[Federal Register Volume 77, Number 97 (Friday, May 18, 2012)]
[Proposed Rules]
[Pages 29581-29586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12137]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0809; FRL-9673-5]


Approval and Promulgation of Implementation Plans; Florida; 
Section 128 and 110(a)(2)(E)(ii) and (G) Infrastructure Requirements 
for the 1997 8-Hour Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental proposed rule.

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SUMMARY: EPA is proposing to supplement an April 18, 2012, proposed 
rule related to submissions provided by the State of Florida, through 
the Florida Department of Environmental Protection (FDEP) on December 
13, 2007, and supplemented on April 18, 2008, to demonstrate that the 
Florida State Implementation Plan (SIP) meets the ``infrastructure'' 
requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA or 
Act) for the 1997 8-hour ozone national ambient air quality standards 
(NAAQS). First, EPA is proposing to supplement that earlier proposed 
action by proposing full approval of the State's section 
110(a)(2)(E)(ii) infrastructure SIP in addition to the earlier proposed 
conditional approval of this sub-element. Second, EPA is proposing 
approval of the State's section 110(a)(2)(G) infrastructure SIP in 
addition to the earlier proposed federal implementation plan (FIP) for 
this element. In addition, EPA is proposing to approve two related 
draft revisions to the Florida SIP that were submitted for parallel 
processing by FDEP on April 19, 2012, to address the requirements of 
section 128 and the substantive requirements of section 110(a)(2)(G) of 
the CAA.

DATES: Written comments must be received on or before June 18, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2011-0809, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2011-0809,'' Regulatory Development Section, 
Air Planning Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2011-0089. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket

[[Page 29582]]

materials are available either electronically in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number 
is (404) 562-9140. Ms. Ward can be reached via electronic mail at 
[email protected].

Table of Contents

I. What is parallel processing?
II. Background
III. What elements are required under Sections 110(a)(1) and (2)?
IV. What is EPA's analysis of how Florida addressed CAA Section 128?
V. What is EPA's analysis of how Florida addressed CAA Section 
110(a)(2)(E)(ii)?
VI. What is EPA's analysis of how Florida addressed CAA Section 
110(a)(2)(G)?
VII. Proposed Action
VIII. Statutory and Executive Order Reviews

I. What is parallel processing?

    Parallel processing refers to a concurrent state and federal 
proposed rulemaking action. Generally under this process, the state 
submits a copy of the proposed regulation or other revisions to EPA 
before conducting its public hearing. See, e.g., 40 CFR part 51, 
Appendix V. EPA reviews this proposed state action and prepares a 
notice of proposed rulemaking. EPA publishes this notice of proposed 
rulemaking in the Federal Register and solicits public comment during 
approximately the same time frame during which the state is holding its 
public hearing. The state and EPA thus provide for public comment 
periods on both the state and the federal actions in parallel.
    On April 19, 2012, the State of Florida, through FDEP, submitted a 
request for parallel processing for draft SIP revision related to CAA 
section 128 and the substantive requirements of section 110(a)(2)(G). 
This revision was noticed for public comment by the State on April 19, 
2012, but is not yet state effective. Through today's proposed 
rulemaking, EPA is proposing parallel approval for this draft SIP 
revision.
    Once the April 19, 2012 revision is state-effective, Florida will 
need to provide EPA with a formal SIP revision request to incorporate 
these changes into the Florida SIP. After Florida submits the formal 
SIP revision request (including a response to any public comments 
raised during the State's public participation process), EPA will 
prepare a final rulemaking notice for the SIP revision. If the formal 
SIP revision associated with the parallel process submission is changed 
from what is proposed in today's action, EPA will evaluate those 
changes for significance. If any such changes are found by EPA to be 
significant, then the Agency intends to re-propose the action based 
upon the revised submission. In addition, if the changes render the SIP 
revision not approvable, EPA would re-propose the action as a 
disapproval of the revision.
    While EPA may not be able to have a concurrent public comment 
process with the State, the FDEP-requested parallel processing allows 
EPA to begin to take action on the State's draft SIP revision in 
advance of the submission of the formal SIP revision. As stated above, 
the final rulemaking action by EPA will occur only after the SIP 
revision has been: (1) Adopted by Florida, (2) evaluated for changes, 
and (3) submitted formally to EPA for incorporation into the SIP.

II. Background

    On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of the NAAQS was 
changed from 0.12 parts per million (ppm) to 0.08 ppm. See 62 FR 38856. 
Pursuant to section 110(a)(1) of the CAA, states are required to submit 
SIPs meeting the requirements of section 110(a)(2) within three years 
after promulgation of a new or revised NAAQS. Section 110(a)(2) 
requires states to address basic SIP requirements, including emissions 
inventories, monitoring, and modeling to assure attainment and 
maintenance of the NAAQS. States were required to submit such SIPs for 
the 1997 8-hour ozone NAAQS to EPA no later than June 2000. However, 
intervening litigation over the 1997 8-hour ozone NAAQS created 
uncertainty about how to proceed and many states did not provide the 
required ``infrastructure'' SIP submission for these newly promulgated 
NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue 
related to EPA's failure to issue findings of failure to submit related 
to the ``infrastructure'' requirements for the 1997 8-hour ozone NAAQS. 
EPA entered into a consent decree with Earthjustice which required EPA, 
among other things, to complete a Federal Register notice announcing 
EPA's determinations pursuant to section 110(k)(1)(B) as to whether 
each state had made complete submissions to meet the requirements of 
section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007. 
Subsequently, EPA received an extension of the date to complete this 
Federal Register notice until March 17, 2008, based upon agreement to 
make the findings with respect to submissions made by January 7, 2008. 
In accordance with the consent decree, EPA made completeness findings 
for each state based upon what the Agency received from each state as 
of January 7, 2008.
    On March 27, 2008, EPA published a final rulemaking entitled, 
``Completeness Findings for Section 110(a) State Implementation Plans; 
8-Hour Ozone NAAQS,'' making a finding that each state had submitted or 
failed to submit a complete SIP that provided the basic program 
elements of section 110(a)(2) necessary to implement the 1997 8-hour 
ozone NAAQS. See 73 FR 16205. For those states that did receive 
findings, such as Florida, the findings of failure to submit for all or 
a portion of a State's implementation plan established a 24-month 
deadline for EPA to promulgate a FIP to address the outstanding SIP 
elements unless, prior to that time, the affected states submitted, and 
EPA approved, the required SIPs. However, the findings of failure to 
submit did not impose sanctions or set deadlines for imposing sanctions 
as described in section 179 of the CAA, because these findings do not 
pertain to the elements contained in the Title I part D plan for 
nonattainment areas as required under section 110(a)(2)(I). 
Additionally, the findings of failure to submit for the infrastructure 
submittals are not a SIP call pursuant to section 110(k)(5).
    The finding that all or portions of a state's submission are 
complete established a 12-month deadline for EPA to take action upon 
the complete SIP elements in accordance with section 110(k). Florida's 
infrastructure submission was received by EPA on December 13, 2007, and 
was determined to be complete on March 27, 2008, for all elements with 
the exception of 110(a)(2)(G). In FDEP's December 13, 2007, submission, 
and in a letter dated April 18, 2008, FDEP cited State statutes as 
evidence that Florida has the

[[Page 29583]]

authority to implement emergency powers for the 1997 8-hour ozone NAAQS 
as required by section 110(a)(2)(G). EPA, however, proposed a FIP with 
respect to this element of the infrastructure SIP because the statutes 
cited by FDEP had not been approved into the Florida SIP.\1\ See 77 FR 
23181 (April 18, 2012). EPA noted that the Agency would take action to 
approve the FIP for element 110(a)(2)(G) unless Florida submits a final 
SIP revision correcting the deficiency for element 110(a)(2)(G) and EPA 
takes final action to approve the revision prior to such time that EPA 
is obligated to take final action on this 1997 8-hour ozone 
infrastructure SIP submission, per a settlement agreement signed on 
November 30, 2011.
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    \1\ In a letter dated March 23, 2012, FDEP notified EPA of 
FDEP's intent to submit a SIP revision to address the SIP deficiency 
for 110(a)(2)(G) in the very near future. The letter Florida 
submitted to EPA can be accessed at www.regulations.gov using Docket 
ID No. EPA-R04-OAR-2011-0809.
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    On April 19, 2012, FDEP submitted, for parallel processing, draft 
changes to address the deficiencies of the Florida SIP regarding the 
substantive requirements of section 110(a)(2)(G). Today's action 
proposes approval of these changes into the Florida SIP and proposes 
approval for element 110(a)(2)(G) of the State's infrastructure SIP 
submittal. If EPA is able to take final action on Florida's forthcoming 
final SIP revision prior to finalizing the April 18, 2012, proposed 
FIP, the final action to approve a FIP for 110(a)(2)(G) will no longer 
be necessary. If, EPA is not able to take final action the SIP 
revision, EPA may proceed with finalizing the FIP for element 
110(a)(2)(G).
    In EPA's April 18, 2012, proposed infrastructure rulemaking for 
Florida, the EPA also proposed to conditionally approve FDEP's December 
13, 2007, infrastructure submission with regard to the 110(a)(2)(E)(ii) 
requirements. EPA proposed conditional approval of this sub-element 
because the State's implementation plan did not contain provisions to 
address CAA section 128 requirements, however, FDEP submitted a letter 
to EPA on March 13, 2012, that included a commitment to submit a SIP 
revision to address the CAA section 128 requirements. See 77 FR 23181. 
The letter Florida submitted to EPA can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0809. On April 
19, 2012, FDEP submitted, for parallel processing, a draft SIP revision 
to address the deficiencies within the Florida SIP to address CAA 
section 128 requirements. In today's action, EPA is proposing to 
approve this SIP revision into the Florida SIP and supplement the 
Agency's earlier proposed conditional approval of Florida's 
infrastructure SIP with respect to sub-element 110(a)(2)(E)(ii) with a 
proposed approval of this sub-element contingent upon final action to 
approve the section 128 provisions into the Florida SIP.
    If EPA is able to take final action to approve Florida's 
forthcoming final SIP revision pertaining to the section 128 
requirements prior to taking final rulemaking action on the April 18, 
2012, proposed conditional approval and FIP, finalizing the conditional 
approval for 110(a)(2)(E)(ii) will no longer be necessary. If, EPA is 
not able to take final action on the SIP revision, EPA may proceed with 
finalizing the conditional approval for element 110(a)(2)(E)(ii).

III. What elements are required under Sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 1997 8-hour ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with previous ozone 
NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of EPA's proposed infrastructure SIP rulemaking for Florida are 
listed below \2\ and in EPA's October 2, 2007, memorandum entitled 
``Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for 
the 1997 8-Hour Ozone and PM2.5 National Ambient Air Quality 
Standards.''
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    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C). Additionally, EPA has taken action on all other 
infrastructure elements with the exception of 110(a)(2)(D)(i) for 
Florida in a separate rulemaking from today's action. Today's action 
is limited to infrastructure elements 110(a)(2)(E)(ii) and 
110(a)(2)(G) only.
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.\3\
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    \3\ EPA's April 18, 2012, proposed rule does not address element 
110(a)(2)(D)(i) (Interstate Transport) for the 1997 8-hour ozone 
NAAQS. Interstate transport requirements were formerly addressed by 
Florida consistent with the Clean Air Interstate Rule (CAIR). On 
December 23, 2008, CAIR was remanded by the D.C. Circuit Court of 
Appeals, without vacatur, back to EPA. See North Carolina v. EPA, 
531 F.3d 896 (D.C. Cir. 2008). Prior to this remand, EPA took final 
action to approve Florida's SIP revision, which was submitted to 
comply with CAIR. See 72 FR 58016 (October 12, 2007). In so doing, 
Florida's CAIR SIP revision addressed the interstate transport 
provisions in section 110(a)(2)(D)(i) for the 1997 8-hour ozone 
NAAQS. In response to the remand of CAIR, EPA has recently finalized 
a new rule to address the interstate transport of nitrogen oxides 
and sulfur oxides in the eastern United States. See 76 FR 48208 
(August 8, 2011) (``the Cross-State Air Pollution Rule''). EPA's 
action on element 110(a)(2)(D)(i) will be addressed in a separate 
action.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards,'' but 
as mentioned above is not relevant to today's proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.

[[Page 29584]]

     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    As discussed above, on April 18, 2012 (77 FR 23181), EPA proposed 
action on Florida's December 13, 2007, infrastructure submission for 
the 1997 8-hour ozone NAAQS. Today's proposed action supplements EPA's 
April 18, 2012, proposed rulemaking with regard to the conditional 
approval for section 110(a)(2)(E)(ii), and a FIP for section 
110(a)(2)(G) requirements for Florida for the 1997 8-hour ozone NAAQS. 
Today's action proposes full SIP approval for both elements based upon 
pending changes to the Florida SIP regarding section 128 (State Boards 
as applicable to the State's infrastructure SIP pursuant to section 
110(a)(2)(E)(ii)) and the substantive requirements of section 
110(a)(2)(G) (emergency power authority comparable to that in section 
303 of the CAA).

IV. What is EPA's analysis of how Florida addressed CAA Section 128?

    Section 128 of the CAA requires that states include provisions in 
their SIP to address conflict interest for state boards that oversee 
CAA permits and enforcement orders. Specifically, CAA section 128 reads 
as follows:
    (a) Not later than the date one year after August 7, 1977, each 
applicable implementation plan shall contain requirements that--
    (1) any board or body which approves permits or enforcement orders 
under this chapter shall have at least a majority of members who 
represent the public interest and do not derive any significant portion 
of their income from persons subject to permits or enforcement orders 
under this chapter, and
    (2) any potential conflicts of interest by members of such board or 
body or the head of an executive agency with similar powers be 
adequately disclosed. A State may adopt any requirements respecting 
conflicts of interest for such boards or bodies or heads of executive 
agencies, or any other entities which are more stringent than the 
requirements submitted as part of an implementation plan.
    During the evaluation of Florida's SIP in regards to EPA's proposed 
rulemaking of the State's December 13, 2007, and supplemented on April 
18, 2008, infrastructure submission related to section 110(a)(2)(E)(ii) 
for the 1997 8-hour ozone NAAQS, EPA noted that Florida's SIP did not 
include provisions to address CAA section 128 requirements. As such, 
EPA alerted the State to this missing component of their implementation 
plan and as a result, FDEP submitted a letter to EPA dated March 13, 
2012, which contained the State's commitment to correct this deficiency 
and requested that EPA take action to conditionally approve 
110(a)(2)(E)(ii) as a result of this commitment. Based upon this 
commitment, EPA proposed conditional approval of this sub-element in 
its April 18, 2012, rulemaking. See 77 FR 23181. On April 19, 2012, 
FDEP submitted a draft SIP revision for parallel processing to address 
the section 128 requirements. Florida's April 19, 2012, draft SIP 
revision, proposes to include existing state statues to meet the 
applicable requirements of section 128.
    For purposes of section 128(a)(1), Florida has no boards or bodies 
with authority over air pollution permits or enforcement actions. Such 
matters are instead handled by an appointed Secretary. Appeals of final 
administrative orders and permits are available only through the 
judicial appellate process described at Florida Statute 120.68. As 
such, a ``board or body'' is not responsible for approving permits or 
enforcement orders in Florida, and the requirements of section 
128(a)(1) are not applicable.
    Regarding section 128(a)(2) (also made applicable to the 
infrastructure SIP pursuant to section 110(a)(2)(E)(ii)), Florida has 
submitted for incorporation into the SIP relevant provisions of Florida 
Statutes 112.3143(4)--Voting Conflict and 112.3144--Full and Public 
Disclosure of Financial Interests. Because Florida does not rely upon a 
``board or body'' to approve permits or enforcement orders, the 
conflict of interest disclosure requirements of section 128(a)(2) only 
apply to the head of the State's executive agency (i.e., FDEP) tasked 
with these powers. The above cited Florida Statutes are applicable to 
the Secretary of FDEP and EPA has preliminarily determined them to be 
sufficient to satisfy the applicable conflict of interest provisions of 
section 128.
    Today, EPA is proposing to approve Florida Statutes 112.3143(4) and 
112.3144 into the Florida's SIP as meeting the requirements of section 
128 of the CAA. This proposed approval is contingent upon Florida 
submitting a final SIP revision consistent with the April 19, 2012, 
draft SIP revision.

V. What is EPA's analysis of how Florida addressed CAA Section 
110(a)(2)(E)(ii)?

    Section 110(a)(2)(E)(ii) requires that each implementation plan 
provide that the State comply with the requirements respecting state 
boards pursuant to section 128 of the Act.\5\ As a result of Florida's 
April 19, 2012, draft SIP revision to address 128 requirements 
(discussed above), EPA is now proposing a full approval of Florida's 
December 13, 2007, infrastructure submission with regard to section 
110(a)(2)(E)(ii) for the 1997 8-hour ozone NAAQS. This proposed full 
approval (contingent on EPA's final approval of Florida's SIP revision 
to meet the CAA section 128 requirements) is an alternative to the 
conditional approval that EPA proposed for this element on April 18, 
2012. See 77 FR 23181. If EPA is able to take final action to approve 
Florida's forthcoming final SIP revision pertaining to these 
requirements prior to taking final action on the April 18, 2012, 
proposed conditional approval, finalizing the conditional approval for 
110(a)(2)(E)(ii) will no longer be necessary. If, EPA is not able to 
take final action on the SIP revision, EPA may proceed with finalizing 
the conditional approval for element 110(a)(2)(E)(ii).
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    \5\ Today's action is related specifically to the 
110(a)(2)(E)(ii) sub-element of Florida's December 13, 2007, 
infrastructure submission for the 1997 8-hour ozone NAAQS. As noted 
earlier in this proposed rulemaking, EPA has already proposed action 
for the majority of Florida's December 13, 2007, infrastructure 
submission for the 1997 8-hour ozone NAAQS, and is not re-proposing 
for many of those elements, including sub-elements 110(a)(2)(E)(i) 
and 110(a)(2)(E)(iii), in this today's action.
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VI. What is EPA's analysis of how Florida addressed CAA Section 
110(a)(2)(G)?

    Section 110(a)(2)(G) requires states to provide for authority to 
address activities causing imminent and substantial endangerment to 
public health, including contingency plans to implement the emergency 
episode provisions in their SIPs. On March 27, 2008, EPA published a 
final rulemaking entitled, ``Completeness Findings for Section 110(a) 
State Implementation Plans; 8-Hour Ozone NAAQS,'' making a finding as 
to whether each state had submitted or failed to submit a complete SIP 
that provided the basic program elements of section 110(a)(2) necessary 
to implement the 1997 8-hour ozone NAAQS. See 73 FR 16205. Florida was 
among the states that received a finding of failure to submit because 
its infrastructure submission was deemed incomplete for element 
110(a)(2)(G) for the 1997 8-hour ozone NAAQS by March 1, 2008. The 
finding of failure to submit action triggered a 24-month clock for EPA 
to either issue a FIP or take final action on a SIP revision which 
corrects the deficiency for which the

[[Page 29585]]

finding of failure to submit was received. See 42 U.S.C. 7410(c)(1).
    In FDEP's December 13, 2007, submission and a letter dated April 
18, 2008, FDEP cited State statutes as evidence that Florida has the 
authority to implement emergency powers for the 8-hour ozone standard. 
The April 18, 2008, letter FDEP sent to EPA, which included the 
specific State statutes cited by FDEP, can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0809. Because 
these statutes had not been adopted into the federally-approved SIP, in 
an April 18, 2012, rulemaking, EPA proposed a FIP to correct this 
deficiency and preliminarily determined that the cited statutes were 
sufficient to meet the requirements of section 303 of the CAA thus meet 
the requirements of element 110(a)(2)(G). See 77 FR 23181. In the April 
18, 2012, rulemaking, EPA noted the Agency's intentions to approve a 
FIP for element 110(a)(2)(G) unless Florida submitted a final SIP 
revision correcting the deficiency for element 110(a)(2)(G) and the 
Agency acted on such submission prior to the finalization of the FIP.
    Due to EPA's obligations pursuant to the infrastructure SIP 
settlement agreement described above, EPA would need to take final 
action to approve such a SIP revision prior to the date on which EPA is 
obligated to take final action on the FIP for this element. Should 
final approval of a SIP revision related to emergency powers (the 
subject of this action) occur after EPA finalizes a FIP for element 
110(a)(2)(G), EPA would act to rescind the FIP at that time. If EPA is 
able to take final action to approve Florida's forthcoming final SIP 
revision pertaining to these requirements (section 110(a)(2)(G)) prior 
to taking final rulemaking action on the April 18, 2012 proposed FIP, 
finalizing the FIP for 110(a)(2)(G) will no longer be necessary.
    On April 19, 2012, FDEP submitted a draft SIP revision, for 
parallel processing, to address the 110(a)(2)(G) requirements for the 
1997 8-hour ozone NAAQS. In FDEP's proposed SIP revision, Florida 
Statutes 403.131 and 120.569(2)(n) were submitted for inclusion to the 
SIP to address the requirements of section 110(a)(2)(G) of the CAA. EPA 
has reviewed Florida's April 19, 2012, draft SIP revision, and has made 
the preliminary determination, that the draft revision is adequate for 
emergency powers and meets the requirements of 110(a)(2)(G) for the 
1997 8-hour ozone NAAQS. Therefore, through today's action, EPA is 
proposing to approve this revision into the Florida SIP and is 
proposing approval in alternative to the Agency's April 18, 2012, 
proposed FIP for this infrastructure element. This proposed approval is 
contingent upon Florida submitting a final SIP revision consistent with 
the April 19, 2012, draft SIP revision.

VII. Proposed Action

    As described above, EPA is proposing to approve Florida's April 19, 
2012, draft SIP revision to incorporate provisions into the Florida SIP 
to address section 128 requirements of the CAA. As a result of EPA's 
proposed approval of Florida's April 19, 2012, draft SIP revision to 
address 128 requirements, EPA is also proposing to approve the 
110(a)(2)(E)(ii) sub-element of Florida's December 13, 2007, 
infrastructure submission for the 1997 8-hour ozone NAAQS. Further, EPA 
is proposing to approval Florida's April 19, 2012, draft SIP revision 
to incorporate provisions into the Florida SIP to address section 
110(a)(2)(G) requirements for the 1997 8-hour ozone NAAQS. As a result 
of EPA's proposed approval of Florida's April 19, 2012, draft SIP 
revision to address the substantive requirements 110(a)(2)(G), EPA is 
also proposing to approve the 110(a)(2)(G) element of Florida December 
13, 2007, infrastructure submission for the 1997 8-hour ozone NAAQS.
    EPA's proposed approval is contingent on Florida's submission of a 
final SIP revision to address CAA section 128, and the substantive 
requirements of CAA section 110(a)(2)(G) for the 1997 8-hour ozone 
NAAQS. Should Florida not submit a final SIP revision to EPA addressing 
CAA section 128, and CAA section 110(a)(2)(G) requirements for the 1997 
8-hour ozone NAAQS and/or EPA is not able to finalize a full approval 
action prior to such time that EPA is obligated to take final action on 
the 1997 8-hour ozone infrastructure SIP submission for Florida, EPA 
will be obligated to take final action on the proposed conditional 
approval of section 110(a)(2)(E)(ii) and the proposed FIP for 
110(a)(2)(G). The Agency has made the preliminary determination that 
these proposed actions are consistent with the CAA and EPA guidance 
related to 128 requirements and infrastructure submissions.

VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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


[[Page 29586]]


    Dated: May 7, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-12137 Filed 5-17-12; 8:45 am]
BILLING CODE 6560-50-P