking. This action may
not be challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: July 26, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart K-Florida
2. In § 52.520, the table in paragraph
(e) is amended by adding the entry
‘‘110(a)(1) and (2) Infrastructure
Requirements for the 2010 1-hour NO2
NAAQS (Element B only)’’ at the end of
the table to read as follows:
■
§ 52.520
*
Identification of plan.
*
*
(e) * * *
E:\FR\FM\10AUR1.SGM
10AUR1
*
*
37316
Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Rules and Regulations
EPA-APPROVED FLORIDA NON-REGULATORY PROVISIONS
State
effective
date
Provision
*
*
110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS
(Element B only).
*
1/22/2013
[FR Doc. 2017–16809 Filed 8–9–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2017–0204; FRL–9965–75–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans;
Pennsylvania; Revision to Allegheny
County Regulations for Open Burning
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking direct final
action to approve revisions to the
Commonwealth of Pennsylvania state
implementation plan (SIP). The
revisions update Allegheny County’s
portion of the Pennsylvania SIP, which
includes regulations concerning open
burning. Pennsylvania submitted
updated regulations, on behalf of
Allegheny County, which clarify and
codify existing regulations in order to
more effectively address emissions from
open burning and protect public health.
EPA is approving the SIP submittal of
Allegheny County’s regulations for open
burning in accordance with the
requirements of the Clean Air Act
(CAA).
SUMMARY:
This rule is effective on
November 8, 2017 without further
notice, unless EPA receives adverse
written comment by September 11,
2017. If EPA receives such comments, it
will publish a timely withdrawal of the
direct final rule in the Federal Register
and inform the public that the rule will
not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R03–
OAR–2017–0204 at https://
www.regulations.gov, or via email to
stahl.cynthia@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
mstockstill on DSK30JT082PROD with RULES
DATES:
VerDate Sep<11>2014
16:09 Aug 09, 2017
Jkt 241001
EPA
approval
date
Federal Register
notice
*
8/10/2017
Explanation
*
[insert Federal Register citation].
*
*
Addressing section 110(a)(2)(B) concerning ambient air quality monitoring
and data system only.
cannot be edited or removed from
Regulations.gov. For either manner of
submission, EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
confidential business information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.
on the Web, cloud, or other file sharing
system). For additional submission
methods, please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section. For 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:
Gregory A. Becoat, (215) 814–2036, or
by email at becoat.gregory@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On June 25, 2015, the Commonwealth
of Pennsylvania through the
Pennsylvania Department of
Environmental Protection submitted a
formal revision to the Pennsylvania SIP.
The SIP revision consists of amended
versions of Allegheny County Health
Department’s (ACHD) regulations under
Article XXI (Air Pollution Control),
section 2101.20, ‘‘Definitions,’’ and
section 2105.50, ‘‘Open Burning.’’
Allegheny County does not currently
meet the federal air quality standards for
fine particulate matter under 2.5
microns in size (PM2.5), including the
2015 PM2.5 national ambient air quality
standard (NAAQS), as measured
annually. Wood smoke contains air
toxics and contributes to high levels of
PM2.5 in Allegheny County. The revised
regulations clarify and codify existing
regulations regarding open burning in
PO 00000
Frm 00022
Fmt 4700
Sfmt 4700
order to more effectively address
emissions due to the numerous
pollutants, including air toxics, found in
wood smoke. The revised ACHD
regulations, effective January 1, 2015,
specify the following details related to
various aspects of open burning: (1)
Materials that may be burned; (2) the
size of burn piles; (3) setback
requirements; (4) use of chimineas, fire
pits, and outdoor fireplaces; and (5)
burning restrictions on air quality action
days.
II. Summary of SIP Revision and EPA
Analysis
In the June 25, 2015 SIP submittal,
Pennsylvania included revisions to
Article XXI, sections 2101.20 and
2105.50 with a state effective date of
January 1, 2015. The revision to section
2101.20 (Definitions) under Article XXI
amends the definition of ‘‘open
burning’’ to additionally include any
fire or combustion that occurs in a
chiminea, fire pit, outdoor fireplace or
grill. The revisions to section 2105.50
(Open Burning) under Article XXI
consist of the following: (1) Limit any
open burning to clean wood, propane,
or natural gas, and establishes specific
exceptions to the limits; (2) limit the
volume of clean wood being burned and
limiting the distance permitted between
open burning locations and inhabited
areas; (3) establish the exceptions to
burning clean wood for chimineas, fire
pits, outdoor fireplaces and grills. These
exceptions pertain to the use of
charcoal, propane, or natural gas when
pertaining to cooking, the use of
commercially available fire logs,
paraffin logs and wood pellets, and the
use of paper or commercial smokeless
fire starters to start an allowed fire; (4)
prohibit wood burning activities on air
quality action days, with the exception
of commercial food preparation; (5)
allow ACHD to prohibit or reduce open
burning based on severity, duration,
topography, and meteorological
conditions; (6) restrict open burning
activities on air quality action days,
with the exception of conducting such
burning for the commercial preparation
of food; and (7) make the necessary
E:\FR\FM\10AUR1.SGM
10AUR1
]]>Agencies
[Federal Register Volume 82, Number 153 (Thursday, August 10, 2017)]
[Rules and Regulations]
[Pages 37310-37316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-16809]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0507; FRL-9965-83-Region 4]
Air Plan Approval; Florida: Infrastructure Requirements for the
2010 NO2 NAAQS
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a
portion of the State Implementation Plan (SIP) submission, submitted by
the State of Florida, through the Florida Department of Environmental
Protection (FDEP), on January 22, 2013, addressing a portion of the
Clean Air Act (CAA or Act) infrastructure requirements for the 2010 1-
hour nitrogen dioxide (NO2) national ambient air quality
standard (NAAQS). The CAA requires that each state adopt
[[Page 37311]]
and submit a SIP for the implementation, maintenance and enforcement of
each NAAQS promulgated by EPA, which is commonly referred to as an
``infrastructure SIP submission.'' Specifically, EPA is approving the
portion of Florida's January 22, 2013, SIP submission addressing
element B of the infrastructure requirements, which relates to
monitoring requirements. EPA finds that Florida's infrastructure SIP
submission, provided to EPA on January 22, 2013, satisfies the
infrastructure requirements related to monitoring for the 2010 1-hour
NO2 NAAQS.
DATES: This direct final rule is effective October 10, 2017 without
further notice, unless EPA receives adverse comment by September 11,
2017. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0507 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Andres Febres of the Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Mr. Febres can be reached via telephone at (404) 562-8966
or via electronic mail at febres-martinez.andres@epa.gov.
SUPPLEMENTARY INFORMATION:
I. What action is the Agency taking?
On January 22, 2013, FDEP submitted a SIP revision for EPA's
approval addressing the CAA's infrastructure requirements for the 2010
1-hour NO2 NAAQS. In this action, EPA is approving a portion
of Florida's infrastructure SIP submission related to the ambient air
quality monitoring and data system requirements of section
110(a)(2)(B). EPA approved all other portions of Florida's January 22,
2013 infrastructure SIP submission in previous actions. See 80 FR
14019, March 18, 2015, and 81 FR 84479, November 23, 2016.
Additionally, on February 3, 2017, Florida submitted a SIP submission
addressing the provisions related to prongs 1 and 2 of section
110(a)(2)(D)(i) and EPA will act on that submission in a separate
action. For the aspects of the portion of Florida's submittal being
approved, EPA notes that the Agency is not approving any specific rule,
but rather taking final action to approve that Florida's already
approved SIP meets this CAA requirement.
II. Background
By statute, SIPs meeting the requirements of sections 110(a)(1) and
(2) of the CAA are to be submitted by states within three years after
promulgation of a new or revised NAAQS to provide for the
implementation, maintenance, and enforcement of the new or revised
NAAQS. EPA has historically referred to these SIP submissions made for
the purpose of satisfying the requirements of sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of Title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of section 169A of the
CAA, and nonattainment new source review permit program submissions to
address the permit requirements of CAA, Title I, part D.
Sections 110(a)(1) and (2) require states to address basic SIP
elements such as requirements for monitoring, basic program
requirements, and legal authority that are designed to assure
attainment and maintenance of the newly established or revised NAAQS.
More specifically, section 110(a)(1) provides the procedural and timing
requirements for infrastructure SIPs. Section 110(a)(2) lists specific
elements that states must meet for the infrastructure SIP requirements
related to a newly established or revised NAAQS. The content of an
infrastructure SIP submission may vary depending upon the data and
analytical tools available to the state, as well as the provisions
already contained in the state's implementation plan at the time in
which the state develops and submits the submission for a new or
revised NAAQS.
On January 22, 2010, EPA established a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion, based on a 3-year
average of the 98th percentile of the yearly distribution of 1-hour
daily maximum concentrations. See 75 FR 6474 (February 9, 2010). This
NAAQS is designed to protect against exposure to the entire group of
nitrogen oxides (NOX). NO2 is the component of
greatest concern and is used as the indicator for the larger group of
NOX. Emissions that lead to the formation of NO2
generally also lead to the formation of other NOX.
Therefore, control measures that reduce NO2 can generally be
expected to reduce population exposures to all gaseous NOX
which may have the co-benefit of reducing the formation of ozone and
fine particles both of which pose significant public health threats.
States were required to submit infrastructure SIP submissions for
the 2010 1-hour NO2 NAAQS to EPA no later than January 22,
2013.\1\ Through this action, EPA is approving Florida's January 22,
2013 submission as meeting the requirements of 110(a)(2)(B) for the
2010 NO2 NAAQS. As mentioned above, EPA has already taken final action
on the remainder of Florida's January 22, 2013 submission.
---------------------------------------------------------------------------
\1\ In these infrastructure SIP submissions, States generally
certify evidence of compliance with sections 110(a)(1) and (2) of
the CAA through a combination of state regulations and statutes,
some of which have been incorporated into the federally-approved
SIP. In addition, certain federally-approved, non-SIP regulations
may also be appropriate for demonstrating compliance with sections
110(a)(1) and (2). Throughout this rulemaking, unless otherwise
indicated, the term ``Florida Administrative Code'' or ``F.A.C.''
indicates that the cited regulation has been approved into Florida's
federally-approved SIP. The term ``Florida statute'' or ``F.S.''
indicates cited Florida state statutes, which are not a part of the
SIP unless otherwise indicated.
---------------------------------------------------------------------------
III. What is EPA's approach to the review of infrastructure SIP
submissions?
The requirement for states to make a SIP submission of this type
arises out of
[[Page 37312]]
section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP
submissions ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``each such
plan'' submission must address.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\2\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
---------------------------------------------------------------------------
\2\ For example: section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of Title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
---------------------------------------------------------------------------
The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of Title I of the
CAA, which specifically address nonattainment SIP requirements.\3\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years or in some cases three years, for such designations to be
promulgated.\4\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
---------------------------------------------------------------------------
\3\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\4\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
---------------------------------------------------------------------------
Another example of ambiguity within section 110(a)(1) and (2) with
respect to infrastructure SIPs pertains to whether states must meet all
of the infrastructure SIP requirements in a single SIP submission, and
whether EPA must act upon such SIP submission in a single action.
Although section 110(a)(1) directs states to submit ``a plan'' to meet
these requirements, EPA interprets the CAA to allow states to make
multiple SIP submissions separately addressing infrastructure SIP
elements for the same NAAQS. If states elect to make such multiple SIP
submissions to meet the infrastructure SIP requirements, EPA can elect
to act on such submissions either individually or in a larger combined
action.\5\ Similarly, EPA interprets the CAA to allow it to take action
on the individual parts of one larger, comprehensive infrastructure SIP
submission for a given NAAQS without concurrent action on the entire
submission. For example, EPA has sometimes elected to act at different
times on various elements and sub-elements of the same infrastructure
SIP submission.\6\
---------------------------------------------------------------------------
\5\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\6\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
---------------------------------------------------------------------------
Ambiguities within section 110(a)(1) and (2) may also arise with
respect to infrastructure SIP submission requirements for different
NAAQS. Thus, EPA notes that not every element of section 110(a)(2)
would be relevant, or as relevant, or relevant in the same way, for
each new or revised NAAQS. The states' attendant infrastructure SIP
submissions for each NAAQS therefore could be different. For example,
the monitoring requirements that a state might need to meet in its
infrastructure SIP submission for purposes of section 110(a)(2)(B)
could be very different for different pollutants, because the content
and scope of a state's infrastructure SIP submission to meet this
element might be very different for an entirely new NAAQS than for a
minor revision to an existing NAAQS.\7\
---------------------------------------------------------------------------
\7\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------
EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires attainment plan SIP submissions
required by part D to meet the ``applicable requirements'' of section
110(a)(2); thus, attainment plan SIP submissions must meet the
requirements of section 110(a)(2)(A) regarding enforceable emission
limits and control measures and section 110(a)(2)(E)(i) regarding air
agency resources and authority. By contrast, it is clear that
attainment plan SIP submissions required by part D would not need to
meet the portion of section 110(a)(2)(C) that pertains to the
[[Page 37313]]
Prevention of Significant Deterioration (PSD) program required in part
C of Title I of the CAA, because PSD does not apply to a pollutant for
which an area is designated nonattainment and thus subject to part D
planning requirements. As this example illustrates, each type of SIP
submission may implicate some elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\8\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\9\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\10\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). EPA interprets section 110(a)(1) and (2) such that
infrastructure SIP submissions need to address certain issues and need
not address others. Accordingly, EPA reviews each infrastructure SIP
submission for compliance with the applicable statutory provisions of
section 110(a)(2), as appropriate.
---------------------------------------------------------------------------
\8\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\9\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),''
Memorandum from Stephen D. Page, September 13, 2013.
\10\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
---------------------------------------------------------------------------
As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However, they are addressed by the state, the substantive requirements
of Section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and new source review (NSR)
pollutants, including Greenhouse Gases. By contrast, structural PSD
program requirements do not include provisions that are not required
under EPA's regulations at 40 CFR 51.166 but are merely available as an
option for the state, such as the option to provide grandfathering of
complete permit applications with respect to the Particulate Matter 2.5
(PM2.5) NAAQS. Accordingly, the latter optional provisions
are types of provisions EPA considers irrelevant in the context of an
infrastructure SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, EPA evaluates whether the
state has an EPA-approved minor NSR program and whether the program
addresses the pollutants relevant to that NAAQS. In the context of
acting on an infrastructure SIP submission, however, EPA does not think
it is necessary to conduct a review of each and every provision of a
state's existing minor source program (i.e., already in the existing
SIP) for compliance with the requirements of the CAA and EPA's
regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and
EPA's policies addressing such excess emissions; \11\ (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii)
[[Page 37314]]
existing provisions for PSD programs that may be inconsistent with
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR
80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007)
(NSR Reform). Thus, EPA believes that it may approve an infrastructure
SIP submission without scrutinizing the totality of the existing SIP
for such potentially deficient provisions and may approve the
submission even if it is aware of such existing provisions.\12\ It is
important to note that EPA's approval of a state's infrastructure SIP
submission should not be construed as explicit or implicit re-approval
of any existing potentially deficient provisions that relate to the
three specific issues just described.
---------------------------------------------------------------------------
\11\ Subsequent to issuing the 2013 Guidance, EPA's
interpretation of the CAA with respect to the approvability of
affirmative defense provisions in SIPs has changed. See ``State
Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls To Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction,'' 80 FR 33839 (June 12, 2015). As a
result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the
EPA's view concerning the validity of affirmative defense
provisions, in light of the requirements of section 113 and section
304.
\12\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption or affirmative defense for
excess emissions during SSM events, then EPA would need to evaluate
that provision for compliance against the rubric of applicable CAA
requirements in the context of the action on the infrastructure SIP.
---------------------------------------------------------------------------
EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in section 110(a)(2) as requiring
review of each and every provision of a state's existing SIP against
all requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
section 110(a)(1) and (2) because the CAA provides other avenues and
mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\13\
---------------------------------------------------------------------------
\13\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
---------------------------------------------------------------------------
Section 110(k)(6) authorizes EPA to correct errors in past actions,
such as past approvals of SIP submissions.\14\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\15\
---------------------------------------------------------------------------
\14\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under section 110(k)(6) of the CAA to
remove numerous other SIP provisions that the Agency determined it
had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62
FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004
(corrections to California SIP); and 74 FR 57051 (November 3, 2009)
(corrections to Arizona and Nevada SIPs).
\15\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------
IV. Section 110(a)(2)(B) Ambient Air Quality Monitoring/Data System for
Florida
Section 110(a)(2)(B) requires SIPs to provide for establishment and
operation of appropriate devices, methods, systems, and procedures
necessary to: (i) Monitor, compile, and analyze data on ambient air
quality, and (ii) upon request, make such data available to the
Administrator. In its January 22, 2013, SIP infrastructure submittal,
Florida cites F.A.C. Chapters 62-204, 62-210, 62-212 as establishing
requirements for the use of Federal Reference Method or equivalent
monitors and provides authority for FDEP to establish monitoring
requirements through SIP-approved permits. In addition, states develop
and submit to EPA for approval annual statewide ambient monitoring
network plans consistent with the requirements of 40 CFR parts 50, 53,
and 58. The annual network plan involves an evaluation of any proposed
changes to the monitoring network, includes the annual ambient
monitoring network design plan, and includes a certified evaluation of
the agency's ambient monitors and auxiliary support equipment.\16\ On
June 30, 2017, Florida submitted its most recent plan to EPA, which was
approved by EPA on July 24, 2017. Florida's approved monitoring network
plan can be accessed at www.regulations.gov using Docket ID No. EPA-
R04-OAR-2014-0507. EPA has made the preliminary determination that
Florida's SIP and practices are adequate for the ambient air quality
monitoring and data system related and meet the requirements of sub-
element 110(a)(2)(B) for the 2010 1-hour NO2 NAAQS.
---------------------------------------------------------------------------
\16\ On occasion, proposed changes to the monitoring network are
evaluated outside of the network plan approval process in accordance
with 40 CFR part 58.
---------------------------------------------------------------------------
V. Final Action
EPA is taking a direct final action to approve a portion of
Florida's January 22, 2013, SIP submission addressing the CAA
infrastructure requirements for the 2010 1-hour NO2 NAAQS.
Specifically, EPA is taking direct final action to approve the portions
of Florida's January 22, 2013, SIP submission addressing section
110(a)(2)(B) of the
[[Page 37315]]
infrastructure requirements, which requires SIPs to provide for the
establishment and operation of appropriate devices, methods, systems,
and procedures necessary to: (i) Monitor, compile, and analyze data on
ambient air quality, and (ii) upon request, make such data available to
the Administrator. EPA is approving this portion of Florida's
infrastructure submission for the 2010 1-hour NO2 NAAQS
because this submission is consistent with section 110 of the CAA.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial submittal and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
adverse comments be filed. This rule will be effective October 10, 2017
without further notice unless the Agency receives adverse comments by
September 11, 2017.
If EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All adverse public comments received will then be
addressed in a subsequent final rule based on the proposed rule. EPA
will not institute a second comment period. Parties interested in
commenting should do so at this time. If no such comments are received,
the public is advised that this rule will be effective on October 10,
2017 and no further action will be taken on the proposed rule.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 10, 2017. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: July 26, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart K-Florida
0
2. In Sec. 52.520, the table in paragraph (e) is amended by adding the
entry ``110(a)(1) and (2) Infrastructure Requirements for the 2010 1-
hour NO2 NAAQS (Element B only)'' at the end of the table to
read as follows:
Sec. 52.520 Identification of plan.
* * * * *
(e) * * *
[[Page 37316]]
EPA-Approved Florida Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
State
Provision effective EPA approval Federal Register Explanation
date date notice
----------------------------------------------------------------------------------------------------------------
* * * * * * *
110(a)(1) and (2) Infrastructure 1/22/2013 8/10/2017 [insert Federal Addressing section
Requirements for the 2010 1-hour Register citation]. 110(a)(2)(B) concerning
NO2 NAAQS (Element B only). ambient air quality
monitoring and data
system only.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2017-16809 Filed 8-9-17; 8:45 am]
BILLING CODE 6560-50-P
